{ "id": 3567049, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN W. LILLY, Defendant-Appellant", "name_abbreviation": "People v. Lilly", "decision_date": "1985-12-20", "docket_number": "No. 5-84-0490", "first_page": "275", "last_page": "289", "citations": [ { "type": "official", "cite": "139 Ill. App. 3d 275" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "473 N.E.2d 465", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "469-70" } ], "opinion_index": 0 }, { "cite": "129 Ill. App. 3d 1066", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3491522 ], "pin_cites": [ { "page": "1072-73" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/1066-01" ] }, { "cite": "220 N.E.2d 432", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "433-34" } ], "opinion_index": 0 }, { "cite": "35 Ill. 2d 467", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378433 ], "pin_cites": [ { "page": "469-70" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0467-01" ] }, { "cite": "105 S. Ct. 268", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 2, "opinion_index": 0 }, { "cite": "83 L. Ed. 2d 205", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "opinion_index": 0 }, { "cite": "469 U.S. 892", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12025091, 12024999, 12025128, 12025065, 12025040, 12025017 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/469/0892-05", "/us/469/0892-01", "/us/469/0892-06", "/us/469/0892-04", "/us/469/0892-03", "/us/469/0892-02" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "1251" } ], "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "456 N.E.2d 59", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "66" } ], "opinion_index": 0 }, { "cite": "98 Ill. 2d 294", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3123281 ], "year": 1984, "pin_cites": [ { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0294-01" ] }, { "cite": "108 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3129999 ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0520-01" ] }, { "cite": "312 N.E.2d 49", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "51" } ], "opinion_index": 0 }, { "cite": "19 Ill. App. 3d 603", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2696522 ], "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0603-01" ] }, { "cite": "99 S. Ct. 281", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "58 L. Ed. 2d 257", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "439 U.S. 911", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11402436, 11402534, 11402375, 11402281, 11402411, 11402319, 11402163, 11402494, 11402203, 11402590, 11402463 ], "opinion_index": 0, "case_paths": [ "/us/439/0911-07", "/us/439/0911-10", "/us/439/0911-05", "/us/439/0911-03", "/us/439/0911-06", "/us/439/0911-04", "/us/439/0911-01", "/us/439/0911-09", "/us/439/0911-02", "/us/439/0911-11", "/us/439/0911-08" ] }, { "cite": "372 N.E.2d 887", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "897" } ], "opinion_index": 0 }, { "cite": "57 Ill. App. 3d 116", "category": "reporters:state", "reporter": "Ill. 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Ed.", "year": 1979, "opinion_index": 0 }, { "cite": "351 U.S. 967", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1105056, 1105058, 1104877, 1104781, 1104954, 1105052, 1105055 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/351/0967-03", "/us/351/0967-07", "/us/351/0967-04", "/us/351/0967-02", "/us/351/0967-06", "/us/351/0967-01", "/us/351/0967-05" ] }, { "cite": "122 N.E.2d 155", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "pin_cites": [ { "page": "158" } ], "opinion_index": 0 }, { "cite": "3 Ill. 2d 615", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2697030 ], "year": 1956, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/3/0615-01" ] }, { "cite": "399 N.E.2d 703", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "707" }, { "page": "707" } ], "opinion_index": 0 }, { "cite": "80 Ill. 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Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "277" } ], "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "year": 1985, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] } ], "analysis": { "cardinality": 1220, "char_count": 31820, "ocr_confidence": 0.753, "pagerank": { "raw": 1.2469913861961058e-07, "percentile": 0.6092276036170449 }, "sha256": "178e319e1c2571879ba997fc7aa2262506fe107275cd9cbc9c0031d994c243ac", "simhash": "1:3ab038b494a7001e", "word_count": 5437 }, "last_updated": "2023-07-14T16:28:01.821667+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN W. LILLY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WELCH\ndelivered the opinion of the court:\nDefendant, John W. Lilly, was charged with the murder of Edward Fletcher, Jr. Following a jury trial in the circuit court of Jackson County, he was found guilty and sentenced to 40 years\u2019 incarceration.\nThe pertinent facts adduced at trial are as follows:\nCarolyn Fletcher, a/k/a Carolyn Patterson, testified that on Sunday, October 30, 1983, she arrived on \u201cthe Levee\u201d (a tavern and nightclub area in northeast Carbondale) at approximately 9 p.m. for an evening out. She was accompanied by three other women, Nora Lee Farr Colbert, Brenda Moore, and Beverly Moore.\nAs Mrs. Fletcher was walking toward the business establishment, she passed by John W. Lilly, who was walking in the opposite direction. Mrs. Fletcher had gone to high school with Lilly. She stated that Lilly was dressed in dark clothing and had a \u201cwolfman\u2019s\u201d mask sitting atop his head.\nMrs. Fletcher then encountered her husband, Edward Fletcher, Jr., and her boyfriend, Paul Barr, arguing with each other near the Cadillac Lounge. She then left the area of the \u201cLevee\u201d for a short time and returned. Upon her return, she took a position across the street from where Edward Fletcher and Barr were arguing. At approximately 9:24 p.m., Mrs. Fletcher observed a masked man come out of an alley near where her husband and Barr were arguing, walk up to her husband, and shoot him in the head. She then saw the masked man going back down the alley, running from the \u201cLevee\u201d district. Mrs. Fletcher immediately went into Fat\u2019s Lounge, located near where she was standing, and reported the shooting to the Carbondale police department. At that time, she also identified John Lilly as the shooter.\nOfficer John B. Sytsma testified that he was dispatched to the location of Carter\u2019s Aluminum & Recycling Center at 9:24 p.m. on October 30, 1983. He identified the victim as Edward Fletcher. After talking with witnesses, he radioed two other units, informing them he had a suspect\u2019s name, John Lilly. He examined the scene and found nothing that could be construed as a weapon on or near Mr. Fletcher. He also did not observe anyone dressed in halloween-type costumes.\nJeff Moore testified that on October 30, 1983, between 9 p.m. and 9:30 p.m., he was in the 200 block of North Washington in Carbon-dale. He stated that he saw Edward Fletcher and Paul Barr arguing that evening. He said that he was standing about 100 yards from Mr. Fletcher on the same side of the street at the time Mr. Fletcher was shot. He stated that a person dressed as a werewolf shot Mr. Fletcher. He stated that the person who shot Mr. Fletcher had a full head mask over his head, but he could not remember the clothing worn by the assailant. He further stated that the person who shot Mr. Fletcher ran down the alley on the south side of Carter\u2019s building. The witness then denied talking to Officer John Sytsma on the evening in question, and over the defendant\u2019s objection the prosecutor was allowed to impeach the witness and question him as if under cross-examination pursuant to Supreme Court Rule 238 (87 111. 2d R. 238). Moore denied seeing John Lilly on the square in the 200 block of North Washington on October 30 but later admitted to telling a black police officer immediately after the incident on the night in question that John Lilly was the man who shot Eddie Fletcher. He also stated that he did not want to testify in this particular case.\nEdward Mims testified that he was in the 200 block of North Washington on the night of Sunday, October 30, 1983. He admitted seeing and hearing Barr and Fletcher arguing and stated that he was standing next to them while they were arguing. He testified that he saw Fletcher get shot and stated that a man in a wolf mask shot Fletcher with a silver, small-caliber handgun. Mr. Mims then denied telling the police who the man was in the wolfman mask. The prosecutor again invoked Supreme Court Rule 238 (87 111. 2d R. 238), which was allowed over the defendant\u2019s objection, and Mims admitted talking to Sergeant Don Strom of the Carbondale police department after the incident. Mims stated that Strom had asked him, given the way the assailant walked and talked, whether he seemed like John Lilly. Mims replied affirmatively.\nCynthia Ware also testified. She stated she had been talking to Mr. Fletcher for almost an hour when somebody in a mask shot Mr. Fletcher in the head. She stated that the assailant had on a blue pair of pants, a jacket coat, and a half-mask (a mask that did not cover the back of the killer\u2019s head.) She also mentioned that Mr. Fletcher was shot by a silver gun.\nPaul Barr admitted having an argument with Fletcher on October 30, 1983, but denied knowing who shot Fletcher or what the person was wearing. He stated that he did not see Fletcher get shot, but heard the shot, froze, turned around, and saw Fletcher lying on the ground. He further stated that he saw a knife in Fletcher\u2019s hand and that Jeff Moore took it from Fletcher. He stated that the defendant was a friend and that he had known him for a couple of years. The prosecutor then cross-examined Mr. Barr pursuant to Supreme Court Rule 238 (87 111. 2d R. 238). The prosecutor questioned Barr about an interview he had with the police on October 31, 1983. At that time, he was asked if he took anything out of the pockets or the hands of Edward Fletcher on the night in question, and he replied, \u201cNo.\u201d He admitted that on October 20, 1983, he took a trip to Tuscola with John Lilly and Michael Braun. Unknown to him at the time, Braun was an undercover agent with the State of Illinois. They met a woman at the truck stop and proceeded back to Carbondale. He denied that on the return trip defendant pulled out a .32-caliber silver revolver and showed it to him, explaining that he had received it from Rose Johnson, the woman at the Dixie Truck Stop. He stated \u201cthe only thing we had was drugs.\u201d He admitted having a conversation with Braun on November 1, 1983, at approximately 11:45 a.m., at his residence. However, he denied telling Agent Braun that he and defendant had decided the previous Sunday, October 30, to locate Edward Fletcher on the square and that Lilly would dress in a halloween costume and kill Fletcher. Barr stated that all he and Braun discussed were drug transactions. He also denied telling Braun that he assisted Lilly and threw the gun in the lake. Mr. Barr was further impeached by a conviction in Jackson County circuit court in 1982. for theft and two counts of battery and a conviction in the United States District for the Southern District of Illinois on counts of an indictment for knowingly conspiring and agreeing with others to distribute cocaine.\nOra Lilly, defendant\u2019s grandmother, Carol Lilly, defendant's aunt, and Wilbert Lilly, defendant\u2019s first cousin, all testified that they were present at Ora Lilly\u2019s residence on October 30, 1983, and saw John Lilly. Carol Lilly stated that John Lilly arrived at the residence on at least two occasions, one prior to the beginning of the program \u201cMotown 25,\u201d which began at 8 p.m., and second time around 9 p.m. She stated the first time he was playing with the children and the second time he played with the children and asked her mother for a ride home. She didn\u2019t remember whether or not John Lilly had a mask but recalled that the children had masks and were playing with masks. She admitted making a statement to the Carbondale police on October 31 and admitted, after reading her statement, that defendant had on October 30, 1983, a full mask that had dark hair on it which could perhaps pass for a person\u2019s real hair. She stated that the mask looked like a wolf.\nOra Lilly stated that she saw her grandson, the defendant, at about 6 p.m. on October 30, 1983, when he came by the house. She did not know how long he stayed and saw him again around 9 p.m., when he came to the house. She recalled, after reading her statement given to Carbondale police on October 31, that Lilly had a pullover-type mask, which she described as a Frankenstein or werewolf.\nWilbert Lilly testified that he saw his cousin at his grandmother\u2019s house at approximately 8:45. He was not sure whether or not John Lilly had a mask with him. He also had made a statement to the Carbondale police on October 31 and indicated John Lilly had a mask and that it was a werewolf mask.\nDon Strom, a police officer for the city of Carbondale, stated that on October 30, 1983, at about 9:30, he was advised by their radio dispatcher of a shooting in the 200 block of North Washington. He and Officer Deborah Smith got into the squad car and drove to the apartment complex where Lilly was living. He left Officer Smith there for surveillance purposes and proceeded to the site of the shooting. There he talked with Officer Sytsma and later with Edward Mims. He was then advised by radio that Officer Smith had observed some vehicles entering the apartment complex. He requested assistance and was then advised by Officer Smith that defendant\u2019s car was leaving the complex. The automobile was stopped, and John Lilly was ordered out of the car, placed in custody and advised of his rights.\nJohn Kluge, a detective with the Carbondale police department, testified that he and Detective Brandon interviewed Lilly after he was arrested. Defendant denied being downtown the evening of October 30.\nK. Gary Otey conducted a gunshot residue test on the hands of Lilly on October 30, 1983. Various officers testified as to the chain of custody of the gunshot residue kit.\nDonald Havekost, a special agent with the Federal Bureau of Investigation, then testified. He stated that he had received the gunshot residue kit from the Carbondale police department. He stated that the samples taken from the back of the defendant\u2019s right hand and the back of defendant\u2019s left hand had amounts of both antimony and beryllium, which in his opinion are consistent with the amounts he would expect to find on the hands of a person who had recently discharged a firearm or otherwise been close to a firearm when it discharged.\nMichael Braun testified. He stated he was a special agent with the Illinois Department of Law Enforcement, Division of Criminal Invest\u00edgation. He stated that he met Mr. Barr while working on an undercover investigation in Carbondale and also stated that he knows John Lilly. He stated that neither individual knew he was a law enforcement agent. He testified that he met Paul Barr and defendant at about 11 a.m. on October 20, 1983, and they departed Carbondale in his State vehicle and drove to the Dixie Truck Stop in Tuscola. There they met a black female. They were at the truck stop for about 10 minutes and then drove back to Carbondale. He stated that just after departing the Dixie Truck Stop defendant displayed a silver-colored .32-caliber Clerc brand revolver bearing Serial No. 133105. Braun examined it and returned it to Lilly. Braun also testified that he had another conversation with Paul Barr at approximately 11:45 a.m. on November 1 at Mr. Barr\u2019s residence. When Braum was asked what was said in that conversation, defendant objected on the grounds of hearsay, but the court received the testimony for the limited purpose of it relating to Mr. Barr\u2019s credibility. Braun then testified that Barr had told him that on the evening of October 30, 1983, he and John Lilly had gone to the square, found Eddie Fletcher, and killed him using the handgun that had been supplied by the third party at the Dixie Truck Stop in Tuscola. Braun said that Barr had told him that he had engaged Fletcher in conversation, at which time Lilly approached and shot Fletcher. Braun further stated that Barr told him that the murder weapon and the halloween costumes were thrown in a lake.\nNora Lee Farr Colbert testified for defendant and stated that she was on the Levee with Carolyn Patterson, a/k/a Carolyn Fletcher, on the evening of October 30, 1983. Ms. Colbert testified that she did not see defendant that night.\nDeborah Smith, who was an officer with the Carbondale police department at the time of the shooting, also testified. She stated that Detective Strom dropped her off at defendant\u2019s apartment building at approximately 9:30 on the night in question, and she watched the apartment building. However, she could only see the north entrance. She did not see anyone enter the building but did observe a black male come from the back of the building on the first floor and go to the second floor.\nDefendant first contends that the evidence did not establish his guilt beyond a reasonable doubt. However, after thoroughly examining the record, we find the evidence of his guilt was overwhelming.\nA criminal conviction will not be set aside unless the evidence is so improbable that it creates a reasonable doubt of the defendant\u2019s guilt. Once a defendant has been found guilty, judicial review of all of the evidence is to be considered in the light most favorable to the prosecution. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, cert, denied (1985), 474 U.S___ 88 L. Ed. 2d 274, 106 S. Ct. 267.) This rule is also applicable when it is the sufficiency of identification testimony that is attacked on review. See People v. Milam (1980), 80 Ill. App. 3d 245, 252, 399 N.E.2d 703, 707.\nDefendant alleges that plaintiff\u2019s chief occurrence witness, Carolyn Fletcher, was simply not credible. However, we note that where conflicting evidence arises it is the province of the jury to determine the credibility of witnesses and the weight to be given their testimony, and in such function this court will not substitute its judgment for that of the jury or court. (People v. Tensley (1954), 3 Ill. 2d 615, 621, 122 N.E.2d 155, 158, cert, denied. (1956), 351 U.S. 967, 100 L. Ed. 1486, 76 S. Ct. 1032.) Sufficiency of identification testimony is also a question of fact for the jury, and the jury\u2019s determination will not be disturbed on review unless the testimony is so unsatisfactory as to leave a reasonable doubt of an accused\u2019s guilt. People v. Strater (1979), 72 Ill. App. 3d 486, 490, 390 N.E.2d 979, 982.\nMrs. Fletcher had known Lilly since high school. She testified that she observed Lilly on October 30, 1983, walking south on Washington Street wearing faded jeans, a leather jacket, and a wolfman mask on the top of his head. She further testified that she observed Lilly with the wolfman mask on shoot her husband. She stated that when the shooting occurred, she yelled, \u201cThat\u2019s John Lilly, he shot D.C., Eddie Fletcher,\u201d and ran in to call the police. After thoroughly examining Fletcher\u2019s testimony, particularly her identifications of Lilly, we do not find it so contrary to the evidence as to be unjustified. See People v. Milam (1980), 80 Ill. App. 3d 245, 251, 399 N.E.2d 703, 707.\nDefendant next focuses on the times and distances involved in the case, the testimony of Lilly\u2019s family, and the testimony of Officer Deborah Smith. The defendant\u2019s family members stated defendant was at 512 East Lance Street around 9 p.m. Mrs. Fletcher testified that she saw Lilly at 9 p.m. on the Levee. It is well settled that the trier of fact is not required to accept alibi testimony over the positive identification of an accused, even though the alibi testimony is given by a greater number of witnesses. (People v. Jackson (1973), 54 Ill. 2d 143, 149, 295 N.E.2d 462, 464.) We cannot overturn the verdict of the jury simply because the evidence presented was conflicting. People v. Brown (1972), 52 Ill. 2d 94, 106, 285 N.E.2d 1, 8.\nAdditionally we note defendant\u2019s own admissions are consistent with Mrs. Fletcher\u2019s account of the murder of her husband. The following exchange took place between defendant and Officer Kluge of the Carbondale police following defendant\u2019s arrest on October 30, 1983. A tape of the interview was introduced into evidence and played for the jury.\n\u201cKLUGE: We\u2019re trying to determine, you know, what did happen. How do I know that both these people or all these people that were involved all didn\u2019t have guns and they were all trying to protect themselves in some way or another. You know Paul. Paul is obviously involved in this. Maybe you know better than we do who would be threatening him, who would be hassling with Paul, the kind of people we can talk to that we could go and say hey, what\u2019s going on here, what was the story. That\u2019s what we\u2019re trying to find out. And I know that you\u2019re smart enough to figure that out. So who could we go to now that would help us find out what happened here?\nLILLY: I don\u2019t know, man. Hey, you\u2019re asking me. I mean, there\u2019s a million people. Ask her, she knows who was fighting him. I don\u2019t know.\nKLUGE: Who?\nLILLY: I don\u2019t know. Carolyn. She was right there. I mean, I heard her say my fuckin\u2019 name.\nKUGE: Carolyn who?\nLILLY: Patterson, I guess.\nKLUGE: Is that her name?\nLILLY: I don\u2019t know. She lives out at Lake Heights.\u201d\nIn the aforementioned interview defendant denied being on the Levee on the evening of October 30, 1983, but admitted hearing Carolyn Fletcher, a/k/a Carolyn Patterson, call his name.\nBecause of Mrs. Fletcher\u2019s identification testimony, Agent Braun\u2019s testimony that he observed a silver-colored revolver in the possession of the defendant, the testimony of Mr. Havekost of the FBI that the amounts of beryllium and antimony present on defendant\u2019s hands indicated that defendant had recently discharged a firearm or otherwise been close to a firearm when it discharged, and the defendant\u2019s own admissions in the interview with Officer Kluge, we find we should not disturb the verdict.\nDefendant next contends that the trial court committed reversible error in allowing plaintiff to question Barr regarding a prior inconsistent statement he allegedly made during a November 1, 1983, conversation with Agent Braun. Barr had testified that he did not recall how Fletcher was shot, and he denied seeing anyone run from the area after hearing the shot. He stated that immediately after the victim was shot, he observed Jeff Moore remove a knife from the victim\u2019s hand. The prosecutor expressed surprise, stating that said testimony was contrary to testimony given in a taped interview with Barr on October 31, 1983. The prosecutor was allowed to cross-examine the witness according to Supreme Court Rule 238 (87 Ill. 2d R. 238), and directed Barr\u2019s attention to a statement he allegedly made to Braun two days after the shooting in which he stated that he and John Lilly had decided on the previous Sunday, October 30, to locate Fletcher on the Square and that Lilly, dressed in a halloween costume, killed Fletcher. Barr denied ever making the statement. Barr was also asked if he told Braun that he helped Lilly throw the gun in a lake, and again he denied making that statement.\nSupreme Court Rule 238, amended April 1, 1982 (87 111. 2d R. 238), states: \u201c(a) The credibility of a witness may be attacked by any party, including the party calling him; (b) If the court determines that a witness is hostile or unwilling, he may be examined by the party calling him as if under cross-examination.\u201d\nPrior to this rule\u2019s amendment, a witness could be impeached by the party calling him, by proof of prior inconsistent statements, only upon a showing that the party called the witness in \u201cgood faith\u201d and was \u201csurprised\u201d by his testimony. (Ill. Ann. Stat., ch. 110A, par. 238, Historical and Practice Notes, at 522 (Smith-Hurd 1985).) The sole purpose of impeaching evidence is to destroy the credibility of a witness and not to establish the truth of the impeaching evidence.\nTo reduce the risk that the jury might consider a prior inconsistent statement as independent evidence, the jury must be properly instructed to limit its consideration of the statement only for its narrow purpose. People v. Bradford (1985), 106 Ill. 2d 492, 501-02, 478 N.E.2d 1341,1345.\nDefendant cites People v. Tate (1964), 30 Ill. 2d 400, 402, 197 N.E.2d 26, 27-28, for the proposition that no man can confess to a crime for anyone but himself, and alleges that the State accomplished indirectly (by impeachment) what they could not do directly. However, in Tate our supreme court determined that the jury was not adequately instructed as to the limited purpose for which the impeaching evidence could be used.\nHere the jury was instructed in the language of Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.11 (2d ed. 1981) as follows:\n\u201cThe believability of a witness may be challenged by 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 purpose of deciding the weight to be given the testimony you heard from the witness in this courtroom.\u201d\nWe find the instruction provided an adequate safeguard that the jury would not give substantive character to the impeachment testimony. In any event, even if error was committed in allowing the impeachment, given the overwhelming evidence of guilt the complained of testimony could not affect the verdict.\nDefendant next contends that the trial court committed reversible error when the court allowed the testimony of Agent Braun to be introduced in the defendant\u2019s trial.\nBraun, an agent for the Illinois Department of Law Enforcement, testified that he met with Paul Barr on November 1, 1983, and had a conversation with him. The prosecution asked what, if anything, was said in the conversation, and defendant objected on the grounds of hearsay. The court cautioned the jury, stating:\n\u201cAll right. Now there is an objection to this conversation. I am going to permit Mr. Braun to answer the question for a limited purpose. It has nothing to do with the substance of the statement as it might deal with Mr. Lilly. But it has to do with the credibility of Mr. Barr and it is received only for that purpose at this time.\u201d\nWe agree with the trial court that the aforementioned statements are hearsay and substantively inadmissible. However, our supreme court has consistently held that evidence of prior inconsistent statements by a witness is admissible to impeach his credibility. (People v. Bradford (1985), 106 Ill. 2d 492, 478 N.E.2d 1341; People v. Morgan (1963), 28 Ill. 2d 55, 63, 190 N.E.2d 755, 759.) To lessen the risk that the properly admitted prior inconsistent statement of a witness be considered by the jury as testimony, this court has required that the impeachment not be repetitious and that the jury be clearly cautioned and instructed to limit its consideration of such evidence for its proper purpose. (People v. Bradford (1985), 106 Ill. 2d 492, 478 N.E.2d 1341; People v. Moses (1957), 11 Ill. 2d184, 87, 142 N.E.2d 1, 3.) Here the trial court specifically admonished the jury that prior inconsistent statements were to be used only for the purpose of determining Barr\u2019s credibility. The court not only instructed the jury to restrict the use of prior inconsistent statements for impeachment purposes prior to allowing Agent Braun to testify to the November 1, 1983, conversation, but did so again in the jury instructions. See People v. Marino (1970), 44 Ill. 2d 562, 578, 256 N.E.2d 770, 779.\nIt is well settled that the determination of hostility for purposes of Supreme Court Rule 238 (87 Ill. 2d R. 238) rests within the discretion of the court and can only be made after a determination of the demeanor and responses of the witness. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 926, 419 N.E.2d 578, 588; People v. Swimley (1978), 57 Ill. App. 3d 116, 129, 372 N.E.2d 887, 897, cert, denied (1978), 439 U.S. 911, 58 L. Ed. 2d 257, 99 S. Ct. 281.) Thus we do not find the trial court abused its discretion in letting Agent Braun testify, and we additionally find that in any event the jury was properly cautioned that the testimony was for impeachment purposes only.\nDefendant next contends that the trial court erred by refusing to give the second paragraph of IPI Criminal 2d No. 3.02.\nThe State tendered and the court gave only the first paragraph of IPI Criminal 2d No. 3.02 as follows:\n\u201cCircumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of [the] defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.\u201d\nThe defense tendered IPI Criminal 2d No. 3.02 in its entirety, which set forth an additional paragraph:\n\u201cYou should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.\u201d\nThe second paragraph of the instruction should be given when the proof of guilt, as to each element of the offense, is circumstantial. People v. Minish (1974), 19 Ill. App. 3d 603, 606, 312 N.E.2d 49, 51.\nHere the evidence was not entirely circumstantial. Mrs. Fletcher, an eyewitness, testified that she saw defendant wearing a werewolf mask shoot her husband. Furthermore, defendant\u2019s statement to Officer Kluge placed him at the scene of the offense. Given these facts the case at hand is distinguishable from People v. Crow (1985), 108 Ill. 2d 520, because the evidence was not completely circumstantial.\nDefendant next contends that he was denied a fair trial by the introduction of his involvement in other unrelated criminal activity.\nDuring the impeachment of Barr, the prosecutor elicited testimony concerning the trip to Tuscola with Braun and the defendant. Barr denied that defendant acquired a silver gun at that time and stated that the only thing they had was drugs. The prosecutor eventually elicited the fact that Barr had been convicted in Federal Court of conspiring to distribute cocaine and had received a five-year sentence.\nWe agree that evidence of collateral crimes is inadmissible if it is relevant merely to establish the defendant\u2019s propensity to commit crimes. (People v. Bartall (1983), 98 Ill. 2d 294, 309, 456 N.E.2d 59, 66.) The issue is whether Barr\u2019s testimony was admitted only to establish defendant\u2019s reputation as a bad person deserving punishment or whether there was some other legitimate purpose for its admission. People v. Albanese (1984), 104 Ill. 2d 504, 517, 473 N.E.2d 1246, 1251, cert, denied (1984), 469 U.S. 892, 83 L. Ed. 2d 205, 105 S. Ct. 268.\nAs we previously mentioned, Barr was declared a hostile witness pursuant to Supreme Court Rule 238 (87 Ill. 2d R. 238), and the jury was summarily instructed that the testimony elicited was for impeachment purposes only. Thus the testimony had a proper purpose.\nDefendant further contends that Agent Braun should not have been allowed to testify regarding the trip to Tuscola. However, Braun stated that he was working on an undercover investigation when he met Paul Barr and that Barr had introduced him to the defendant. He stated that he traveled from Carbondale to Tuscola with defendant and Barr. Braun was asked by the prosecutor, \u201cDid anyone else travel with you from Carbondale to Tuscola other than the defendant and Paul Barr?\u201d Braun replied, \u201cIn my car, no. There was a surveillance team that followed me to Tuscola and back to Carbondale.\u201d At that time, the jury was asked to leave, and the court instructed the witness not to go beyond answering the questions, particularly not to state anything that might indicate that defendant may have been involved in some other illegal activity. Braun went on to testify that after leaving the truck stop Lilly displayed a silver colored .32-caliber Clerc brand revolver and that he had obtained the gun from Rose Johnson whom he had met at the Dixie Truck Stop in Tuscola.\nWe find that the mere mention of the word \u201csurveillance\u201d was not enough to indicate to the jury that defendant had committed collateral crimes, and the evidence concerning the handgun was introduced for a proper reason, namely to show that defendant was in possession of a handgun very similar to the murder weapon described by the witness.\nDefendant next alleges that he was denied his right to a fair trial by the improper closing argument of the prosecutor.\nThe following statements were made by the prosecution in closing argument:\n\u201cHow, ladies and gentlemen, did he get antimony and beryllium on his hands? How he\u2019s going to tell you\u2014\nMR. WELCH: Objection, your Honor.\nTHE COURT: Sustained.\n* * *\nI ask you why on October 20, 1983, did John Lilly acquire a .32 caliber gun if he did not have some intent in mind for the use of that weapon? I haven\u2019t heard any gun collection stories. I haven\u2019t heard any hunting trip stories, target practice stories. I don\u2019t have to explain\u2014\nMR. WELCH: I object to the shifting.\nTHE COURT: Mr. Clemons, the objection is going to be sustained. The defendant does not have any burden of explanation in this case.\u201d\nDefendant relies on People v. Weinstein (1966), 35 Ill. 2d 467, 469-70, 220 N.E.2d 432, 433-34, for the proposition that the burden of proof never shifts to the accused but remains the responsibility of the prosecution throughout the trial. In Weinstein, our supreme court reversed and remanded for a new trial because the prosecutor repeatedly stated that it was the burden of the defendant to present evidence creating a reasonable doubt of guilt. However, in the case at hand, the prosecutor pointed to defendant\u2019s failure to submit any evidence that would tend to refute the case against him.\nDefendant also contends that the State argued substantively the testimony given by witnesses Barr and Braun that was admitted for impeachment purposes only. However, defendant objected to the prosecutor\u2019s statement that \u201cPaul Barr comes in here and tells you he didn\u2019t talk to him about anything that day but drugs. What do you think was the big topic of discussion?\u201d The court sustained the objection and admonished the jury to disregard the last comment.\nIn rebuttal, the prosecutor stated, \u201cI submit to you that the gun\u2019s probably in the lake somewhere buried in the mud. We don\u2019t know. That\u2019s where Paul Barr said it was. They looked. They couldn\u2019t find it.\u201d Defendant objected and the court sustained the objection, striking the remark from the record and admonishing the jury to disregard it. After examining the record, we find that any error was eliminated by the giving of curative instructions to the jury after sustaining the objections. The evidence against defendant was so overwhelming that the remarks, even if prejudicial, did not materially affect the jury\u2019s verdict. People v. Horne (1984), 129 Ill. App. 3d 1066, 1072-73, 473 N.E.2d 465, 469-70.\nDefendant further alleges that he was denied a fair trial because the trial court denied his motion for a mistrial. However, as we previously mentioned, the testimony of Barr and Braun was properly introduced and limited, and the State\u2019s closing argument was not so prejudicial as to deny defendant a fair trial. People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, cert, denied (1984), 469 U.S. 892, 83 L. Ed. 2d 205, 105 S. Ct. 268\nFinally, defendant contends that it was error to deny his motion for a directed verdict. However, again as we previously mentioned, the record as a whole demonstrates that defendant\u2019s guilt was proved beyond a reasonable doubt.\nFor the foregoing reasons, the judgment of the circuit court of Jackson County is affirmed.\nAffirmed.\nJONES, P.J., and HARRISON, J., concur.", "type": "majority", "author": "JUSTICE WELCH" } ], "attorneys": [ "Harvey C. Welch, of Urbana, for appellant.", "John R. Clemons, State\u2019s Attorney, of Murphysboro (Kenneth R. Boyle and Stephen E. Norris, both of State\u2019s Attorneys Appellate Service Commission, and Joseph H. Ciaccio, Sr., of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN W. LILLY, Defendant-Appellant.\nFifth District\nNo. 5 \u2014 84\u20140490\nOpinion filed December 20, 1985.\nHarvey C. Welch, of Urbana, for appellant.\nJohn R. Clemons, State\u2019s Attorney, of Murphysboro (Kenneth R. Boyle and Stephen E. Norris, both of State\u2019s Attorneys Appellate Service Commission, and Joseph H. Ciaccio, Sr., of counsel), for the People." }, "file_name": "0275-01", "first_page_order": 297, "last_page_order": 311 }