text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. RONALD TONALDI, Petitioner-Appellant.
    First District (2nd Division)
    No. 83—2789
    Opinion filed November 27, 1984.

      Julius Lucius Echeles, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and Joan O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

In this case, defendant Ronald Tonaldi appeals the dismissal by the trial court of his post-conviction petition (Ill. Rev. Stat. 1979, ch. 38, par. 122 — 1) which requested that his conviction for unlawful possession of cocaine in excess of 30 grams (Ill. Rev. Stat. 1977, ch. SG1^, par. 1402(a)(2)) be vacated because his trial counsel’s representation did not meet minimum standards of professional competency.

Defendant was convicted in December of 1979 by the circuit court of Cook County of possession of cocaine in excess of 30 grams and another charge. Codefendants Carol Masorlian and Daniel Brissa, also charged with the same offenses, were passengers in defendant’s car when it was stopped by police and controlled substances were found in a vinyl bag on the front seat. All three defendants were represented at trial by Frederick Solomon, who was related to defendant by marriage. At a preliminary hearing on a motion to suppress, which Solomon attended, Masorlian testified that when defendant picked her up on the day in question he was alone in the car and that was the first time she observed the vinyl bag.

Prior to the commencement of the bench trial, the assistant State’s Attorney informed the court that there was a potential conflict of interest problem and requested that the record reflect that defendants acknowledged this possibility and nevertheless waived their rights to separate counsel. In response to the trial court’s inquiry, the prosecutor answered that, based upon the evidence presented at the preliminary hearing, there existed a possible conflict between the passengers’ testimony and defendant’s testimony regarding knowledge of the contraband and its possession. Solomon stated that he was not aware of any conflict. The trial court advised defendant that “it would be very difficult for your attorney if he represents two defendants where the defense might be inconsistent” and “if some defendant or all defendants should testify and say something that was harmful to the other defendant that would be a conflict in the testimony probably, and it would be difficult for one lawyer to fairly represent all defendants when that occurs.” After being apprised of this, defendant stated that he had no objection to joint representation.

Masorlian, the only one of the three accused who was a witness at trial, testified in accordance with her preliminary hearing statements. In finding defendant guilty, while the other two not guilty, of possession, the trial court remarked that “there is no question that Mr. Tonaldi, so far as the evidence shows, was alone in the car when Miss Masorlian entered the car.” Defendant was sentenced to a four-year prison term. He appealed his conviction and retained his present counsel.

On appeal, this court reviewed the record and concluded that “under the circumstances surrounding this case defendant made an intelligent and knowing waiver of his right to separate counsel. *** Accordingly, although an actual conflict did manifest itself at trial, defendant’s right to effective counsel was not violated.” (People v. Tonaldi (1981), 98 Ill. App. 3d 528, 531, 424 N.E.2d 1200, appeal denied (1981), 85 Ill. 2d 581.) Defendant’s conviction for possession of more than 30 grams of cocaine was therefore affirmed.

Defendant thereafter filed a petition for writ of habeas corpus (28 U.S.C. sec. 2254 (1976)) in the United States district court in January of 1982. That court granted him an evidentiary hearing on his petition which alleged that he was denied the effective assistance of counsel when his lawyer jointly represented several codefendants at trial. At the hearing, defendant testified that he acquiesced in the joint representation in reliance upon his attorney’s advice and that he “couldn’t imagine” any harmful testimony that would come from his codefendants and how this testimony would impair his lawyer’s effectiveness. (United States ex rel. Tonaldi v. Elrod (N.D. Ill. 1982), 541 F. Supp. 608, 610, rev’d (7th Cir. 1983), 716 F.2d 431.) In addition to his testimony, defendant presented attorney Solomon’s affidavit in which he stated that prior to trial, he did not realize that Masorlian would place incriminating evidence against defendant. Further, defendant relied upon his assurances that there was no difficulty with joint representation.

In granting defendant’s motion for summary judgment, the United States district court found that defendant’s “inability to appreciate the consequences of his attorney’s joint representation, if true, vitiates the constitutional effectiveness of his purported waiver of the right to separate counsel.” (United States ex rel. Tonaldi v. Elrod (N.D. Ill. 1982), 541 F. Supp. 608, 611.) The court was not impressed with the State’s argument that defendant had notice of the existence of the conflict and noted that “[e]ven Tonaldi’s counsel, who participated in the preliminary hearing, failed to perceive the existence of a conflict of interest between co-defendants as the result of Masorlian’s testimony.” (541 F. Supp. 608, 611.) Moreover, the court held, “[t]he abstract and hypothetical admonishment delivered to Tonaldi in this case was simply insufficient to inform him of the fundamental nature of the right he was purporting to waive.” (541 F. Supp. 608, 612.) For these reasons, the district court concluded that defendant was denied his right to effective assistance of counsel. 541 F. Supp. 608, 613.

On the State’s appeal to the United States Court of Appeals, Seventh Circuit, the district court’s decision was reversed. In response to the State’s contention that defendant’s petition should have been dismissed as unexhausted because a State post-conviction remedy was available (28 U.S.C. sec. 2254(b) (1976)), the Seventh Circuit provided a comprehensive discussion of the exhaustion doctrine. (United States ex rel. Tonaldi v. Elrod (7th Cir. 1983), 716 F.2d 431, 434-37.) The court distinguished two theories of ineffective assistance of counsel. The first was that a conflict of interest adversely affected his attorney’s performance; the other was that his trial counsel’s decision to represent the codefendants was inconsistent with the minimum standards of competent representation. The court commented that defendant’s attempt to bring the first claim mentioned above into a State court on a post-conviction petition would be futile in light of this court’s reasoning and ruling; however, if defendant decided to advance the second mentioned cause in a post-conviction petition, that was an issue not previously raised in the Illinois courts and “a claim involving facts outside of the trial court record” which would therefore be unexhausted. (716 F.2d 431, 436-37.) The Seventh Circuit concluded, in its ruling on the merits of defendant’s claim before it, that “in this case, where there is no hint that the petitioner is incompetent, where a preliminary hearing helped to focus the conflict of interest, and where the petitioner expressed no reservations, a knowing and intelligent waiver was effected.” (716 F.2d 431, 439.) Defendant’s petition for rehearing was denied.

In the circuit court of Cook County, defendant then filed a post-conviction petition which asserted that his constitutional right to counsel was violated because his trial counsel’s decision to proceed with the joint representation of himself and his codefendants was inconsistent with the minimum standards of competent representation as required by the sixth and fourteenth amendments of the United States Constitution and article I, section 8, of the Illinois Constitution. (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, sec. 8.) The State filed a motion to dismiss, claiming that consideration of this issue was barred by the principle of res judicata. At the hearing before the trial court, defendant presented his trial counsel, Solomon, who was asked how it was that he did not realize that Masorlian’s testimony would incriminate defendant. Solomon answered that it was possible that the parties may have been talking about two different bags and he didn’t anticipate what Masorlian’s answer would be. Upon questioning by the State, Solomon admitted that in this particular instance, he “might have made a mistake.”

In addition to hearing Solomon’s testimony, the trial court reviewed the following exhibits: Solomon’s affidavit submitted to the United States district court, the transcript of the hearing in the district court, the transcript of the preliminary hearing, and the record of defendant’s State court bench trial. The trial court concluded that it did not have jurisdiction in the matter.

I

It has been well established that when a defendant has taken a direct appeal from the judgment of conviction on a complete record, the judgment of the reviewing court is res judicata as to all issues which were actually decided by the court; all issues which could have been presented to the court, and were not, are waived. (People v. Adams (1972), 52 Ill. 2d 224, 225, 287 N.E.2d 695.) Further, the general rule as to the issue of trial counsel's competence is that a defendant is held to have waived the issue if he is represented by different counsel on appeal and did not raise it. People v. Bland (1978), 67 Ill. App. 3d 716, 723, 384 N.E.2d 1380, appeal denied (1979), 75 Ill. 2d 591.

One exception to the rule that issues which could have been raised on direct appeal are barred by res judicata is the situation where alie-gations of trial counsel’s incompetence are based on facts which do not appear in the record. (People v. Turner (1979), 74 Ill. App. 3d 840, 844, 393 N.E.2d 55, appeal denied (1979), 79 Ill. 2d 623.) This is the argument which defendant advances before this court. The “new facts” of defendant’s trial counsel’s alleged incompetency were presented to the Federal court in his habeas corpus hearing and at his hearing in the trial court below on his post-conviction petition.

One fact which was allegedly based upon evidence outside of the record is that defendant did not understand the concept of conflict of interest. However, as the Seventh Circuit Court of Appeals recognized, this is, in essence, “a legal conclusion masquerading as a factual allegation” and defendant is actually asserting that the State trial court failed to provide him sufficient information and advice in order to permit an intelligent waiver. (United States ex rel. Tonaldi v. Elrod (7th Cir. 1983), 716 F.2d 431, 435.) This issue has already been resolved, for both our court and the Seventh Circuit Court of Appeals have determined that the trial court’s efforts in this regard were sufficient. People v. Tonaldi (1981), 98 Ill. App. 3d 528, 531; United States ex rel. Tonaldi v. Elrod (7th Cir. 1983), 716 F.2d 431, 438-39.

The next new fact which defendant alleges is that he relied upon the advice of his trial counsel when he made his choice to accept joint representation. As the Seventh Circuit pointed out, however, the concern is not what motivates a defendant to make a choice, but whether he was provided with sufficient information upon which to make the -decision. (United States ex rel. Tonaldi v. Elrod (7th Cir. 1983), 716 F.2d 431, 435, citing United States v. Davis (7th Cir. 1979), 604 F.2d 474, 482.) Therefore, this new factual allegation does not bear on the question of attorney incompetence.

The remaining new evidence, which defendant presented at his post-conviction hearing, consisted of his trial counsel’s admission that he did not comprehend the potential harm in allowing Masorlian to testify and that he may have “made a mistake.” This admission, however, adds nothing to defendant’s cause. It was apparent in the record as it stood in the direct appeal that there was, in fact, actual conflict in the codefendant’s testimony at trial (People v. Tonaldi (1981), 98 Ill. App. 3d 528, 531), which should have alerted defendant’s appellate counsel that the trial counsel may have “made a mistake” in deciding to proceed with joint representation.

According to our evaluation of defendant’s post-conviction petition, we conclude that he has failed to present any new facts which were not included in the previous record on appeal to this court or in the record before the Federal court. Defendant could have brought this issue before us in his direct appeal, or in his habeas corpus proceeding, especially since he raised the issue of the competency of trial counsel. (See People v. Cartee (1982), 104 Ill. App. 3d 754, 756, 433 N.E.2d 326, appeal denied (1982), 91 Ill. 2d 561.) Moreover, defendant has not stated in his post-conviction petition why he failed to urge this issue previously. In the absence of any allegations which would excuse defendant from not raising this basis for post-conviction relief, it is deemed waived. (People v. Toles (1976), 40 Ill. App. 3d 651, 652, 352 N.E.2d 58; see also People v. Peery (1982), 108 Ill. App. 3d 843, 845-46, 439 N.E.2d 1087, where a dismissal of a petition for post-conviction relief was affirmed on the grounds of res judicata based upon proceedings in defendant’s habeas corpus litigation.) For the reasons stated above, we hold that the trial court properly dismissed defendant’s post-conviction petition.

Accordingly, the judgment of the circuit court of Cook County is hereby affirmed.

Affirmed.

HARTMAN, P.J., and PERLIN, J., concur.

      This court vacated defendant’s conviction of unlawful possession of pentobarbital (Ill. Rev. Stat. 1977, ch. 56V2, par. 1402(b)). People v. Tonaldi (1981), 98 Ill. App. 3d 528, 424 N.E.2d 1200, appeal denied (1981), 85 Ill. 2d 581.


source: Caselaw Access Project

author: JUSTICE DOWNING

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS E. MITCHELL, Defendant-Appellant.
    First District (2nd Division)
    No. 83—2389
    Opinion filed November 27, 1984.

      Sam Adam and Clarence Burch, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and Bernard J. Murray, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Defendant, Thomas E. Mitchell, was indicted on two counts of delivery of a controlled substance (Ill. Rev. Stat. 1979, ch. 5Q1k, par. 1401(c)), and convicted by a jury of possession of a controlled substance (Ill. Rev. Stat. 1979, ch. 56V2, par. 1402). The jury found him not guilty of delivery. On appeal, defendant raises the following issues: (1) whether he was denied a fair trial because the State was allowed to introduce evidence of other crimes allegedly committed by him; (2) whether the jury was erroneously instructed on the offense of possession of a controlled substance; (3) whether the trial court properly excluded defense evidence which was offered to show a motive of the State’s witness to fabricate; and (4) whether the trial court wrongfully allowed impeachment of a defense witness.

Defendant, who at the time relative to the events involved in this case was a police officer with the Chicago police department, was indicted on two counts of delivery of less than 30 grams of cocaine which allegedly occurred on July 16, 1981. On motion of defendant, one count was dismissed.

William A. Haley, special agent with the Illinois Division of Criminal Investigations, testified on behalf of the State that on the evening of July 15, 1981, he was introduced to Maurice Nix by Sergeant Eddie Green of the internal affairs division of the Chicago police department. Haley also stated that Nix had felony charges pending against him. Shortly after midnight, Haley went with Nix to Madam Andre’s Lounge on North Wells Street in Chicago. They then proceeded to the Get Down Lounge, also located on North Wells, where they saw defendant and his partner, Officer Lawrence Terry. After being introduced to defendant and Terry, Haley said that he “wanted to cop some girl for the head.” Haley testified that “cop” means purchase and “girl” is slang for cocaine. Nix asked defendant and Terry if they had any, and they responded “no.” Defendant, however, remarked that he would attempt to locate some “girl” and exited the lounge. Haley later saw defendant outside and inquired whether he had located any cocaine. Defendant pointed out a male named “Boston” as someone who could take care of getting anything Haley wanted. Haley and Nix then conversed with Boston. Thereafter, Haley returned to defendant and asked him if he could get Boston’s price lowered. Defendant agreed to talk to Boston, which he did.

Boston then walked into the lounge, followed by Haley and Nix. Haley gave Nix $100 in cash, and Nix approached Boston in the rear of the lounge. Haley walked to the rear, whereupon Nix handed him three paper packages of purported cocaine. Boston obtained change then gave Nix $14, which Nix handed to Haley. At that time it was approximately 2:25 a.m., and Haley exited the lounge.

After meeting with members of his surveillance team for a few minutes at a different location, Haley returned to Madam Andre’s Lounge. There he observed defendant, Terry, and a man introduced as defendant’s cousin. Haley told defendant that the “girl” was good, and defendant responded that it was supposed to be. After Terry and defendant’s cousin left, Haley asked defendant for fnore cocaine. Defendant commented that Boston had already departed. Haley then observed Nix and defendant conversing and later followed Nix and defendant into the restroom area and had a conversation with defendant. Haley removed $80 from his pocket and handed it to defendant. Haley and Nix then entered the restroom. As they were leaving, they observed defendant walking towards them. They returned to the restroom, waited for defendant to enter, and then started to leave again. Nix talked to defendant outside of the restroom and motioned to Haley to go back in. As Haley did, he turned and saw defendant hand Nix four tinfoil packets. Nix turned around, took two steps, and handed the packets to Haley. Nix and Haley then returned to the restroom and closed the door.

Haley placed the packets into his pants pockets, and Nix exited. As Haley was leaving, he was approached by defendant, whom he told that the packages looked good. Thereafter, he told defendant that he was going to pay him a finder’s fee, and defendant stated that he did not want money, but wanted some of the package Haley had just received. Haley gave defendant one of the packets and left the restroom area. Haley also testified as to the chain of custody of the remaining three packets. On cross-examination, Haley testified that defendant never gave him any cocaine directly on July 16, but only that he received the cocaine from Boston and Nix.

During defendant’s case, Sergeant Green testified that he had spoken to Nix on numerous occasions, the latest being in March of 1983, two months prior to trial. Green admitted that on July 16, he knew of Nix’s pending drug charge. The State’s objections to queries by defense counsel as to Green’s knowledge of the disposition of the drug possession charge were sustained. On cross-examination, Green stated that he had a warrant for Nix’s arrest, and that he had unsuccessfully been trying to bring Nix in as a witness for the trial.

Defendant next presented Officer John Suddie of the Chicago police department, who related that on March 7, 1981, he arrested Nix. In response to the State’s objection, Suddie was not allowed to testify about the reason for Nix’s arrest and whether he was charged with an offense. At a side bar, defense counsel made an offer of proof and submitted a complaint for preliminary hearing wherein Suddie stated that Nix committed the offense of possession of a controlled substance, cocaine. Officer James McKeon of the Chicago police department was called next, and he stated that on March 5, 1981, he arrested Nix. Objections to defense counsel's repeated questions regarding whether any charges were filed against Nix were sustained.

The next defense witness was Officer Lawrence Terry, defendant’s partner. He stated that he was familiar with the Get Down and Madam Andre’s lounges for both official and nonofficial reasons. Terry said he knew Nix as the bartender and occasional patron of the Get Down Lounge, and never had any dealings with him other than Nix serving him a drink or lightly conversing with him. Terry also denied knowing William Haley or a person named Boston and denied engaging in any conversation about cocaine on July 16. During cross-examination, Terry stated that he probably was in Madam Andre’s Lounge during mid-July, but he never met anyone that was introduced to him by Nix. Further, he did not remember any conversation in Madam Andre’s with anyone who was with Nix concerning cocaine usage. Terry was suspended from the police department in early September 1981 for alleged delivery of cocaine to Haley on July 17, 1981. He claimed that he did not see any cocaine at the Get Down Lounge on July 16 or 17 of 1981.

Defendant testified on his own behalf and denied any involvement in the drug conversations or drug dealings in question. He stated that some time in the summer of 1981, Nix was introducing Haley at the two lounges as Nix’s cousin. Outside of the presence of the jury, defendant made an offer of proof that Nix had offered to be an informant for defendant in order to gain leniency on his two felony charges. Defense counsel also stated that a court reporter would testify as to her notes of proceeding for August 18, 1981, when the State nol-prossed Nix’s charges. An assistant State’s Attorney would also testify that Nix’s charges were dropped as a result of his undercover work for the police. The court refused to allow this in evidence.

The jury found defendant not guilty of the offense of delivery of cocaine and guilty of the offense of possession. Defendant received a two-year prison sentence and was fined $5,000.

I

Defendant strongly urges that he was denied a fair trial because the State was allowed to introduce highly prejudicial testimony that was irrelevant to the charge against him.

The offense for which defendant was indicted concerned activities which allegedly took place on July 16, 1981. Special Agent Haley testified as to the manner in which defendant obtained cocaine for him on July 16. Over defendant’s objections, Haley was allowed to testify that on July 23, he had a conversation with defendant and Nix about the previous July 16 meeting. Defendant stated that there were questions being asked in the area about who Haley was and that if “there was any heat to come down” it would be on Nix.

During defendant’s direct examination, he denied any involvement in the alleged drug deal of July 16. On cross-examination, the State asked him about alleged conversations with Haley regarding drug deals on July 17 and July 23. Defendant was asked if “in July of 1981 or in fact any time prior thereto you never had any contact with cocaine in the presence of Maurice Nicks [sic] or Agent Haley?” He responded in the negative. The prosecutor further asked defendant about alleged activities at the Get Down Lounge on December 18, 1980, at the Superstar Disco on February 25, 1981, and September 25, 1981, and at Madam Andre’s on April 9, 1981, and February 20, 1982. Defendant denied knowledge of the incidents and stated that he never uses cocaine and did not know Ernest Boston. Defendant continually objected to the line of questioning and made motions for mistrial, all of which were denied.

As a rebuttal witness, the State presented Sergeant Eddie Green of the internal affairs division of the Chicago police department. Over defense counsel’s repeated objections, Green was allowed to testify that at the Get Down Lounge on December 18, 1980, he observed the bartender hand a brown medicine vial containing white powder to defendant, Officer Terry and a girl named Penny. After receiving the vial, the three exited the lounge and approximately 15 minutes later returned with heavy traces of white powder on each of their noses. Prior to this testimony, the trial court instructed the jury that “[t]his is being accepted for the limited purpose, insofar as credibility of previous testimony is concerned and is not to be considered by the Jury as any proof of the offense for which this Defendant is charged.”

The State then attempted to question Green about an incident involving Officer Terry and Penny that occurred on February 6, 1981. After a side bar conference, the court sustained defendant’s objection based upon lack of foundation and struck the testimony. Green thereafter related an incident on February 25, 1981, at the Superstar Disco concerning defendant, Penny and another male. Green said that he saw Penny go into the restroom with about 10 separate females at different intervals. Defense counsel objected, and, during a side bar, the trial court ruled that the testimony regarding the white powder was permissible, but the testimony about Penny’s implied transactions on February 25 was too prejudicial, and the “prejudicial impact outweighs the probative value.”

The prosecutor then inquired about the admissibility of evidence that on April 9, 1981, defendant invited a male patron into the restroom with him, while at the same time Penny was taking females into the women’s washroom. The trial court ruled this inadmissible, saying that the other testimony was allowed for the purpose of showing defendant was familiar with the establishments, but further testimony would only result in prejudice outweighing its probative value. After the jury returned, the prosecutor attempted to present evidence of the April 9 incident; all the court would allow Green to testify was that he saw defendant standing with another gentleman and asking him if he could go into the washroom with him. Defense counsel’s objections were sustained to the State’s further attempt to offer evidence of an occurrence on May 22.

The State then recalled Officer Haley, who stated that on July 16, shortly after 12:50 a.m., he had a conversation with Terry in the Get Down Lounge concerning his drug usage. Also, in the presence of Terry, defendant, Nix and two other males, Haley requested cocaine on July 17 at that same lounge. Shortly thereafter, Haley repeated his request at Madam Andre’s in the presence of Nix and Terry. Later, Haley had a conversation with Terry at Madam Andre’s on July 17 regarding Terry’s selling cocaine to Haley. At approximately 2:49 a.m. on July 17, Haley had a conversation with defendant and Nix outside of Madam Andre’s wherein defendant told Haley that Terry had given Haley two packages too many and Haley replied that he had given them to Nix. Haley told defendant that Terry had given him 10 packets, not eight, and then he handed defendant the packets. On July 23, 1981, shortly after 1:15 a.m., Haley spoke with defendant and Nix and defendant offered to buy a gram of cocaine for Haley at the cost of $100. Defendant informed Haley that the money was to pass to Nix, and that he did not want Haley to witness the sale. Defendant allegedly stated that dope was plentiful, but that “the heat was on.” The jury was instructed that this testimony was admitted for the limited purpose of assessment of the credibility of the witnesses and “is not to be used by you or considered by you as to the guilt or innocence on the charge that is before you.”

Defendant argues that testimony of events which happened on dates other than July 16, 1981, were erroneously admitted for the following reasons: (1) the evidence consisted only of inferences of misconduct and were not proof that a crime had been committed; (2) even assuming it was proper evidence of “other crimes,” the testimony does not fit into any of the traditional exceptions to the rule of exclusion; (3) the testimony exceeded the scope of the direct examination; (4) the trial court offered an improper rationale for allowing the evidence; (5) the testimony was not probative of the crime for which defendant was indicted; and (6) any probative value of the testimony was outweighed by its prejudicial effect on the jury.

It is undisputed that evidence of crimes other than the ones for which a defendant is on trial cannot be admitted unless it is shown that a crime actually occurred and that defendant committed it (People v. Miller (1977), 55 Ill. App. 3d 421, 426, 370 N.E.2d 1155, appeal denied (1977), 66 Ill. 2d 634); further, proof of extra-indictment crimes is permissible where it proves knowledge, intent, motive, design, plan or identification (People v. Alexander (1982), 93 Ill. 2d 73, 79, 422 N.E.2d 887). In the case at hand, testimony was permitted which showed that six months prior to the day of the offense in the indictment, defendant received a brown vial at the Get Down Lounge and was thereafter seen with white powder on his nose. No evidence was received as to the nature of substance of the powder. At best, this is only an inference that defendant was using a drug and because he was on trial for delivery of cocaine, it was not probative of this charge. While it is true that defendant stated on cross-examination that he never used drugs, defendant’s personal use of narcotics was not germane to the offense for which he was being tried. As stated in People v. Hanson (1977), 44 Ill. App. 3d 977, 984, 359 N.E.2d 188, “[i]n short, there must be some connection between the facts proved and the offense charged.” We conclude from our review of the record that the evidence which inferred defendant’s use of cocaine on December 18,1980, in the Get Down Lounge was improperly admitted.

Further, we cannot conclude that this error was harmless. During the prosecutor’s closing argument to the jury, he highlighted this evidence and told the jury that “[hjeavy white powder under the defendant’s nose doesn’t lie.” The jury subsequently found defendant guilty of possession, and not guilty of delivery of a controlled substance. It is our opinion that the substantial prejudicial impact of this evidence on the jury outweighed any possible probative value it may have had. (See People v. Funches (1978), 59 Ill. App. 3d 71, 73-74, 375 N.E.2d 135.) We have determined that this cause must be reversed and remanded to the circuit court.

In view of the fact that there may be a new trial on remand, we will take the opportunity to comment on the admissibility of the evidence of other crimes. Evidence of other offenses is allowable if relevant for “any purpose other than to show the propensity to commit crime.” (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, cert. denied (1983), 464 U.S. 844, 78 L. Ed. 2d 136, 104 S. Ct. 145.) Relevance is the touchstone of admissibility, and evidence of other crimes will not be allowed unless it is probative of the proposition at hand. People v. Barbour (1982), 106 Ill. App. 3d 993, 1000, 436 N.E.2d 667, appeal denied (1982), 91 Ill. 2d 572.

Agent Haley was allowed to present evidence of conversations with defendant on July 17 and 23 regarding drug transactions. Evidence of subsequent drug-related conversations is permissible as “part of the full circumstances attending the commission of the crime” and when it serves “to give a complete picture of the transaction.” (People v. Borawski (1978), 61 Ill. App. 3d 774, 779, 378 N.E.2d 255; see also People v. Cole (1963), 29 Ill. 2d 501, 503-05, 194 N.E.2d 269.) In this case, the only evidence which the State presented to establish the offense charged against defendant was the testimony of Agent Haley. Nix, the informant, did not testify. The State had the difficult task of establishing that this one transaction occurred which had been part of an ongoing investigation; the credibility of the witnesses was therefore very crucial. We believe that the introduction of the subsequent conversations between Haley and defendant were properly admitted as part of the “complete picture” attending the offenses and to show defendant’s guilty knowledge of cocaine sales. See People v. Robinson (1982), 104 Ill. App. 3d 20, 26, 432 N.E.2d 340, appeal denied (1982), 91 Ill. 2d 578, cert. denied (1983), 459 U.S. 1228, 75 L. Ed. 2d 469, 103 S. Ct. 1235.

II

Defendant alleges two points of error regarding the jury instructions given at his trial. He claims that: (A) he was indicted for the offense of delivery of a controlled substance and therefore the jury was erroneously instructed as to the offense of possession; and (B) the trial court erred in not rendering his nonpattern instruction on the charge of delivery which included both the date of the alleged offense and the name of the deliveree.

A

Defendant’s contention that the jury should not have been instructed on the included offense of possession is flatly without merit. Generally, when the record contains evidence which, if believed by the jury, would reduce the crime to a lesser included offense, the trial court should instruct the jury as to this lesser offense. (People v. Robinson (1980), 87 Ill. App. 3d 621, 630, 410 N.E.2d 121, appeal denied (1981), 82 Ill. 2d 587.) It has been recognized that possession of a narcotic is a lesser included offense of unlawful delivery of a controlled substance which is a narcotic. (People v. Dunn (1977), 49 Ill. App. 3d 1002, 1009-10, 365 N.E.2d 164.) In People v. Lewis (1980), 83 Ill. 2d 296, 415 N.E.2d 319, our supreme court held that possession with intent to deliver, as well as possession itself, are included offenses within the charge of delivery of a controlled substance, and an information charging delivery is sufficient to support a conviction for the included offense. (People v. Lewis (1980), 83 Ill. 2d 296, 301-02, interpreting section 5(e) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56V2, par. 705(e)).) Defendant’s attempt to distinguish this case because Lewis was not acquitted by the jury of the delivery charge is not persuasive, since a “conviction of an included offense operates as an acquittal of the offense charged ***.” (People v. Lewis (1980), 83 Ill. 2d 296, 300.) Based upon the evidence presented at trial of defendant’s conduct on the day in question, we conclude that the instruction as to the included offense of possession was justified.

B

Defendant proffered jury instructions which specified Agent Haley as the deliveree, as well as July 16, 1981, as the date of the alleged sale. These instructions were rejected by the trial court. Illinois Pattern Jury Instructions, Criminal, Nos. 2.01 and 17.11 (2d ed. 1981) were given instead. Defendant urges that because the jury heard testimony regarding the use or delivery of cocaine by defendant on various dates, that the nonspecific instructions were highly prejudicial to him. He surmises that the jury heard evidence from which it would conclude that he possessed a controlled substance on six different dates. The State counters that there was no confusion about the dates and that the jury was admonished throughout the trial that defendant was being tried for events occurring only on July 16, 1981.

Supreme Court Rule 451(a) provides that “*** [wjhenever IPI-Criminal does not contain an instruction on a subject on which the court determines that the jury should be instructed, the instruction given on that subject should be simple, brief, impartial, and free from argument.” (87 Ill. 2d R. 451(a).) Approved pattern instructions are to be used generally, and may be modified or supplemented only when the facts of the particular case make them inadequate. (People v. Hunter (1984), 124 Ill. App. 3d 516, 543, 464 N.E.2d 659.) The decision whether to give a tendered nonpattern instruction is always within the discretion of the trial court. People v. Dixon (1982), 105 Ill. App. 3d 340, 348, 434 N.E.2d 369, cert. denied (1984), 466 U.S. _, 80 L. Ed. 2d 836, 104 S. Ct. 2364.

In view of the particular facts in this narcotics case where evidence was erroneously admitted which implied defendant’s use of a drug on a date other than the date of the offense in the indictment, we find merit to defendant’s argument that the instructions informing the jury of the charges should have included the date of July 16, 1981. We conclude that because of the cumulative effect of the improper evidence combined with this error, defendant’s conviction must be reversed.

Ill

Defendant also urges that the trial court erred in refusing to allow him the opportunity to present his theory of the case, i.e., that the informant, Nix, had manufactured the State’s case against him in order to gain leniency on his pending felony charges. Although this issue may not be involved in a possible retrial of defendant depending on whether or not Nix will then be a witness, we nevertheless choose to resolve it.

At trial it was alleged that Nix had charges pending against him when Haley first met him on July 15, 1981. Despite numerous attempts, defendant was not allowed by the trial court to establish that these charges were nol-prossed by the State on August 18, 1981, as a consequence of Nix’s cooperation. Defendant also tried to present the fact that he had telephone conversations with Nix during which Nix allegedly offered his services as an informant in order to get out of pending charges. Furthermore, Nix allegedly confessed to defendant that he set him up and that he wished to tell the truth to defendant’s lawyer. Defendant suggests that the State used Nix and now is hiding behind the fact that he cannot be located.

The State acknowledges that a defendant is entitled to all reasonable opportunities in which to present evidence which might create doubt as to his guilt. (People v. Reese (1984), 121 Ill. App. 3d 977, 988, 460 N.E.2d 446.) A trial court may, however, exclude evidence when its relevancy is so speculative as to impart little probative value. (People v. Hunt (1981), 99 Ill. App. 3d 958, 965, 426 N.E.2d 568.) In this case, the trial court ruled that evidence that Nix’s two felony charges had been nol-prossed by the State was too speculative, and further, that unless Nix was called to testify, this would be in essence “back door impeachment.”

The sole witness who established the elements of the offense during defendant’s trial was Agent Haley. The excluded testimony would do nothing to establish any motive or bias on Haley’s part. Even if defendant’s charge that Nix had “fabricated this evidence and somehow or other, ensnared — I’m not going to use the word entrapped, ensnared the Defendant into his net” was true, this motive on the part of Nix would not bear upon Haley’s credibility.

We take this opportunity to make an observation regarding this situation should it arise again in a possible new trial. Here, the State was allowed, without objection by defense counsel, to inform the jury that Nix had felony charges pending against him at the time of the alleged offense. Defendant’s subsequent attempts to advise the jury of the ultimate disposition of those charges as part of his theory of defense were thwarted by the trial court. We have been unable to locate in the record any motion by defense counsel to strike the previous references to Nix’s pending charges. If defense counsel had made such a motion, and the trial court denied it, our conclusion on this issue may have been different.

We believe that any reference to the absent witness’ criminal history was irrelevant and thus improper. Evidence of Nix’s pending felony charges, left unrefuted, could have been prejudicial to defendant, since testimony at trial showed defendant’s association with Nix. However, because defense counsel did not move to strike this evidence, nor did he raise this issue in his post-trial motion or before this court, we only offer our comment for possible future guidance.

IV

Defendant further alleges that the trial court erred in allowing his defense witness, Officer Terry, to be asked improper prejudicial questions on cross-examination. This issue may also be raised on retrial and thus we will address it. Terry was asked by the prosecutor if he had been suspended from the police force for an alleged delivery of cocaine on July 17, 1981. Terry admitted that he was suspended on approximately the second or third day of September in 1981. Defendant notes that at the time of his trial, Terry had not yet been tried for the offense for which he was suspended and he improperly informs this court in his brief that Terry was acquitted of the charge.

The State argues that the trial court correctly allowed evidence of Terry’s suspension and pending charge in order to show Terry’s bias or motive for testifying for defendant. The State established that Terry was suspended from the police force because he had been charged with an alleged delivery of cocaine to Agent Haley. Terry testified on direct that he did not know anyone named William Haley, or Billy Davis, Haley’s undercover name. Therefore, evidence that Terry knew Haley was the deliveree named in the pending charge against him would be relevant to establish his motive or bias and was proper. Cf. People v. Mason (1963), 28 Ill. 2d 396, 403, 192 N.E.2d 835.

We have determined that the evidence presented by the State is sufficient to support the jury’s verdict of guilty of the offense of possession. However, because of our finding that defendant was prejudiced by errors committed at his trial, we reverse this cause and remand it for a new trial. See People v. Barbour (1982), 106 Ill. App. 3d 993, 1002-03, 436 N.E.2d 667, appeal denied (1982), 91 Ill. 2d 572.

The judgment of the circuit court of Cook County is hereby reversed and the cause is remanded.

Reversed and remanded.

HARTMAN, P.J., and STAMOS, J., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MYRON ADAMS et al., Defendants-Appellants.
    First District (4th Division)
    No. 82—2609
    Opinion filed November 29, 1984.

      Chester Slaughter and Freddrenna M. Lyle, both of Chicago, for appellant Walter McKee.
    Steven Clark and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant Myron Adams.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David C. Kluever, and Kevin M. Sheehan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Following a jury trial, defendants, Myron Adams and Walter McKee, were convicted of armed robbery and murder (Ill. Rev. Stat. 1979, ch. 38, pars. 18 — 2(a), 9 — 1(a)) of Donald Pender. Adams received concurrent sentences of 25 years for murder and 15 years for armed robbery; McKee received concurrent sentences of 40 years for murder and 30 years for armed robbery. Both defendants appeal.

We are asked to consider (1) whether the evidence proved guilt beyond a reasonable doubt; (2) whether it was reversible error for the trial court to prevent the defense attorney from cross-examining the prosecution’s witness about the circumstances surrounding the witness’ own detention, questioning and subsequent accusatory statement to the police; (3) whether there was prosecutorial misconduct which prevented defendants from receiving a fair trial; (4) whether it was reversible error for the trial judge to fail to question prospective jurors about racial prejudice and the possibility that the defendants would not testify; (5) whether the prosecutor’s use of peremptory challenges to exclude blacks from the jury violated the defendants’ constitutional rights; and (6) whether it was reversible error for the trial court to refuse defendant McKee’s instruction on the credibility of a narcotic addict.

We reverse.

The following evidence was adduced at trial. Norman Gill, a male prostitute, testified for the State. Shortly after 1:30 a.m. on November 10, 1981, he walked to the corner of West End and Cicero Avenues in Chicago for the purpose of soliciting customers. Gill was dressed as a female. On his way to Cicero and West End, Gill noticed defendant McKee walking a half block behind him. Gill gave conflicting testimony about whether he saw defendant Adams in the vicinity at the time in question.

The victim, Donald Pender, stopped his car at the corner of Cicero and West End avenues and conversed with Gill. Pender and Gill agreed that Gill would perform certain sexual acts in exchange for $20. At Gill’s direction, Pender drove to a deserted location two blocks away. Gill testified that he told Pender that he (Gill) was a man. Pender gave Gill $20 and Gill performed an act of fellatio, and then they had intercourse in the front seat of Pender’s car.

Gill and Pender had just completed intercourse and rearranged their clothing when defendants McKee and Adams entered the car. McKee pointed a gun at Pender and told him to “give it up.” Gill understood that to mean McKee wanted Pender’s money. Gill’s testimony was conflicting as to defendant Adams’ action in demanding money from either Gill or Pender. Gill was allowed to leave the car. When he was approximately 15 feet away, he looked back and saw the gun, held by McKee, go off. McKee was sitting next to Pender in the front seat of the car when the shooting occurred.

After the shooting, Gill ran to the intersection of West End and Cicero Avenues where he was stopped by the police. He was asked by the officers for his name, address, and some form of identification. Gill gave his name as Norman Thompson and told the police that he had no identification. The police drove Gill back to the scene of the shooting and inquired whether he (Gill) knew anything about it. Gill denied knowing Pender or anything about the incident. He was then driven home by the police officers.

Two Chicago police officers testified that witnesses placed Gill with Pender immediately prior to the shooting. On November 13, 1981, the police took Gill from his home to the area four violent crimes headquarters. Gill was placed in a room and questioned many times by several police officers over the next 28 hours. He was told that witnesses had placed him with the victim at approximately the time and place of death. Gill repeatedly denied any knowledge of Pen-der’s death. Gill eventually made a statement implicating the defendants in the killing. There was conflicting testimony about whether Gill had been in custody 28 or 36 hours at the time he made the statement.

Gill testified that at the time of the killing, he spent $150 per day on drugs, namely, heroin, “T’s” and “blues.” He had used heroin approximately IV2 hours before meeting Pender. At the time of trial, Gill testified that he had been drug-free for four months.

Chicago police officer Gerald Dorich testified that he interviewed several known prostitutes, as well as Gill, on November 12 and 13, 1981. On November 13, pursuant to certain information, Dorich brought defendant McKee into the police station. Gill identified McKee through a two-way mirror. Shortly thereafter, Gill gave a complete statement naming McKee and Adams as the killers. Gill later picked Adams’ photograph out of a group of five photographs. On November 30,1981, defendant Adams was arrested.

Gill testified that he and defendant McKee had been lovers prior to November 10, 1981, but had terminated their relationship before the date of the killing. Gill knew defendant Adams by sight, but the two were not friends.

The medical evidence established that Pender died from a single gunshot to the abdomen. The murder weapon was not recovered.

At trial, defense attorneys repeatedly attempted to question Gill, the State’s principal witness, about what had occurred during the 28 to 36 hours he spent at the police station prior to making a statement. Specifically, the defense attempted to ask Gill whether he had been charged with the murder before he named Adams and McKee as the killers, whether he had been given Miranda warnings while in custody and prior to his statement, and whether he had been free to leave at any time prior to the statement. The defense also attempted to elicit the same information from the police officers who testified. The trial court sustained the State’s objection on each occasion, and the defense was not permitted to pursue the aforementioned line of questioning.

At the conclusion of the trial, the jury found both defendants guilty of murder and armed robbery: McKee received concurrent sentences of 40 and 30 years, respectively, and Adams received concurrent sentences of 25 and 15 years, respectively. Both defendants have appealed their convictions, and the appeals have been consolidated before this court.

Defendants contend they were not proved guilty beyond a reasonable doubt because the State’s star witness, Norman Gill, was a liar and his testimony was incredible. The State offers the opposite view.

It is the province of the jury to weigh the evidence, judge the credibility of the witness and determine the facts (People v. Cukojevic (1981), 103 Ill. App. 3d 711, 716, 431 N.E.2d 1154, 1158), and the testimony of a single credible witness is sufficient to convict. 103 Ill. App. 3d 711, 717, 431 N.E.2d 1154, 1158.

The record establishes beyond any doubt that the victim was robbed and brutally murdered. Defendants, however, claim that there was insufficient evidence to link them to the crimes. The sole evidence on this material fact was the testimony of Gill. There can be no question that if Gill told the truth, defendants committed the crimes. Gill stated that both defendants entered the victim’s car, defendant Adams demanded money, defendant McKee held a gun and, finally, Gill saw McKee fire the gun at the victim. There is some corroboration for parts of Gill’s story, such as the description of the victim’s car and the location of the crimes, but there is no corroboration for Gill’s statement that defendants were the killers. Thus, Gill’s testimony was the only evidence linking defendants to the killing.

It is the jury’s function to weigh the evidence and judge the credibility. (People v. Cukojevic (1981), 103 Ill. App. 3d 711, 716, 431 N.E.2d 1154, 1158.) There is no requirement that every or any aspect of a witness’ testimony be corroborated by other evidence. Indeed, this court declines to substitute its judgment for that of the jury which heard the evidence and had the opportunity to observe the demeanor of the witnesses (People v. Winfield (1983), 113 Ill. App. 3d 818, 829, 447 N.E.2d 1029, 1039), unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt of guilt (People v. Cukojevic (1981), 103 Ill. App. 3d 711, 716, 431 N.E.2d 1154, 1158).

Here, the jury had an opportunity to observe Gill, listen to his testimony, assess his demeanor and compare his story with other evidence in the case. Based on facts which the record shows were presented to the jury, we cannot say there was insufficient evidence upon which the jury could find defendants guilty beyond a reasonable doubt.

Defendants next contend that they were denied their constitutional right to confront their accuser when the trial court prevented defense counsel from cross-examining Gill so as to show bias, motive or interest. Defendants point out that their theory of defense was based on the premise that the prosecution’s witness, Gill, was lying and had a reason for doing so. Defendants could not develop their theory without cross-examining Gill in the manner prohibited by the trial court. Further, the jury could not have made a fair determination of guilt or innocence without having been apprised of defendants’ theory. Both defendants vigorously assert that the trial court’s action constituted reversible error. We note that the State’s initial argument is that defendants have waived this argument for purposes of appeal by failing to raise it in their post-trial motion. However, the waiver rule is not absolute, and the error may be considered on appeal if it appears that the effect was so prejudicial as to prevent defendants from receiving a fair trial. (People v. Jackson (1981), 84 Ill. 2d 350, 359, 418 N.E.2d 739, 743.) Accordingly, we reject the State’s initial argument that this issue cannot be considered by this court.

The State advances several theories in support of the trial court’s limitation of defense counsel’s cross-examination of Gill. The gist of the State’s argument is that defense counsel was on a fishing expedition and had no factual basis for the inquiry they sought to make. The State concludes that even if the trial court erred in limiting the cross-examination of Gill, such error was harmless. We do not agree.

An examination of the record clearly establishes that the State’s case turned on the credibility of Gill. In circumstances in which credibility of a witness is a crucial issue, the trial court should permit the parties wide latitude unimpeaching and rehabilitating the witness’ credibility. Only in this way can the jury gain access to all the information and impressions necessary to enable it to evaluate accurately the credibility of witnesses.

We believe it was error for the cross-examination of Gill, the State’s witness, to have been so restricted that the defense was unable to explore the possibility that the witness may have been biased or testifying falsely. In Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, the United States Supreme Court addressed a similar problem and recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. 415 U.S. 308, 316-17, 39 L. Ed. 2d 347, 353-54, 94 S. Ct. 1105, 1110-11.

We need not discuss in detail the general principles which govern the use of testimony to show a witness’ bias, interest or motive to testify falsely. (See Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105; People v. Owens (1984), 102 Ill. 2d 88, 464 N.E.2d 261; People v. Phillips (1981), 95 Ill. App. 3d 1013, 420 N.E.2d 837.) The fact that a witness has been arrested or himself charged with an offense may be inquired into for the purpose of showing that his testimony might be influenced by bias, interest, or a motive to testify falsely. People v. Freeman (1981), 100 Ill. App. 3d 478, 480-81, 426 N.E.2d 1220, 1222.

The jury is entitled to hear the defense theory that the witness may be testifying falsely because he is or was vulnerable to pressure from the police regarding his own connection with the crime. See Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105; People v. Kellas (1979), 72 Ill. App. 3d 445, 389 N.E.2d 1382; People v. Baptiste (1976), 37 Ill. App. 3d 808, 347 N.E.2d 92.

While recognizing that the scope of cross-examination is generally within the trial court’s discretion, that discretion must be exercised in such a way as to allow the defendants wide latitude in establishing bias, motive or interest by a witness. People v. Pizzi (1981), 94 Ill. App. 3d 415, 420, 418 N.E.2d 1024, 1028.

Here, the trial judge refused to permit the defense to ask Gill whether he himself had been suspected, arrested or charged with the crimes. If Gill were under suspicion, arrested or charged in this case, this may provide Gill with a motive to cast suspicion from himself by pointing the finger of guilt at others. This court is not suggesting that this is in fact what happened. However, the defense was entitled to develop this theory and ask the jury to consider the possibility in judging the credibility of the State’s star witness.

The trial judge’s limitation of the cross-examination of Gill deprived the defense of the opportunity to thoroughly explore Gill’s credibility. In a case in which credibility is the key issue, wide latitude in conducting cross-examination is particularly important. The trial court abused its discretion by restricting the defense in its cross-examination of Gill. Moreover, we cannot say that the jury’s assessment of Gill’s credibility and thus its verdict would have been the same if the trial court would have given the defense the latitude to which it was entitled.

Accordingly, the judgment of the circuit court of Cook County is reversed, and the cause is remanded for a new trial. In light of our holding, we will not address the additional issues raised since those issues are unlikely to reappear in a new trial.

Reversed and remanded.

LINN, P.J., and JIGANTI, J., concur.


author: JUSTICE WHITE

text:
    ROBERT KELLER, a Minor, by His Mother and Next Friend, Judith Keller, Plaintiff-Appellant, v. RALPH MOLS et al., Defendants-Appellees.
    First District (3rd Division)
    No. 83—2508
    Opinion filed December 5, 1984.

      Barclay, Damiseh & Sinson, Ltd., of Chicago (Junie L. Sinson and Thomas J. Swabowski, of counsel), for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, William J. Oberts, and Katherine S. Dedrick, of counsel), for appel-lees.
   JUSTICE WHITE

delivered the opinion of the court:

On January 17, 1980, Robert Keller, Richard Keller, Ralph Mols, Jr., and Richard Mols were engaged in a child’s game of floor hockey on the patio of the Mols’ residence. They were playing with a plastic puck, hockey sticks with plastic bottoms and plastic whiffle-ball bats. The object of the game was to propel the puck over the opponent’s goal by hitting it with the stick. While acting as goalie, Robert Keller was injured when the plastic puck struck him in the right eye. He was wearing no protective equipment.

Robert Keller instituted the present action by his mother and next friend, Judith Keller. Count 1 of his amended complaint is directed against Ralph Mols, Sr., and Judith Mols and alleges, inter alia, that they were negligent in permitting neighborhood children to play floor hockey on their property and in failing to warn them of the dangers of playing floor hockey without protective equipment. Count 2 of the complaint is directed against Ralph Mols, Jr., and alleges that he was negligent in shooting a hockey puck in the direction of an individual whose face was unprotected by an appropriate mask.

On motion of defendants, Ralph Mols, Sr., and Judith Mols, the circuit court entered summary judgment as to count 1 of the amended complaint and dismissed same. Plaintiff appeals.

It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162, 456 N.E.2d 116; Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 18, 440 N.E.2d 96; Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 208, 399 N.E.2d 596.) Whether under the facts of a case such a relationship exists between the parties as to require that a legal obligation be imposed upon one for the benefit of another is a question of law to be determined by the court. (Pelham v. Griesheimer (1980), 92 Ill. 2d 13, 18-19; Barnes v. Washington (1973), 56 Ill. 2d 22, 26, 305 N.E.2d 535.) In the absence of any showing upon which the court could infer the existence of a duty, no recovery would be possible as a matter of law, and summary judgment in favor of defendants would be proper. Barnes v. Washington (1973), 56 Ill. 2d 22, 27; Schoondyke v. Heil, Smart & Golee, Inc. (1980), 89 Ill. App. 3d 640, 643, 411 N.E.2d 1168; Boehne v. Elgin Packing Co. (1972), 8 Ill. App. 3d 153, 289 N.E.2d 283.

In granting the motion for defendants, Ralph Mols, Sr., and Judith Mols, for summary judgment the court found, as a matter of law, that the plaintiff-minor, Robert Keller, was a social guest at the time of the occurrence and that defendants, Ralph and Judith Mols, did not violate their duty to refrain from wilful and wanton conduct. Historically, a social guest was regarded as a licensee rather than an invitee, and the duty of the host was not to wilfully, wantonly or recklessly injure the guest. (Kay v. Ludwick (1967), 87 Ill. App. 2d 114, 120, 230 N.E.2d 494.) However, the common law categories of trespasser, licensee and invitee, as they pertained to an injured child’s status, are no longer controlling in determining liability. (Cope v. Doe (1984), 102 Ill. 2d 278, 285-86, 464 N.E.2d 1023.) Whether the law imposes a duty on a landowner for injuries to a child depends on the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant. Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231.

In the present case, the likelihood of injury was small. The Mols and Keller boys used plastic whiffle-ball bats, hockey sticks with plastic bottoms and a plastic puck to play the game of floor hockey. This collection of toys cannot be compared to the equipment used in adult hockey games. The likelihood of injury is small when a light plastic puck is being propelled on a slow surface by a stick with a plastic bottom.

The burden sought to be imposed upon defendants is inordinately high, requiring constant surveillance of the boys’ play activities. Defendants would have to be on guard whenever their children invited other children to play on their property. Defendants would have to know the rules of all the games played by the children and the risks involved in each game. Defendants would also have to familiarize themselves with the types of protective equipment needed in each game and either provide appropriate equipment or require that the children provide their own. Lastly, defendants would have to oversee the games to ensure that the children did not remove the protective equipment. The existence of such a legal obligation, if generally known, would lead persons in the position of defendant to prohibit the use of their properties by friends of their children.

Two additional factors support our conclusion that a duty should not be imposed under the circumstances: (1) Robert was 14 years old at the time of the incident. He possessed extensive spbrts experience. He wrestled, played football and basketball at school. He suffered diverse injuries while participating in those sports. Assuming, arguendo, that the game of floor hockey involves serious risks to participants, we are of the opinion that a child of Robert’s age and experience knows or should know those risks and avoid same. If a situation presents obvious risks which children would be expected to appreciate and avoid, there is no duty to remedy that situation. (Cope v. Doe (1984), 102 Ill. 2d 278, 286; Bazos v. Chouinard (1981), 96 Ill. App. 3d 526, 528, 421 N.E.2d 566.) (2) The Mols and Keller boys played the game of floor hockey on numerous occasions prior to the incident. The boys played the game on the Mols’ property and in the street fronting the Keller residence. Robert’s mother could observe the Mols’ patio from her kitchen. She frequently saw the boys playing on the patio. Neither Robert’s mother nor father told the boys not to play floor hockey or warned them that the game should only be played with the appropriate protective equipment. The responsibility for a child’s safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself. (Driscoll v. Rasmussen Corp. (1966), 35 Ill. 2d 74, 79, 219 N.E.2d 483; Kay v. Ludwick (1967), 87 Ill. App. 2d 114, 119.) Robert’s parents observed no apparent harm in the game. We will not impose a duty upon defendants to warn of dangers which were not regarded as such by Robert’s parents.

For the aforementioned reasons the judgment of the circuit court is affirmed.

Affirmed.

McNAMARA and McGILLICUDDY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ANTHONY MARTIN-TRIGONA, Defendant-Appellee.
    First District (4th Division)
    No. 83—2424
    Opinion filed December 6, 1984.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and Erin J. Jennings, Assistant State’s Attorneys, of counsel), for the People.
    Paul Bradley, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, the People of the State of Illinois, appeals the trial court’s grant of a new trial to defendant, Anthony Martin-Trigona, in a post-conviction proceeding. The following issues are presented for review: (1) whether the trial court had jurisdiction to entertain defendant’s petition; (2) whether defendant’s petition was sufficient; (3) whether the admission of defendant’s prior Federal uncounseled conviction at his bench trial was proper; and (4) assuming arguendo that the admission of the conviction constituted error, whether it was harmless beyond a reasonable doubt.

We affirm.

This is the second appeal in this matter. On November 2, 1980, after a bench trial, defendant was convicted of three counts of forgery and four counts of theft. At trial, the prosecution had introduced a certified copy of defendant’s Federal conviction for mail fraud. Defendant was given a three-year sentence to be served concurrently with his Federal sentence.

On July 16, 1982, the United States Court of Appeals for the Seventh Circuit reversed defendant’s Federal mail fraud conviction on the ground that he had been denied assistance of counsel in violation of the sixth amendment to the United States Constitution by being required to defend himself pro se (United States v. Martin-Trigona (7th Cir. 1982), 684 F.2d 485, 490). On December 16, 1982, this court affirmed the State conviction, with one judge dissenting. We remanded the cause for resentencing because the trial court had considered defendant’s Federal conviction in deciding upon a sentence. (People v. Martin-Trigona (1982), 111 Ill. App. 3d 718, 444 N.E.2d 527.) We denied defendant’s petition for rehearing on January 18, 1983.

On January 20, 1983, the United States Attorney for the Central District of Blinois filed a motion to dismiss the indictment against defendant, and the motion was granted. On June 20, 1983, defendant filed a petition for post-conviction relief, asking that his State conviction be vacated. The State’s Attorney moved to dismiss the petition.

At a hearing on the matter, which was held on September 29, 1983, the trial judge who presided over defendant’s trial stated the following:

“THE COURT: Well, there is no question that this was a troublesome case, for me at least. I had a businessman before me and I found him guilty of serious felony offenses, which is certainly not helpful to him in the future. And, there were all sorts of indications that this was a dispute between businessmen. Why Mr. Trigora [sic] decided to cash his check and appropriate the proceeds of it, I don’t know.
But, whatever his motives, I decided that they were criminal, but I cannot deny the fact that I allowed this conviction in evidence for the purpose of impeachment, offered by the State, and the State was correct in offering it.
I tell you, I was even, at the time, I was somewhat taken aback that the circumstances surrounding Mr. Trigora’s [sic] conviction in the Federal Court and the sentence, believe was twelve year sentence, I didn’t know what to make of it.
In any event, the law is or was still is that where a case is pending on appeal, I can consider that conviction by way of impeachment. However, now that it has been reversed, sent back for a new trial, and then the Federal government says, I am going to dismiss the case and not have a second trial.
Now, we have that conviction that I considered, hanging out there. It’s an embarrassment to me. I really don’t know, it was a long time ago. I really don’t know, I thought the evidence was very persuasive, very substantial. And, on the other hand, I don’t want to deny Mr. Trigora [sic] an opportunity to find a judge who is unaffected by his prior conviction.
I don’t see how I can let it stand. It seems wrong.”

The trial court granted defendant a new trial. The State appeals.

The State argues that the trial court lacked jurisdiction to entertain defendant’s post-conviction petition. It reasons that defendant does not come within the rule or any of the exceptions allowed by courts in liberal interpretations of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1 et seq.). The statute provides that post-conviction petitions can be filed by persons who are imprisoned. Illinois courts have allowed such petitions by persons on probation (People v. Montes (1980), 90 Ill. App. 3d 355, 412 N.E.2d 1363), persons released on parole (People v. Placek (1976), 43 Ill. App. 3d 818, 357 N.E.2d 660), and persons who have completely served their sentences (People v. Correa (1984), 124 Ill. App. 3d 668, 465 N.E.2d 507). When defendant filed his petition, he was not imprisoned, released on parole or probation, nor had he served his sentence. He was out on appeal bond. Thus, the State claims, the trial court did not have the requisite jurisdiction to entertain or grant defendant’s petition. Since defendant had yet to serve his sentence, his resort to post-conviction relief was premature and inappropriate.

Section 122 — 1 of the Post-Conviction Hearing Act provides in pertinent part that “[a]ny person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article.” (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1.) Our supreme court has held that this provision does not require that the person seeking relief actually be imprisoned at the time relief is sought. (People v. Davis (1973), 54 Ill. 2d 494, 496, 298 N.E.2d 161, 163.) We disagree with the State’s assertion that cases such as Davis and People v. Montes (1980), 90 Ill. App. 3d 355, 412 N.E.2d 1363, allow certain narrowly defined exceptions to the rule that a person must be imprisoned to petition for post-conviction relief. Rather, those cases exemplify the principle articulated above, that the person seeking relief need not actually.be imprisoned at the time relief is sought. In the instant case, defendant was not imprisoned at the time he petitioned for post-conviction relief, but was free on an appeal bond. We hold that a defendant released on an appeal bond is a person “imprisoned in the penitentiary” within the contemplation of the statute. Cf. People v. Montes (1980), 90 Ill. App. 3d 355, 357, 412 N.E.2d 1363, 1364 (defendant placed on probation).

The State also argues that the trial court lacked jurisdiction to entertain defendant’s “section 72” petition because it was not filed within two years of entry of the judgment sought to be vacated and was, therefore, conclusively barred under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401). Defendant was sentenced on November 12, 1980, and his petition was filed on June 20, 1983, more than two years later.

Defendant entitled his petition “Post-Conviction Petition and Petition for Relief from Judgment” and asked the trial court to vacate his convictions pursuant to provisions of the post-conviction hearing statute (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1) and section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2— 1401), which was formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72). We have decided above that the trial court had jurisdiction to entertain defendant’s petition under the Post-Conviction Hearing Act. Thus, it is unnecessary to consider whether the court may have had jurisdiction under another statute.

Next, the State argues that the admission of defendant’s prior Federal uncounseled conviction at trial was proper because the conviction was valid at the time it was introduced and therefore did not constitute error even though it was reversed by a Federal court of appeals.

The law in Illinois with respect to impeaching a witness with a prior conviction still pending on appeal is that it is proper to use the conviction to impeach so long as the prior conviction was not void when it was used. (People v. Bey (1969), 42 Ill. 2d 139, 146, 246 N.E.2d 287, 291; People v. Coty (1982), 105 Ill. App. 3d 398, 400, 434 N.E.2d 432, 434.) This contrasts with the law in a minority of jurisdictions in which a conviction is not considered a final judgment until the appeal process has been completed, and, thus, a prior conviction pending on appeal may not be used to impeach. Annot., 16 A.L.R.3d 714, 735 (1967).

Illinois courts have held that, even where a prior conviction has subsequently been reversed, its use at trial did not constitute reversible error so long as the conviction was not void when it was used. (People v. Miller (1975), 27 Ill. App. 3d 788, 792, 327 N.E.2d 253, 256.) This is the position the majority adopted in Martin-Trigona I. People v. Martin-Trigona (1982), 111 Ill. App. 3d 718, 727, 444 N.E.2d 527, 533.

However, where the ground for reversal is constitutional error, the appropriate standard is harmless error. (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) In Loper v. Beto (1972), 405 U.S. 473, 31 L. Ed. 2d 374, 92 S. Ct. 1014, the United States Supreme Court held that use of an uncounseled conviction constitutes constitutional error. Thus, where a prior conviction used to impeach is reversed because of an uncounseled conviction, the standard for determining whether that error is reversible is whether use of the conviction was harmless beyond a reasonable doubt. In Martin-Trigona I, the majority did not address that issue, but concentrated on the issue of whether the conviction was void when it was used. (People v. Martin-Trigona (1982), 111 Ill. App. 3d 718, 727, 444 N.E.2d 527, 533.) We now believe that the better approach would have been to remand for a determination as to whether use of the conviction was prejudicial. To the extent this opinion is inconsistent with our prior opinion, that first opinion is now modified.

Finally, the State argues that even assuming that admission of defendant’s prior Federal uncounseled conviction constituted error, it was harmless beyond a reasonable doubt where the evidence undeniably and overwhelmingly established defendant’s guilt of both theft and forgery. The State claims that the prior conviction played no part in defendant’s conviction and that the trial judge would have come to the same determination without it. We disagree.

We have examined the trial judge’s remarks at the hearing on defendant’s petition. We interpret his remarks to mean that defendant was prejudiced by use of the prior Federal conviction. We hold that use of the prior uncounseled conviction was not harmless beyond a reasonable doubt. Therefore, under Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, and Loper v. Beto (1972), 405 U.S. 473, 31 L. Ed. 2d 374, 92 S. Ct. 1014, defendant is entitled to a new trial.

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

Affirmed.

JIGANTI and ROMITI, JJ., concur.


author: JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROLAND J. KASHNEY, Defendant-Appellant.
    First District (4th Division)
    No. 82—431
    Opinion filed December 6, 1984.

      James J. Doherty, Public Defender, of Chicago (Frank P. Madea, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence R. Stasica, and Mary Alice McKenzie, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE ROMITI

delivered the opinion of the court:

Following a jury trial defendant Roland Kashney was convicted of the murder of Benjamin Peck and sentenced to an indeterminate term of 30 to 60 years in the penitentiary. Defendant contends that he is entitled to reversal of his conviction and a new trial because: (1) he was improperly arrested without probable cause for murder by police using the pretext of an outstanding warrant on a minor charge and was subsequently coerced into falsely confessing; (2) defendant’s motion to rehear his motion to suppress, based on evidence not previously available, should have been allowed; (3) the State improperly impeached the defendant with statements made to psychiatrists examining him pursuant to court order; (4) improper final argument by the prosecution denied defendant a fair trial.

We affirm.

The defendant was charged with the 1970 murder and armed robbery of Margaret Riggins and the 1974 murder and armed robbery of Benjamin Peck. The State’s evidence established that the body of Peck was found lying face down on the kitchen floor of his home on September 21, 1974. He had massive wounds on the back of his head and the examining pathologist determined that death was caused by a skull fracture of blunt trauma character. The State introduced the confession of the defendant in which he stated that he came to Peck’s house to discuss the sale of a car to Peck. An argument began as they spoke in the kitchen, and defendant struck Peck several times on the head with a wrench. He took several hundred dollars from Peck’s person and disposed of the wrench. No fingerprints suitable for comparison were found at the Peck house.

The body of Margaret Riggins was found lying on the floor of her living room on October 5, 1970. Her bedroom drawers had been ransacked, and her purse had been emptied onto the kitchen table. Next to her body was a watch which family members did not recognize. The porcelain top of a toilet tank was found in pieces around her body. The examining pathologist concluded that Riggins died as the result of a cranial cerebral injury with extensive skull fracture. Unidentified fingerprints not matching those of the defendant were found in Riggins’ home.

In the defendant’s confession, introduced by the State, he stated that he had gone to Riggins’ home to sell her a watch. While discussing the watch in her living room, the conversation turned to the subject of religion and became heated. Defendant became angry and after using the bathroom he took the toilet tank top and beat Riggins on the head with it. He then searched the apartment for money and left. (In a tape-recorded confession not included in the record on appeal defendant apparently also admitted to have taken some money.)

The defendant took the stand and denied having committed any of these acts. He testified that he had falsely confessed because of the pressure of Satanic forces or demons within the police officers who questioned him. Those forces made him fear for his life. The defendant also presented the testimony of two self-styled experts in the field of demonology, Reverend John A. Nicola, a Catholic priest with a doctorate in sacred theology, and Reverend Lester Sumrall, a Protestant minister who testified that he had engaged in approximately 1,000 exorcisms. Both men testified they believed demons existed. Nicola also testified that he had participated in several exorcisms and had observed people who were terrified by their belief that a third person was possessed by the devil. Sumrall testified that demons were capable of possessing a human being and that others could recognize such possessions.

Also testifying for the defendant were two psychiatrists, Dr. Robert A. Reifman and Dr. Jewett Goldsmith. Reifman testified that in separate court-ordered fitness examinations in August 1977 and March 1978, he had determined that the defendant suffered from a schizophrenic reaction, paranoid type. Reifman described this as a serious mental illness characterized by delusions based on misinterpretation or misperception of reality. Goldsmith had examined the defendant in September 1977 and had made a diagnosis of a chronic paranoid state, which he described as a mental illness characterized by false beliefs or illusions. According to Goldsmith these illusions could be persecutory, causing the individual to become fearful of people he believed could harm him. In October 1979, Goldsmith again examined the defendant and found him to be schizophrenic but in remission.

At the conclusion of the trial the jury found the defendant guilty of the murder of Benjamin Peck but acquitted him on the other charges.

I

Defendant contends that his confessions should have been suppressed as the products of an improper pretext arrest and subsequent coercive questioning. Defendant concedes that at the time of his arrest the police were aware of an outstanding Wisconsin arrest warrant for him relating to his escape from detention on nonsupport charges. However, defendant contends that the police used this warrant merely as a pretext for arresting him on suspicion of having committed the two murders on which they lacked probable cause to arrest. Because we find that the police clearly did have probable cause to arrest the defendant for murder, we do not reach the issue of what would constitute an improper pretext arrest under Illinois law.

At the hearing on defendant’s motion to suppress, arresting officer Frank Radke presented the following testimony relating to probable cause. At 8:30 p.m. on February 22, 1975, he spoke to Sharon Henderson pursuant to a call from her father. The police had been seeking to question her in connection with the murder of Peck (although not as a suspect) and had told her father to call them when she returned to Chicago. Henderson told Radke that she was the defendant’s girlfriend and had been Peck’s girlfriend. She said the defendant had confessed to her that he had killed Benjamin Peck over the price of an automobile. He also told her he had killed a woman approximately five years earlier in the area of Ashland and Fullerton in Chicago. Upon investigation, Radke determined that Margaret Rig-gins had been killed in 1970 at 1742 West Altgeld, which was about one block west of Ashland and one block north of Fullerton. Radke testified that Henderson had never given him information in the past. Several hours after Radke obtained this information the defendant was arrested at gunpoint in his home without an arrest warrant for murder having been obtained.

Probable cause is judged by whether the facts and circumstances known to the police would cause a man of reasonable caution to believe that an offense had been committed and the person to be arrested had committed it. (People v. Robinson (1976), 62 Ill. 2d 273, 342 N.E.2d 356.) Contrary to defendant’s contention there is nothing in this record to suggest that Sharon Henderson was a police informant whose information would thus be subjected to special reliability requirements which have been retained under the totality-of-the-evidence test developed in Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, and adopted by the Illinois Supreme Court in People v. Tisler (1984), 103 Ill. 2d 226. Citizen informants such as Sharon Henderson have never been subject to the special reliability tests applied to police informants. People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 466, cert. dismissed (1970), 397 U.S. 660, 25 L. Ed. 2d 642, 90 S. Ct. 1408.

Absent such special requirements, it is clear that the information obtained by the police in this case gave them probable cause to arrest the defendant for murder. In People v. Goode (1979), 72 Ill. App. 3d 798, 391 N.E.2d 156, the police were informed by the defendant’s aunt that when confronted with her accusations of having stolen items from her he said if he needed money he would “stick up an I.C. station again.” The police then determined that an Illinois Central railroad station had recently been robbed. This court held that this information was sufficient to establish probable cause to arrest the defendant for that armed robbery. In this cause, the police were told by the defendant’s girlfriend that he had admitted killing Benjamin Peck. The police were also able to verify that a second killing to which the defendant confessed had occurred at the approximate time and location described by the defendant. We find that this information provided the police with probable cause to arrest the defendant for murder.

The defendant has also contended that his confessions were coerced. He relies primarily on the assertion that the trial court found credible his claim that the police had struck him on the head in the course of interrogation. But in fact the trial court clearly found that it did not believe this testimony, noting that it was contradicted by the police and by an assistant State’s Attorney, who testified that upon being questioned outside the presence of the police the defendant said he had not been mistreated. Although defendant also testified that he was not informed of his rights until after he gave an initial oral confession, the police testimony at the hearing was that he was fully informed of his rights before any statement was obtained from him. This conflicting testimony was a matter for the trial court to resolve as the finder of fact, and we find no basis for disturbing the court’s finding that defendant’s confessions were not coerced. People v. DeSavieu (1983), 120 Ill. App. 3d 420, 458 N.E.2d 504.

II

Defendant also contends that the trial court abused its discretion when it denied his motion for a rehearing of his motion to suppress. Defendant’s original motion to suppress was denied April 26, 1977, after a hearing in which defendant testified that his confessions were physically coerced by the police. On June 28, 1977, defendant’s counsel requested a fitness rehearing and on September 27, 1977, the defendant was found unfit to stand trial. Defendant was again found fit for trial on May 2, 1980. On May 11, 1981, newly appointed counsel appeared for the defendant and moved for a rehearing of the motion to suppress in the following colloquy:

“[Defense counsel]: I would ask the Court to reconsider [the motion to suppress] and make an offer of proof now. My offer would consist of the fact there are new facts that should be brought to the Court’s attention and simply that those facts I do not believe were brought up in the prior motion to suppress and that consists of my client’s observance of the police officers and what he saw within them at the time. This was never brought up.
The Court: Well, whatever could have been brought up was brought up. There is no reason why it couldn’t have been, is that right?
[Defense counsel]: I didn’t present the motions, Judge.”

Defendant contends that under the authority of section 104 — 11(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 11(d)), the trial court should have granted a new hearing. That statute provides:

“Following a finding of unfitness, the court may hear and rule on any pretrial motion or motions if the defendant’s presence is not essential to a fair determination of the issues. A motion may be reheard upon a showing that evidence is available which was not available, due to the defendant’s unfitness, when the motion was first decided.”

This statute appears to contemplate situations in which a defendant is presently unfit or has previously been unable to testify because of unfitness. Here the defendant did testify at the hearing on his motion to suppress, and it would appear that he had merely changed his testimony since that time. Defense counsel’s offer of proof failed to even allege that the evidence sought to be presented was unavailable at the first hearing or was somehow affected by the subsequent determination of defendant’s unfitness for trial. This attempt to seek a new hearing based on a change in the defendant’s testimony is analogous to attempting to advance a newly developed argument based on previously known evidence, a basis which has been held insufficient to support a motion for rehearing. (People v. Attaway (1976), 41 Ill. App. 3d 837, 354 N.E.2d 448.) We do not believe that the mere fact that a defendant has changed his account of what occurred from his previous testimony constitutes new evidence or such other exceptional circumstances as would require reconsideration of a motion to suppress. People v. Armstrong (1973), 56 Ill. 2d 159, 306 N.E.2d 14; People v. Colletti (1978), 61 Ill. App. 3d 289, 377 N.E.2d 1276.

Ill

Defendant next contends that the court erred when it allowed the State to question the defendant concerning statements he made to psychiatrists who performed court-ordered fitness examinations on him. Defendant contends that in conducting this questioning the State violated section 104 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 14(a)), which provides in pertinent part:

“Statements made by the defendant and information gathered in the course of any examination or treatment ordered under Section 104 — 13, 104 — 17 or 104 — 20 [pertaining to fitness for trial] shall not be admissible against the defendant unless he raises the defense of insanity or the defense of drugged or intoxicated condition, in which case they shall be admissible only on the issue of whether he was insane, drugged, or intoxicated.”

We believe that under the unique circumstances of this case there was no violation of this statute. The defendant did not present a classic insanity defense in the sense of admitting the commission of the acts charged but contending that he was insane when he committed them. But he did present evidence suggesting to the jury that he was insane when he confessed to the crimes. Defendant claimed in his testimony that he confessed falsely because of the presence of evil entities in the officers who questioned him. To bolster this testimony, defendant presented the testimony of two experts in demonology who suggested that people could believe that others were possessed by demons and could be terrified by this belief. Defendant also presented the testimony of two psychiatrists who stated that they had previously diagnosed the defendant as suffering from a mental illness characterized by false beliefs or illusions. Clearly this was intended to suggest to the jury that defendant confessed because of delusions caused by a mental illness. Without objection from the defendant, the State cross-examined these doctors concerning his statements to them that he 'communicated with demons or spirits. Defendant’s only objections at trial and on appeal were to cross-examination of him concerning inconsistent statements he made to examining psychiatrists. Over defense objection, the State elicited from defendant the admission that he had told these psychiatrists at various times that he confessed because the police put pressure on him, because spirits told him to confess, and because God told him to do so. On one occasion he told a psychiatrist that he had killed the two people with the unction or inspiration of God. The jury was instructed that defendant’s prior inconsistent statements were to be considered only on the issue of his credibility.

The statute invoked by the defendant permits the use against the defendant of statements by him and information gathered in the course of court-ordered mental examinations if the defendant raises the defense of insanity. Here, the defendant presented evidence which could have been construed by the jury as indicating that he falsely confessed because of delusions caused by his mental illness. In presenting this theory the defendant utilized information obtained during his previous psychiatric examinations. We do not believe that in these circumstances the legislature intended to preclude the State from also utilizing information and statements obtained during such examinations in an effort to impeach the defendant. To rule otherwise would allow a defendant to commit perjury without the risk of being confronted with prior inconsistent statements. See United States v. Castenada (7th Cir. 1977), 555 F.2d 605, cert. denied (1977), 434 U.S. 847, 54 L. Ed. 2d 113, 98 S. Ct. 152.

An analogous Federal rule (Fed. R. Crim. P. 12.2(c)) bars the use of statements made by the defendant during such examinations on the issue of guilt. In United States v. Halbert (9th Cir. 1983), 712 F.2d 388, cert. denied (1984), 465 U.S. 1005, 79 L. Ed. 2d 230, 104 S. Ct. 997, the court noted that legislative history and prior case law had established that the rule permitted the defendant’s statements to be used on the issue of insanity and then concluded that Congressional intent to allow that use indicated that the statements could also be used on the issue of the mental capacity of the defendant. In this cause the statements admitted as impeachment related to the issue of defendant’s mental condition when he confessed. This issue was first cause he perceived threats by demons and by defendant’s presentation of psychiatric evidence that he had suffered from a mental illness which caused delusions. We find that the trial court acted properly within the parameters of the statute when it then permitted the State to impeach the defendant with conflicting statements he had made during prior psychiatric examinations.

IV

Defendant’s final contention is that the prosecution’s final arguments to the jury were inflammatory and improper. In addition to comments on the impeachment of the defendant with statements made during psychiatric examinations, statements which we have held were properly before the jury, the only other comment objected to by the defendant is one characterization of him as an “animal.” We do not believe that this isolated comment could be said to have substantially prejudiced the jury or to have constituted a material factor in his conviction and accordingly we find no reversible error. People v. Nilsson (1970), 44 Ill. 2d 244, 255 N.E.2d 432, cert. denied (1970), 398 U.S. 954, 26 L. Ed. 2d 296, 90 S. Ct. 1881; People v. Richard (1980), 90 Ill. App. 3d 322, 413 N.E.2d 5.

The judgment of the trial court is affirmed.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.