No. 2--00--0722

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS	

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE OF    ) Appeal from the Circuit Court

ILLINOIS,                     ) of Winnebago County.

                              )

	Plaintiff-Appellee,      )            

                              ) Nos. 00--CF--113	 

v.                            )      99--TR--55897-8   

                              ) 

DUWAIN E. EGGERT,             ) Honorable                  

                              ) Ronald J. White,

	Defendant-Appellant.     ) Judge, Presiding.

_________________________________________________________________

	JUSTICE McLAREN delivered the opinion of the court:

	Defendant, Duwain E. Eggert, was convicted of the offenses of aggravated driving under the influence of alcohol (625 ILCS 5/11-

501(a)(2), (d)(1) (West 1998)) and driving while license revoked

(625 ILCS 5/6-303 (West 1998)).  He was sentenced to three years'

imprisonment on each offense, to run concurrently.  We affirm in

part, reverse in part, and remand the cause.

BACKGROUND

	The sole testimony presented at trial was that of State

witness Officer Robert Woodford.  On November 28, 1999, Woodford

responded to a 911 call that a pickup truck was on the sidewalk and

that the driver had passed out.  As Woodford approached the

location of the pickup truck, the truck was moving and had traveled

off the sidewalk.  Woodford observed the truck drift over the lane

line four or five times.  

	Woodford pulled over the truck.  The driver, defendant Duwain

Eggert, exited the driver's side door.  He staggered and tripped

several times.  When Woodford asked for defendant's driver's

license, he responded that it had been revoked in the State of

Illinois.  

	As he spoke with defendant, Woodford noticed defendant's

bloodshot, glassy eyes couldand smelled alcohol on hisdefendant's breath. 

Defendant swayed back and forth while he stood, and he refused

field sobriety tests.  Woodford placed defendant under arrest for

driving under the influence of alcohol.  Defendant was handcuffed

and taken to the public safety building.

	At the public safety building, defendant refused a

breathalyzer test.  After he was given Miranda warnings, defendant was questioned.  Defendant stated that he consumed seven or eight

12-ounce cans of beer between 3:30 and 7:30 p.m.

	On cross-examination, Woodford admitted that his written

report contained two omissions: (1) that he observed defendant

weaving over the lane while driving; and (2) that defendant refused

field sobriety tests.  Woodford admitted that he did not testify

before the grand jury that defendant drove over the lane line and

could not recall if he testified at the same proceeding that

defendant refused field sobriety tests.  

	The following certified statement of revocation by the

Secretary of State's office was read to the jury:

		"This is a certified statement of revocation from the

Secretary of State's Office showing that Duwain E. Eggert's driver's license was revoked, the revocation in effect on

November 28, 1999."

	Defendant tendered Illinois Pattern Jury Instructions,

Criminal, No. 3.11 (4th ed. 2000) (hereinafter IPI Criminal 4th)

concerning the believability of a witness.  The instruction was

refused. 

	Defendant was found guilty of the offenses of aggravated

driving under the influence of alcohol and driving while license

revoked.  He was sentenced to three years' imprisonment on each

offense, to run concurrently.

I

	Defendant contends that the trial court abused its discretion

by refusing IPI Criminal 4th No. 3.11 regarding prior inconsistent

statements.  The tendered instruction read as follows:

		"The believability of a witness may be challenged on

evidence that on some former occasion he made a statement that

was not consistent with his testimony in this case.  Evidence

of this kind may be considered by you only for the limited

purpose of deciding the weight to be given the testimony you

heard from the witness in this courtroom.

		It is for you to determine what weight should be given to

that statement.  In determining the weight to be given to an

earlier statement, you should consider all of the

circumstances under which it was made."

	The function of jury instructions is to convey to the jury the

appropriate principles of law so that it may apply the correct

legal principles to the facts of the case and arrive at the proper conclusion according to the law and the evidence.  People v. Finke, 204 Ill. App. 3d 748, 759 (1990).  When evidence of a witness's

prior inconsistent statement is admissible to impeach his

credibility, such evidence is admitted not as proof of the truth of

the facts stated out of court but as doubt cast on the testimony by

showing the witness's inconsistency.  People v. Larry, 218 Ill. App. 3d 658, 666 (1991).  An instruction regarding the credibility

of a witness's testimony in light of inconsistencies is cautionary. 

People v. Luckett, 273 Ill. App. 3d 1023, 1035 (1995).  As such, the trial court is vested with discretion in determining whether to

give the proffered instruction.  Luckett, 273 Ill. App. 3d at 1035. 

	In refusing IPI Criminal 4th No. 3.11, the trial court stated

as follows:  

		"Based on the testimony presented, I don't believe there

was any inconsistent--testified--for example, if the officer

would have testified that in the grand jury hearing he noticed

bloodshot eyes and testified today I didn't notice any

bloodshot eyes that would be an inconsistency, but what you

pointed out on cross-examination is that he failed to put in

his report the fact that he had observed or asked the

Defendant to do some field sobriety tests, and the other issue

was whether or not he had improperly changed lanes, they're

inconsistent based on the testimony."

	Since the impeachment consisted of an omission, the trial

court apparently believed that IPI Criminal 4th No. 3.11 did not

apply.

	In People v. Smith, 67 Ill. App. 3d 672 (1978), the court held that an earlier version of IPI Criminal 4th No. 3.11 encompasses

omissions as well as affirmative statements.  See also Finke, 204 Ill. App. 3d 748 at 759; People v. Svoboda, 75 Ill. App. 3d 487, 489 (1979). The pattern jury instruction regarding inconsistent

statements is appropriately given when two statements are

inconsistent on a material matter.  People v. Thomas, 172 Ill. App. 3d 172, 177 (1988).  The Ccommittee Ccomments to IPI Criminal 4th No. 

3.11 indicate that the materiality of the prior inconsistent

statement is an issue for the trial court to determine.  It has

been stated that an issue is material when the contradiction

reasonably tends to discredit the testimony of the witness on such

facts.  Finke, 204 Ill. App. 3d at 759. 

	The sole evidence presented by the State on the charge of

aggravated driving under the influence of alcohol was the testimony

of Officer Woodford.  There were no breathalyzer, field sobriety,

or blood tests performed.  Based on the trial court's comments in

refusing IPI Criminal 4th No. 311, it appears that the court did

not determine whether the omissions in Woodford's report were

material.  	

	In our view, Woodford's trial testimony that he observed

defendant weaving across the lane was material because it is

directly relevant to the issue of whether defendant was capable of

driving a vehicle.  Likewise, the issue of whether defendant

refused field sobriety and breathalyzer tests was material because

the jury could infer guilt due to his refusal.  Woodford's trial

testimony that defendant was weaving and that he refused testing was impeached by the omission of these observations in his police

report.  

	Unlike People v. Luckett, cited by the State, we do not deem IPI Criminal 4th No. 1.02 to be a sufficient cautionary instruction

on the manner in which the jury was able to consider the evidence

of Woodford's omissions.  Woodford was the sole witness presented

on the charge of driving while under the influence of alcohol. 

Therefore, the credibility of his testimony was essential to the

State's case.  Since the omissions in his police report related to

matters material to the issue of whether defendant was driving

under the influence of alcohol and the State's case was based

solely on the testimony of this witness, the trial court's refusal

to give IPI Criminal 4th No. 3.11 was an abuse of discretion and

deprived defendant of a fair trial.  See People v. Mitchell, 27 Ill. App. 3d 117, 121 (1975) (regarding an earlier version of IPI

Criminal 4th No. 3.11 with prior inconsistent statement by key

witness).  Therefore, we reverse defendant's conviction of

aggravated driving under the influence of alcohol and remand the

cause to the trial court for a new trial on this charge.

	Defendant also contends that, while IPI Criminal 4th No. 3.11

should have been given to instruct the jury on Woodford's

credibility, it should also have been given to instruct that

Woodford's omissions could be considered as substantive evidence.

Although the instruction was not tendered in this fashion,

defendant asserts that the following portion of IPI Criminal 4th

No. 3.11 should have been given: 

		"However, you may consider a witness's earlier

inconsistent statement as evidence without this limitation

when

		[1] the statement was made under oath at a trial.

						or

		[2] the statement narrates, describes, or explains an

event or condition the witness had personal knowledge of;

						and

			[a] the statement was written or signed by the

witness.

						or

			[b] the witness acknowledged under oath that he made

the statement.

						or

			[c] the statement was accurately recorded by a tape

recorder, videotape, recording, or a similar electronic

means of sound recording.

		It is for you to determine what weight should be given to

that statement.  In determining the weight to be given to an

earlier statement, you should consider all of the

circumstances under which it was made." IPI Criminal 4th No.

311. 

	Since defendant did not tender the instruction in this

fashion, he urges us to consider the issue as plain error.  

	Defendant failed not only to tender IPI Criminal 4th No. 3.11

concerning the admissibility of Officer Woodford's omissions as

substantive evidence but also to introduce Woodford's arrest report or transcript of his grand jury testimony into evidence.  Due to

our determination that IPI Criminal 4th No. 3.11 should have been

given to instruct the jury that the evidence of Woodford's

omissions could be considered for the purpose of determining the

weight attributed to his testimony, we decline to address this

issue on the merits under the plain error doctrine.  On remand,

however, the litigants and the court should be mindful of the

comments to IPI Criminal 4th No. 3.11 in determining what evidence

to admit and instructions to give.  Since the comments to IPI

Criminal 4th No. 3.11 advise that there is no need to give this

instruction when the prior inconsistent statement is offered as

substantive evidence rather than solely for the purpose of

impeachment, it appropriately would not be given if the arrest

report is admitted as substantive evidence and Woodford is

impeached by its omissions.

						II

	Next, defendant contends that he was deprived of a fair trial

due to comments made by the State during closing argument.

Generally, prosecutors are given wide latitude during closing

argument.  People v. Williams, 181 Ill. 2d 297, 330 (1998).  The trial court's determination of the propriety of the closing

argument will generally be followed on appeal absent a clear abuse

of discretion.  People v. Cisewski, 118 Ill. 2d 163, 175 (1987).  To constitute reversible error, the complained-of remarks must have

resulted in substantial prejudice to the accused such that absent

those remarks the verdict would have been different.  People v. Armstrong, 183 Ill. 2d 130, 145 (1998). 

	Defendant's contentions relate to comments made by the

prosecutor concerning his personal opinion and the credibility of

Officer Woodford.  The record reveals that two of defendant's

objections to the prosecutor's use of the pronoun "we" were

sustained and that the jury was admonished to disregard any

personal opinions of the prosecutor and to rely on the evidence

presented.  Defendant's objection to the State's characterization

of the burden of proof as "beyond any doubt" was also sustained

with admonishment on the proper burden of proof.  Defendant's

objection to the prosecutor's comment concerning the credibility of

Officer Woodford was also sustained, with admonishment to confine

argument to the evidence presented. 

	Since we remand the cause to the trial court for a new trial

on charges of aggravated driving under the influence of alcohol, it

is unnecessary to address whether the jury's verdict on this charge

would have been different.  However, defendant's conviction of

driving while license revoked was supported by a certification by

the Illinois Secretary of State.  In our view, defendant would have

been convicted of the offense of driving while license revoked

regardless of the comments by the prosecutor.  Therefore, there was

no substantial prejudice to defendant by the prosecutor's comments

during closing argument as they relate to the conviction of driving

while license revoked.  We affirm the judgment and sentence on the

conviction of driving while license revoked.

	The judgment of the circuit court of Winnebago County is

affirmed in part and reversed in part, and the cause is remanded.

	Affirmed in part and reversed in part; cause remanded.

	O'MALLEY and CALLUM, JJ., concur.