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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES E. LIPPERT, Defendant-Appellant.
    Fifth District
    No. 82—578
    Opinion filed June 8, 1984.
    Rehearing denied June 12, 1984.

      Randall A. Bono, William R. Haine, and Stephen K. Anderson, all of Bono and Haine, Ltd., of Wood River, for appellant.
    Don W. Weber, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Frank J. Bieszczat, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE EARNS

delivered the opinion of the court:

James E. Lippert appeals from his conviction on one count of murder following a bench trial in the circuit court of Madison County. The trial court found that Lippert had set fire to his house knowing that there was a strong probability that the fire would cause death or great bodily harm to his wife, Ruth. During the fire, Ruth died of asphyxia caused by smoke inhalation. Lippert was sentenced to 40 years in prison.

At about 2:30 a.m. on October 28, 1980, fire broke out in the Lip-pert home. Lippert said he heard the sound of breaking glass and some sort of thumping sound. When he went into the living room he saw flames near the picture window. The house filled with smoke. Lippert returned to the master bedroom he shared with his wife but was unable to find her there. He looked in other rooms and in the garage but did not find her. Lippert left the burning house through the garage.

A neighbor saw the flames and called the fire department at about 2:34 a.m. Deputy Sheriff Gibson was on the scene at 2:39 a.m. He saw Lippert running nude from the garage to the back of the house, where he put a ladder up to the spare room window. Gibson heard Lippert screaming his wife’s name and observed that Lippert was visibly upset. Gibson thought Lippert was not dirty from smoke. Shortly after his arrival, Gibson saw flames shooting out of the master bedroom as well as from the living room window.

Volunteer firemen began arriving within five minutes of the first call. They found an unusually hot fire which produced dense smoke and reignited after it had been hosed down, most notably in the living room and stairwell area. Firemen noted that the top of the front door and the top of the door leading to the garage were burned away. After the firemen put a ladder up to the window of the master bedroom, they saw Ruth’s body on the bed. When the firemen were finally able to get into the master bedroom, they found the body at an angle on the bed, the detached left foot on the floor next to the bed and the right leg over the edge, with the right foot resting on the floor.

While the firemen struggled with the fire, Deputy Gibson placed Lippert in the police car and covered him with a jacket. Later Lippert was taken to a neighbor's home, where he was given clothes. The neighbors who observed Lippert testified that he was obviously upset, smelled of smoke and was covered with a black film which came off on a washcloth. He was seen coughing and expelling “black stuff” from his mouth. He had first degree burns across his shoulders and back and his hair was singed on top. At the hospital he was treated with oxygen and Valium for smoke inhalation and an anxiety reaction. He refused to be admitted.

Police and fire investigators were notified of the fire very quickly. A police photographer arrived at 3:48 a.m. State Fire Marshal Bux-ton, East Alton Fire Chief Shewmaker, Deputy Sheriff Crockarell and Alva Busch of the Illinois Department of Law Enforcement conducted the initial investigation of the cause and origin of the fire. Once they were able to view the interior of the house and examine the debris, the investigators quickly concluded that the fire resulted from the deliberate ignition of a flammable liquid which had been poured in the living room, trailed into the fatal bedroom, down the stairs to the basement and over to the door leading to the garage. Buxton ruled out a malfunction in either the electrical or heating system as the cause of the fire. Shortly after 6:35 a.m., the deputies who were interviewing Lippert at the hospital informed him that he was suspected of setting the fire. The sheriff’s department already knew that on October 24, 1980, Lippert had been convicted of indecent liberties with a minor and had been released on bond the day before the fire.

Lippert was interviewed several times in the hours immediately after the fire. He denied his own involvement in starting the fire but said to officers as well as to friends that he thought the house had been firebombed by someone seeking revenge in connection with the indecent liberties conviction. Lippert agreed to take a voice stress test as a check on his veracity. At trial, the result of the test was not admitted, but admissions made by Lippert at the time of the testing were ruled admissible. At that time Lippert stated that he had taught chemical and psychological warfare during the 90 days he was in the Air Force, but Air Force records show only that he was honorably discharged as a private first class for medical reasons. In describing his actions during the fire, Lippert said he thought someone, perhaps Ruth, was beside him in the smoke but that the only way out for that person was through an upstairs window because “the fire was coming down [the stairs] behind me.” Deputy Sheriff Fischer testified that Lippert described to him the fire “trickling down the stairs *** following a line down the steps” and so blocking his return to the upper floor of the split level house.

On November 7, 1980, Lippert was indicted on two counts of murder and one count of aggravated arson. Trial was preceded by extensive discovery and vigorous argument of pretrial motions. Of particular concern to the defense was a statement given to the State by Earl Abney, a prisoner who had shared a cell with Lippert on March 11 and 12, 1981. Abney stated that Lippert admitted stuffing rags in the furnace and tampering with the wiring but was confident he had left no incriminating evidence. Abney reported that Lippert talked freely because they were both in jail for indecent liberties with a minor. On May 1, 1981, Lippert filed a motion in limine requesting that the State delete from Abney’s statement all references to sex offenses and prevent any reference to such offenses from being made in the presence of the jury.

On May 29, 1981, the court ruled that Abney could not refer to sex offenses in his testimony except when he repeated Lippert’s own references to Abney and Lippert having the common experience of being in jail on sex charges. Ruling on other motions, the court ordered the State to refrain from any mention of Lippert’s conviction except for impeachment purposes. Lippert was permitted to show that his conviction was on appeal. On June 8, 1981, Lippert waived a jury trial because he thought that the trial court, which had conducted Lippert’s previous trial, was best qualified to weigh the prior conviction and to correctly construe Lippert’s decision not to testify if he were to make that choice at trial. He also thought the trial court could best evaluate the “highly technical” nature of expert testimony.

Although most of the testimony at trial was that of expert witnesses and was technical in nature, Abney also testified for the State as expected. He stated that Lippert had showed him sketches of the furnace and explained in detail how he had arranged it so that wires would appear to be melted together and there would “be something melted inside [the furnace].” Abney claimed his conscience was shocked by the coldness with which Lippert spoke of killing his wife and going into the obscene picture business. Abney denied that he had made a deal with the prosecution in exchange for his testimony. On cross-examination Abney admitted that he had previously lied in court and had signed false affidavits concerning his own criminal record in order to gain release from jail. During post-trial motions, the court learned that Abney had been placed on probation, which the prosecution explained had occurred because the minor plaintiff in the indecent liberties case against Abney had failed to identify him. Another prisoner, who had been in jail with Lippert in November 1980, a few days after the fire, testified for the State that Lippert drew a rough diagram of the furnace to show how black people had caused the furnace to overheat and catch fire.

The State’s case was primarily based on burn patterns observed and interpreted by its expert witnesses. These witnesses testified that fire normally burns up and out from its origin and that it usually burns in a continuous path as it spreads across a surface such as a carpet. In the Lippert house the patterns of bums on the floors and stairs were said to be “spotty” and “erratic,” but when viewed altogether they formed a network connecting the master bedroom, living room, and stairs. A deep char at the top of the stairs, isolated from other deep burning, was part of a “sporadic and irregular” pattern of burning on the center of the stair treads. This pattern was considered abnormal because a fire which had begun upstairs would not have moved down except as carried by a fuel source at floor level. A fire which began in the basement should have consumed the entire lower portion of the stairs before the upper stairs were burned. Intermittent burning of the studs supporting the stairs indicated fire traveling up and down the stairs simultaneously. An aluminum door which opened to the outside from the landing of the stairs was melted at both the top and bottom. The top melting was considered the result of normal venting of the fire at the top of an exit. The melted bottom indicated “a very abnormal heat at floor level” in the foyer. The garage door also burned at the bottom.

In the master bedroom the burn patterns were localized in the northwest portion. The burns appeared underneath and on both sides of the bed, which was two or three feet from the west wall with its head against the north wall. Buxton described a heavy irregular burn around the north vent on the west wall, although he conceded that photographs showed unconsumed carpet in the area where he thought accelerant had been poured. He also described a crescent-shaped burn beneath the bed as the possible result of a sloshing action with a gas can which itself would not fit under the bedframe. While one expert testified that low burning along the north wall had not entirely consumed the baseboard and carpet at floor level, another expert pointed out that the paneling on the northwest corner of the master bedroom was burned away above a line level with the mattress, indicating to him that the fire emanated from the surface of the bed. The bedroom ceiling showed the same localized burning in the northwest portion of the room as the burn patterns on the floor. The paneling on the east wall above a heat duct showed no sign of an open flame venting through the duct although the wall showed the effects of great heat in the room.

The State’s witnesses pointed out that the burns were not only irregularly placed but also unexpectedly deep in certain spots. The most severely burned areas upstairs were the west wall of the bedroom near floor level, that is, within two or three feet of the body, and the area in the living room along or near the west wall where there was a picture window. The State’s experts considered it important that the burn in the living room consumed the carpet and padding and penetrated the wood flooring, since deep burning could indicate accelerant holding the heat to the floor. Buxton explained that a burning chair could also create deep burns by holding heat to the floor. Charring beneath a living room bookcase, not attributable to burning furniture, was also offered as evidence of a liquid accelerant. The vertical supports and the underside of the stairwell were heavily and regularly charred, evidence that a hot, fast fire had sprung up from floor level in the basement and burned up the stairwell, fed by the natural flue effect of the stairs as well as by household items stored beneath the stairs. Buxton pointed out that the accelerant could have been poured beneath the steps or could have dripped through the stairs from above. He also testified that gasoline vapors which feed a fire are heavier than air and accumulate in low places such as stairwells, heating ducts, or surface depressions.

The State’s experts considered two small areas of broken concrete floor in the basement indicative of pooled liquid burning for an extended period. This breaking of the concrete, called spalling, is caused by the expansion of water vapor within the concrete when heat is held against the surface. The State did not determine that the points of spalling were in fact low spots in the concrete; a defense expert testified that water drained away from the spalls. The defense also countered with a learned treatise which stated that spalling was often erroneously taken as the sign of an accelerant. A concrete expert testified that spalling could occur where burning wood or metal fell on the concrete and no liquid was present.

The State’s investigation of the basement provided nothing to alter its theory that an accelerant was the cause of the fire. The investigators checked the electrical system as well as the controls and burn chamber of the furnace but saw nothing to identify either as the source of the fire. They saw no evidence that fire had come out of the combustion chamber and moved to the joists above the furnace. Bux-ton did not look into the top of the furnace because the paint on the outside indicated to him that the furnace was not “relevant to the fire.” Another expert “pretty well eliminated that furnace area as a source of a tremendous amount of heat or flame” because he observed that the copper solder on the A-coil was unmelted. He could not connect the floor level burning on the north end of the basement near the garage door with the burned joists in the south end of the basement. No one found rags stuffed into the fire chamber in a manner consistent with Abney’s story. The State’s experts did not note that ductwork leading from the furnace to the west side of the house was missing.

A variety of physical evidence was gathered for testing. Among other items, the State took carpet and flooring from the west side of the bed, carpet and pad from the living room, a section of the vinyl couch, debris from under a bookcase in the living room where a hydrocarbon detector had given a positive reading, and baseboard from the basement hallway. Tongue-and-groove flooring from the living room was pried apart to show burning in the grooves. The mattress from the master bedroom was not tested. A sample of carpet taken from outside the “pour area” was used as a control sample in the testing process. A t-shirt was taken from a laundry basket in the basement because it smelled of petroleum. Testing of these items by the State’s forensic scientist failed to show any trace of a definitely identified accelerant. The t-shirt gave a positive reading of some kind of solvent or hydrocarbon in the midrange of flammability. The State’s experts testified that the gas chromatograph used to test for acceler-ants could fail to register a flammable liquid even when a person could still smell it in the sample and that fuels could be completely consumed by fire or washed away by the firefighters. The carpet taken from beneath the bookcase gave the same test result as the clean sample of carpet. Three items contained gasoline: two gas cans taken from the garage and a sample of gasoline taken from the car in the garage.

The State contended that the condition of Ruth’s body confirmed the presence of an accelerant. Dr. Harry Parks, the forensic pathologist who performed the autopsy, testified that the lower torso and internal organs were charred. Both hands were also burned. Parks’ examination revealed no burning of the respiratory system, no trauma to the brain or skull. He testified that while it was common to see severe burns “in gasoline fires in cars and planes,” he could not say “this degree of burning means it had to have been gasoline involved ***.” Parks considered a distance of three or four feet between Ruth’s face and an accelerant fire sufficient to account for the lack of burning in her trachea and lungs shown by his microscopic examination.

Over defense objections, George E. Gantner, Jr., chief medical examiner of St. Louis City and St. Louis County, testified concerning the cause of the burning to the body. Gantner based his evaluation on Parks’ autopsy report and pictures of the body and master bedroom. He likened the condition of the body to that of other victims he had seen where fire had consumed “the flooring and structure beneath the body.” While the hands and feet commonly burn first, Gantner pointed out that “severe injury to the one extremity without complete consumption of the other parts” suggested that the body had been subjected to uneven temperatures. He believed either a hot fire or prolonged exposure or a combination of the two was necessary to produce the injury, but he did not see in the photographs enough damage to the bedroom to explain the severity of the burning. Asked directly whether gasoline poured on the leg could cause the injury, he answered affirmatively.

Taking into account the physical evidence as well as the intensity and stubbornness of the fire, the State argues that a flammable accel-erant had been intentionally poured in the living room, in the bedroom, on the bed and victim, and down the stairwell to the basement, where it was ignited by Lippert as he stood in safety behind the door leading to the garage. They contended that the fire erupted simultaneously throughout the house, instantly superheating the air wherever there was accelerant. Small clear fragments of the picture window suggested that it was broken out by extreme heat or the concussion of ignition before a film of smoke could form on the glass. An ample supply of oxygen entering through the broken window would have encouraged the fire.

Lippert’s motion for a directed verdict at the close of the State’s case in chief was denied. Lippert chose not to testify and the defense which followed the denial was based on the theory that the burn patterns corresponded to areas where highly flammable furniture stood and where heavy use had worn away the nap of the carpet, making it susceptible to quick burning after a malfunction in the heating system propelled heat or flame into the rooms. Neighbors and relatives testified that two or three chairs and a couch had stood in the area of the heavy burning in the living room. The carpet was described as heavily worn in that area as well as at the top of the steps. The burns centered on the .stair treads were said to correspond to the points of heaviest wear. The vertical bums on the risers were explained as the natural effect of fire burning upward. A path worn in the carpet in prior years when the bed was placed on the south wall of the bedroom accounted for the crescent burn under the bed.

A major premise of the defense was that a furnace malfunction started the fire. A furnace expert, examining the furnace in March or April of 1981, observed that the insulated control wiring was melted in the lower part and charred by open flame above. To him, melted wires meant the temperature controls were ineffective and air moving through the furnace could be heated beyond the normal limits. He saw no melted metal or plastic in the blower, evaporation coil or A-coil on top of the furnace, although a wooden framing just above the furnace was burned. The State’s rebuttal witness, an electrical engineer who was an arson investigator, testified that the cause was not a superheated furnace because the whole top of the furnace was not burned out, and damage in the furnace room was not the result of direct fire but heat from the hallway. James A. Flynn, a forensic chemist testifying for the defense, cut out a section of flooring from the guest room closet just above the furnace. He found the top of the furnace “partially melted in two areas” and the flooring charred on the side nearest the furnace but not discolored on top.

Defense experts differed on the point at which the fire began. The furnace expert would not say the fire started in the furnace, only that “there was a fire in the furnace.” Others testified that the fire might have begun in the ceiling joist and plywood just above the furnace, in an opening between a heat duct and a cold air return or “at the bottom of the basement stairs at a point at about ceiling level adjacent to a hot air duct ***. At least one of those joists is completely burned through. It’s the deepest burning that was found anywhere in the house.”

Pyrophoric carbon, a condition caused by exposing wood to continuous heat, was put forward to explain the origin of the fire. The ignition point of such dried wood is lowered, so that it will burn more easily than normal wood. The furnace expert testified that the duct-work was improperly installed, so that hot air escaping through faulty joints circulated in cold air returns where there was exposed wood. One expert explained that a furnace explosion in the Lippert home in 1977 could have caused bulging of the ductwork so that heat could escape, but the remaining ductwork joints showed corners which were “square” and “intact.” A forensic chemist, testifying for the State, stated that pyrophoric carbon would produce a smoldering, smoky fire.

Several defense witnesses associated the path of the fire with the ductwork of the heating system. They testified that floor joists in the basement were burned where they paralleled ductwork leading to vents in the master bedroom, that the north wall of the bedroom was more severely burned near the cold air return than at floor level, and that wall studs in the master bedroom and living room burned only in the cold air return system. However, the furnace expert testified that the cold air return was on the east wall of the bedroom, which did not burn. Descriptions of the heat register's on the west wall of the living room were inconsistent, although they agreed that one register was burned on one end only.

A sizeable section of aluminum duct distributing heat to the west side of the house was missing. Some melted aluminum was found on top of the main beam in the basement and a section of partially melted duct remained in the garage. Neither the missing duct nor its melted residue was found. That portion which remained was described as “severely smoke stained” and “black on the inside” while the east duct was “clean inside.” Defense experts testified that the furnace blower propelled heat or even “flaming bits” out into rooms filled with highly flammable draperies, paneling, carpeting and furniture, which supported a hot, intense fire.

The State’s case was considered defective because it did not recognize that the combustion of these furnishings would explain the damage to the house and body. Several witnesses described a process in which draperies ignited by heat or flame from the vents could have fallen on the carpet and couch, leading to a fire which would have made the upper floor untenable in five or 10 minutes. Although no evidence was offered to show that a fan in the south end of the attic was operating, the defense contended that the effect of such a fan and the brisk wind from the north would be to drive the flame south from the living room to the master bedroom.

John F. Connell, a New York expert on the cause and origin of fires, viewed the Lippert home three times shortly before trial and reviewed police reports and photographs. He testified that the fire was caused by a defect in the heating system and directly contradicted major points forwarded by the State’s experts. He did not accept their assertion that carpet doused with a flammable liquid might not register on the gas chromatograph. He testified that the gas chro-matograph “would pick it up ***” even if it could not be identified. He stated that the mattress also would have retained traces of a flammable liquid. Neither party tested the mattress. He considered the fourth degree burns on the body fully consistent -with the length of time it was in the fire and not necessarily the result of an accelerant. After clearing and photographing the floors in the dining area and guest bedroom where the State had not alleged any accelerant had been used, he testified that burning material falling on those floors had produced burns similar to those in the living room and bedroom. Connell did not see any difference between the burns at the top of the stairs and those caused by the dropping of burning materials in the other rooms. He characterized the damage to the steps as burning of “the leading edge of the tread ***” because of wear.

Photographs and samples of flooring from the kitchen and guest room were offered by the State to show that the floor burns in those rooms were related to the falling of ceiling tiles rather than acceler-ant and that the tongue-and-groove joints did not show the same deep burning as samples taken from the living room.

In Connell’s opinion, a deliberate pour of accelerant in sufficient quantity to explain the burning under the steps would have destroyed the steps entirely and a person pouring enough gasoline to explain the charring of the floor would have been blown away from the house when the furnace pilot light ignited the gasoline fumes. He assumed the pilot light and blower were on because the weather was cool and there was soot and smoke stain in the ductwork.

In rebuttal, Barker Davie, a forensic chemist and fire investigator, described four areas in the living room not associated with melting furniture, which indicated that an accelerant had been used: charring around the lip of a heat register, charring under the bookcase and two isolated hot spots in the hallway. He did not see ceiling damage above the living room registers commensurate with rising hot gas and no evidence that rubberbacked draperies had fallen on the floor or near where the couch was supposed to be. He testified that the mattress was not a good fuel source because of its density but the wall joists behind the bed were heavily charred about 18 inches from the floor. Davie contradicted Connell’s assertion that a sizeable pour of gasoline would have caused a power explosion. He explained that an explosion depended on the presence of a particular ratio of vapor to air and that if there were too much or too little vapor there could be fire without explosion and that the fire might burn along the path of a “pour” but not necessarily consume nearby materials.

After complimenting both sides on their preparation and presentation, the court retired to consider the evidence. On August 31, 1981, the trial court found Lippert guilty of one count of murder. A post-trial motion, a motion to arrest judgment and a motion for a new trial to admit additional evidence were denied. Judgment and sentence were entered on August 17,1982. This appeal followed.

On appeal Lippert presents the following issues: (1) whether his conviction was “against the manifest weight of the evidence”; (2) whether statements made by Lippert during a voice stress test were improperly admitted; (3) whether it was reversible error for the trial court to permit Earl Abney to testify that Lippert had been convicted of a sex offense; (4) whether the denial of Lippert’s motion in limine to bar impeachment with a prior conviction was error; (5) whether unsupported insinuations by the prosecution denied Lippert a fair trial; and (6) whether he was denied a fair trial because the prosecution delayed in making available an insurance report including pictures of the house and furnace as they appeared in 1977.

The review of testimony presented at the trial shows that virtually every factual issue was a matter of dispute between the experts. Most of the evidence was circumstantial, although Lippert’s statements to the police provided direct evidence of the beginning of the fire and his own actions. Where the evidence is conflicting, it is the duty of the trier of fact to weigh the evidence and judge the credibility of the witnesses. A reviewing court will not reverse a criminal conviction unless the evidence is so improbable that it creates a reasonable doubt of the defendant’s guilt. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.) A conviction can be sustained only if it rests on the strength of credible evidence presented by the prosecution. (People v. Morgan (1970), 121 Ill. App. 2d 196, 257 N.E.2d 554.) Circumstantial evidence is sufficient to support a conviction if it leads to “a reasonable and moral certainty that the accused and no one else committed the crime.” (People v. Williams (1977), 66 Ill. 2d 478, 484-85, 363 N.E.2d 801, 804.) We find that the record contains sufficient evidence to support the trial court’s judgment that Lippert deliberately set the fire which caused his wife’s death.

The thrust of the State’s case was that the fire burned abnormally and that all the abnormalities indicated the use of an accelerant. The fire was hotter, faster and more stubborn than the usual house fire. It burned in a discontinuous pattern, with three major sites of severe burning connected by a spotty trail of lesser burns. While some of the burn pattern could be associated with melting furniture, fallen tile, or worn carpet, there was also burning at isolated points in the hallway and in comers where there was no vinyl furniture, tile or walkway. The floor level burning of baseboard and lower step in the basement and the “alligator charring” in the stairwell sides indicated a fast fire coming up from the basement. The low burning in the basement was beneath and away from the point in the joists where the defense indicated that pyrophoric carbon could have ignited. The thin pattern of bums on the upper half of the stairs indicated fire moving down, contrary to its normal tendency to bum up and out. Lippert’s own description of the fire was a “trickling *** following a line down the steps.” It was not clear whether the floor of the foyer which separated the upper and lower steps showed a continuation of burning between the upper and lower levels, although enough heat was generated at floor level on the foyer to melt the aluminum door at the bottom, contrary to the normal tendency of fire to vent itself at the highest point possible. The garage door in the basement was also burned from the bottom.

In the master bedroom the severest burning was localized in the northwest corner opposite the door. The burning at floor level on the west side of the bed left an irregular pattern and burned up toward the side of the bed. A defense witness testified that the registers in the bedroom, one of which was near the bed, appeared to have been closed at the time of the fire. The burning on the north wall of the bedroom appeared to have burned up and down from a line parallel to the mattress top, charring the top of the baseboard but leaving the bottom edge and wooden tack strip beneath it intact. There was testimony that a mattress is not a good fuel because of its density and that the mattress was not much damaged. Nevertheless the result of the localized burning in the master bedroom was a severely charred body on the mattress. Although the condition of the body was consistent with either the presence of an accelerant or a long exposure to fire, other flammable objects in the room did not ignite, although they were subjected to an intense heat and were in the house for the same period as the body. A pillow on the floor next to the closet on the east side of the room did not burn. The east wall had been brought near its ignition point but did not catch fire.

Two gas cans owned by Lippert were taken from the garage. Lip-pert said they were usually kept in a shed and he did not know why they were in the garage. They contained small amounts of gasoline. Although none of the samples taken from the burned areas showed the presence of an identifiable accelerant, a t-shirt recovered from the basement was repeatedly tested. A forensic chemist determined that the vapors on the shirt had 40 points of similarity with gasoline, although he felt more comfortable calling the substance a flammable hydrocarbon. State investigators looked for evidence of forced entry and firebombing but found nothing to suggest the presence of a third party at the fire scene. There was no evidence of rags in the furnace or of deliberately crossed wires on its controls. Lippert and his wife were the only people in the house when the fire started. We find that the evidence left no reasonable doubt of Lippert’s guilt.

Lippert claims that the court erred in denying his motion in limine to prohibit all statements made during a voice stress test. On October 28, 1980, at 10:05 a.m., Detective Eck of the Granite City police department interviewed Lippert prior to Eck's administering a Psychological Stress Evaluation Test (P.S.E.) to which Lippert had consented. A polygraph, which uses cardiovascular and respiratory patterns as a measure of a person’s reactions, was not available on October 28 and Lippert preferred to take the P.S.E., which measures reactions by changes in vocal patterns. Lippert was twice given his Miranda warnings during the testing procedures. During the interview Lippert described his discovery of the fire in the living room and his efforts to rescue his wife. He went from the fiery living room to the smoky bedroom and then down the steps to the front door, which would not open. The fire was coming down the steps so he went to the basement “and there was no fire down there.” After checking the garage for his wife, he found he “couldn’t get [back] through [the basement hallway] *** that was full of fire already.” After carrying an aluminum ladder to the master bedroom window he was surprised to find the room “ablaze” in only four or five minutes. He emphasized the speed with which the fire spread. He thought the furnace blower, which he kept on 24 hours a day, could have spread the fire. At the time of the interview, he was convinced that “it was an arson job.”

The court granted a defense motion in limine to bar evidence of the results of the P.S.E. The court’s decision was in full accord with Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130, 138, 414 N.E.2d 458, 463, which determined that “recordings of cardiovascular and respiratory patterns, at the least, are needed” to' “assure reasonably reliable” examinations. Even where a polygraph is used correctly, the results are inadmissible because of their unreliability. (People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070.) The court denied a defense motion in limine to prohibit all testimony and admissions resulting from the test situation. Lippert received Miranda warnings before each session with Eck. On the first day he acknowledged the warnings by signing a copy of them. The transcript of the second day’s interview contains the warning as well as Lippert’s statement that he wished to go on with the test, although his attorney had not approved of the first test and did not know of the second. The circumstances are similar to those in People v. Varney (1978), 58 Ill. App. 3d 70, 373 N.E.2d 1033, where the court found that statements made to police officers after a voluntary polygraph were admissible because the defendant had been given Miranda warnings, had signed a form to that effect, and had waived presence of counsel. We find that the trial court properly admitted Lippert’s statements. Admissions by a defendant, even if intended to be exculpatory, are direct evidence which may sustain a conviction. People v. Brown (1974), 56 Ill. 2d 312, 307 N.E.2d 356, rev’d and rem. on other grounds (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.

Lippert sought to bar any reference to his prior conviction by filing two motions in limine, one to prohibit impeachment and the other to bar direct testimony by Abney or other prosecution witnesses. The trial court denied the first motion but specifically allowed Lippert to show that he was appealing his conviction. For impeachment purposes, a prior conviction punishable by more than one year in prison is presumed to be relevant to the witness’ credibility. (People v. Miller (1981), 101 Ill. App. 3d 55, 427 N.E.2d 987.) Asked to reconsider the denial, the trial court reaffirmed its decision, commenting “I gave it considerable thought, considerable research.” The original order cited People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, People v. Bey (1969), 42 Ill. 2d 139, 246 N.E.2d 287, and People v. Kellas (1979), 72 Ill. App. 3d 445, 389 N.E.2d 1382. Lippert asserts that the trial court refused to exercise its discretion in balancing the prejudicial and probative effects of the prior conviction as required by Montgomery. We do not agree that the trial court cavalierly ignored its duty. The record contains considerable commentary by the trial court on the requirements established by Montgomery. Where the court was aware of the Montgomery standards we will assume it gave proper consideration to the relevant factors. (People v. Washington (1973), 55 Ill. 2d 521, 304 N.E.2d 276; People v. Hovanec (1979), 76 Ill. App. 3d 401, 394 N.E.2d 1340.) We find no abuse of discretion.

Although the court denied the defense motion in limine to bar all testimony to the prior conviction by prosecution witnesses, it ordered the State to limit its direct evidence of the conviction to the testimony of a single deputy circuit clerk, who could state only that Lip-pert had been in custody and had posted bond shortly before the fire. No reference could be made to the nature of the offense, which the court considered “too inflammatory and prejudicial” to go to the jury. The court acted to prevent “a parade of witnesses running through here going into [the indecent liberties conviction.]” Abney was limited to repeating a single statement made to him by Lippert in which Lip-pert recognized that they both had been in jail on “sex charges.” Ab-ney’s testimony did not in fact repeat this statement and contained no reference to a “sex charge” except that pending against Abney. Ab-ney stated that Lippert’s “eyes looked like a demon’s eyes to me” while he explained his plot to kill his wife and go live with “a young black boy.” Under vigorous cross-examination, Abney misidentified one of the defense counsel as his own attorney and admitted that he had lied in court several times. He denied that the prosecution had offered leniency in exchange for his testimony and stated that the State’s Attorney was being very hard on him.

Lippert seeks reversal because the denial of his two motions in limine allowed in evidence so prejudicial that he decided to waive a jury and to decline to testify. Lippert’s decision not to testify was a matter of trial strategy and standing alone is not sufficient evidence of prejudice to justify reversal. (People v. Leonard (1980), 83 Ill. 2d 411, 415 N.E.2d 358; People v. Hovanec (1979), 76 Ill. App. 3d 401, 394 N.E. 1340; People v. Ganter (1977), 56 Ill. App. 3d 316, 371 N.E.2d 1072.) We are directed to no case which holds that a defendant’s decision to waive the jury is proof that the ruling which influenced the decision was error. Testimony of a cellmate has been admitted where the conversations occurred before the informant went to the State’s Attorney (People v. Taylor (1982), 110 Ill. App. 3d 112, 441 N.E.2d 1231) and held “at most, harmless error” when the witness was the only one to mention prior convictions and the prosecutor did not emphasize the conviction in his argument to the jury. (People v. Dumas (1977), 49 Ill. App. 3d 756, 761, 364 N.E.2d 616, 620.) In the present case, Abney was the only prosecution witness authorized to mention the prior conviction but did not do so. The State’s closing argument did not mention a prior conviction. Abney volunteered information about Lippert nearly 10 days after the conversations.

With regard to the rulings allowing the introduction of the prior conviction, we find at most harmless error because the trial court deciding the case was already well aware of Lippert’s conviction, having presided over the previous jury trial. We note also that defense counsel and witnesses referred to Lippert’s “trial,” “conviction,” and “guilty verdict,” apparently fearing no prejudice from those repetitions before the judge.

Lippert contends that the trial court was prejudiced by the State’s insinuations that someone acting for the defense had tampered with the fire scene and removed ductwork. The State sought discovery of the ductwork. The defense moved for discovery of State witnesses who would testify to tampering. Vigorous argument followed the defense motion, and it is the State’s comments during this argument to which defendant now objects. During argument, the court warned both sides against making personal accusations and insinuations. The court ordered the State to provide the names of all witnesses who would testify to tampering. A list was provided but no witnesses so testified. Lippert points to the court’s comments that the defense’s chain of custody left “something to be desired” as evidence of prejudice. The court made these comments while admitting defense exhibits over the State’s objections, and the references did not involve the missing ductwork.

Lippert argues that a pattern of sexual innuendo prejudiced the court and denied him a fair trial by forcing him to waive the jury. The State’s motion for production of “sexual devices, i.e., dildoes ***” found after the fire was not acted upon until after Lippert had already waived the jury. The court had previously ruled that the State could not introduce evidence of the so-called sex devices to the jury until he had ruled on it during trial. After jury waiver, the State attempted to elicit testimony about the presence of the devices in a picture of the bathroom, but the court cut off the testimony, stating that the picture could speak for itself. All other sexual innuendos complained of occurred even later in the trial.

Although Lippert relies on People v. Nuccio (1969), 43 Ill. 2d 375, 253 N.E.2d 353, in seeking reversal on the basis of prejudicial insinuations, we find the present case clearly distinguishable. Here the trial court recognized that counsel were engaging in insinuations and personal accusations related to “tampering” and warned them against it. He pressed the State to define “tampering” and to provide the names of those who would testify. The names were provided but no one testified. The court repeatedly acted to limit the introduction of sexual references in order to reduce unfair prejudice. We do not see any evidence that his judgment was affected by any pattern of insinuations. We therefore presume that the trial court considered only competent evidence. People v. Pelegri (1968), 39 Ill. 2d 568, 237 N.E.2d 453.

Nor do we agree with appellant that he was prejudiced by the prosecution’s comments that one of the defense counsel was a member of the Madison County Board. When the prosecution first notified the court of this matter, the court immediately informed Lippert and gave him the opportunity to decide whether to proceed with the same counsel. The court stated that he saw no impropriety in the representation. When the State attempted to raise the same issue in post-trial motions, the court’s comment showed that he gave no weight to such charges. There is no affirmative showing that the court was misled or improperly influenced by prosecutorial remarks. People v. Wallenberg (1962), 24 Ill. 2d 350, 181 N.E.2d 143; People v. Grodkiewicz (1959), 16 Ill. 2d 192,157 N.E.2d 16.

Although Lippert claims he was denied a fair trial because of the prosecutor’s delay in making known an insurance report and photographs of the Lippert house as it appeared in 1977, no authority in support of this proposition is provided. We therefore decline to consider the issue. People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072.

For the reasons given above, we affirm the judgment of the circuit court of Madison County.

Affirmed.

JONES and KASSERMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
      In re MARRIAGE OF JANA J. CHAMBERS, Petitioner-Appellee and Cross-Appellant, and KENDALL TATE CHAMBERS, Respondent-Appellant and Cross-Appellee.
    Fifth District
    No. 5—83—0394
    Opinion filed June 11, 1984.
    Treva H. O’Neil, of Rudasill & O’Neil, of Carbondale, for appellant.
    Feirich, Schoen, Mager, Green & Associates, of Carbondale (Mary Lou Rouhandeh, of counsel), for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Kendall Tate Chambers (respondent) appeals from a judgment of the circuit court of Jackson County dissolving his marriage to Jana J. Chambers (petitioner). Respondent contends that the trial court abused its discretion by ordering respondent to pay maintenance and, alternatively, by incorporating an automatic increase into the maintenance award. Petitioner cross-appeals, contending that the award of maintenance and child support is insufficient to meet her reasonable needs and should be modified in one of several ways. Petitioner also argues on cross-appeal that the trial court abused its discretion in denying petitioner’s request for a temporary restraining order to prevent respondent, prior to the division of marital property, from entering into a settlement of a paternity action filed against him by a third party.

Petitioner and respondent were married in 1974. Two children (twins) were born of the marriage in 1976. Respondent is 31 years old, a recent law school graduate, and currently employed as a judicial clerk. Petitioner is also 31 years old, and currently employed as a legal secretary. Respondent’s net monthly income is $1,496.26. Petitioner’s net monthly income is $774.44. The order of dissolution, entered May 10, 1983, allocated debts totaling $39,506.46 to respondent and debts totaling $7,378.78 to petitioner. Respondent’s monthly payment on his allocated debts totals $781.16. Petitioner’s monthly payment on her allocated debts totals $413.64. Petitioner was granted custody of the two children. Respondent was ordered to pay child support in the amount of $200 per month for each child. In addition, respondent was ordered to pay the premiums on a life insurance policy naming his children as beneficiaries. The cost of maintaining the policy is $13.75 per month. The trial court also ordered respondent to pay all customary medical and dental expenses of the children which are not covered under petitioner’s health insurance plan. These expenses were estimated by petitioner at $72 per month. Respondent was further ordered to pay another $150 per month for maintenance.

Maintenance awards are governed by section 504 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 504). Such an award is appropriate if the spouse seeking maintenance lacks sufficient property to provide for his or her reasonable needs, is unable to be self-supporting, or is otherwise without sufficient income. (Ill. Rev. Stat. 1983, ch. 40, par. 504(a).) The trial court must determine the reasonableness of a party’s needs on a case-by-case basis. (In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 658, 409 N.E.2d 321.) Among those factors which must be considered pursuant to section 504 are the standard of living during the marriage, the age and physical and emotional condition of the parties, the duration of the marriage, the financial resources of the party seeking maintenance, and the ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance. (Ill. Rev. Stat. 1983, ch. 40, par. 504(b).) Ordinarily, the amount of such an award is a matter within the sound discretion of the trial court, and will not be disturbed on appeal absent an • abuse of discretion. (In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 508, 436 N.E.2d 228.) Such an abuse of discretion occurs only when no reasonable person would take the view adopted by the trial court. In re Marriage of Dwan (1982), 108 Ill. App. 3d 808, 812, 439 N.E.2d 1005.

According to the figures entered by the court in its dissolution order, respondent’s net monthly income, after paying, pursuant to the order, his allocated debts, child support, insurance premiums, children’s medical and dental expenses, and maintenance, would total $79.35. Petitioner’s net income, after paying her allocated debts and receiving from respondent the ordered child support and maintenance, would total $880.80. Such a manifest inequality in the financial positions of the parties does in fact exceed the limits of reason, thus evincing an abuse of discretion by the trial court. Respondent testified that his monthly living expenses, including rent, food, laundry, automobile insurance, and gasoline, totaled $635. Even if respondent’s estimates were inflated, it is apparent that an individual cannot meet such fundamental needs on a budget of $79.35 per month. While we are mindful of the fact that petitioner and her children have various needs, and that the existence of a larger corpus of assets on respondent’s part would justify maintenance, the award of $150 per month in the instant case simply is not justified by the evidence of record.

Petitioner’s allegation that the trial court erred in denying her request for a temporary restraining order with regard to respondent’s settlement of the paternity action filed against him has been addressed by this court in People ex rel. Davis v. Chambers (1984), 125 Ill. App. 3d 451, and in light of the prior disposition, need not be considered pursuant to this cross-appeal.

For the foregoing reasons, that portion of the judgment of the circuit court ordering respondent to pay $150 per month in maintenance is vacated.

Judgment vacated in part.

EARNS and EASSERMAN, JJ., concur.


text:
    THE PEOPLE ex rel. JOSEPHINE JONES, Petitioner-Appellee and Cross-Appellant, v. OTIS CARTLEDGE, Respondent-Appellant and Cross-Appellee.
    Fifth District
    No. 5—83—0306
    Opinion filed June 8, 1984.
    Edward Neville, of East St. Louis, for appellant.
    Charles J. Kolker, of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

The respondent, Otis Cartledge, appeals from the judgment of the circuit court of St. Clair County which awarded petitioner, Josephine Jones, interest on past-due periodic child-support payments. The only issue respondent raises on appeal is whether the trial court could properly award interest on the payments. Petitioner cross-appeals from the court's denial of her prayer fqr attorney fees. We affirm.

On January 29, 1964, a complaint was filed in the circuit court of St. Clair County which alleged that Otis Cartledge was the father of John Jones, a child born out of wedlock on December 2, 1963. On February 27, 1964, after the court properly admonished respondent, respondent pleaded guilty to the complaint and the court ordered respondent to pay the sum of $30 every two weeks. On February 18, 1983, petitioner filed a motion to revive judgment which alleged that except for the sum of $90, respondent had failed to make any of the child-support payments. Petitioner prayed for judgment of $13,751.80 past-due child support and for $10,128.78 for interest thereon. After a hearing, the court awarded judgment as prayed for by petitioner; however, the court denied her petition for attorney fees.

After an examination of the record in this case, we cannot say that the allowance of interest by the trial court constituted an abuse of discretion. For approximately 20 years petitioner was deprived of child-support money that was rightfully hers. For the same length of time, respondent enjoyed the use of the money. Respondent has maintained a fairly steady employment record at fairly well-paying jobs. For this reason alone, the trial court could have determined that an award of interest was appropriate. (Finley v. Finley (1980), 81 Ill. 2d 317, 332, 410 N.E.2d 12, 19.) Although the Finley case dealt with interest on past-due periodic support payments in the context of a dissolution of marriage case, we find no reason to vary the rule for interest on past-due periodic support payments in the context of paternity proceedings. We therefore conclude that the allowance of interest on past-due periodic support payments is not mandatory, but lies within the sound discretion of the trial court, whose determination will not be set aside absent an abuse of discretion. We find no abuse of discretion in the record here presented.

The allowance of attorney fees is within the trial court’s discretion, and such an award will not be reversed unless the trial court has clearly abused its discretion. (See In re Marriage of Rizzo (1981), 95 Ill. App. 3d 636, 651, 420 N.E.2d 555, 566.) Due to the amount of the judgment awarded by the trial court, we believe that petitioner is able to pay her attorney fees and that the court did not abuse its discretion in denying the same.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

KASSERMAN and JONES, JJ., concur.


author: PRESIDING JUSTICE WELCH

text:
      In re M.B.C. et al., Minors (Marietta Faye Kellum et al., Petitioners-Appel-lees, v. Ernest Cornes, Respondent-Appellant).
    Fifth District
    No. 5—83—0782
    Opinion filed June 8, 1984.

      Howard B. Eisenberg, of Legal Clinic of Southern Illinois University, of Carbondale, and Julianne Cordts, law student, for appellant.
    Charles R. Garnati, of Herrin, for appellees.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Respondent Ernest Cornes appeals an order of the circuit court of Williamson County terminating his parental rights after a finding that he was an unfit father and a depraved person. Petitioners Donnell Kellum and Marietta Faye Kellum filed this action on May 27, 1983, seeking to adopt M.B.C., then seven, and M.J.C., then five, her children from her earlier marriage to respondent. A subsequent “Bill of Particulars” alleged that respondent had committed “open and notorious adultery and fornication” by committing rape in October 1977. A number of allegations of depravity were also stated, including the 1977 rape and acts of deviate sexual assault on the same date and a 1951 theft and 1953 rape and robbery.

Respondent argues on appeal that: (1) the provision of the Adoption Act allowing for termination of parental rights based on depravity is constitutionally impermissible; (2) evidence of criminal convictions more than 30 years prior to this action was irrelevant to the issue of parental fitness; (3) the court erred by allowing petitioners to adduce evidence not specified in the bill of particulars; (4) portions of respondent’s letters to Marietta Kellum were improperly admitted; (5) a minister was improperly not allowed to testify as to respondent’s fitness as a parent; and (6) petitioners failed to prove unfitness by clear and convincing evidence.

Respondent’s first assertion on appeal is that termination of parental rights on the basis of depravity (Ill. Rev. Stat. 1983, ch. 40, par. 1501(D)(i)) is constitutionally impermissible as overly vague. Depravity has been defined by Illinois courts as “an inherent deficiency of moral sense and rectitude.” (In re Abdullah (1981), 85 Ill. 2d 300, 305, 423 N.E.2d 915, 917.) Depravity may be shown by a series of acts or a course of conduct which indicates a deficiency in a moral sense and shows either an inability or an unwillingness to conform to accepted morality. (Bryant v. Lenza (1980), 90 Ill. App. 3d 275, 412 N.E.2d 1154.) Respondent argues that the statutory prohibition against depravity by parents did not adequately inform him of the conduct he was expected to follow. We reject this reasoning. Here, the father’s two rape convictions, as well as the other evidence adduced at trial, show a serious moral deficiency. We do not accept respondent’s argument that more statutory certainty is required, since such total specificity would severely limit a trial court’s ability to focus on the unique circumstances of each case before it.

Next, respondent asserts that evidence of criminal convictions in 1951 and 1953 was not relevant, and even if relevant was so remote as to be immaterial. We disagree. Acts constituting depravity must be of sufficient duration and repetition to establish moral deficiency and either an inability or unwillingness to conform to accepted morality. (Bryant v. Lenza (1980), 90 Ill. App. 3d 275, 412 N.E.2d 1154.) Here, the respondent was convicted of armed robbery and rape in the early 1950’s, spent 20 years in prison and was then again arrested and convicted of rape, deviate sexual assault and intimidation. Although a single felony conviction has been held insufficient to establish the depravity of a parent (Bryant v. Lenza (1980), 90 Ill. App. 3d 275, 412 N.E.2d 1154), the facts of the instant case reveal a pattern of criminality. The respondent’s conduct prior to his 20-year prison term is thus probative of whether or not he is depraved. Accordingly, we hold that the trial judge’s evidentiary ruling was not an abuse of discretion.

Respondent’s third argument is that the trial court erred in allowing evidence not specified in petitioners’ bill of particulars. Respondent had requested a bill of particulars specifying what conduct constituted “depravity” and “open and notorious adultery or fornication.” Petitioners responded with a list of misconduct on the part of the respondent, which included the conduct leading to his five criminal convictions. Now, respondent argues petitioners should not have been allowed to introduce any evidence of his convictions since the bill of particulars concerned only his conduct. Petitioners rely on Smith v. Andrews (1964), 54 Ill. App. 2d 51, 203 N.E.2d 160, for the proposition that a defendant’s conviction for rape is properly admissible as prima facie evidence that he committed rape. Here, we hold that testimony concerning the respondent’s five criminal convictions was proper to establish the conduct delineated in petitioners’ bill of particulars. The fact that respondent had been convicted of two rapes, robbery, deviate sexual assault and intimidation is probative of his conduct, as alleged in petitioners’ pleadings. Respondent was fully advised by the detailed bill of particulars exactly what conduct and which incidents would be at issue in the parental termination proceedings.

The fourth argument raised on appeal is that the admission of portions of menacing letters from respondent was improper. Petitioner Marietta Faye Kellum identified the letters from respondent which were introduced as petitioners’ exhibits one through seven. She testified that petitioners’ exhibits Nos. 2, 3, 4, 5 and 6 were all complete letters from respondent. Therefore, respondent’s objection as to the completeness of the seven letters only applied to exhibits Nos. 1 and 7. Also, respondent was provided a copy of the first exhibit with the bill of particulars and neither attempted to obtain the missing portion through discovery nor to explain any inaccuracy while on the witness stand. Even if the admission of the portions of these two letters was, in fact, error, the outcome of the proceeding was not unduly affected in light of five similar letters properly admitted and other evidence adduced, including respondent’s conduct leading to five criminal convictions. Holsapple v. Country Mutual Insurance Co. (1983), 112 Ill. App. 3d 512, 445 N.E.2d 909.

Respondent further contends that the trial court erred by not allowing a minister, Reverend Calvin Watson, to state his opinion concerning respondent’s parental fitness. Reverend Watson testified that he had a degree in sociology and counseling, post-graduate training at Anna State Hospital and experience with family counseling as a minister. An expert witness is qualified if, because of his skill, training and experience he is better able to form an accurate opinion as to the issue in question than is the average person in the community. (City of Chicago v. McNally (1907), 227 Ill. 14, 81 N.E. 23.) The determination of whether a witness is qualified as an expert rests largely in the discretion of the trial court. (County of Cook v. Holland (1954), 3 Ill. 2d 36, 119 N.E.2d 760.) Here, the trial court could rightly hold that a minister, even one with counseling experience, was not in a better position to judge parental fitness than the average person in the community. Accordingly, the court’s ruling did not amount to an abuse of discretion.

Finally, respondent argues that he was not proven unfit by clear and convincing evidence. Evidence adduced at trial showed that the respondent had been convicted of two rapes, robbery, deviate sexual assault and intimidation. For the three 1977 convictions, he received a sentence of 60 years’ imprisonment. Although respondent professed love for his children and stated, “I have every intention of getting out and participating in the children’s growth and development,” he offered no significant evidence to show his rehabilitation. A trial court’s determination of parental unfitness in an adoption proceeding should not be disturbed unless it is contrary to the manifest weight of the evidence. (In re Adoption of Kleba (1976), 37 Ill. App. 3d 163, 345 N.E.2d 714.) In the case at bar, the series of felonies over a lengthy period of time establishes by clear and convincing evidence that respondent is unable to cope with society in a lawful manner. After a review of the entire record, we cannot say the trial court’s finding of depravity is contrary to the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of Williamson County is affirmed.

Affirmed.

JONES and KASSERMAN, JJ., concur.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY G. STEVENS, Defendant-Appellant.
    Fifth District
    No. 5—83—0697
    Opinion filed June 11, 1984.

      Randy E. Blue and John R. Abell, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Barbara Adams, State’s Attorney, of Hillsboro (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

The defendant, Billy G. Stevens, was found guilty by a jury in the circuit court of Montgomery County of unlawful delivery of a controlled substance, less than 5 [sic] grams of lysergic acid diethylamide (LSD), in violation of section 401(d) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56 Va, par. 1401(d)). The offense was alleged to have occurred on August 26, 1982. Defendant was sentenced to 2 Va years in prison and was ordered to pay a fine of $75 pursuant to section 5 — 9—1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 9—1.1). On appeal, defendant contends (1) that the court erred in instructing the jury on statements by defendant (Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.06-3.07 (2d ed. 1981)) without including the last sentence of the instruction; (2) that pursuant to section 5 — 8—7(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—7(c)), defendant should receive credit for time spent in jail in Bond County between his arrest on a Bond County charge of conspiracy to deliver a controlled substance and his subsequent arrest in Montgomery County on the charge in the case at bar; and (3) that the defendant is entitled to full credit toward his fine because he spent over 15 days in custody prior to sentencing in the case at bar.

Defendant did not raise in his post-trial motion the court’s failure to include in its instruction the last sentence in IPI Criminal No. 3.06-3.07; therefore, the issue is waived for purposes of this appeal. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 181, 415 N.E.2d 1027, 1030.) Further, the record indicates that defendant was satisfied with the instruction that was given and may have withdrawn any objection which he had. There is an exception to the waiver rule to correct grave errors or where the case is close factually and fundamental fairness requires that the jury be properly instructed; however, such exception does not apply to the case at bar. See People v. Tannenbaum (1980), 82 Ill. 2d 177, 182, 415 N.E.2d 1027, 1030.

Section 5 — 8—7(c) of the Unified Code of Corrections provides: “An offender arrested on one charge and prosecuted on another charge for conduct which occurred prior to his arrest shall be given credit on the determinate sentence or maximum term and the minimum term of imprisonment for time spent in custody under the former charge not credited against another sentence.”

Defendant argues that it appears from the record that the Bond County conspiracy charge and the charge in the case at bar are related and that it further appears that no conviction was had on the Bond County charge; therefore, that he should be granted credit against the Montgomery County sentence for the time spent incarcerated on the Bond County charge. The State agrees with this contention by the defendant. The record establishes that defendant was incarcerated in the Bond County jail on a warrant for conspiracy to deliver a controlled substance on October 19, 1982, and that he was served on December 9, 1982, with the warrant on the charge in the case at bar. Therefore, the case is remanded to the circuit court of Montgomery County for the issuance of an amended judgment and mittimus which will credit defendant the additional 51 days from October 19 through December 8, 1982, that defendant served in the Bond County jail.

Section 5 — 9—1.1 of the Unified Code of Corrections provides, in part:

“When a person has been adjudged guilty of a drug related offense involving possession or delivery of cannabis or possession or delivery of a controlled substance as defined in the Cannabis Control Act, as amended, or the Illinois Controlled Substances Act, as amended, in addition to any other penalty imposed, a fine shall be levied by the court at not less than the full street value of the cannabis or controlled substances seized.”

In the case at bar, the court specifically found that the “street value” of the LSD was $75; therefore, pursuant to section 5 — 9—1.1, the court imposed a fine of $75. Section 110 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 110 — 14) provides, in part:

“Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant *** However, in no case shall the amount so allowed or credited exceed the amount of the fine.”

The defendant argues that since he was given 47 days credit for time served, he is entitled to total credit for his $75 fine. The State responds that section 110 — 14 is not applicable to reduce fines imposed as a result of section 5 — 9—1.1 and that to accept the defendant’s argument would frustrate the legislative intent to discourage drug trafficking. The State also urges that a fine imposed under section 5 — 9— 1.1 is in addition to any other penalty.

Section 110 — 14 applies to “[a]ny person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense***.” The statute is not limited in its application to defendants whose punishment is by fine only nor does it exclude from its provision defendants who will also receive credit against a sentence to imprisonment pursuant to section 5 — 8—7 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 7) for the time they were incarcerated prior to conviction. (People v. Young (1981), 96 Ill. App. 3d 634, 636, 421 N.E.2d 968, 970.) Furthermore, there is nothing in the language of section 110 — 14 to justify creating an exception for defendants who are fined pursuant to section 5 — 9—1.1 and also sentenced to imprisonment. The statute plainly applies to any person against whom a fine is levied and who has been incarcerated on that offense. Section 110 — 14 does not attempt to differentiate between fines imposed pursuant to section 5 — 9—1 and those imposed pursuant to section 5 — 9—1.1 of the Unified Code of Corrections, nor does section 5 — 9—1.1 state that it is excluded from the provisions of section 110 — 14. Therefore, upon remand the circuit court of Montgomery County is to grant this defendant a credit of $75 against the $75 fine as he has served more than 15 days of incarceration.

Affirmed as modified and remanded with directions.

WELCH, P.J., and JONES, J., concur.


author: JUSTICE JONES

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD HAWKINS, Defendant-Appellant.
    Fifth District
    No. 5—83—0369
    Opinion filed June 12, 1984.
    Daniel D. Yuhas and Diana N. Cherry, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Gloria E. Thurston, State’s Attorney, of Mound City (Robert J. Bider-man, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

Judgment was entered on jury verdicts that found the defendant, Reginald Hawkins, guilty of misdemeanor theft, robbery, residential burglary and two counts of home invasion. On appeal defendant contends (1) that judgments should not have been entered on both home-invasion verdicts as only one entry was made, and (2) that the conviction for residential burglary should be vacated as that conviction was based on the same entry which underlay the conviction for home invasion. We consider these contentions in reverse order.

On the evening of January 18, 1983, defendant and Donald Tate kicked down the back door of Anthony Pope’s residence after Mr. Pope had refused to allow them entry. In the residence with Mr. Pope was a friend, Kim Banks, who was visiting. After forcing Ms. Banks into Mr. Pope’s bedroom, defendant twice hit her in the jaw while Tate struck Mr. Pope in the side with a hammer. Subsequently, Tate grabbed Pope while defendant took money from Pope’s pocket. Tate and defendant also carried away food from Pope’s refrigerator.

Count I alleged that Pope was the recipient of injuries during the home invasion, while count III alleged that Banks was the recipient of injuries during the home invasion. Count IV alleged that defendant committed residential burglary with the intent to commit a theft.

Section 12 — 11 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 11) provides:

“(a) A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present and
(1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs, or
(2) Intentionally causes any injury to any person or persons within such dwelling place.
(b) Sentence. Home invasion is a Class X felony.”

Section 19 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 19 — 3) provides:

“A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.
(b) Sentence. Residential burglary is a Class 1 felony.”

In People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 845, the supreme court held that “when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, [multiple] convictions with concurrent sentences can be entered.” The dispositive question pertinent to defendant’s contention, therefore, is whether residential burglary is “by definition,” a lesser included offense of home invasion. We hold that residential burglary requires a different mental element than home invasion and therefore is not a lesser included offense. This conclusion is based on the applicable law which provides that to be a lesser included offense, the greater offense must include every element in the lesser offense plus one or more elements; the lesser offense cannot have any element that is not included in the greater one. In other words, it is impossible to commit the greater offense without necessarily committing the lesser also. Depending on the facts underlying a home-invasion charge, a residential burglary may or may not be simultaneously committed by an offender.

In the case at bar, the elements of residential burglary are satisfied by defendant’s unauthorized entry into the victim’s house (regardless of his “knowledge” of the victim’s presence) as long as he at the time had the intent to commit a theft or a felony. By definition, however, home invasion does not require that a person have a felonious intent or an intent to steal at the time he or she enters a dwelling without authority. The only “intent” requirement is that the offender have “knowledge” or “reason to know” that a person is present in the dwelling. The home-invasion offense is not completed until the offender, armed with a dangerous weapon, either uses or threatens force against the person (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11(a)(1)) or injures him. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11(a)(2).) Therefore, it would appear that every element of residential burglary is not included in home invasion.

Moreover, it would be possible to commit home invasion without committing a residential burglary if, for example, the offender entered a house, knowing someone .was there, but had no intent to steal or commit a felony. If the offender has, as in the case at bar, struck the house’s occupant with a hammer (battery) and then left, the elements of home invasion would be present but not those of residential burglary. (People v. Pavic (1982), 104 Ill. App. 3d 436, 432 N.E.2d 1074; see also People v. Lobdell (1983), 121 Ill. App. 3d 248, 459 N.E.2d 260.) We conclude that the facts of the case at bar support separate convictions for home invasion and residential burglary.

Although home invasion and residential burglary are two separate offenses that have certain similarities, the primary concern in a burglary indictment is the unlawful entry (People v. Peck (1963), 29 Ill. 2d 480, 194 N.E.2d 245; People v. Scott (1969), 43 Ill. 2d 135, 251 N.E.2d 190). The defendant accordingly focuses on the entry aspect of home invasion to support his argument that only one crime is committed if there is only one entry, regardless of the number of victims injured, while the State focuses on the number of victims aspect of the offense. In our opinion the single entry, although coupled with the injury of more than one occupant in the dwelling, constituted but a single offense, and only one sentence should have been imposed. The statute provides that the defendant must know or have reason to know that “one or more” persons is present when entry is made and intentionally causes injury to any “person or persons” therein. Thus, by use of the plural “persons” the statute expressly contemplates one offense although there is more than one person within a dwelling at entry and more than one person is threatened with the imminent use of the force of a deadly weapon or intentional injury is inflicted on more than one person.

The home-invasion statute stands in contrast to the armed-robbery statute. Under the latter, multiple convictions have been affirmed on the basis of multiple victims during one incident. (People v. Butter (1976), 64 Ill. 2d 485, 356 N.E.2d 330; People v. Thomas (1977), 67 Ill. 2d 388, 367 N.E.2d 1281.) The armed-robbery statute refers to taking property from the person or presence of another. (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2.) But the home-invasion statute refers to “person or persons” as potential victims, while armed robbery refers to “person,” which indicates that only one offense can be carved from one entry in home invasion regardless of the number of victims. The legislature titled the offense “Home Invasion,” focusing on the entry aspect of the crime, rather than on the number of victims within. See also People v. Scott (1969), 43 Ill. 2d 135, 251 N.E.2d 190, in which petitioner had been convicted of three counts of burglary, each charging the intent to commit three separate crimes. In Scott, the supreme court focused on the unlawful entry aspect and vacated two of the burglary convictions.

For the reasons stated in this opinion, we remand this cause to the circuit court of Pulaski County to vacate the judgment and sentence on one of the home-invasion counts.

Affirmed in part, vacated in part and remanded with directions.

WELCH, P.J., and KASSERMAN, J., concur.


text:
    ROBERT ROMANIK, Plaintiff-Appellant, v. THE VILLAGE OF VALMEYER, Defendant-Appellee.
    Fifth District
    No. 5-83-0777
    Opinion filed June 11, 1984.
    Robert H. Rice, of Belleville, for appellant.
    William R. Hotto, of Fairview Heights, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Robert Romanik, plaintiff, appeals from a judgment of the circuit court of Monroe County denying his petition for a writ of mandamus directed toward the village of Valmeyer (village). In his petition, plaintiff alleged that he had been fired from his position as police chief without formal charges having been brought against him, contrary to the provisions of a village ordinance governing the removal of “officials.” Plaintiff sought to compel the village to reinstate him as police chief and award him back pay. It is not alleged that plaintiff is entitled to any of the protections afforded by division 2.1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 10 — 2.1—1 et seq.).

“One seeking by mandamus to compel a restoration to an office must show in his petition that the office legally exists where it is created by ordinance and that he has a legal right to it, and the ordinance should be properly pleaded, as the burden is upon him to show his right to the office, — i.e., that he is an officer de jure as distinguished from an officer de facto.” (People ex rel. Jacobs v. Coffin (1918), 282 Ill. 599, 604, 119 N.E. 54.) In Illinois, the question of whether a policeman is an official is determined not by reference to the nature of his duties, but by whether the municipal ordinance by virtue of which he serves creates an “office.” (City of Rockford v. Industrial Com. (1978), 69 Ill. 2d 597, 603, 373 N.E.2d 17.) “What is required in order to show that he is an official is an ordinance which in terms creates an ‘office’ of which he is the occupant. Thus in City of West Frankfort v. Industrial Com. (1950), 406 Ill. 452, 455, the ordinance stated, ‘The office of police patrolman is hereby created,’ and in City of Danville v. Industrial Com. (1967), 38 Ill. 2d 479, 481, the ordinance provided, ‘There is hereby created the office of police sergeants.’ In each of these cases the employee was held to be an official. By way of contrast, an ordinance merely authorizing the appointment of a policeman does not establish the appointee as an official. Murphy v. Industrial Com. (1934), 355 Ill. 419; Krawiec v. Industrial Com. (1939), 372 Ill. 560; Village of Streamwood Police Department v. Industrial Com. (1974), 57 Ill. 2d 345.” 69 Ill. 2d 597, 604.

Applying this analysis to the instant case, nothing of record here suggests that there exists any village ordinance creating the “office” of police chief; to the contrary, the only ordinance before us relating to this subject states that the chief of police “shall be appointed by the Mayor, by and with the advice and consent of the Village Board, to serve until such time as he is removed for just cause.” This ordinance is insufficient to create the “office” of police chief (69 Ill. 2d 597, 603-04), and the trial court correctly concluded that plaintiff, as a mere employee, was not entitled to the procedural protections afforded to officials by the village ordinances. While plaintiff alternatively • argues that he was discharged without just cause, this claim was neither made in the petition nor advanced at the hearing; accordingly, it is not before us here. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417.

For the foregoing reasons, the judgment of the circuit court of Monroe County is affirmed.

Affirmed.

JONES and KASSERMAN, JJ., concur.


text:
    LOLA ANN FOFAR, Plaintiff-Appellee, v. WILLIAMSON COUNTY AIRPORT AUTHORITY, Defendant-Appellant.
    Fifth District
    No. 83—204
    Opinion filed June 18, 1984.
    Charles E. Schmidt, of Mitchell, Brandon & Schmidt, of Carbondale, for appellant.
    Keith W. Kibler, of Paul Thomas Austin & Associates, of Marion, for ap-pellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Plaintiff, Lola Ann Fofar, was injured in a fall on ice and snow in a parking lot operated by defendant, Williamson County Airport Authority. After a jury trial in the circuit court of Williamson County, plaintiff’s damages were assessed at $10,000 and her contributory negligence was assessed at 50%, resulting in a net award of $5,000. Plaintiff moved for a new trial, alleging, inter alia, the existence of newly discovered evidence. The trial court granted the motion on that basis, and defendant appeals. There is no cross-appeal.

The pertinent facts are as follows: Ms. Fofar fell at about 3 p.m. on February 12, 1979, landing on her buttocks and striking her head. The cause of the fall was a mound of snow and ice which the jury found, via special interrogatory, was not a natural accumulation. One examining doctor testified at trial, and all or part of the depositions of seven other examining doctors were read to the jury. According to those witnesses, between 1979 and 1982 the tests performed upon Ms. Fofar included four neurological examinations by three different doctors, three “CT scans,” two electroencephalograms, one electro-myogram, one myelogram, one pyrophosphate bone scan, and one to-mogram. According to the doctors testifying and deposed, none of these examinations revealed any objective evidence of physical injury that would explain Ms. Fofar’s pain, weakness and other complaints. Doctors referred to her condition as being caused by psychogenic problems, soft tissue lower back injury, tension, discogenic pain syndrome, limitations self-inflicted by her own personality, and learned pain behavior. Dr. Richard Morgan testified that in his opinion her condition of pain and weakness was likely to be permanent, was caused by her fall, and would prevent her from resuming the duties involved in her vocation. There was lay testimony regarding Ms. Fo-far’s activities after the fall and her ability to work after the fall.

The verdict of the jury was returned November 19, 1982. Plaintiff filed her initial post-trial motion on November 22, and an additional post-trial motion on December 3. In the latter motion, plaintiff urged “newly discovered evidence” as a ground for a new trial on the issue of damages only or alternatively as to all issues. Plaintiff’s November 22 and December 3 motions were superseded by plaintiff’s consolidated post-trial motion filed December 15. There, plaintiff’s “new significant evidence” was described as follows:

“3. The new evidence which would be used at a new trial is that as a result of the further testing and CAT scan monitoring of the plaintiff and the cooperation of the services of Dr. Herman Lyle of Marion, Illinois, Dr. Richard Morgan of Marion, II-Enois, Dr. George Murphy, radiologist at Marion Memorial Hospital and Dr. O’Brien of Carbondale Memorial Hospital, it has been determined that the plaintiff has a calcium deposit on the left lower lobe of her brain at or near the point of concussion which was caused by the fall described in the complaint ***.
4. That the new evidence as described in the above paragraph is the medical cause of the plaintiff’s ailments and suffering and that as a result of the plaintiff’s injury she is permanently disabled.
5. That said doctors are expected to testify that the calcium deposit buildup is the direct result of the fall ***.”

The December 15 motion also asserted that the new evidence would probably change the result of the previous trial and that it was discovered as a result of medical treatment following plaintiff’s becoming unconscious on the last day of trial. Neither the December 3 nor the December 15 motion was sworn to; and no affidavits or exhibits accompanied either motion.

Proceedings at the hearing on the December 15 motion were not transcribed of record. A record entry states, in its entirety: “Post Trial Motion heard and granted. New trial ordered on amount of damages without taking into consideration the percentage of negligence attributable to [plaintiff as per order.” The order appealed from states, in its entirety:

“Now on this 16th day of February, 1983, this cause comes on for hearing on the Plaintiff’s Motion For New Trial. The Plaintiff and Defendant are present by counsel. This Court being duly advised in the premises, does find as follows:
That a key issue at the time of trial of this matter was that there were no objective findings of the Plaintiff’s injuries. It was my opinion and I think also the opinion of the jury that the plaintiff was a hysterical woman. Medicine is a science and not an art. It is not exact. As a result of further EEG Testing and CT Scanning, new medical evidence has been discovered which shows that the Plaintiff did in fact have calcium deposits on the left lower lobe of her brain which were caused by the fall alleged in the Complaint. This new evidence was found by the Plaintiff’s doctors in their continuing treatment of her, and not by her trying to obtain new evidence. The failure of the evidence to appear at the time of the first trial was not because of lack of düigence or inadvertence on the part of the Plaintiff. The new evidence is material, and in my opinion, will change the outcome of the trial. The remainder of the Plaintiff’s Motion is denied. It is my order that the Plaintiff is to have a new trial on the issue of damages only. The issue of liability will be as determined by the jury in the last trial. The comparative negligence of the Plaintiff will be as determined by the jury at the last trial.”

Defendant asserts that the evidence plaintiff seeks to introduce does not, in fact, qualify as newly discovered evidence such as to justify the granting of a new trial. We agree.

What the plaintiff proposes to offer as newly discovered evidence is not the testimony of a witness as to operative facts concerning the extent of her injury but, rather, a new and different expert opinion. While plaintiff argues that she was not aware prior to the original trial that this opinion could be obtained, plaintiff was aware that she was going to trial without any objective evidence to support her medical claims. Nevertheless, plaintiff elected to proceed to trial with the evidence she had available.

We have found no pertinent Illinois authority concerning whether a new trial may be granted upon a new expert opinion, and plaintiff provides only general statements of Illinois law pertaining to new trials upon newly discovered evidence. However, it is axiomatic that the law contemplates that litigants make the fullest preparation for trial. Furthermore, if alleged additional evidence might have been but was not presented at trial, that is the fortune of the unprepared party. See Fulmer v. Equitable Life Assurance Society of the United States (1936), 14 N.J. Misc. 407,_, 185 A. 474, 476.

The courts of review which have considered the issue presented by this aspect of the instant appeal appear to be in agreement that evidence of a new expert opinion will not justify a new trial. Thus it has been stated that under Rule 60(b) of the Federal Rules of Civil Procedure the results of a new physical examination are not newly discovered evidence such as to justify a new trial. (Ryan v. United States Lines Co. (2d Cir. 1962), 303 F.2d 430, 434; Grupen v. Thomasville Furniture Industries (1975), 28 N.C. App. 119, 121, 220 S.E.2d 201, 202, cert, denied (1976), 289 N.C. 297, 222 S.E.2d 696; Harris v. Frank L. Blum Construction Co. (1971), 10 N.C. App. 413, 420-21, 179 S.E.2d 148, 153.) It has also been stated that if plaintiff was not satisfied with the testimony her medical witnesses were going to give at her trial, she should have submitted herself for examination to others rather than proceed to trial. (Fulmer v. Equitable Life Assurance Society of the United States. (1936), 14 N.J. Misc. 407, 185 A.474.) Furthermore, it has generally been considered that applications for new trial are looked upon with particular disfavor where the newly discovered evidence consists largely of conclusions (66 C.J.S. New Trial sec. 101 (1950); Eller v. Paul Revere Life Insurance Co. (1941), 230 Iowa 1255, 1260, 300 N.W. 535, 538) and that the availability of new expert testimony is not grounds for a new trial (Eller v. Paul Revere Life Insurance Co. (1941), 230 Iowa 1255, 1262-63, 300 N.W. 535, 539). Matters which have been held not to warrant a new trial based on newly discovered evidence include: a first-time diagnosis that the plaintiff had suffered a permanent impairment of the cerebellum (Grupen v. Thomasville Furniture Industries (1975), 28 N.C. App. 119, 220 S.E.2d 201), a first-time diagnosis that the plaintiff suffered from “Basedow’s disease” (Fulmer v. Equitable Life Assurance Society of the United States (1936), 14 N.J.Misc. 407, 185 A. 474); and a first-time diagnosis of spinal injury, where several doctors had testified at trial that no injury had been found and that the plaintiff was suffering from imaginary illness (Eller v. Paul Revere Life Insurance Co. (1941), 230 Iowa 1255, 300 N.W. 535). Other decisions reaching contrary results are Bekelja v. James E. Strates Shows, Inc. (1944), 349 Pa. 442, 37 A.2d 502, in which post-trial surgery revealed the plaintiff’s broken leg to be considerably worse than believed, and this condition was ascertainable only by surgery, and Bousman v. City of Stafford (1905), 71 Kan. 648, 81 P. 184, where post-trial surgery revealed an intestinal rupture not discoverable prior to surgery, and there was no other objective evidence to explain the plaintiff’s complaints of suffering.

We find the rationale of Grupen, Fulmer, and Eller to be persuasive and therefore conclude that the alleged newly discovered evidence in the case at bar was not in fact of such a nature to warrant the granting of a new trial by the trial court.

Furthermore, we are constrained to view with conservatism the instant plaintiff’s motion for new trial because of our concern for the principles that jury verdicts should be accorded a measure of finality and that litigation cannot be permitted to continue indefinitely. This same concern was expressed by the court in Fulmer v. Equitable Life Assurance Society of the United States (1936), 14 N.J. Misc. 407, _, 185 A. 474, 476, in which it was stated:

“If a new trial was granted and the plaintiff again was unsuccessful, on the theory advanced for a new trial by the plaintiff, she might then go to other physicians, who might diagnose her condition differently from that already done and seek another new trial on that testimony. A procedure such as this would make litigation endless and interminable. There would be no finality to it.”

The granting of the relief sought by the plaintiff in the case at bar relating to the alleged newly discovered evidence obviously would not promote the finality of the jury’s verdict. In fact, it may well be the prelude to several additional jury verdicts in future trials resulting from plaintiff having found a medical expert with yet another diagnosis or opinion. As defendant points out, plaintiff was examined and tested by nine doctors, eight of whom testified and stated that they were treating physicians of plaintiff. It is also noteworthy that defendant offered no medical testimony at trial. Thus, plaintiff cannot be said to not have been afforded her day in court.

While this conclusion renders discussion of defendant’s other contentions unnecessary, we agree with defendant’s further contention that the motion for new trial based on newly discovered evidence is defective. Such a motion is required to be supported by the affidavits of the witnesses by whom it is proposed to prove the facts relied upon, or reasonable explanation should be shown for not obtaining them. (Janeway v. Burton (1903), 201 Ill. 78, 80-81, 66 N.E. 337, 338; Freudenberg & Co. v. Brown (1912), 175 Ill. App. 588, 589; People ex rel. Linton v. Barth (1932), 267 Ill. App. 574, 576.) No such showing was made in the case at bar.

Finally, we note that the record does not indicate whether the trial court addressed all the issues raised in plaintiff’s post-trial motion other than the issue relating to newly discovered evidence. Accordingly, we remand for consideration of the remainder of the post-trial motion, with instructions that judgment be entered upon the verdict of the jury if the remainder of that motion is found to be without merit.

For the foregoing reasons, the judgment of the circuit court of Williamson County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

WELCH, P.J., and EARNS, J., concur.