author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL WILLIS et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1 — 89—0956,1—89—1016, 1 — 89—2329 cons.
    Opinion filed June 24, 1991.
    Rehearing denied August 20,1991.

      Randolph N. Stone, Public Defender, of Chicago (Michaela J. Kalisiak and Robert Guch, Assistant Public Defenders, of counsel), for appellant Michael Willis.
    Michael J. Pelletier and Anne E. Meyer, both of State Appellate Defender’s Office, of Chicago, for appellant Marvin Kitchen.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Daniel Rabinovitz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

This is a consolidated appeal. Defendants, Michael Willis and Marvin Kitchen, were charged by indictment with the murder of Coy Lee Harris. Willis exercised his right to a jury trial; Kitchen waived his right to a jury trial. Although the trials were severed, Willis and Kitchen were tried simultaneously. At the conclusion of the trials, the jury entered a verdict of guilty of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1) as to Willis. The trial court entered judgment on the jury’s verdict and also entered judgment finding Kitchen guilty of first degree murder predicated on the theory of accountability. (Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2(c).) Willis was sentenced to a prison term of 28 years, and Kitchen was sentenced to a term of 20 years. On appeal, defendant Willis contends that: (1) the State failed to prove beyond a reasonable doubt that he had not acted in self-defense; (2) the State’s closing argument substantially prejudiced him and deprived him of his constitutional right to a fair trial; and (3) the trial court’s improper modification of the jury instruction unfairly prejudiced the jury against him. Defendant Kitchen contends that: (1) the trial court erred in finding him guilty of first degree murder on an accountability theory; (2) section 9 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2) violates the due process and equal protection clauses of the Illinois and United States Constitutions, and violates the separation of powers requirement of the Illinois Constitution. For the following reasons, the judgments entered by the trial court are affirmed.

The record sets forth the following facts relevant to this appeal. In the late afternoon of December 26, 1987, Kitchen was visiting a friend in a fourth-floor apartment at 3739 S. Federal, Chicago, when Willis came to the friend’s door looking for Kitchen. Willis asked the friend to tell Kitchen to come up to the ninth-floor apartment of Ruby Smith, Kitchen’s aunt. Approximately 15 minutes later, Kitchen went to Smith’s apartment. As will be discussed, there are varying accounts as to what happened in the apartment.

Ora Dale Ricks testified that on December 26, 1987, she lived on the seventeenth floor of the apartment building located at 3739 Federal, Chicago, with Sara Barnett and Coy Lee Harris. On that date, she was returning home from the hospital with Harris when they met Willis in the elevator of the apartment building. Willis asked Harris to stop off at Smith’s apartment. Willis, Harris and Ricks then exited the elevator at the ninth floor and went to Smith’s apartment. Once inside the apartment, Willis handed Ricks the yellow tumbler he had been holding and asked her to hold it. Ricks took the tumbler and walked to the kitchen. Willis and Harris remained in the living room. When Ricks came back to the living room, she saw Harris on the floor with Willis crouched over him, hitting Harris in the face with his fists. Ricks tried to stop them, but was unsuccessful. She then went to the back of the apartment and got Ruby Smith and Lawrence Willis. Nobody could stop the fight. At that time, Kitchen entered the apartment and started to help Willis by kicking and punching Harris. Kitchen then picked up a beer bottle and hit Harris over the head with it, breaking the bottle. Ricks further stated that although Harris had a reputation for carrying knives, Ricks knew he did not have one that day because she had just had Harris arrested the day before for cutting her with a knife and the police had taken the knife away.

Ricks never saw Harris stand up during the fight, and she stated that she did not remember seeing anyone hit Harris with a baseball bat because she had blocked it out. The State then impeached Ricks’ testimony with a prior statement she had made in which she stated that she had seen Willis repeatedly hit Harris with a baseball bat.

Ruby Smith then testified that on December 26, 1987, she was in her bedroom in her apartment on the ninth floor of 3739 S. Federal when a couple of her children came in and said Willis and Harris were fighting. When she went into the living room, Willis, Ricks, Harris and Willis’ brother, Lawrence, were in there. Willis and Harris were “body slamming” each other. At that point, Kitchen entered the apartment. Harris reached with his right arm behind his back and Kitchen hit him over the head with a beer bottle. Harris fell to his knee, but got back up and continued to fight with Willis. At that point, Willis grabbed a baseball bat and hit Harris while he was kneeling down. Harris fell, face-up, and Willis hit him in the head three to five more times with the bat. Harris was bleeding and did not get up.

Smith then left her apartment to call the police from a telephone in another apartment. On her way back to her apartment, she saw Harris’ body lying on the floor by the laundry room. When the police came, she identified Willis as Harris’ attacker and the police took Willis to the squad car.

Although Harris usually carried knives in leather pouches attached to his belt, Smith did not see Harris with any knives that day. However, she thought he may have been wearing the pouches that day. On redirect, Smith stated that Kitchen and Harris did not fight with each other. Only Harris and Willis had been fighting.

On cross-examination for Kitchen, Smith testified that when Kitchen had entered the apartment, Harris was trying to pull on his gloves and then reached for something. At that point, Kitchen hit him with the bottle. Harris fell, but got up right away. He had not even been stunned by the bottle.

Marvin Kitchen, testifying on his own behalf, stated that as soon as he took one step into Smith’s apartment, someone yelled, “Watch out.” He saw Harris standing opposite the door, facing him. Willis was a few feet away. Harris came toward him very fast, gesturing with his hands like he was putting on gloves. Kitchen stepped toward Harris and grabbed him by the arms to prevent him from pulling out any weapons. They then started to wrestle. While he was wrestling with Harris, Willis hit Harris and knocked him down on his knee. When Harris started to get up, Kitchen hit him with the bottle. Kitchen then walked away from Harris and started verbally arguing with Ricks. He did not strike Harris again.

While Kitchen was arguing with Ricks, he turned around and saw Willis strike Harris two to three times with a baseball bat. Ricks and Smith started screaming. Lawrence Willis ran over and snatched the bat from Willis’ hand. Smith then left to call the police. Seeing the blood on the floor, Kitchen moved Harris’ body out into the hallway near the laundry room. He did not put Harris’ body in the laundry room.

On cross-examination, Kitchen stated that although he knew Harris’ reputation for violence, Harris had never threatened Kitchen personally and Kitchen never actually saw Harris attack anyone or ever saw a knife inside the pouches that Harris wore. On the day of the incident, Kitchen did not see the knife pouches.

Chicago police officer Andre Watkins testified that on December 26, 1987, approximately 5 p.m., he received a message to assist paramedics at 3739 S. Federal. When he went to the ninth floor of that building, he saw the victim, who appeared to have been badly beaten around the head and upper body. The paramedics had found the body in the laundry room. Watkins noticed significant signs of blood in the laundry room and drag marks of blood in the hallway and laundry room. The trail of blood led to Smith’s apartment.

Watkins then went to Smith’s apartment. Smith opened the door and told Watkins that the offender was still there. Watkins looked inside, saw Willis, and asked him to step out into the hallway. When Willis stepped out, Watkins noticed that Willis had blood on his boots and on the back of his pants. Watkins then arrested Willis.

Detective James Redmond of the Chicago police department testified that he arrested Kitchen on March 15, 1988, and took him to police headquarters, where he was interviewed by an assistant State’s Attorney. Kitchen’s conversation was reduced to writing by the assistant State’s Attorney and signed by Kitchen. The State tendered Kitchen’s statement to the court. In summary, the statement stated the following: (1) when Kitchen entered the apartment, Willis and Harris were arguing in the living room; (2) after several seconds, Harris walked toward Kitchen, saying something that Kitchen could not remember; (3) Kitchen lowered his head and ran into Harris’ chest, causing him to fall against the wall; (4) when his head hit Harris’ chest, Kitchen punched Harris one or two times in the head; (5) Kitchen told Willis to “be cool” and that he did not need Willis’ help fighting Harris; (6) Willis struck Harris anyway, knocking him to the ground, where Willis continued fighting with him; (7) when Harris tried to get up, Kitchen picked up a beer bottle and struck Harris once on the top of the head; (8) Kitchen then began arguing with Ora Dale Ricks while Willis picked up a baseball bat and struck Harris three to four times in the head and back area; (9) Kitchen walked away from Harris, but remembered stepping on Harris’ leg; (11) Kitchen and Willis carried Harris out to the porch; and (12) Kitchen returned to his girl friend’s apartment.

Shaku Teas, a physician with the Cook County medical examiner’s office, testified that the cause of Harris’ death was cranial cerebral injury due to multiple blunt force, trauma or injuries.

During jury deliberations as to Willis, the jury sent out a note to the trial court, asking for clarification of the instruction on self-defense. Specifically, the jury asked whether the words “at the time he performed the acts” meant “during the entire circumstances” or “at the time of death.” The defense objected to any response going back to the jury. Overruling the objection, the trial court responded by copying the words from the instructions on a notecard and underlining the words “performed acts” and “caused.” Thirty minutes later, the jury returned with its verdict of guilty. The trial court entered judgment on the verdict and also found Kitchen guilty of first degree murder on an accountability theory. Subsequently, the trial court denied the motion for new trial filed by each defendant and sentenced Kitchen to a term of 20 years and Willis to a term of 28 years. Each defendant’s timely appeal followed.

Defendant Willis initially argues that the State failed to prove beyond a reasonable doubt that he had not acted in self-defense. The affirmative defense of self-defense is raised only if defendant presents some evidence as to each of the following elements of the defense: (1) force had been threatened against defendant; (2) defendant was not the aggressor; (3) the danger of harm is imminent; (4) the force threatened was unlawful; (5) defendant actually believed that a danger existed, that force was necessary to avert the danger, and that the amount of force he used was necessary; and (6) that the beliefs were reasonable. (People v. Kyles (1980), 91 Ill. App. 3d 1019, 415 N.E.2d 499.) Once defendant has presented some evidence as to each of these elements, the State has the burden of disproving the defense beyond a reasonable doubt. (People v. Estes (1984), 127 Ill. App. 3d 642, 469 N.E.2d 275.) If the State negates any one of the self-defense elements beyond a reasonable doubt, it has met its burden of proof. (People v. Zolidis (1983), 115 Ill. App. 3d 669, 450 N.E.2d 1290.) The issue of self-defense is one of fact. Therefore, it is the function of the trier of fact to resolve any conflicts in the evidence and to determine credibility of the witnesses. (People v. Perry (1980), 91 Ill. App. 3d 988, 415 N.E.2d 523.) On review, the trier of fact’s decision will not be disturbed unless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt. People v. Zolidis, 115 Ill. App. 3d 669, 450 N.E.2d 1290.

In the present case, Willis has failed to present evidence which would even raise the defense of self-defense. There is no evidence that Harris threatened Willis with imminent harm or that Harris was the aggressor. Both Ruby Smith and Ora Dale Ricks testified that they saw Willis and Harris fighting. However, neither of them knew how or why the fight started. Further, there is no evidence to support a reasonable belief by Willis that a danger existed and force was necessary to avert that danger. Although both Smith and Ricks testified that Harris usually carried at least one knife, neither of them saw Harris with a knife or any other weapon during the fight. While the law does not require that the aggressor be armed in order that the use of deadly force in self-defense be justified, it does require that the person against whom self-defense is allegedly used be an aggressor, that he be capable of inflicting serious bodily harm on defendant without the use of a deadly weapon, and that he appears to intend to inflict serious bodily harm. (People v. Estes (1984), 127 Ill. App. 3d 642, 469 N.E.2d 275.) In Estes, following a jury trial, defendant was convicted of voluntary manslaughter in the shooting death of her husband. Just prior to the shooting, the husband had physically beat the defendant and would not leave her alone even after she begged him to do so. When he started to come toward her again, she shot him. The husband was a six-foot, 200-pound crane operator and, in the past, while unarmed, had physically injured defendant to the degree that she had to be hospitalized. On review, the appellate court reversed defendant’s conviction on the ground that, considering all of the evidence, her belief that she had been in danger of death or great bodily harm was not unreasonable beyond a reasonable doubt. Therefore, she was justified in using deadly force.

Unlike in Estes, there is no .evidence in the present case that, unarmed, Harris was capable, of inflicting serious bodily harm on Willis at the time Willis struck him repeatedly with the baseball bat. In fact, it is highly unlikely that he could have inflicted any harm at all considering that both Willis and Kitchen were kicking and punching him. Further, the record reveals that Harris was 5 feet 4 inches, weighed 159 pounds, Kitchen was 5 feet 7 inches, weighed 135 pounds, and Willis was 5 feet 7 inches and weighed 180 pounds. Moreover, neither Smith, Ricks nor Kitchen saw him with a weapon.

Accordingly, because defendant has failed to present evidence to support a theory of self-defense, the burden of proof never passed to the State. However, even if it had, the State presented sufficient evidence to negate the elements of self-defense beyond a reasonable doubt with testimony indicating the absence of any threat of imminent harm to Willis.

Willis further argues that the State’s comments during closing argument deprived him of his constitutional right to due process of law. Initially, Willis contends that the following statement made by the State during closing argument completely misstated the evidence:

“Ladies and gentlemen, the victim was helpless at that time. If the defendant thought this was self-defense, ladies and gentlemen, why did they drag the body from Apartment 912 down the hall and around the corner here to the laundry room?”

Willis argues that there was no evidence that he had dragged Harris’ body down the hall.

As a general rule, courts allow a great deal of latitude to the prosecution during closing arguments. If the prosecution’s statements are reasonable inferences drawn from the evidence, they are within the bounds of proper argument. (People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183.) In the present case, the State’s comments are reasonable inferences drawn from the testimony of Officer Andre Watkins, who stated that the paramedics found Harris’ body in the laundry room and that there were significant signs of blood and drag marks of blood which created a trail leading directly to Ruby Smith’s apartment. Watkins further testified that Willis had blood on the tops of his boots and on the back of his pants when he questioned Willis immediately after the incident. The testimony of Watkins coupled with that of Ruby Smith and Ora Dale Ricks as to the fact that Willis and Kitchen had been Harris’ attackers provided sufficient evidence from which it could be inferred that Willis, either alone or with Kitchen, had dragged Harris’ body out of Smith’s apartment.

In support of his position, Willis relies on People v. Rogers (1988), 172 Ill. App. 3d 471, 526 N.E.2d 655, and People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629. However, these cases are distinguishable from the present case and, therefore, are unpersuasive. The Rogers court addressed the propriety of defense counsel’s comments in the context of an ineffective assistance of counsel issue. In Whitlow, the State inferred that defendant had committed theft when there was no evidence to support such an inference and the State had reason to know that its allegation was false.

Next, Willis contends that the State misstated the jury instruction regarding self-defense and confused the jury when it stated:

“First of all, let us look as to why this is not a not guilty. There is no way you can possibly find this defendant not guilty. In order for [you] to find the defendant not guilty, you will *** have to believe that the defendant was acting in self-defense. I am not going to read the instructions to you again; however, the key words in that instruction is [sic] that the defendant believed he was in imminent — -that he was defending himself against the imminent use of unlawful force; that he reasonably used the force that he used to prevent imminent death or great bodily harm to himself. Well, the key word is imminent use of force. That means that the victim in this case had to have had that knife out. That is the only way to get out of being stabbed himself, or sustaining great bodily injury himself was to pick up this bat and start swinging in order to prevent himself from receiving great bodily harm from — .”

Willis contends that it is an individual’s reasonable belief, not the deceased’s actual possession of a weapon, that is operative in a self-defense claim.

The rule regarding self-defense is that if a defendant has a reasonable belief that he is in imminent danger of loss of life or great bodily harm, he may use deadly force to protect himself even though he is mistaken as to the danger and the danger is only apparent. The test is what a reasonable person would have believed under the circumstances. (People v. White (1980), 87 Ill. App. 3d 321, 409 N.E.2d 73.) Although the State’s comment emphasized one of the elements of self-defense, it did not re-define the elements and misstate the law. The fact that the jury was properly instructed as to the elements of the offense plus the fact that, after the State’s comments, the trial court emphasized that it is the jury’s responsibility to decide what “imminent” and “reasonable belief” mean were sufficient to counter any misplaced emphasis resulting from the State’s remarks. See People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746.

Finally, Willis’ comment that the jury had sent out a note during deliberations seeking clarification of the word “imminent” is not supported by the record. Instead, during jury deliberations, the jury sent out a note to the trial court, asking whether the words “at the time he performed the acts” meant “during the entire circumstances” or “at the time of death.” There is no suggestion in the record that the jury was confused as to the meaning of “imminent.” Accordingly, we conclude that the statements made by the State during closing argument do not, individually or cumulatively, provide grounds for reversal.

Finally, Willis argues that the trial court erred in responding to the questions which the jury sent it during its deliberations. During jury deliberations, the jury sent out a note to the trial court, asking for clarification of the instruction on self-defense. Specifically, the jury asked whether the words “at the time he performed the acts” meant “during the entire circumstances” or “at the time of death.” The defense objected to any response going back to the jury. Overruling defense counsel’s objection to any response going back to the jury, the trial court responded by copying verbatim the words from the instructions on a notecard and underlining the words “performed acts” and “caused.” Willis argues that this was improper because: (1) the jury’s inquiry was regarding a question of fact; (2) the instruction was clear on its face; and (3) by underlining the words, the trial court improperly expressed its opinion on the issue of self-defense.

Jury instructions are intended to inform the jury as to the correct principles of law applicable to the evidence admitted at trial (People v. Taylor (1977), 53 Ill. App. 3d 810, 368 N.E.2d 950), and the trial court has a duty to clarify an explicit question on a point of law over which there is doubt or confusion. People v. Flynn (1988), 172 Ill. App. 3d 318, 526 N.E.2d 579.

In the present case, it is clear that the jury’s questions related to a point of law, not to a fact. As stated, jury instructions define the law (People v. Taylor, 53 Ill. App. 3d 810, 368 N.E.2d 950) and the jury’s question concerned one of the terms of the jury instructions definition. The question did not ask for clarification as to facts. Further, the jury’s query as to a point of law raised in the instructions belies Willis’ argument that the instructions were clear on their face. It is imperative that a jury instruction not be confusing to the jury. If the correct principles of law have not been understood by the jury, it will be precluded from reaching a well-reasoned conclusion based on the law and evidence. (See People v. Taylor, 53 Ill. App. 3d 810, 368 N.E.2d 950.) Finally, Willis’ contention that the trial court improperly expressed its opinion as to the outcome is not supported by the record. The trial court merely returned the original instructions to the jury and underlined that part of the instructions which answered the question. Accordingly, we conclude that the trial court did not err in responding to the jury’s question submitted to the court during deliberations.

We shall next address defendant Kitchen’s contentions. First, Kitchen argues that the trial court erred in finding him guilty of first degree murder on an accountability theory when the State had failed to present any evidence that Kitchen had intended to promote or to facilitate an offense at the time he attacked Harris. Pursuant to section 5 — 2(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2(c)):

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

The intent to promote or to facilitate a crime can be shown by evidence that defendant and the principal shared a community of unlawful purpose. (People v. Gil (1984), 125 Ill. App. 3d 892, 466 N.E.2d 1205.) Actual words of agreement are not necessary to demonstrate this shared purpose. It can be inferred from the surrounding circumstances (People v. Grice (1980), 87 Ill. App. 3d 718, 410 N.E.2d 209), i.e., defendant’s presence during the commission of the crime without opposing or disapproving it (People v. Shaw (1981), 98 Ill. App. 3d 682, 424 N.E.2d 834); defendant’s close affiliation with his companion after the offense; and defendant’s failure to report the crime. People v. Grice (1980), 87 Ill. App. 3d 718, 410 N.E.2d 209.

In the present case, the surrounding circumstances demonstrate Kitchen’s guilt of first degree murder on the accountability theory beyond a reasonable doubt. Shortly after Kitchen entered Ruby Smith’s apartment, he and Willis were engaged in a physical altercation with Harris. At one point, Kitchen picked up a beer bottle and hit Harris over the head with it. Willis and Harris continued fighting and Willis grabbed a nearby baseball bat and started pummeling Harris on the head with it until Willis’ brother, Lawrence, took the bat away from him. Kitchen made no effort to remove the bat. Ruby Smith then called the police and cleaned the blood and glass from the floor. Kitchen then helped Willis drag Harris’ body out of the apartment. Although Kitchen was present when the paramedics arrived, he returned to his girl friend’s apartment before the police arrived.

The facts in the present case differ markedly from those in People v. Wise (1990), 205 Ill. App. 3d 1097, 563 N.E.2d 1057, relied upon by Kitchen. In Wise, the victim testified that while he was in a sandwich shop, defendant came from behind him and grabbed him in a bear hug. At the same time, Edgar Jones walked up to the victim, pulled a gold chain with a medallion from around the victim’s neck and struck him in the eye. Two police officers arrived, and defendant and Jones fled. The police apprehended defendant and Jones and brought them back to the sandwich shop. However, the victim had left. The police then brought defendant and Jones to the police station, but charged them with only disorderly conduct because the victim never appeared to press charges. It was not until two detectives located the victim the next day that he indicated he had been the victim of a robbery and identified photographs of defendant and Jones. Defendant was then charged "with aggravated battery and robbery.

Following a jury trial, defendant was granted a directed finding on the aggravated battery count and was found guilty of robbery on an accountability theory. On appeal, defendant claimed that there was insufficient evidence to establish his guilt beyond a reasonable doubt. The Wise court agreed and reversed defendant’s conviction on the grounds that the only evidence as to defendant’s involvement in the robbery was the inconsistent testimony of the victim who had been impeached by statements he had made exonerating defendant from any complicity in the robbery.

Unlike the situation in Wise, there was sufficient evidence in the present case to prove beyond a reasonable doubt that Kitchen played an active roll in the murder of Harris and demonstrated a shared common purpose with Willis to do great bodily harm to Harris.

Next, Kitchen argues that section 9 — 2 of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2) violates the due process clauses of the Federal and State constitutions by shifting the burden of proof away from the State and requiring the defendant to negate the mental state for first degree murder in order to reduce the offense to second degree murder. Section 9 — 2 provides:

“Second Degree Murder, (a) A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9 — 1 of this Code and either of the following mitigating factors are present:
(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed; or
(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.
(b) Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
(c) When a defendant is on trial for first degree murder and evidence of either of the mitigating factors defined in subsection (a) of this Section has been presented, the burden of proof is on the defendant to prove either mitigating factor by a preponderance of the evidence before the defendant can be found guilty of second degree murder. However, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder ***. In a jury trial for first degree murder in which evidence of either of the mitigating factors defined in subsection (a) of this Section has been presented and the defendant has requested that the jury be given the option of finding the defendant guilty of second degree murder, the jury must be instructed that it may not consider whether the defendant has met his burden of proof with regard to second degree murder until and unless it has first determined that the State has proven beyond a reasonable doubt each of the elements of first degree murder.” Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2.

As a general principle, legislative enactments carry a strong presumption of validity and the party challenging a statute has the burden of clearly establishing their invalidity. (People v. Inghram (1987), 118 Ill. 2d 140, 514 N.E.2d 977.) With respect to the burden of proof in criminal proceedings, it is axiomatic that the State has the burden of proving every element of a crime charged beyond a reasonable doubt. (In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068.) The elements of first degree murder, as defined by section 9 — 1 of the Code, are: (1) the killing of another without legal justification, (2) with the intent to kill or to do great bodily harm to another or knowledge that such acts will cause death; or knowledge that such acts create a strong probability of death or great bodily harm. Once the State has proved these elements beyond a reasonable doubt, it has met its burden of proof. Section 9 — 2 of the Code defines the elements of second degree murder, which include two mitigating factors which can also be raised by a defendant who has been charged with first degree murder, i.e., sudden and intense passion and justification. (People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141.) When charged with first degree murder, if the defendant proves either of these mitigating factors by a preponderance of the evidence, the offense of first degree murder will be reduced to second degree murder. Section 9 — 2 expressly provides that the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of murder.

The mitigating factors set forth in section 9 — 2 are not elements of first degree murder to be proved beyond a reasonable doubt by the State. (People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335.) Therefore, it is not incumbent upon the State, in proving the elements of first degree murder, to prove the nonexistence of the mitigating factors of section 9 — 2. Further, proof of either of the mitigating factors does not act to negate the mental state of first degree murder. (People v. Jerome (1990), 206 Ill. App. 3d 428, 564 N.E.2d 221.) In this respect, section 9 — 2 is distinguishable from the statute addressed in Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881, a case relied upon by Kitchen. In Mullaney, the Supreme Court reviewed Maine’s felonious murder statute, which provided that malice aforethought, an essential element of murder, would be conclusively implied unless the defendant could prove by a preponderance of the evidence that the killing occurred in the heat of passion. If defendant could prove that mitigating factor, the offense would be reduced to voluntary manslaughter. The Supreme Court held that this scheme improperly shifted the burden of proof from the prosecution to defendant by forcing defendant to negate an element of the statutory offense.

Unlike the statute in Mullaney, section 9 — 1 does not raise a rebuttable presumption of defendant’s guilt of first degree murder. Instead, if the prosecutor proves all of the elements of first degree murder set forth in section 9 — 1 beyond a reasonable doubt, defendant is guilty of first degree murder. If defendant then establishes one of the mitigating factors set forth in section 9 — 2 by a preponderance of the evidence, the offense of first degree murder is reduced to second degree murder. First degree murder cannot be reduced to second degree murder unless one of those separate mitigating factors set forth in section 9 — 2 is established by a preponderance of the evidence. By the express language of section 9 — 2, the burden of proving first degree murder beyond a reasonable doubt remains at all times with the State. See People v. Wright (1986), 111 Ill. 2d 18, 488 N.E.2d 973.

The issue of the constitutionality of a statute similar to section 9 — 2 was addressed by the United States Supreme Court in Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319. The New York statute at issue in Patterson required that the defendant in a prosecution for second degree murder prove by a preponderanee of the evidence the affirmative defense of acting under the influence of extreme emotional distress in order to reduce the crime to manslaughter in the first degree. In holding that the statute did not violate the due process clause, the Patterson court stated:

“We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society’s interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.” 432 U.S. at 210, 53 L. Ed. 2d at 292, 97 S. Ct. at 2327.

Subsequently, in Martin v. Ohio (1987), 480 U.S. 228, 94 L. Ed. 2d 267, 107 S. Ct. 1098, the Supreme Court extended the principles of Patterson to the issue of the affirmative defense of self-defense and held that the Ohio statute at issue which placed the burden of proving self-defense on the defendant did not violate defendant’s constitutional rights to due process.

In Illinois, the issue of whether section 9 — 2 violates a defendant’s constitutional rights to due process was addressed recently in People v. Gore (1991), 212 Ill. App. 3d 984, People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373, People v. Jerome (1990), 206 Ill. App. 3d 428, 564 N.E.2d 221, and People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335. Each court held that section 9 — 2 does not violate a defendant’s right to due process. The Jerome court distinguished section 9 — 2 from the statute found unconstitutional in Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881, on the grounds that in the statute analyzed in Mullaney, absence of provocation was an element of the crime of first degree murder. Therefore, it had to be proved by the State beyond a reasonable doubt and the burden of disproving that element could not be shifted to the defendant. By contrast, lack of provocation is not an element of first degree murder under Illinois law. Instead, pursuant to section 9 — 2, lack of provocation is a mitigating factor which, if proven by a preponderance of the evidence by defendant, acts to reduce the offense of first degree murder to second degree murder. As stated by the United States Supreme Court in Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319, requiring the defendant to prove a mitigating factor in order to reduce the offense to second degree murder does not violate due process.

The Jerome court further held that there is no inherent inconsistency between the mental states for first and second degree murder. In reliance on Patterson, the court stated:

“When a defendant is charged with first-degree murder, the State is required to prove death, causation and intent (or knowledge). [Citation.] The defendant then has the opportunity to prove provocation or unreasonable belief in justification to reduce the offense to second-degree murder. [Citation.] The existence of provocation or an unreasonable belief in justification, however, will not diminish or negate any of the proved elements of first-degree murder. The mitigating factor is a separate issue the existence of which the State is willing to recognize as a circumstance affecting the degree of culpability or the severity of punishment.” Jerome, 206 Ill. App. 3d at 436.

On similar grounds, the court in People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335, held that section 9 — 2 does not violate the defendant’s constitutional right to due process because the defendant is not required to prove any of the elements of first-degree murder. He is merely required to prove a mitigating factor to reduce the offense. Accord People v. Gore (1991), 212 Ill. App. 3d 984; People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373.

Kitchen next argues that section 9 — 2 prohibits the State from charging the lesser offense of second degree murder, which constitutes an encroachment by the legislature on an exclusive power of the executive branch and violates the separation of powers clause of the Illinois Constitution. In response, the State argues that Kitchen lacks standing to assert the constitutional rights of prosecutors. Kitchen counters that his interest in receiving fair treatment from the State puts him within the “zone of interest” intended to be defended by the separation of powers clause.

It is a fundamental principle of constitutional law that a court will inquire into the constitutionality of a statute only to the extent required by the facts before it and will not formulate a rule broader than necessary to resolve the precise situation presented. (People v. Rogers (1989), 133 Ill. 2d 1, 549 N.E.2d 226.) In the present case, two threshold issues preclude the necessity to reach the merits of the separation of powers argument. First, Kitchen’s argument is predicated on a faulty premise. Second, Kitchen lacks standing to raise the issue. Regarding the premise, contrary to Kitchen’s position, the State has the discretion to charge a defendant with second-degree murder pursuant to section 9 — 2. (People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373; People v. Burks (1989), 189 Ill. App. 3d 782, 545 N.E.2d 782.) Regarding standing, a party has standing to question the constitutional validity of a statute only if he has sustained or is in immediate danger of having sustained some direct injury as a result of enforcement of the statute. (People v. Rogers (1989), 133 Ill. 2d 1, 549 N.E.2d 226; People v. Esposito (1988), 121 Ill. 2d 491, 521 N.E.2d 873.) Even if section 9 — 2 could be construed as prohibiting the State from charging a defendant with second degree murder, Kitchen is in no position to object to that result because he has failed to show how he has been directly injured. There is no indication in the record that the State attempted to charge defendant with second degree murder, but was barred from doing so by section 9 — 2. In fact, the record indicates that Kitchen was charged with first degree murder and armed violence. Accordingly, Kitchen lacks standing to raise a constitutional question as to whether section 9 — 2 violates the separation of powers clause by prohibiting the State from charging a defendant with second degree murder.

Next, Kitchen argues that section 9 — 2 of the Code deprives him of his constitutional rights to equal protection under the laws by singling out homicide defendants for more burdensome procedures than those faced by any other group of defendants. Specifically, Kitchen refers to section 9 — 2’s requirement that homicide defendants prove the existence of mitigating factors by a preponderance of the evidence to reduce a first-degree murder charge to second-degree murder.

The equal protection clause requires equality between groups of persons “similarly situated”; it does not require equality for those dissimilarly situated. (People v. Eckhardt (1989), 127 Ill. 2d 146, 535 N.E.2d 847.) By the definitions alone of the various criminal offenses, those accused of one offense are dissimilarly situated from those accused of another offense. (People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029 (a defendant convicted of possession is not similarly situated to one convicted of delivery). See also People v. Halcomb (1988), 176 Ill. App. 3d 100, 530 N.E.2d 1074 (defendant convicted of criminal sexual assault is not similarly situated to those convicted of other crimes); People v. James (1986), 148 Ill. App. 3d 536, 499 N.E.2d 1036 (because different elements must be established, those convicted of ordinary theft are not similarly situated to those convicted of retail theft); People v. Adams (1983), 116 Ill. App. 3d 315, 451 N.E.2d 1351 (defendant convicted of a criminal offense is not similarly situated to one found guilty in a civil action).) Accordingly, there is no equal protection violation.

For the aforementioned reasons, the judgments of the trial court are affirmed.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.

       We note that those courts which have discussed this issue on the merits have held that section 9 — 2 does not violate the separation of powers clause of the Illinois Constitution. People v. Gore (1991), 212 Ill. App. 3d 984; People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373.


source: Caselaw Access Project

license: Public Domain

text:
      In re MARRIAGE OF ROSEMARIE LEHR, Petitioner-Appellant and Cross-Appellee, and LOUIS A. LEHR, JR., Respondent-Appellee and Cross-Appellant.
    First District (1st Division)
    No. 1 — 89—2170
    Opinion filed June 28, 1991.
    Rehearing denied August 16,1991.

      Rinella & Rinella and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellant.
    Grund, Marcus, McNish, Knabe & Nadler, of Chicago (Dorene Marcus and Linda J. Kroning, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Petitioner, Rosemarie Lehr, approximately 61 years old, appeals from an order entered by the trial court which reduced the amount of monthly unallocated alimony and child support (the monthly obligation) that respondent, Louis Lehr, an attorney, was obligated to pay pursuant to a marital settlement agreement entered into by the parties at the time of their divorce in 1977. Rosemarie also appeals from an order which required Louis to pay only $3,800 of her attorney fees. Rosemarie contends that: (1) the trial court erred in finding that the terms of the marital settlement agreement were ambiguous and in allowing extrinsic evidence to establish the intent of the parties regarding reduction of the monthly obligation; (2) the trial court abused its discretion in reducing Louis’ monthly obligation; and (3) the trial court abused its discretion in awarding only partial attorney fees to Rosemarie. On cross-appeal, Louis claims that the trial court erred: (1) in denying his petition to terminate the monthly obligation; and (2) in not requiring Rosemarie to pay all of her own attorney fees and costs. For the following reasons, we reverse the judgment of the trial court and remand the cause for a hearing on the reasonableness of Rosemarie’s attorney fees and the allocation of her fees between the parties.

The record indicates that judgment for the divorce of Rosemarie and Louis was entered on February 10, 1977. A marital settlement agreement (the Settlement Agreement) between the parties was approved and incorporated into the judgment. Paragraph 3 of the Settlement Agreement provides as follows:

“3. UNALLOCATED ALIMONY AND CHILD SUPPORT
The husband covenants and agrees that he will pay to the wife, as and for unallocated alimony and child support, the sum of Three Thousand Two Hundred Fifty Dollars ($3,250.00) per month in equal semi-monthly installments of One Thousand Six Hundred Twenty-Five Dollars ($1,625.00) each, from which funds the wife shall provide for the support of the children except as is otherwise hereinafter provided, which said payments shall commence on the date of the entry of a judgment for divorce in this cause and shall continue on the first and fifteenth day of each month thereafter, as set forth under the so-called Lester Plan, until the death or remarriage of the wife, whichever shall first occur. In the event of the remarriage of the wife, the parties will consult as to the amount to be paid thereafter as child support; and in the event that they shall be unable to come to an agreement with respect thereto, the matter shall be referred to the chancellor hearing the cause aforementioned, or to his successor in office, provided, however, that in the event that either of the children of the parties hereto shall hereafter attend a college or university outside the Chicago Metropolitan area, and shall not be living in the home of the wife, the amount payable by the husband to the wife for such combined alimony and child support shall be reduced by the amount of $200 for each such child for each such month in which such child shall not reside in the home maintained by the wife, and provided that in the event such child shall attend college or university in the Chicago Metropolitan area, and shall reside in the home maintained by the wife, the amount payable by the husband to the wife shall be reduced by the amount of $150.00 for each such child for each month in which such child does not reside in the home of the wife.
* * *
The parties agree that the aforesaid unallocated alimony and child support payments are predicated upon the husband’s represented adjusted gross income of Eighty-Six Thousand Dollars ($86,000.00) per year for federal income tax purposes.
The parties further covenant and agree that the amount of alimony so fixed has been arrived at in the light of the knowledge that the wife may hereafter derive income from employment or from other sources; the fact that the wife may hereafter derive such income shall not be deemed to comprise a ground for the making by the husband of an application of any court of competent jurisdiction for a reduction in the amount of such unallocated alimony and child support.”

In addition, Rosemarie was awarded the marital home and was to pay the mortgage, real estate, insurance and maintenance costs relevant to the home. During their 25-year marriage, the parties had six children, two of whom had reached majority when the judgment for divorce was entered. The other children were 17, 14, 12 and 7 years old at the time of the divorce.

In a subsequent order entered on November 28, 1978, section 3 of the judgment for divorce was modified. The relevant part of the modification is as follows:

“A. Paragraph Number 3 of the Agreement (p. 4): That in addition to the provisions for reductions in the amount of support which husband shall pay to wife in conjunction with the attendance by a child at a college or university, the amount which husband shall pay to wife shall also be reduced by the amount of $200 per child upon the attaining of the majority (provided the child is not attending college or university), emancipated or death of any child, whicheger [sic] shall first occur.”

Approximately eight years later, on September 22, 1986, Louis filed a petition to modify judgment and subsequent order, requesting that alimony payments be terminated as a result of the following changed circumstances: (1) the only minor child was attending college away from home; (2) Rosemarie was employed full time; and (3) the mortgage would be paid off in several months. In response, Rosemarie moved to dismiss the petition to modify on the ground that the alleged changed circumstances had been anticipated and had been addressed in either the judgment of divorce, dated February 10, 1977, or in the order, dated November 28, 1978.

Following a hearing on the motion, the trial court entered its order, dated August 30, 1988, which included the following findings:

(1) the final paragraph of section 3 of the Settlement Agreement is ambiguous and the parties are entitled to a hearing as to the parties’ intent regarding modification and termination of the support;

(2) the Settlement Agreement does not expressly prohibit modification; it only limits modification to the extent that Louis cannot base a request for reduction of alimony and child support on the fact that Rosemarie earns money; this limitation on modification applies only until all of the children are attending college or are otherwise emancipated, at which point Louis may request modification on any ground; and (3) Louis is entitled to a hearing on his request for modification of support. Predicated on these findings, the trial court ordered that: (1) Rosemarie’s motion to strike and dismiss Louis’ petition to modify is denied; (2) Louis’ request to terminate maintenance is denied; (3) Louis’ request for modification is granted and commencing May l, 1988, maintenance payments are reduced to $1,600; (4) the monthly sum of $1,600 shall not vary depending on whether the minority child resides with Rosemarie during vacation periods from school; (5) Louis shall pay all of his own attorney fees and costs; and (6) Rosemarie is given 21 days within which to file a petition requesting Louis’ payment of or contribution to her attorney fees and costs.

Thereafter, Rosemarie filed a petition for attorney fees and costs, requesting that, based on her inability to pay, Louis pay the balance of her attorney fees and costs. Rosemarie’s attorney fees and costs totalled $12,740.96, $2,500 of which Rosemarie had already paid as a retainer. Following a hearing on the petition, the trial court entered its order, dated July 19, 1989, which found, inter alia, that the parties had stipulated that Louis had the financial ability to pay the fee requested by Rosemarie’s attorney and that Rosemarie had already paid her attorney $2,500. The trial court then ordered Louis to pay to Rosemarie’s attorney “the sum of $3800, as and for additional attorney’s fees, over and above the $2500 paid to date by Rosemarie,” and to pay the additional sum of $259.71 in costs.

Rosemarie appealed from the orders dated August 30, 1988 (maintenance reduction), and July 19, 1989 (attorney fees). Louis cross-appealed.

Initially, Rosemarie contends that the terms of section 3 of the Settlement Agreement were not ambiguous and clearly stated that Louis cannot rely on her subsequent employment as a changed circumstance which warrants a reduction or termination of the monthly obligation.

In interpreting settlement agreements, ordinary rules of contract construction apply. As with any contract, the intent of the parties governs the interpretation of the terms. Unless the agreement is incomplete or ambiguous, that intent must be determined from the plain language of the agreement itself. (Olson v. Olson (1983), 114 Ill. App. 3d 28, 448 N.E.2d 229.) An agreement is ambiguous if it is susceptible to more than one interpretation (In re Marriage of Marquardt (1982), 110 Ill. App. 3d 271, 442 N.E.2d 267), or if its terms are obscure in meaning through indefiniteness of expression. (Carvallo v. Carvallo (1978), 62 Ill. App. 3d 394, 398, 378 N.E.2d 1288.) Language is not ambiguous simply because the parties disagree as to its meaning. (White v. White (1978), 62 Ill. App. 3d 375, 379, 378 N.E.2d 1255.) Whether an agreement is ambiguous is a question of law to be determined by the trial court. (In re Marriage of Marquardt (1982), 110 Ill. App. 3d 271, 442 N.E.2d 267.) If an agreement is found to be ambiguous, its meaning becomes a question of fact. City of Clinton v. Moffitt (7th Cir. 1987), 812 F.2d 341.

The specific paragraph of section 3 of the Settlement Agreement which is at issue (the future income paragraph) states:

“The parties further covenant and agree that the amount of alimony so fixed has been arrived at in the light of the knowledge that the wife may hereafter derive income from employment or from other sources; the fact that the wife may hereafter derive such income shall not be deemed to comprise a ground for the making by the husband of an application of any court of competent jurisdiction for a reduction in the amount of such unallocated alimony and child support.”

Rosemarie contends that by agreeing to the above provision, Louis contracted away his right to rely on her future employment as grounds for a reduction in the monthly obligation. In response, Louis argues that use of the term “alimony” in the first clause of the paragraph and use of the term “unallocated alimony and child support” at the end of the paragraph creates an ambiguity because it is reasonable to construe the limitation on modification of monthly payments as ceasing upon the emancipation of the youngest child because, at that point, child support ceases and the monthly payments are transformed into maintenance or alimony.

In our view, the use of the terms “alimony” and “unallocated alimony and child support” in the future income paragraph does not create an ambiguity for several reasons. First, the future income paragraph appears in section 3 of the Settlement Agreement, which section is clearly entitled “Unallocated Alimony and Child Support.” Second, the term “alimony” is modified by the phrase “so fixed.” Louis admits that no amount designated solely as “alimony” was ever fixed. Instead, the only amount fixed was “unallocated alimony and child support.” Thus, we find the terms “alimony” and “unallocated alimony and child support” were used interchangeably in both clauses of the future income paragraph. The reference to “alimony” might have been ambiguous if a certain amount had been established as alimony and a different amount had been established as unallocated alimony and child support. However, that was not the situation here. Third, in construing an agreement, the entire document must be viewed and meaning must be given to every part. (White v. White (1978), 62 Ill. App. 3d 375, 378 N.E.2d 1255.) Louis interprets the two clauses of the future income paragraph as referring to two separate obligations, i.e., alimony and unallocated alimony and child support. However, the two clauses are grammatically interdependent and must be read together as referring to the monthly obligation, i.e., unallocated alimony and child support. For example, that part of the second clause which states “the fact that the wife may derive such income” clearly refers to “the income” mentioned in the first clause. There is no other income to which it can reasonably refer. Similarly, the phrase “such unallocated alimony and child support,” which appears in the second clause, is a direct reference to the “alimony” referred to in the first clause. To read the two clauses as referring to different obligations would not give effect to the entire paragraph, particularly to the use of the word “such.”

In our view, section 3 of the Settlement Agreement sets out in detail Louis’ monthly obligation, specifically precluding modification of that obligation as the result of Rosemarie’s future earnings. In fact, pursuant to section 3, the only events that would reduce or terminate Louis’ monthly obligation would be Rosemarie’s death or her remarriage. We note that pursuant to Louis’ interpretation, once the children are emancipated, his monthly obligation would cease regardless of whether Rosemarie was disabled or in ill health. Considering the circumstances of the parties, this would be an extremely harsh result. Certainly, if the parties intended that Louis’ monthly obligation would cease upon the emancipation of all the children, regardless of Rosemarie’s personal circumstances, that would have been clearly set forth in the Settlement Agreement and other provisions for her future could have been made. Instead, the parties expressed their intent that the monthly obligation payments should continue until the death or remarriage of Rosemarie. Therefore, because the future income paragraph appears under section 3 of the Settlement Agreement, entitled “Unallocated Alimony and Child Support,” the only amount “fixed” by the parties was for unallocated alimony and child support, and the grammatical structure of the future income paragraph mandates that both clauses be read together as referring to the monthly obligation, we conclude that the future income paragraph is not ambiguous and that it clearly provides that Rosemarie’s future income cannot be used as a ground for reducing Louis’ monthly obligation. As a result, the trial court erred in allowing extrinsic evidence to be introduced to indicate the intent of the parties.

Next, Rosemarie argues that it was an abuse of discretion for the trial court to determine that there was a substantial change in circumstances warranting a reduction of maintenance. In response, Louis argues in his cross-appeal that the trial court abused its discretion in failing to terminate maintenance. A trial court may modify a maintenance award only upon a showing of a substantial change in circumstances. (In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 480 N.E.2d 147; Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) The party seeking modification has the burden of demonstrating the alleged substantial change in circumstances. (In re Marriage of Lasota (1984), 125 Ill. App. 3d 37, 465 N.E.2d 649.) In determining whether a maintenance award should be modified, the trial court is to consider the same factors which, under the IM-DMA, are to be assessed in making the initial award. (In re Marriage of Zeman (1990), 198 Ill. App. 3d 722, 556 N.E.2d 767.) These factors include: the financial resources of the party seeking maintenance; the standard of living during the marriage; the duration of the marriage; the age and the physical and emotional condition of both parties; the ability of the spouse seeking maintenance to meet her needs independently; and the ability of the other spouse to pay. (In re Marriage of Ingram (1989), 185 Ill. App. 3d 395, 541 N.E.2d 731.) The decision to terminate or to modify maintenance payments rests with the sound discretion of the trial court and will not be disturbed absent a showing of abuse of that discretion. In re Marriage of Zeman (1990), 198 Ill. App. 3d 722, 556 N.E.2d 767.

Rosemarie argues that none of the three changed circumstances relied upon by Louis, i.e., emancipation of the children, completion of mortgage payments, and her employment, constitutes a substantial change in circumstances which would warrant a modification of the monthly obligation. First, regarding emancipation of the children, Rosemarie claims that the November 28, 1978, order which provided for the $200-per-month reduction in the monthly obligation when each child reached majority or was otherwise emancipated clearly indicated that the parties had previously contemplated the situation and had reached an agreement regarding it. Ordinarily, the emancipation of a minor child constitutes a substantial change in circumstances to warrant reduction of a maintenance award. (In re Marriage of Zeman (1990), 198 Ill. App. 3d 722, 556 N.E.2d 767.) However, in the present case, we find that this change in circumstances was anticipated and addressed in the November 28,1978, order, which provided, inter alia, that:

“A. Paragraph Number 3 of the Agreement (p.4): That in addition to the provisions for reductions in the amount of support which husband shall pay to wife in conjunction with the attendance by a child at a college or university, the amount which husband shall pay to wife shall also be reduced by the amount of $200 per child upon the attaining of the majority (provided the child is not attending college or university), emancipated or death of any child, whicheger [sic] shall first occur.”

Accordingly, although the circumstance of emancipation of the children occurred after the modification of the Settlement Agreement, appropriate action had already been taken by the parties to adjust to the potential circumstance.

Second, with respect to the mortgage pay off, Rosemarie contends that the amortization schedule on the mortgage had been available at the time of the divorce and had not changed since that time. Accordingly, she argues, it is not a substantial change in circumstances. We agree. If the parties intended that Louis’ monthly obligation would be reduced upon pay off of the mortgage, they could have included a provision as to that effect in the Settlement Agreement. Louis has failed to rebut the strong presumption against provisions which could have been easily included at the time of drafting. Ebrahim v. Checker Taxi Co. (1984), 128 Ill. App. 3d 906, 471 N.E.2d 632.

Finally, as previously discussed, Louis specifically contracted away his right to rely on Rosemarie’s full-time employment as a ground for reducing his monthly alimony/support obligation. Accordingly, because the alleged changed circumstances had previously been contemplated by the parties at the time the Settlement Agreement was drafted in February 1977 and amended in November 1978, we do not find that they constitute sufficient changes in circumstances to warrant reduction of Louis’ monthly obligation. Moreover, we note that even if the circumstances had warranted a reduction in the monthly obligation, full disclosure of the financial resources of both parties would have been necessary for the trial court to have reached an equitable determination. In the present case, Rosemarie had fully disclosed her income and expenses. However, Louis merely stipulated that he had the ability to pay. In our view, Louis’ stipulation that he had the ability to pay is not a recommended procedure. In making this observation, we are not suggesting that Louis was attempting to wrongfully conceal any information. We merely note that all relevant facts should be presented to the trial court for a proper assessment of the current circumstances of the parties. See In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 511 N.E.2d 156.

Next, Rosemarie argues that the trial court abused its discretion by failing to require Louis to pay all of her attorney fees incurred in responding to Louis’ petition for modification of the Settlement Agreement. Louis argues that the trial court abused its discretion by not requiring Rosemarie to pay all of her own attorney fees.

Rinella and Rinella, the law firm retained by Rosemarie, filed its petition of award of attorney fees and costs, requesting $12,481.25 in legal fees and $259.71 in costs. The petition stated that Rosemarie had paid a $2,500 retainer, that she lacks the ability to pay more, and that Louis has the ability to pay. At the hearing on the fee petition, the parties stipulated as to the hourly rates ($150/hour— office; $175/hour— court) and as to Louis’ ability to pay. David Carlson, attorney at Rinella & Rinella, then testified that he was the sole attorney working on the case, that the case was novel and unusual, and then detailed the work he had done. Rosemarie then testified that her gross income in 1988 from her job had been $37,782.93, including a bonus and overtime. Following testimony, the trial court entered its order, ordering Louis to pay $3,800 of Rosemarie’s attorney fees over and above the $2,500 already paid by Rosemarie and to pay the $259.71 in costs.

Section 508 of the Illinois Marriage and Dissolution of Marriage Act (the IMDMA) (Ill. Rev. Stat. 1989, ch. 40, par. 508(a)) governs allocation of attorney fees and provides, in pertinent part:

“(a) The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred or, for the purpose of enabling a party lacking sufficient financial resources to obtain or retain legal representation, expected to be incurred by the other spouse ***.”

The award of attorney fees is a matter within the sole discretion of the trial court, and its decision will not be disturbed absent a showing of abuse of discretion. (In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 523 N.E.2d 573.) The propriety of a fee award is predicated upon a showing by the fee-seeking spouse of his or her inability to pay and the other spouse’s ability to pay. In re Marriage of Bussey (1985), 108 Ill. 2d 286, 483 N.E.2d 1229.

In the present case, although the trial court ordered Louis to pay $3,800 of Rosemarie’s fees, it is unclear from the record whether the court intended that the attorney fees be limited to $3,800 (Louis’ share) + $2,500 (Rosemarie’s retainer) or if the court intended that the fee request of $12,481.25 was reasonable, and that Louis was responsible for only $3,800 of that amount, with the balance to be paid by Rosemarie. Before this court can review the allocation of fees, the amount of the attorney fees must be clear from the record. See In re Marriage ofBramson (1981), 100 Ill. App. 3d 657, 427 N.E.2d 285.

For the following reasons, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

MANNING, P.J., and O’CONNOR, J., concur.

       The judgment of divorce was entered pursuant to “An Act to revise the law in relation to divorce” (DI. Rev. Stat. 1975, ch. 40, par. 1 et seq.), which preceded the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) (the IMDMA), the effective date of which was October 1, 1977. However, pursuant to section 801(c) of the IMDMA, the provisions of the IMDMA apply to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date.


author: JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BRYANT LONG, Defendant-Appellee.
    First District (6th Division)
    No. 1 — 90—3462
    Opinion filed July 5, 1991.
    Modified on denial of rehearing August 30, 1991.

      John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Carmen K. Aguilar, and Carol L. Gaines, Assistant State’s Attorneys, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

Defendant Bryant Long was arrested and charged with the murder of his two children. On February 1, 1990, prior to trial, defendant moved to quash his arrest and to suppress evidence, including incriminating statements he had made to police on the ground that defendant did not knowingly and intelligently waive his Miranda rights.

The trial court granted defendant’s motion to suppress statements made by him and found defendant could not have knowingly and intelligently waived his Miranda rights.

The State appeals, alleging that the trial court erred in granting defendant’s motion to suppress.

Defendant was charged with the first degree murder of his daughter Cord Long, who died of suffocation on June 6, 1989. Defendant was also charged with the first degree murder of his daughter Charnelle, who died on the same date in a fire started in their Chicago home. Defendant also was charged with arson and aggravated arson.

On February 1, 1990, defendant filed a motion to quash his June 30, 1989, arrest and to suppress evidence obtained as the product of his arrest including incriminating statements made by defendant, the names of witnesses and physical evidence. Defendant also filed a motion to suppress any and all oral or written statements made by defendant prior to the time of his arrest or subsequent to his arrest, contending that he was unable to appreciate and incapable of understanding the full meaning of his Miranda rights.

The evidence on defendant’s motion heard by the trial court included a report filed by a staff psychiatrist from the Psychiatric Institute of the Circuit Court of Cook County, Matthew S. Markos, in which he stated that he was unable to render an opinion on Long’s ability to understand the meaning of Miranda rights because of the “inconsistency of [Long’s] reports with respect to his involvement in the alleged offense and *** the fact that the exact nature of his cognitive deficits is perhaps unclear.”

Psychologist Karen P. Smith, who was also an attorney, testified for the defense and filed a report summarizing the results of the testing she performed. Her report stated, in pertinent part, that on December 15, 1989, defendant was 29 years old, “had a history of special education due to mental retardation” and had no prior experience with the criminal justice system. “Although alert and oriented as to time, place and person, Mr. Long’s understanding of the purpose of our visit seemed tenuous. His report of the arrest incident was circumstantial and difficult to follow, and Mr. Long was unable to tell this examiner the name of the charge against him. When asked questions about various aspects of his case, Mr. Long often gave the impression of trying to answer, only to draw a blank after mumbling incoherently.

On the day of the testing when I questioned Bryant Long about his case, and specifically about his experiences with police, he was unable to tell a coherent story of what happened. When I asked him if he understood what it meant to ‘have the right to remain silent,’ he could supply no answer at all. *** It was my impression during the interview, confirmed by the defendant’s performance on intelligence testing, that the concept of a ‘right’ was much too abstract for him to comprehend on his own. Many of the other words contained in the Miranda warning seemed beyond the reach of Mr. Long’s very limited vocabulary, and would have required explicit explanation for him to have understood them at the time of his arrest.”

The report summarized her findings, stating that she believed defendant was emotionally immature, needed to depend on others, had poor practical judgment and lacked the capacity to understand Miranda warnings. Smith testified that her report was based not only on her interviews with him but also on a review of his elementary and high school records of his special education classes, police reports pertaining to the investigation of the case and intelligence tests done on defendant when he was eight years old that indicated an IQ of 56.

Smith testified that her intellectual tests on defendant showed an IQ of 67. Smith testified that her screening ruled out any brain damage or psychosis. She testified that defendant was “functioning in a mildly retarded range of intellectual functioning.”

On cross-examination, Smith acknowledged that defendant lived with his wife and three children in a home without any other adult supervision. She testified that defendant told her he had been employed in the past at a “fast food place, a fried chicken place.” She acknowledged that defendant knew enough to know that two young children should not play with matches and that the only matches in his house were kept on the refrigerator.

Smith stated that defendant’s speech was “surprisingly poor.” She stated: “When I did ask him to tell in his own words what had happened and how he happened to be where he was, it was very confusing, the account. I found myself having to ask questions to get why he was talking about one thing instead of another. He didn’t give a good narrative.”

On redirect examination she stated that she asked him what it meant to “remain silent” but she never explained the Miranda rights further or attempted to break down the rights into simpler language to see if defendant would understand those simpler words.

Detective Michael Kill testified that defendant voluntarily accompanied him to the police station on the day of the fire and deaths of his children, June 6, 1989, where Kill read defendant his Miranda rights once through and then again, asking defendant if he understood each right individually. Kill testified that in each instance, the defendant responded, “Yes.” Through a series of questions and answers from the prosecutor, Kill told the court how he then further explained the Miranda rights to defendant in simpler language.

“Then I went: Do you understand that anything you say may be used against you in court or other proceedings. I told him anything he tells me, not only may it be used against him in court; that if he did something wrong, it would be used against him in court. *** And I told him that he had a right to the lawyer and he didn’t have to answer anything. And if he needed one, we would contact one or if he had a choice of one. And if he didn’t have a choice of one, then I would stop right there. *** I said if you cannot afford or otherwise obtain a lawyer if you want one, a lawyer will be appointed to you and we will not ask questions until he has been appointed. Again I told him without his attorney, I wouldn’t talk to him and that would be it. That he didn’t have to say anything. And at that point, he wanted to start the conversation right there. But I wanted to finish what I was doing to make sure he understood each one *** I told him, if I start talking to you and it becomes apparent to you that you suddenly think you want an attorney, to tell me and we will stop right there and we won’t ask any further questions at that point. In other words, he could stop — I told him, you can stop me me [sic] from asking you anything at any time and I will just stop and leave the room. And he said he still wanted to talk to me.”

Kill testified that in the 90 minutes he interviewed defendant, defendant told him facts in a chronological manner and understood and answered questions about his children’s inability to climb up and get matches off of the refrigerator. Kill testified that defendant’s speech was “deliberate” and not slurred. Kill testified: “His sentence structure was that which I found comparable to a person who achieved a freshman year of high school education.”

Kill acknowledged that defendant never heard, read or signed the summary of his statement that Kill prepared during the interview. Defendant’s sister, Felicia Brooms, also testified that her brother voluntarily went with Kill to the police station.

Assistant State’s Attorney Diane Dickett testified that she too interviewed defendant on the day he was arrested, about 15 to 20 minutes after Kill finished his interview. She stated that she gave defendant his Miranda rights, saying each individually and asking him if he understood each. She stated that the only deviation she made from the Miranda wording was to explain to defendant that “attorney” meant lawyer and that “appoint” meant they would get him a lawyer. Dickett was asked, “After he indicated to you that he understood his rights, did you ask him anything further?” She replied, “Yes. I asked him if he was willing to tell me about what happened.” Then Dickett was asked, “Did he respond to you at that time?” And she replied, “He said he would tell me about the fire.”

She stated that when he told her about the fire, he spoke in a coherent and chronological fashion and had no difficulty speaking. She acknowledged that before she spoke to defendant, Kill told her not to ask compound questions because defendant was slow. Kill remained in the room when she interviewed defendant.

On November 2, 1990, the trial court granted defendant’s motion to quash. The court found that defendant was not coerced into giving a statement but that he was incapable of knowingly and intelligently waiving his Miranda rights.

The trial judge stated that she was impressed with Smith’s testimony. The judge stated: “She did tell this court that when she discussed the various Miranda rights with Mr. Long that he looked blank and scratched his head, and it was obvious to her that he did not understand his rights.” The court granted the motion to suppress defendant’s statements and the State filed a motion to reconsider which was denied. The State appealed, contending the trial court erred when it granted defendant’s motion to suppress statements made by defendant.

The purpose of advising an accused of his rights is to enable him to make an intelligent decision, and to understand the consequences of that decision, and the fact that the advice was given and repeated and he said he understood it is of little consequence unless the defendant possessed the intelligence to understand the warning. (People v. Turner (1973), 56 Ill. 2d 201, 205, 306 N.E.2d 27.) Each case must be considered on its own facts, and mental deficiency, while not decisive, is a relevant factor. Turner, 56 Ill. 2d at 206.

Defendant contends his situation is similar to that of the defendant in Turner. Turner is distinguishable on its facts from this case. The defendant in Turner made no incriminating statement prior to being closeted with the polygraph examiner. He stated to the examiner that he thought he should have a lawyer but then proceeded with the polygraph test without consulting an attorney. The interrogation should have stopped when he indicated he wanted an attorney.

The trial court found defendant’s case “on all fours” with People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958. In Bernasco, the court found a 17-year-old defendant’s confession was inadmissible because defendant did not knowingly and intelligently waive his Miranda rights. Defendant Bernasco, as with defendant Long in this case, was of subnormal intelligence, had left school after the ninth grade and had no prior experience with police. At Bernasco’s suppression hearing, a psychologist testified that Bernasco could not understand certain Miranda terms and the defendant testified himself that he had not paid attention to his Miranda waiver form and had not understood it. The Illinois Supreme Court upheld the suppression of defendant’s confession, stating that “to waive rights intelligently and knowingly, one must at least understand basically what those rights encompass and minimally what their waiver will entail.” Bernasco, 138 Ill. 2d at 363.

On appeal, defendant relies on the Bernasco decision, noting that it was reasonable for the trial court to find more credible the opinion of a psychologist than the police officer and assistant State’s Attorney. Defendant also discounts the State’s contention that the psychologist’s report was somehow of lesser value because the interviews and testing took place five months after defendant’s arrest. Defendant argues that nothing in the record suggests defendant’s intellectual ability was impaired as a result of the delay, for the psychologist was testing his cognitive abilities, not his memory.

We disagree. Smith asked defendant to relate his experiences with the police at the time he was taken into custody some five months before. Clearly she was testing his memory as well as his cognitive abilities.

The State contends this court should reverse the trial court’s order suppressing defendant’s statements because the trial court’s finding is unsupported by the evidence and because the trial court incorrectly based its decision on Bernasco, which is not “on all fours” with the present case. Moreover, the testimony of the detective and the assistant State’s Attorney who took defendant’s statement establishes that defendant gave the statements after being fully advised of his Miranda rights twice and after having those rights explained in terms sufficient to allow defendant to knowingly and intelligently waive those rights.

Specifically, the State contends that Smith’s testimony was weak because she interviewed defendant for a two-hour period some five months after he was arrested and she did not “extensively” examine his background. The State contends that a review of his background establishes that defendant was accustomed to functioning day to day without adult supervision. In addition, Smith testified that defendant understood the concept of a lawyer.

The State points to the evidence presented through the testimony of Kill and Dickett, who both testified that they took special care to advise defendant of his Miranda rights in language he could understand and that defendant answered questions. Both testified that defendant stayed calm and exhibited no stress while being questioned since he did not need his inhaler for his asthma while being interviewed.

The State argues that the court should have considered not only defendant’s mental capacity, but also defendant’s age, physical condition, the length and intensity of the interrogation and whether any coercion was involved. (People v. Madden (1986), 148 Ill. App. 3d 988, 996, 501 N.E.2d 1297.) The trial court specifically found no coercion was involved when defendant gave his statement. He was in custody and interrogated for only a few hours by police before he gave the incriminating statements.

The State distinguishes Bernasco initially by noting that the defendant in Bernasco was 17 and living with his father. Here, defendant was 29 and living together with his wife and three children without any adult supervision. In addition, the trial court in Bernasco heard testimony from a school psychologist, but here Smith had only school records to look at and did a minimal review of defendant’s background.

The State argues that the most obvious distinction between the two cases is that in Bernasco the defendant himself testified about what he understood and how he felt. Here, defendant did not testify. The trial judge acknowledged this difference when hearing arguments on the motion to reconsider. She noted that she had seen Mr. Long on several occasions and had the opportunity to observe him. “My personal observations of Mr. Long would be that he appears very slow. I have given him directions and he reacts very slowly to very simple directions. He stares off blankly during the court proceedings ***.”

The resolution of contradictory testimony and determination of its weight is for the trier of fact. (Madden, 148 Ill. App. 3d at 1000.) And findings of the trial court on a motion to suppress will be affirmed unless contrary to the manifest weight of the evidence. People v. Brownell (1980), 79 Ill. 2d 508, 521, 404 N.E.2d 181.

Though Bernasco outlines the supreme court’s most recent explanation of the test for a knowing and voluntary waiver of Miranda rights, it is clearly distinguishable from the facts of this case. In Bernasco, the defendant, age 17, still dependant on his father and living at home, was handed a copy of the standard Miranda rights to read along with the officer. The officer had defendant initial each section as the rights were read to him. Bernasco was asked if he understood his rights and he said, “Yes.” He then signed a waiver of rights form witnessed by two detectives. Bernasco himself testified that he did not understand his rights as listed on the piece of paper handed to him, was scared and was not paying attention.

The defendant here did not testify at the hearing on the motion to suppress. The trial judge stated that during the hearing on the motion she had observed defendant’s inattentiveness and slow reaction to directions. But we believe such observations are not an appropriate test to determine whether a person has “knowingly and intelligently” waived his Miranda rights.

Defendant also cites People v. Reid (136 Ill. 2d 27, 554 N.E.2d 174) for our consideration of whether he knowingly and intelligently waived his Miranda rights. In Reid, the Illinois Supreme Court held that the circuit court’s decision to deny defendant’s motion to suppress his pretrial statements because defendant had knowingly and intelligently waived his Miranda rights was not against the manifest weight of the evidence.

Defendant Reid was found guilty of armed robbery and murder. Before the 15-year-old’s trial, defendant moved to suppress statements he made to police on the ground that he did not knowingly and intelligently waive his Miranda rights. Evidence adduced at the suppression hearing indicated that defendant was read the Miranda rights on several occasions and they were shown to him in written form. His mother was present during the interrogations.

Defendant had the reading and comprehension skills of an eight-year-old. He testified that he understood the meaning of several words including lawyer, silent, can, will, used, against and present, all words used in the Miranda warnings. Evidence established that defendant had no prior experience with the criminal justice system, had never worked and had always lived at home with his family.

In Reid the trial court found no reason to suppress defendant’s statements. This decision was upheld on appeal. The defendant in Reid lived in a much more sheltered environment than our defendant. Here, defendant had both lived and worked outside the home for several years. Though Reid was given the Miranda warnings verbatim, the defendant here was given both the verbatim Miranda warnings and a simplified explanation of each warning.

Dickett testified that defendant’s warnings were given orally because defendant indicated he could neither read nor write. Though Dickett deviated only briefly from the standard Miranda warnings, Kill’s explanation of rights was much more extensive and occurred in the same interrogation session. Kill’s testimony demonstrated that the language used to explain the defendant’s rights was simplified from the formal language of Miranda to a level easily understood by defendant.

In addition, Dickett testified that she asked defendant if he wanted his statement to be put into writing and defendant “indicated that he did not wish that.” This indicates defendant had the ability to make choices.

We do not find the same persuasiveness in Smith’s testimony, which the judge relied upon heavily. By her own admission, Smith only asked defendant if he knew what it meant to “remain silent.” She testified that she did not explain the Miranda rights further or attempt to break down the formal language of the Miranda rights into simpler language to determine if defendant would understand them when translated into simpler words within his ability to understand. We note that Smith determined the defendant had an IQ of 67 and concluded that “he functioned in a mildly retarded range of intellectual functioning.” This IQ does not render him incapable of any ability to ever understand his privilege against self-incrimination if it is explained in language he can comprehend.

The Miranda Court enunciated the mandatory warnings to be given a defendant before a custodial interrogation could take place:

“He must be warned-prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. [5] Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement.” (Miranda v. Arizona (1966), 384 U.S. 436, 479, 16 L. Ed. 2d 694, 726, 86 S. Ct. 1602, 1630.)

The standard warnings given by the police track the specific language of the Supreme Court.

This language was the basis for the psychologist’s questions to test defendant’s understanding. Smith concluded that he did not understand the concept of a “right,” which was too abstract for him to comprehend on his own, and that many of the other words in the Miranda warnings would have required explicit explanation for defendant to understand them.

In contrast to Smith’s questioning put to the defendant, Kill then testified extensively about the manner in which he explained defendant’s rights to him, telling him that they could stop talking whenever defendant wanted and that if defendant wanted a lawyer, they would stop talking and Kill would obtain one for him. The comparison between knowing what it means to “remain silent” and advising defendant they could stop talking whenever defendant wanted or would stop talking if defendant wanted a lawyer is the difference between the formal language of Miranda and its simplest translation.

The record establishes that Kill translated the Miranda warnings into simple language as follows: (1) You have the right to remain silent — “I told him, you don’t have to talk to me about the death of your children if you don’t want to.” (2) Anything you say may be used against you in court or other proceedings — “I told him, anything you tell me, not only may it be used against him in court, but if he did something wrong it would be used against him in court.” (3) You have a right to talk to a lawyer before we ask you any questions and to have him with you during questioning — “I told him, he had a right to a lawyer and he didn’t have to answer anything. And if he needed one, we would contact one or if he had a choice of one. And if he didn’t have a choice of one then I would stop right there.” (He said he didn’t want a lawyer present at that time.) (4) If you cannot afford or otherwise obtain a lawyer, if you want one, a lawyer will be appointed to you and we will not ask questions until he has been appointed — “I told him, without his attorney I wouldn’t talk to him and that would be it. That he didn’t have to say anything.” (He said he didn’t want a lawyer.) (5) If you decide to answer now with or without a lawyer, you have the right to stop questioning at any time or stop questioning and consult a lawyer — “I told him, if I start talking to you and it becomes apparent to you that you suddenly think you want an attorney to tell me and we will stop right there and we won’t ask any further questions at that point. In other words, he could stop me from asking anything, at any time and I will just stop and leave the room.” (He said he still wanted to talk to me.)

Dickett testified that she gave defendant the Miranda warnings one at a time, speaking slowly. After each one she asked defendant if he understood and he said he did. She testified that she told him the word attorney meant lawyer and instead of the phrase, “appoint a lawyer,” she told him the court would give him a lawyer.

In contrast to this questioning by Kill and Dickett, Smith testified that she interviewed defendant on December 15, 1989, six months after the fire. In questions she posed which were intended to determine “whether or not he could intelligently waive what are commonly known as ‘Miranda rights or Miranda warnings,’ she would ask him “what does this mean, and then I would say what the particular right was” and his reaction would be to “look around, scratch his head and draw a blank. He didn’t say anything.” From these reactions she concluded that “he didn’t understand what these rights meant.”

The contrast in the manner in which the police officer and assistant State’s Attorney advised the defendant and the form of the questions posed to the defendant by the psychologist lead us to the conclusion that the record does not support the trial court’s conclusion that defendant did not understand his rights and therefore did not knowingly and intelligently waive them. The court’s grant of defendant’s motion to suppress is not supported by the record.

Here we find the defendant was advised of his right to remain silent and his right to have an attorney present in language he could understand. He was advised that anything he told the officer could be used against him in court. Defendant then stated that he wanted to tell the police about the fire. He repeated the story to the officer and to the assistant State’s Attorney in a coherent manner. Although he was asked to do so, he chose not to have his statement taken down verbatim in writing. Since he was unable to read, he could not verify what a written statement contained.

While the State has a heavy burden to show that a defendant has waived his constitutional rights in a knowing, intelligent and voluntary manner (Brownell, 79 Ill. 2d at 516), we find the State has met that burden. We find the weight of the evidence establishes that defendant waived his Miranda rights in a knowing and intelligent manner. For all of the foregoing reasons, the order of the trial court granting defendant’s motion to suppress his statements is reversed.

Reversed.

RAKOWSKI, P.J., and EGAN, J., concur.