dissenting:
I do not agree with the opinion of my colleagues. I believe there were errors which occurred during the course of this trial which can not be regarded as harmless and consequently I believe a new trial is required.
The first issue considered by the majority relates to the propriety of the court’s ruling refusing to give the second paragraph of IPI Criminal No. 3.02. My views on the problems created by this instruction have previously been set forth in my special opinions in People v. Fletcher, 40 Ill. App. 3d 537, 352 N.E.2d 10, and People v. Minish, 19 Ill. App. 3d 603, 312 N.E.2d 49, and need not be restated here. The majority held that admissions are direct evidence relying on People v. Fletcher, 40 Ill. App. 3d 537, 353 N.E.2d 10, which in turn relies on People v. Brown, 40 Ill. App. 3d 562, 352 N.E.2d 15. Whether admissions are direct evidence is in my mind somewhat doubtful since both the content and the circumstances surrounding the making of an admission insure such a wide range of probative value that it is difficult to assess such evidence in terms of the certainty that the instruction is designed to promote. For example, how should one evaluate admissions to a mistress thereafter jilted, or admissions to barroom buddies who think the declarant is joking, or admissions to individuals who are apparently willing to agree to set a fire for a mere 845? As I have indicated earlier, why the second paragraph of the instruction should only be given if the evidence is entirely circumstantial escapes me, except that there seems to be some feeling among the drafters of the instruction that perhaps under some circumstances the standard of proof, beyond a reasonable doubt, had not been sufficiently defined. As can be seen from the instruction, the second paragraph does not even refer to circumstantial evidence and if it did I think some definition would be required. This brings me then to the holding of the majority that the second paragraph of the instruction does not correctly state the law. Without citing any precedent or for that matter giving any reason for their holding, the majority proposes an alternative which includes mention of circumstantial evidence without defining same and holds that this is a correct statement of the law. I do not agree with this conclusion and in any event the court’s decision was not based on any such argument. The trial court apparently believed the evidence of the fire was direct evidence, a position rejected by the majority of the court. In conclusion on this aspect of the case, it is my belief that the second paragraph of the instruction is a relevant consideration in the burden of proof concept, and should be given regardless of whether all of the evidence is circumstantial. If it is not a relevant consideration then it should not be given under any circumstances and the remarks to the contrary by the drafters of the instruction should be disregarded.
The next issue with which I disagree is that relating to the evidence that the victim or owner of the house was shot at. I believe the court ruled correctly on the motion in limine because in the absence of any evidence that it was the defendant who fired the shot, it is an irrelevant issue. It is not so much that it is evidence of another unrelated crime, but rather it is evidence irrelevant to any act of the defendant. If it could have been shown that it was the defendant who shot at the victim a different question would be presented. The only case cited in the majority opinion does not deal with this problem since in People v. McDonald, 62 Ill. 2d 448, 343 N.E.2d 489, not only was the evidence that of a similar offense, but one which the witness testified was committed by the defendant.
Finally, the majority hold that the cross-examination of defendant’s wife and the defendant’s brother was improper because it elicited the fact that each of the witnesses had refused to testify before the grand jury by exercising their fifth amendment privileges. I agree this conclusion is required by United States v. Tomaiolo (2d Cir. 1957), 249 F.2d 683, and United States v. Rubin (5th Cir. 1977), 559 F.2d 975. However, the reasons and logic for holding such cross-examination and purported impeachment improper compel me to believe that the impeachment was not only improper, but deprived the defendant of a fair trial and hence constituted reversible error.
In Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, the court held that errors will be regarded as harmless if the court believes beyond a reasonable doubt they did not contribute to the verdict of the jury. This standard is not referred to in the majority opinion and the issue seems to be resolved by referring to the defendant’s admissions. While I believe the evidence including the admissions would be sufficient to support the conviction in the absence of this error, nevertheless the nature and circumstances surrounding the alleged admissions and the persons reporting such admissions present certain weaknesses affecting the probative value of the evidence. The testimony of a jilted girlfriend presented by the prosecution was contradicted by the wife. Additionally, it should be recalled that other admissions were reported by tavern buddies who thought the defendant was joking and by other persons who admittedly agreed to commit a criminal offense for *45. If the testimony of the wife and the brother was discredited by improper impeachment, any support for the defendant’s defense of alibi was admittedly destroyed and yet the majority opinion declares this effect to be without any significance. The unfair prejudice created by the improper impeachment of two witnesses both closely identified with the defendant constitutes substantially greater unfairness than the facts presented in People v. McLean, 2 Ill. App. 3d 307, 276 N.E.2d 72. Accordingly, I believe the defendant’s conviction should be reversed and he should be granted a new trial.