author: JUSTICE McCUSKEY

text:
    GEORGE H. BOOTH, a Minor, by Frank Booth, as his Father and Next Friend, Plaintiff-Appellant, v. GOODYEAR TIRE AND RUBBER COMPANY et al., Defendants-Appellees.
    Third District
    No. 3-91-0293
    Opinion filed January 27, 1992.

      Robert L. Fogel, of Hilfman & Fogel, P.C., of Chicago (John Kovac, of counsel), for appellant.
    Janella L. Barbrow, of Knight, Hoppe, Fanning & Knight, Ltd., of Des Plaines (Sarah Hansen Sotos, of counsel), for appellee City of Rock Falls.
    Patricia T. Bergeson, of Pope, Ballard, Shepard & Fowle, Ltd., of Chicago (Stephen M. Naughton, of counsel), for appellee Goodyear Tire and Rubber Company.
    Douglas J. Pomatto, of Heyl, Royster, Voelker & Allen, of Rockford, and Gary D. Nelson and Karen L. Kendall, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee Montgomery Investment Company.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiff, George H. Booth, a minor, by his father and next friend, Frank Booth, brought an action to recover damages for injuries sustained when he came in contact with electric power lines. At the time of the accident, plaintiff was trespassing on property occupied by defendant, Goodyear Tire and Rubber Company (Goodyear), and owned by defendant, Montgomery Investment Company (Montgomery). The power lines were owned and maintained by defendant, City of Rock Falls (the City). The trial court granted defendants’ motions to dismiss plaintiff’s third amended complaint. The plaintiff appeals. The issue presented is whether defendants owed a duty of ordinary care to a trespassing and allegedly “mentally disabled” 13-year-old. We affirm the dismissal of plaintiff’s complaint.

Montgomery owned warehouses on the north and south sides of West First Street in Rock Falls, Illinois. The buildings were leased to Goodyear. Metal ladders were attached on the West First Street sides of the buildings. The rungs of the ladders began one foot above street level and extended to the rooftops of the warehouses.

The warehouses were connected by an enclosed catwalk which spanned West First Street. The rooftop of the catwalk was accessible from the rooftops of the warehouses. Six uninsulated electric power lines, running parallel to West First Street near the south warehouse, passed over the roof of the catwalk at a vertical clearance of five feet. The three southernmost lines were deenergized. The remaining, energized lines allegedly did not service the property or buildings owned by Montgomery and occupied by Goodyear.

At approximately 1 p.m. on August 29, 1982, plaintiff was severely injured when he came in contact with one of the energized lines as he walked in a northerly direction on the rooftop of the enclosed catwalk. Plaintiff was 13 years 7 months old on the date of the accident. Plaintiff’s complaint alleged that he was “mentally disabled.”

Plaintiff filed suit against the defendants alleging negligence and willful and wanton conduct in the ownership, maintenance, and operation of the buildings and power lines. Counts I through IV of the third amended complaint were directed against Montgomery and Goodyear. Plaintiff asserted in counts I and III that Montgomery and Goodyear owed trespassing children a duty of reasonable care under the negligence theory developed in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836. Counts II and IV alleged that Montgomery and Goodyear owed a duty to trespassers to refrain from willfully or wantonly causing injury by creating or allowing to exist an inherently dangerous condition on the premises. Count V sounded in negligence against the City.

Defendants filed motions attacking the pleading pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615). Defendants argued that they owed no duty to plaintiff as a matter of law because the power lines constituted an obvious danger. The trial court agreed. The trial court rejected the plaintiff’s contention that his alleged “mental disabplity]” exempted him from the line of cases which hold that children of his age are expected to appreciate and avoid the risks associated with power lines. On appeal, plaintiff contends that the trial court erred in relieving defendants of liability. We disagree.

In determining the propriety of the dismissal of a complaint, we must accept all properly pleaded facts as true. We are concerned only with the question of law presented by the pleadings. The question of duty — the legal obligation imposed upon one for the benefit of another — is a question of law to be determined by the court. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 554-55, 328 N.E.2d 538, 539-40.

Our supreme court in Kahn created a narrow exception to the general rule that owners and occupiers of land are under no duty to trespassers to keep their premises in any particular state or condition to promote the safety of trespassers, whether they be minors or adults. For trespassing children, the court in Kahn rejected the traditional concept of the attractive nuisance doctrine and instead adopted a test based on the foreseeability of harm to the child. The court held that the landowner or person in possession and control of the premises is liable for the injuries sustained by children when (1) the injury is caused by a dangerous condition on the property, and (2) the owner or person in possession of the property knew or should have known that young people habitually frequent the area. Kahn, 5 Ill. 2d at 625, 126 N.E.2d at 842.

The rule developed by Kahn and its progeny is that an owner or person in possession of property may be liable for the harm occurring to children if the plaintiff shows that:

(1) the defendant knew or should have known that young children habitually frequented the premises;

(2) a dangerous condition existed on the land;

(3) the dangerous condition was likely to injure children because of their inability to appreciate the risk involved; and

(4) the burden of remedying the condition was slight compared to the risk involved.

Kahn, 5 Ill. 2d at 625, 126 N.E.2d at 836; Stevens v. Riley (1991), 219 Ill. App. 3d 823, 829, 580 N.E.2d 160, 164.

However, we must not lose sight of a threshold requirement before we can apply the Kahn test. The threshold inquiry is whether the plaintiff has established the existence of a dangerous condition on the property. A dangerous condition is one which is likely to cause injury to children who, by reason of their immaturity, might be incapable of appreciating the risk involved. However, if the condition involves an obvious risk which children generally would be expected to appreciate and avoid, the landowner is under no duty to remedy the condition. (Stevens, 219 Ill. App. 3d at 829-30, 580 N.E.2d at 164; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326, 383 N.E.2d 177, 180.) Even if an owner or occupier knows that children frequent the premises, he is not required to guard against the possibility that children will injure themselves when exposed to obvious or common conditions. Corcoran, 73 Ill. 2d at 326, 383 N.E.2d at 180.

The facts of the instant appeal are nearly identical to those presented to this court in Hansen v. Goodyear Tire & Rubber Co. (1990), 194 Ill. App. 3d 351, 551 N.E.2d 253. The accidents occurred at the same location and involved the same power lines. The only differences between the two incidents are (1) the plaintiff in Hansen was 16 years old; (2) the accident in Hansen occurred after sunset; and (3) the bottom rung of the ladder in Hansen had been shortened from one foot above street level to eight feet above ground level. In Hansen, this court affirmed the trial court’s grant of summary judgment in favor of defendants. The court in Hansen held that the defendants had no duty as a matter of law to remedy the dangerous condition because the minor trespasser was capable of appreciating the danger posed by electric power lines. (Hansen, 194 Ill. App. 3d at 356, 551 N.E.2d at 257.) We reaffirm our holding in Hansen. We hold that, as a matter of law, a 13-year 7-month-old trespassing child is capable of appreciating the danger posed by contacting electric power lines.

Initially, as in Hansen, we reject plaintiff’s attempt to distinguish between the duties owed by Goodyear and Montgomery, as owner and occupier of the premises, and the duty owed by the City, as owner of the power lines. Plaintiff’s argument recognizes that Goodyear and Montgomery are protected by the landowner’s privilege against liability to trespassers for ordinary negligence. However, plaintiff asserts that the City is precluded from invoking that privilege under the analysis in Knyal v. Illinois Power Co. (1988), 169 Ill. App. 3d 440, 523 N.E.2d 639. The court in Knyal held that the privilege against liability to trespassers allowed the owner or occupier is not extended to a supplier of electricity unless the electric lines are on the premises with the consent of the owner and for the purpose of supplying the premises with electrical service. Plaintiff argues that since he made contact with the power line at a point after it branched off the south warehouse, the line he contacted no longer supplied the premises with electrical service. Under plaintiff’s analysis, the City owes him a duty of ordinary care because the City cannot invoke the landowner’s privilege against liability. This court rejected as illogical a similar argument in Hansen. This court in Hansen refused to distinguish between the points of contact prior to or after the electric lines branched off to supply the warehouse. We conclude that the privilege against liability applies to the City, because we find the power lines were indeed “on” the premises to service the property. Given the configuration of the power lines and their location in relation to the buildings, the trial court properly concluded that the City had the same privilege against liability for ordinary negligence in the maintenance of its power lines as did Montgomery and Goodyear.

We note that, as a matter of law, electric power lines have been held to present an obvious danger to 14-year-olds. (Bonder v. Commonwealth Edison Co. (1988), 168 Ill. App. 3d 80, 522 N.E.2d 227; In re Estate of Dickens (1987), 161 Ill. App. 3d 565, 515 N.E.2d 208.) In Bonder, the appellate court held that a 14-year-old who contacted power lines while climbing a tree was capable of understanding the dangers. (Bonder, 168 Ill. App. 3d at 82-83, 522 N.E.2d at 229.) In Dickens, a 14-year-old who was electrocuted while attempting to install a CB antenna near power lines was deemed capable of appreciating the danger of electrical energy. (Dickens, 161 Ill. App. 3d at 571, 515 N.E.2d at 212.) We find the plaintiff here to be of a similar age as the plaintiffs in Bonder and Dickens. Therefore, we find a nearly 14-year-old child should be presumed to understand and appreciate the danger associated with power lines.

Plaintiff argues a different result should occur under the Kahn doctrine because of the plaintiff's alleged mental disability. Plaintiff suggests that he should be placed in a category of children 7 to 10 years of age rather than in a group of children his own age. However, we find that the plaintiff’s subjective understanding of the risk of contacting power lines is irrelevant. As a matter of law, plaintiff is deemed to have appreciated the risk involved with contacting power lines even though subjectively the plaintiff might not actually understand the danger. Defendants are not expected to foresee the unique mental and physical limitations of an individual minor in terms of his particular ability to appreciate the risk of harm. Colls v. City of Chicago (1991), 212 Ill. App. 3d 904, 946, 571 N.E.2d 951, 977-78.

In Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 545 N.E.2d 184, plaintiffs contended that the eight-year-old decedent should be classified as a child of younger age because she was a mongoloid. Plaintiffs argued that the risk of the decedent falling off a playground slide, while obvious to other eight-year-olds, was not obvious to the eight-year-old decedent. The court rejected this type of argument, reiterating that the subjective understandings and limitations of a child are not considered when the risk is otherwise deemed obvious to children generally. (Salinas, 189 Ill. App. 3d at 61, 545 N.E.2d at 187.) The Salinas court affirmed a grant of summary judgment in favor of the defendant. The court noted “if a child is too young chronologically or mentally to be ‘at large,’ the duty to supervise that child as to obvious risks lies primarily with the accompanying parent.” Salinas, 189 Ill. App. 3d at 62, 545 N.E.2d at 188.

In any event, plaintiff contends that the obvious risk rule should no longer be applied following our supreme court’s decision in Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223. Plaintiff argues the court in Ward abolished the obvious-risk rule. We disagree. The opinion in Ward makes clear that the obvious-risk rule retains its viability, although subject to some conditions. (Ward, 136 Ill. 2d at 149, 554 N.E.2d at 231.) Those conditions include an allowance for the possibility that seemingly innocuous conditions might present an unreasonable danger under certain circumstances (Ward, 136 Ill. 2d at 152, 554 N.E.2d at 232), and that consideration must be given to the possibility that an entrant will be distracted or momentarily forgetful. Ward, 136 Ill. 2d at 155, 554 N.E.2d at 233-34; see Moore v. Kickapoo Fire Protection District (1991), 210 Ill. App. 3d 736, 569 N.E.2d 214.

Finally, we find that plaintiff failed to allege sufficient facts to maintain a cause of action for willful and wanton conduct against defendants. The allegations of plaintiff’s complaint are conclusory and are not supported by facts. Plaintiff merely restates the allegations of negligence set forth in his complaint as his allegations for willful and wanton conduct. In order to successfully plead willful and wanton conduct, a plaintiff must allege facts demonstrating a duty of the defendant and a breach of that duty which proximately caused the plaintiff’s injury. (Durham v. Forest Preserve District (1986), 152 Ill. App. 3d 472, 479, 504 N.E.2d 899, 904.) Plaintiff alleged only the mere conclusion that defendants “knew or should have known, that minor children in the community regularly walked upon the roof areas of the Goodyear buildings, and between them by walking upon the flat roof of the catwalk.” These allegations are insufficient to establish willful and wanton conduct.

Plaintiff concedes that the risks associated with fire, water, and falling from a height are considered obvious to children. (Cope v. Doe (1984), 102 Ill. 2d 278, 286-87, 464 N.E.2d 1023, 1027.) Had plaintiff fallen while climbing the warehouse ladder or had fallen after having reached the rooftops of the warehouse or catwalk, no legal duty would have been imposed upon the defendants to warn of or remedy the condition. Therefore, we find it difficult to reconcile these clear legal principles with plaintiff’s allegations that defendants were under a legal duty to barricade the ladder or rooftops to eliminate the danger presented by the uninsulated power lines. While we are not unsympathetic to the minor plaintiff’s injury and pain and suffering, under the facts of this case, we cannot find the defendants owed any legal duty to a nearly 14-year-old child trespasser who came in contact with electric power lines in broad daylight. Clearly, the child trespasser exposed himself to a multitude of dangers the moment he climbed the warehouse ladder. A child trespasser of plaintiff’s age and experience, unsupervised during the daylight hours, shall be deemed to have appreciated those dangers associated with electric power lines.

The judgment of the circuit court dismissing plaintiff’s third amended complaint with prejudice is affirmed.

Affirmed.

BARRY, P.J., and GORMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE HAASE

license: Public Domain

text:
    F.L. WALZ, INC., Plaintiff-Appellee, v. HOBART CORPORATION, Defendant-Appellant.
    Third District
    No. 3-91-0284
    Opinion filed January 30, 1992.

      Heyl, Royster, Voelker & Allen, of Peoria, and Thompson, Hiñe & Flory, of Cleveland, Ohio (Tom Collins, of counsel), for appellant.
    John A. Slevin and James E. Konsky, both of Vonachen, Lawless, Tra-ger & Slevin, of Peoria, for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, EL. Walz, Inc., brought this action to recover damages from the defendant, Hobart Corporation, alleging breach of contract and interference with contractual and prospective contractual relations. A jury originally returned a verdict for Walz, awarding it $250,000 in compensatory and punitive damages. On appeal, this court affirmed the jury’s verdict of liability, but remanded for a new trial on the damages issue. (F.L. Walz, Inc. v. Hobart Corp. (1987), 157 Ill. App. 3d 334, 510 N.E.2d 1248.) On remand, the jury awarded Walz $252,097.95 in compensatory damages. Hobart appeals.

Walz was a successful franchise agency of Hobart in Peoria from 1966 to 1980, when the agency was terminated. Walz sold and serviced food handling and weighing equipment such as meat saws, wrappers, and scales. Although Walz sold primarily Hobart manufactured equipment, Walz also sold equipment manufactured by other companies. In July 1980, the parties entered into a contract which terminated their agency relationship. It provided that after July 31, 1980, Hobart would treat Walz as any other customer of Hobart repair parts and that it would not discriminate against Walz in the sale of repair parts.

Following the termination of the agency in 1980 and in early 1981, Walz placed a number of orders for Hobart repair parts with not only the Hobart branch in Peoria, but also with Hobart branches in other cities. The Peoria branch, however, did not fill a number of the orders immediately, even though the branch’s inventory control cards indicated that the needed parts were in stock. Walz asserted that Hobart began an intentional scheme to delay, hinder, and prevent Walz from promptly obtaining parts.

A jury found that Hobart’s delay in filling orders was intentional and awarded Walz $55,000 as compensatory and $195,000 as punitive damages. On appeal, this court affirmed the jury’s verdict against Hobart, but reversed and remanded for a new trial on the damages issue. In so doing, it found that the damage study was flawed because it in part compared new Hobart equipment sales before and after the termination agreement. Walz had lost the right to sell new Hobart equipment so damages sustained after termination for new Hobart equipment should not have been included in the study. Instead, the court noted, “a proper measure of damages *** should be based on a comparison of Walz’ sales of Hobart [repair] parts and service before and after the termination.” F.L. Walz v. Hobart Corp. (1987), 157 Ill. App. 3d 334, 341, 510 N.E.2d 1248, 1252.

On remand, the record shows that Walz employee Jody Tabb sorted all of Walz’s invoices from alphabetical to chronological order. Ken Friedman, a Walz repairman for 25 years, then took the 37 boxes of invoices sorted by Tabb and arranged them into three groups: (1) parts and labor for Hobart products; (2) labels and film invoices for Hobart products; and (3) all other invoices such as nonbillable work, non-Hobart work, and new equipment.

Friedman sorted through tens of thousands of invoices in the 37 boxes. When finished, he had separated, into chronological order from 1979 through 1988, eight boxes which contained invoices to customers for repair parts and labor for Hobart products. Friedman testified that he could tell by the invoice and the part number whether the invoice was for a piece of Hobart equipment, even though nobody else would probably be able to tell if it was Hobart-related.

On cross-examination, defense counsel questioned Friedman about nine invoices. Friedman admitted that he had put seven of the nine in the wrong pile. He noted, however, that those mistakes were de minimis in view of the total number of Hobart-related invoices he separated, which was about 9,400.

After he finished sorting, Friedman gave the eight boxes of invoices to Jody Tabb. Tabb then typed a summary of the eight boxes showing the invoice number, the cost for labor, the amount charged for parts, and the amount shown for supplies and mileage. Tabb’s summary was 284 pages and was marked as exhibit No. 47 at trial. From that summary, Walz prepared a one-page summary, showing the totals by year and the monthly average for each. The one-page summary was marked as exhibit No. 48.

Both summaries were provided to Walz’s expert, Dennis Bailey, who relied on them in preparing his damage calculations. Bailey testified that he made certain assumptions in measuring the damage to Walz as a result of Hobart’s wrongful conduct. Bailey assumed that: (1) the timely access to parts was critical to Walz if it was going to maintain and keep its customers; (2) the historical ratio between service and part sales was $1 of Hobart service sales for every $1 of part sales; and (3) the sale of parts produced a 20% gross profit, while the sale of labor and service produced a 331/s% profit.

Bailey further testified that a study of the reduction of supply sales for Hobart equipment in the 17 months following termination of the agency would be a reasonable basis to determine the expected sales of repair parts and service on Hobart equipment to Walz’s customers after termination. This was based on the assumption that customers who continued to come to Walz for supplies for their Hobart equipment after termination would have, all other factors being equal, also come to Walz for their repair parts and service on that same equipment. Using this theory, Bailey first calculated the percentage of reduction of supply sales for Hobart equipment following the termination of the agency. The reduction was 21.38%, which Bailey attributed to fair competition. In that regard, Bailey noted that Walz was able to acquire most supplies from sources other than the Hobart Peoria branch. Bailey then calculated what he would estimate the sale of parts and repair income would be if there were the same proportionate loss of these customers as the decline of supplies for Hobart equipment. This projected income was then compared with actual sales. Bailey opined that the difference was the result of the wrongful acts of Hobart.

Bailey concluded that for the 101 months following termination, Walz should have sold $941,548 in Hobart parts and $941,548 in service on Hobart equipment. Bailey then compared expected sales with actual sales and found that Walz lost $843,446 for that 101-month period. Bailey then multiplied the lost sales figures by a gross profit margin of 20% for parts and 331/3% for service work and concluded that Walz lost $443,413 in gross profits, which represented Walz’s actual damages.

Bailey also testified regarding factors he did and did not consider in his damage study. He explained why gross profits equalled net profits in this case, why the recession in the early 1980’s had no effect on his study, and why he continued his damage projection for an eight-year period. Regarding the eight-year projection of damages, Bailey reasoned that in Walz’s business the equipment being serviced had a useful life of 15 to 30 years. Once a customer lost faith in Walz’s ability to timely obtain a repair part, it was very difficult to keep that customer. Conversely, if Walz was able to continue to promptly service that customer, it would, in all likelihood, continue to do so over the useful life of the equipment of 15 to 30 years.

Joseph DeBruyn, a certified public accountant, testified on behalf of the defendant. He stated that he had made a damage study at the defendant’s request. DeBruyn opined that as a result of the termination, increased competition, and other factors, Walz’s monthly post-termination sales would average $2,406 for parts and $6,209.50 for service. DeBruyn’s opinion was based on the actual sales by Walz of parts and service for the four-month period following termination. He limited his study to 36 months ending November 30, 1983. He calculated that the estimated gross profit loss on parts and labor was $33,268. He reduced that figure by 12.5% for variable costs and stated that Walz’s total lost net profit was only $20,177.

On appeal, Hobart first argues that plaintiff’s exhibit No. 47 was irrelevant, inaccurate, and not an admissible summary under People v. Crawford Distributing Co. (1979), 78 Ill. 2d 70, 397 N.E.2d 1362. Hobart further argues that the Bailey damage study was not admissible since it was based on exhibit No. 47.

In People v. Crawford Distributing Co., our supreme court stated:

“It is generally accepted in Illinois that where originals consist of numerous documents, books, papers or records which cannot be conveniently examined in court, and the fact to be proved is the general result of an examination of the whole collection, evidence may be given as to such result by any competent person who has examined the documents, provided the result is capable of being ascertained by calculation. The witness’s testimony is admissible since it is merely a statement of what those instruments show and the voluminous character of the original documents precludes their convenient examination in court.” People v. Crawford Distributing Co. (1979), 78 Ill. 2d 70. 77. 397 N.E.2d 1362, 1366.

Here, we find that exhibit No. 47 and the Bailey damage study based on that exhibit were admissible under Crawford Distributing Co. Exhibit No. 47 charted over 9,000 invoices that were separated by Friedman. The exhibit only simplified and clarified what the invoices would show if the jurors took the time and had the ability to chart the details. Obviously, it would have been impractical to require the jury to read the entire mass of entries and documents. Although Friedman testified that he was the only person who could ascertain whether an invoice was Hobart-related, the invoices were not for that reason inadmissible. Rather, it was a matter of credibility for the jury to resolve.

Hobart further argues that exhibit No. 47 should have been excluded because it did not represent an examination of all 37 boxes of invoices.

We reject that argument. The relevant issue involved the comparison of Hobart sales of repair parts and service before and after termination. The other 29 boxes were irrelevant to that issue. Nevertheless, Hobart had an opportunity to cross-examine Friedman about the invoices in the other 29 boxes. Friedman testified that his work was accurate and that although he made a few mistakes, they were very minimal in comparison with the large quantity of invoices. On the other hand, Hobart claimed at trial that 32% of the invoices were improperly included in the Hobart pile. Any conflict in the testimony at trial was an issue of credibility for the jury to resolve and did not render the exhibit and the testimony based thereon inadmissible.

Moreover, we find that even if the exhibit was not proper, the damage study was nevertheless properly used by Bailey, since under Wilson v. Clark (1980), 84 Ill. 2d 186, 417 N.E.2d 1322, an expert may base his opinion on data, if of a type reasonably relied upon by experts in the field, even though the underlying data is not admitted into evidence or is of a type not admissible.

Hobart next argues that Bailey’s damage study was flawed. In that regard, it contends that: (1) the study’s damage calculation was not causally connected to Hobart’s wrongful conduct; (2) it made no effort to exclude other possible causes in the decline in sales; and (3) it was based on gross profits instead of net profits.

We find Hobart’s contentions unpersuasive. In the previous appeal of the instant case, this court specifically stated that a proper measure of damages should be based on a comparison of Walz’s sales of Hobart parts and service before and after the termination of 1980. The record reveals that Walz had established a very successful business. Expert testimony indicated that Walz’s customers who continued to look to Walz for supplies for their Hobart equipment would have also looked to Walz to buy parts and service for their Hobart equipment had Walz been able to obtain parts. The only practical way of proving damages was by an overall analysis of the Hobart repair parts and service segment of Walz’s business. Under these circumstances, we find that the evidence was causally connected to Hobart’s wrongful conduct.

Regarding the failure to exclude other possible causes of the decline in sales, we note that Walz was not required to analyze every conceivable contingency that might affect sales. If Hobart believed that certain factors affected the damage study, it was free to present its own testimony in that regard or cross-examine Walz’s expert. The jury could then have evaluated the conflicting evidence.

Regarding the gross profit basis of the study, we note that Bailey explained that gross profits equaled net profits because the overhead expenses were already incurred by Walz and would not have increased if the sale of parts and service would have been as projected rather than actual. Therefore, it was unnecessary to further reduce the gross profit by an overhead factor to determine net profit. Accordingly, we find that the trial court did not err in admitting the study.

Hobart next argues that the jury’s verdict was not based on the evidence in the record. It contends that the verdict was improper because it was not the exact figure offered by either of the two experts, nor was it based on any combination of the assumptions of the two experts.

None of the cases cited by Hobart stand for the proposition that a jury verdict must match either of two experts’ figures, or a combination of their assumptions. Rather, all the law requires is that the evidence tend to establish, with a fair degree of probability, a basis for the assessment of damages. (Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 281 N.E.2d 323; Reeder v. Old Oak Town Center (1984), 124 Ill. App. 3d 1045, 465 N.E.2d 113.) The ascertainment and assessment of damages is a question of fact for the jury; although the amount may not be speculative, it need not be proved with mathematical certainty. (Mohr v. Dix Mutual County Fire Insurance Co. (1986), 143 Ill. App. 3d 989, 493 N.E.2d 638.) The jury must bring in a verdict within the range of the valuation testimony presented. City of Benton v. Odom (1984), 123 Ill. App. 3d 991, 463 N.E.2d 785.

In the instant case, the jury’s verdict was within the range of valuation testimony presented by the parties’ experts. Where experts differ on the amount of damages, there is no rule of law requiring that a jury agree with one or the other or that its award be capable of precise determination. Furthermore, a jury may reduce an expert’s damage calculations without invalidating the verdict. (See National Bank v. Doss (1986), 141 Ill. App. 3d 1065, 491 N.E.2d 106.) Accordingly, we find that the verdict was supported by the evidence and should not be reversed.

Hobart next argues that the trial court improperly granted Walz’s motion in limine to exclude certain evidence.

Prior to trial, the trial court entered an order, on Walz’s motion, preventing Hobart from introducing any evidence relating to the amount of sales made by Walz in the non-food-related aspects of its business. Hobart argues that the order was improper because the evidence should have been admitted to show that despite the disruption in the service and repair of Hobart equipment, Walz was able to mitigate its damages in unrelated aspects of its business.

We disagree with Hobart’s argument. Hobart wanted to introduce evidence about Walz’s sales of large industrial scales, which was unrelated to Hobart’s food-handling equipment. We find that the proffered evidence was not relevant to the issue in dispute. The cases cited by Hobart are distinguishable. Accordingly, we find that the trial court did not abuse its discretion in excluding the evidence.

Hobart next contends that the trial court improperly prevented Hobart’s expert from testifying that Walz’s gross profit margin for the sale of parts in March and April of 1981 was 11%. In response, Walz contends that the testimony was properly excluded under Supreme Court Rule 220(d) (107 Ill. 2d R. 220(d)).

Supreme Court Rule 220(d) provides:

“To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” 107 Ill. 2d R. 220(d).

We find that the testimony was properly excluded. The testimony goes beyond the scope of facts and opinions disclosed in discovery. Hobart’s expert devoted his pretrial preparation to analyzing and disagreeing with the Bailey damage study. Yet, in his deposition, he did not disclose an opinion disagreeing with the 20% gross profit calculation. Moreover, Hobart’s expert in his own damage study computed damages at the gross profit percentage of 20% on the sale of parts. Under the circumstances, we find that the trial court properly excluded the evidence.

Lastly, Hobart contends that Walz was entitled to only nominal damages. For the reasons previously stated, we find that Hobart’s argument in that regard is without merit.

Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

SLATER and STOUDER, JJ., concur.


author: JUSTICE McCORMICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALTON LOGAN, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—1591
    Opinion filed December 31, 1991.

      Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Sharon L. Heath, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McCORMICK

delivered the opinion of the court:

Defendant, Alton Logan, appeals from the circuit court’s disposition of his petition for post-conviction relief.

Defendant was charged with murder, attempted murder and armed robbery in connection with the January 11, 1982, robbery of a McDonald’s restaurant. One restaurant security guard, Lloyd Wyck-liffe, was killed in the robbery and another, Alvin Thompson, was seriously wounded.

Defendant was tried jointly with Edgar Hope. Prior to trial, the State and counsel for Hope filed motions in limine to preclude defendant’s counsel from eliciting evidence of a connection between Hope and Andrew and Jackie Wilson. The Wilsons have been convicted of murdering Chicago police officers William Fahey and Richard O’Brien. The killings occurred on February 9, 1982, and in a statement made at the time of his arrest, Jackie Wilson claimed that a few hours before the killings, Andrew Wilson had devised a plan to help his friend Edgar Hope escape from Cook County Hospital. Hope was being held at the hospital in connection with the murder of another Chicago police officer that occurred on February 5, 1982. See People v. Wilson (1985), 139 Ill. App. 3d 726, 487 N.E.2d 1015.

In response to these motions, defendant pointed out that the shotgun used in the McDonald’s robbery and the service revolvers belonging to Officers Fahey and O’Brien were discovered by the police in the beauty shop where Andrew Wilson lived and worked and that the weapons were recovered by the police when they went to the shop in an attempt to arrest the Wilsons for the murders of Fahey and O’Brien. Defendant argued that it was his theory of defense that one of the Wilson brothers, and not defendant, was involved in the robbery at the McDonald’s restaurant and, therefore, he should be allowed to show the connection between Hope and the Wilsons.

The trial court granted the motions in limine, but ruled that defendant could ask witnesses to identify photographs of the Wilsons. The trial court later stated that if any of the witnesses could identify the Wilsons, defendant would be allowed to introduce evidence linking the murder weapon to the Wilsons.

The record indicates that defendant’s counsel showed a photograph of Andrew Wilson to two of the eyewitnesses. Counsel did not ask either witness if Wilson could have been the man who shot Wyck-liffe; however, one of the witnesses testified that there were a lot of similarities between defendant and the person pictured in the photograph.

Following the trial, defendant and Hope were convicted of all charges. Defendant was sentenced to life imprisonment, while Hope was sentenced to death.

Defendant appealed his conviction and sentence arguing that he was not proven guilty beyond a reasonable doubt, that the State improperly failed to complete its attempted impeachment of him, that he was prejudiced by the State’s personal attack on his counsel during closing arguments, and that his sentence was excessive. This court affirmed defendant’s conviction and sentence in an unpublished Rule 23 order, dated January 14, 1986. (People v. Logan (1986), 138 Ill. App. 3d 1162, 502 N.E.2d 874 (unpublished order under Supreme Court Rule 23).) A petition for leave to appeal was filed with the Illinois Supreme Court on February 11, 1986 (appeal denied (1986), 111 Ill. 2d 592).

In the meantime, Hope’s conviction and sentence were automatically appealed to the Illinois Supreme Court. In an opinion dated February 21, 1986, the supreme court reversed Hope’s conviction and remanded the cause for a new trial. (People v. Hope (1986), 116 Ill. 2d 265, 508 N.E.2d 202.) Relying on its earlier decision in People v. Bernette (1964), 30 Ill. 2d 359, 197 N.E.2d 436, the supreme court held in Hope that it was error to allow the State to introduce evidence about Wyckliffe’s family during the trial.

Subsequently, defendant filed a motion to supplement his previously filed petition for leave to appeal to include the Bernette issue. This motion was accompanied by an affidavit prepared by defendant’s appellate counsel in which counsel stated that she had not raised the Bernette issue because she was not aware of the Bernette case, nor of the importance of the issue.

Defendant’s motion was granted; however, the supreme court later denied leave to appeal. Logan, 111 Ill. 2d 592.

In July 1988, defendant filed a three-part petition for post-conviction relief. In his petition, defendant alleged that he was denied effective assistance during his appeal due to appellate counsel’s failure to raise several meritorious issues. Part I of the petition alleged that defendant’s appellate counsel was ineffective for failing to raise the Bernette issue; part II alleged that counsel should have raised the issue of whether the trial court erred in excluding evidence that someone other than defendant committed the offense; and part III alleged that counsel should have raised the issue of the trial court’s consideration of outside information in determining defendant’s sentence.

The State filed a motion to dismiss defendant’s petition. Following arguments, the circuit court granted the State’s motion with respect to parts II and III of defendant’s petition. However, the court refused to dismiss part I of the petition, holding that defendant was entitled to an evidentiary hearing on the question of his counsel’s failure to address the Bernette issue on appeal.

At the hearing, Donna Hickstein Foley, defendant’s appellate counsel, testified that she had read the trial transcript before filing defendant’s brief on appeal and that she was aware that defendant’s trial counsel made objections to the evidence concerning the victims’ families before the proceedings, during the trial and in a post-trial motion. Foley also testified that she did not raise the issue on appeal because she did not think it was a “strong” issue. She further testified that, while she would not dismiss an issue without doing some research on it, she was not aware of the Bernette decision and had not read the decision before filing her appellate brief. Foley added that if she had been aware of the Bernette decision, she would have raised the issue on appeal.

In denying defendant’s request for post-conviction relief, the circuit court stated that Foley’s selection of issues to pursue on appeal could not be deemed incompetent. The court stated that it believed Foley was aware of the “family issue” and that it did not believe her testimony that she had not heard of the Bernette case. The circuit court also stated that defendant was not prejudiced by counsel’s failure to raise the issue because the evidence of defendant’s guilt was overwhelming.

In this appeal, defendant argues that the circuit court erred in finding that he was not entitled to post-conviction relief. Defendant contends that the circuit court’s finding that his appellate counsel was not ineffective in failing to raise the Bernette issue was clearly erroneous and inconsistent with the applicable facts and law.

The courts of this State have acknowledged that a post-conviction hearing is the proper vehicle for review of a claim that a defendant has been inadequately represented on direct appeal. People v. Caballero (1989), 126 Ill. 2d 248, 533 N.E.2d 1089; People v. Frank (1971), 48 Ill. 2d 500, 272 N.E.2d 25; People v. Ferro (1990), 195 Ill. App. 3d 282, 551 N.E.2d 1378; People v. Pecka (1989), 183 Ill. App. 3d 60, 538 N.E.2d 1189.

In Caballero, the Illinois Supreme Court held that the two-part standard enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, was applicable in assessing the competence of counsel in a direct appeal. Thus, when a defendant maintains in a post-conviction proceeding that his attorney was ineffective in failing to argue a particular issue on appeal, he must show that the failure to raise that issue was objectively unreasonable and that there was a reasonable probability that, but for this failure, the sentence or conviction would have been reversed. (Caballero, 126 Ill. 2d at 270.) There is no obligation on the part of counsel to brief every conceivable issue on appeal, nor is it incompetence for counsel to refrain from raising those issues that, in his opinion, are without merit, unless counsel’s appraisal of the merits is patently wrong. People v. Barnard (1984), 104 Ill. 2d 218, 470 N.E.2d 1005.

In the present case, defendant argues that the Bernette issue was “patently meritorious” and that the failure to raise the issue on appeal constituted ineffective assistance.

In Bernette, the victim’s widow testified, without objection from the defendant, that she had four children, that the eldest was six years old and the youngest seven months, and that the youngest was the only child bom of her marriage to the victim. During closing arguments, the prosecutor stated that the victim “had a wife, he had a child and he had a right — he was only 20 years old when he died — to be with that family and to pursue his life and liberty.” Bernette, 30 Ill. 2d at 371.

In reversing the defendant’s conviction, the supreme court held that “where testimony in a murder case respecting the fact the deceased has left a spouse and family is not elicited incidentally, but is presented in such a manner as to cause the jury to believe it is material, its admission is highly prejudicial and constitutes reversible error unless an objection thereto is sustained and the jury instructed to disregard such evidence.” (Bernette, 30 Ill. 2d at 371.) The court added that “jury argument by the prosecution which dwells upon the decedent’s family or seeks to relate a defendant’s punishment to the existence of family is inflammatory and improper.” Bernette, 30 Ill. 2d at 371.

In ruling that defendant’s appellate counsel was not ineffective in failing to argue the Bernette issue, the circuit court found that appellate counsel’s assessment of the testimony concerning the victims’ families as harmless error was correct. It was the court’s view that at the time the appellate brief was filed the trend was “against this issue” and, therefore, counsel’s failure to raise the issue did not prejudice defendant.

The circuit court based its ruling on the supreme court’s decision in People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59, where it was held that a comment about the victim’s family made by the prosecutor during closing arguments was harmless error. However, Bartall involved one improper statement to which defendant failed to object. In affirming defendant’s conviction, the supreme court pointed out that “[ujnlike many of the cases where comments about the victim’s family required reversal, there was no presentation of irrelevant evidence about the grieving family and the prosecution did not dwell upon the victim’s family so much that ‘the jury could well have related this fact to the question of defendant’s culpability.’ ” Bartall, 98 Ill. 2d at 323, quoting People v. Jordan (1983), 38 Ill. 2d 83, 92.

There is nothing in Bartall that indicates that the supreme court intended to abandon its earlier holding in Bernette, nor is there any reason to assume that appellate counsel’s decision not to raise the issue was made in reliance on the supreme court’s decision in Bartall. Moreover, in the two years preceding the filing of the appellate brief, the supreme court repeatedly cited the Bernette case as support for the proposition that admission of testimony concerning a victim’s family is reversible error when the testimony is presented in such a manner as to cause the jury to believe that it is material. See People v. Holman (1984), 103 Ill. 2d 133, 469 N.E.2d 119; People v. Yates (1983), 98 Ill. 2d 502, 456 N.E.2d 1369; People v. Ramirez (1983), 98 Ill. 2d 439, 457 N.E.2d 31; People v. Davis (1983), 97 Ill. 2d 1, 452 N.E.2d 525; People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353; People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218.

Although Holman, Ramirez, and the two Davis cases involved the admissibility of evidence concerning the victims’ families at sentencing, they all suggest the continuing viability of the rule set forth in Bernette. The same can be said of the Yates and Free decisions, in which evidence of the victims’ families was introduced during the guilt and innocence phase of the proceedings. In those cases, the supreme court reiterated the Bernette rule but found that the facts in those cases were distinguishable from those in Bernette. A review of Yates, Free and Bernette would have revealed the great similarity between the facts in Bernette and those in the present case, as well as the obvious distinctions between the present case and Yates and Free.

In Yates, there was testimony from the deceased victim’s mother that she and the victim were the only residents of the apartment where the victim’s body was found and that certain items in the apartment were missing or moved. The supreme court found that there was no impropriety in the admission of this evidence. Yates, 98 Ill. 2d at 530.

In Free, there was testimony from the deceased victim’s husband that they had been married 14 years and had two children. The supreme court found that this testimony was incidental and not presented in a manner that would cause the jury to believe the testimony was material. Free, 94 Ill. 2d at 415.

The testimony in the present case went far beyond that presented in Yates and Free. Here, as in Bernette, the deceased victim’s widow testified in response to a series of questions that she had three children, that the children were aged 10, 6, and 3, and that the eldest was not the child of the deceased. In addition, the prosecutor commented on both victims’ families in opening and closing argument and a photograph showing the deceased victim with his wife and children was admitted into evidence. It also should be noted that, unlike Bernette where no objection was made, here, the testimony concerning the victims’ families was admitted over defendant’s objections.

In light of the foregoing, we find that appellate counsel’s assessment of the issue as harmless error was patently wrong and that, therefore, her representation of defendant on appeal was deficient.

Thus, we now must determine whether there is a reasonable probability that, but for counsel’s deficiencies, defendant’s convictions would have been reversed. In Strickland, the Supreme Court defined a reasonable probability as one sufficient to undermine confidence in the outcome. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) As we stated above, this standard is applicable in assessing counsel’s performance on appeal. Cabellero, 126 Ill. 2d 270.

In Cabellero, the Illinois Supreme Court citing Bernette described comments made by the prosecutor during closing arguments as “verg[ing] upon the kind of detailed discussion of the deceased victim’s families” which it previously had condemned.” (Caballero, 126 Ill. 2d at 272.) However, the court found that the failure to challenge the remarks on appeal did not warrant reversal under Strickland because some of them were made in rebuttal to comments made by defense counsel, and because defendant had not contested the State’s contention that the evidence against him, which included his own confession and admissions, was overwhelming. Caballero, 126 Ill. 2d at 273.

In the present case, the evidence and comments complained of were precisely the kind of detailed discussion of the deceased victim’s family that has been condemned by the supreme court. And unlike Caballero, here, the evidence not only was uninvited, it was admitted over the strong objections of defendant. Moreover, in the present case, defendant challenged the sufficiency of the evidence against him in his original appeal and continues to do so in the present appeal.

Additionally, in defendant’s original appeal, this court found that the State acted improperly during cross-examination of defendant when it attempted to impeach defendant by creating an unsupported insinuation that he had attempted to intimidate a prosecution witness. This improper questioning when combined with the improperly admitted testimony and evidence concerning the victims’ families creates a strong probability that the jury’s finding of guilt was based on something other than the circumstances of the crime with which defendant was charged. (See People v. Gregory (1961), 22 Ill. 2d 601, 177 N.E.2d 120.) The existence of this probability is further supported by the supreme court’s statement in People v. Hope, that the overruling of defendants’ objections to the evidence of the victims’ families amplified its prejudicial effect because it indicated to the jury that the evidence was material. Hope, 116 Ill. 2d at 278.

In attempting to persuade this court that the failure of defendant’s appellate counsel to challenge the introduction of the evidence concerning the victims’ families did not undermine the reliability of the outcome of defendant’s appeal, the State argues that a significant factor in the supreme court’s decision in Hope was the imposition of the death penalty. The State argues that because, here, defendant was not sentenced to death, it is probable that this court would have affirmed defendant’s conviction and sentence even if admission of the evidence had been challenged on appeal.

The State’s argument is based on the following language from Hope:

“Thus, every mention of a deceased’s family does not per se entitle the defendant to a new trial. [Citation.] In certain instances, depending upon how this evidence is introduced, such a statement can be harmless; this is particularly true when the death penalty is not imposed.” (Emphasis in original.) Hope, 116 Ill. 2d at 276.

We find nothing in the supreme court’s language that requires us to conclude that introduction of evidence of a victim’s family will always constitute harmless error when the death penalty is not imposed. Rather, the court appears to be saying that when the death penalty is not imposed, the question of whether introduction of such evidence constitutes harmless error will depend upon the manner in which the evidence is introduced.

As noted above, the supreme court has ruled that the evidence in this case was not brought to the jury’s attention incidentally but was presented in a manner that permitted the jury to believe it was material. (Hope, 116 Ill. 2d at 278.) The court also found that the comments about the victims’ families made during opening and closing arguments were not invited by the defense and amounted to an improper appeal to the emotions of the jurors. Thus, the supreme court has already held that the manner in which the evidence was introduced served to prejudice the jury, and we find that the fact that the death penalty was not imposed does not require a different conclusion. See People v. Tajra (1965), 58 Ill. App. 2d 479, 208 N.E.2d 9.

In summary, we find that the failure of defendant’s counsel to challenge the admission of evidence and arguments concerning the victims’ families was objectively unreasonable and that there was a reasonable probability that, but for the failure to raise the issue, defendant’s conviction and sentence would have been reversed.

Defendant also argues on appeal that the circuit court erred in dismissing part II of his post-conviction petition without an eviden-tiary hearing. In part II, defendant alleged that his appellate counsel was ineffective in failing to argue that the trial court committed reversible error when it refused to allow evidence linking the Wilsons to the McDonald’s robbery.

Defendant correctly points out that one accused of a crime may prove any fact or circumstance tending to show that the crime was committed by someone other than himself (People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696; People v. Nitti (1924), 312 Ill. 73, 143 N.E. 448), and that such evidence is relevant when a close connection can be demonstrated between the other person and the commission of the crime. (People v. Smith (1984), 122 Ill. App. 3d 609, 461 N.E.2d 534; People v. Bryant (1982), 105 Ill. App. 3d 285, 434 N.E.2d 316; People v. King (1978), 61 Ill. App. 3d 49, 377 N.E.2d 856.) It is also correct, as defendant points out, that evidence that a weapon was recovered in the place where an individual resided has been held sufficient to connect that individual to a crime committed with that weapon. See People v. Bennett (1987), 159 Ill. App. 3d 172, 511 N.E.2d 1340.

While there was evidence in the present case of a connection between Hope, the Wilsons and the McDonald’s robbery, because of our disposition of the Bernette issue, we need not determine whether counsel’s failure to challenge the exclusion of this evidence on direct appeal amounted to ineffective assistance. Similarly, we find no need to address defendant’s claim that his appellate counsel was ineffective in failing to argue on direct appeal that the trial court considered improper factors in imposing sentence.

The order of the circuit court denying defendant’s request for post-conviction relief is reversed, and this cause is remanded for a new trial.

Reversed and remanded.

HARTMAN and DiVITO, JJ., concur.


author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY FELDER, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—3502
    Opinion filed January 14, 1992.

      Michael J. Pelletier, Marc Davidson, and Anna Ahronheim, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Sta-brawa, and Carrie Weiner, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Defendant Larry Felder was charged by indictment with murder, attempted murder, and home invasion. (Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(a)(1), 8—4(a), 12—11(a)(2).) After a jury trial, defendant was found guilty of all charges and sentenced to 80 years’ imprisonment for murder, 30 years for attempted murder to run consecutively with the murder sentence, and 30 years for home invasion to run concurrently with the two other sentences.

Defendant appeals both his conviction and his sentence, raising in issue (1) whether the attempted murder instruction given to the jury improperly stated the elements necessary to establish attempted murder; (2) whether the testimony of several State witnesses that they initially withheld information from the police out of fear for their own and their families’ safety was properly admitted; (3) whether a photo taken of the deceased prior to her death and the testimony of the deceased’s mother about the last time she saw her daughter alive were properly admitted; (4) whether defendant was denied a fair trial due to the State’s exercise of a peremptory challenge of one juror in an allegedly racially discriminatory manner; (5) whether the court erroneously found that defendant was eligible for the death penalty; and (6) whether the court abused its discretion in sentencing defendant to consecutive sentences for murder and attempted murder.

At trial, Karen Spaulding (Karen) testified that, on March 14, 1987, she was living with her friend Sharon Eskridge (Sharon) in Sharon’s attic apartment located in a single-family house at 734 East 103rd Place in Chicago. Also living in the apartment was Sharon’s boyfriend, Guy Brackston.

At 10 p.m. on March 14, 1987, Karen and Sharon left the apartment and took a taxi to the Holiday Inn Mart Plaza, where defendant’s brother, Robert Felder (Felder), was hosting a party in three rented suites. Approximately 50 people were at the party, including defendant, whom Karen knew as “Bo Bo,” and Sherman Spears, known as “Spiro.” Karen had known defendant for approximately one year and Spears for six months; both defendant and Spears sold drugs for Felder, head of the “Pay Masters,” a street gang which dealt in narcotics. Felder and the other drug dealers at the party provided champagne, cocaine, marijuana, and heroin for the party guests. While there, Karen drank three or four glasses of champagne and “did do a lot of coke.”

Sometime during the night, Felder suffered an asthma attack; Karen helped him by propping him up on a bed, loosening his clothing, and removing his jewelry. After she removed his jewelry, Karen put on Felder’s gold necklace and gave his rings to his girl friend.

At approximately 5:30 a.m. on March 15, 1987, Karen left the party with Sharon and Brackston; when they returned to their apartment, Sharon and Brackston went into the bedroom to sleep and Karen slept on the sofa in the living room. Later that morning, at approximately noon, Felder telephoned, asking for Brackston; however, Karen told him that Brackston was asleep. One hour later, Felder called again and told Karen to wake Brackston. After speaking with Felder for about 20 minutes, Brackston hung up and asked Karen about Felder’s gold necklace. She then took off the necklace and gave it to Brackston.

Shortly thereafter, the doorbell rang and Karen went down to answer the door; at the door were Willie Streeter and Larry Byrd, both of whom sold drugs for Felder. After she let them into the apartment, the two men went into the bedroom to talk to Brackston. During the time that Streeter and Byrd were in the apartment, Karen took a shower and Sharon sat on the living room couch watching television. When Karen came out of the shower, Streeter and Brackston were leaving the apartment. Because it was not typical of Brackston to leave without telling Sharon, she and Karen discussed whether something might be wrong; Sharon was concerned that Brackston’s departure could be because she had taken some money at Felder’s party the previous night.

After 10 minutes, Streeter returned to the apartment with defendant and Sherman Spears. Defendant went into the bedroom and Spears followed; Spears then came out and told Karen that she had gotten him in trouble by taking the necklace. Spears grabbed her by the arm and started yelling at her in a “nasty” tone of voice. Streeter stepped between Spears and Karen, telling Spears, “Man, you should freeze that, you know. Don’t do that.” Defendant then called Sharon into the bedroom with him. After defendant and Sharon came out of the bedroom, defendant told Karen to go into the bedroom.

While in the bedroom, defendant asked Karen why she took money from his brother; Karen denied taking any money and defendant responded, “Bitch, I know you took the money, and I am not going to be standing up here just to keep on asking you about the money and this shit.” Defendant then hit Karen on the head with the butt of his gun, a “blue steel .32 automatic.” Karen fell crying to the bed and asked defendant why he had hit her; defendant answered, “I am going to kill you, bitch,” unless she would tell him where the money and “stuff” was. Defendant then began hitting and kicking Karen. After hitting Karen five or six times, defendant stood up and leaned with his hand against the wall. When Spears entered the room shortly thereafter, he threw a towel to defendant; defendant then used the towel to clean the area where his hand had touched the wall.

After Spears entered the bedroom, defendant told him to “go get that other bitch and bring her in here.” Karen then got off the bed and stood next to a dresser near the wall. When Sharon entered the bedroom, Spears pushed her onto the bed, picked up a pillow, and handed it to defendant. Both defendant and Spears, who had a .38 caliber gun, put their guns inside of the pillows. When Karen then yelled, “no, don’t. You know you don’t have to do that,” defendant turned around and shot her in her left shoulder. As she fell to the floor, Karen could see both defendant and Spears shoot Sharon “about 5 or 6, or more” times. She also could hear two different sounds emitted from the guns. Karen began feeling a “burning sensation” in her body and realized that it was because of her numerous gunshot wounds.

When she was able to get up, Karen called to Sharon, who was lying facedown on the bed, but received no response; she attempted to walk to the living room and call the police but she could not walk very well, was dizzy, nauseated, and everything appeared to her to be in “slow motion.” When she got into the living room, she turned down the television volume, which had been turned up; she then locked the door and tried to call the police. Someone then knocked on the door; Karen “hollered, no, no. Don’t hurt me, no, no.”

A man then broke the glass in the door and opened the door; Karen did not know him, but she told him in “blurred” words that Sharon was in the bedroom, dead. Shortly thereafter, as the police were arriving, Felder telephoned and Karen answered and told him, “Hello, Rob. Your brother and Spiro just shot me, and they killed Sharon.” Before hanging up, Felder told Karen that she had better not say anything or he would “do something” to her mother and her child.

Immediately thereafter, the paramedics arrived and took Karen to Bernard Mitchell Hospital, where she underwent surgery. On March 16, 1987, while Karen was still in the hospital, she spoke to several Chicago police detectives; she did not tell them, however, what had happened because she “was still afraid for” herself and her family. After the police assured Karen that they would protect her, she told them that “Spiro” and “Bo Bo” had shot her and Sharon. A few hours later, Karen gave the police defendant’s and Spears’ proper names and told them where they might find them, an address on the west side of Chicago and the names of several downtown hotels where they usually stayed. During that day and the next, police showed her some photographs and she identified Spears and defendant as the men who shot her and killed Sharon.

On cross-examination, Karen admitted that she had used drugs with Felder on prior occasions and that her sister was Felder’s old girl friend. She also admitted that, after the shooting, she was arrested for possession of cocaine; however, she explained that, at the time of the arrest, she was wearing an old coat, unaware that there was one-tenth of a gram of cocaine in the pocket. She further acknowledged that she never told the police about defendant wiping the wall where his hand had touched, nor did she tell the police that, one year prior to the shooting, she had an argument with defendant and he threatened to kill her.

Nolan Lando testified that, at the time of the shooting, he lived across the street and knew both Sharon and the owner of the building where Sharon’s attic apartment was located. On March 15, 1987, the owner of the building called him and told him that something was going on in her house and asked him to come up to the attic apartment with her. Before he entered the apartment, he could see Karen staggering inside, covered with blood, and trying to use the phone. Lando pushed the locked door open with his shoulder; at the time, Karen was yelling at him not to hurt her. Once in the apartment, he could see that Sharon was dead in the bedroom. Five to six minutes after he entered the apartment, as the police were arriving, the phone rang and Karen had a brief conversation; Lando, however, could not hear what she was saying.

Chicago police officer William Peak testified that he was one of the first police officers to arrive at the scene of the shooting; there, he “observed a female black laying across the bed,” motionless. He further saw “another female black,” who was “bleeding profusely” and in “serious condition” with a gunshot wound through her cheek and several other gunshot wounds to “various parts of her body.” While in the apartment, Peak questioned Lando and spoke to Karen for approximately 35 seconds; Karen’s speech was difficult to understand, but she was able to tell him that “Bo” was one of her attackers.

Chicago police detective Michael Bosco testified that he spoke with Karen in the hospital on March 16, 1987; however, she was reluctant to answer any of his questions. According to Bosco, Karen “stated she was very much afraid of what had happened to her and what might happen to her in the future. And she was also very much afraid for the well-being of her family.” After Bosco assured her that extra security measures would be taken, Karen gave him two names. Bosco, however, felt that Karen was “holding back certain information” and, thus, requested that someone else interview her.

After talking to Bosco, Chicago police detective George Basile went to Bernard Mitchell Hospital to interview Karen; however, during the interview, Karen was again reluctant and stated that she was concerned about the safety of her child. After Basile’s reassurance that the promised security measures had indeed been taken, Karen told him that “Bo” was defendant, but she did not know “Spiro’s” real name. Thereafter, Karen identified defendant’s picture from a photo array. On cross-examination, Basile admitted that Karen never told him about Felder’s phone call after the shooting, nor did she tell him about defendant threatening her in the past.

After being given the information provided by Karen, Chicago police detectives Edmond Leracz and William Pedersen went to the Cabrini Green housing project and several downtown hotels to look for defendant and Spears. On March 17, 1987, after the desk clerk at the Essex Hotel positively identified defendant as one of the registered guests, Leracz and Pedersen set up observation outside of defendant’s room. Shortly thereafter, they observed Spears enter the room; when Spears left the room, Leracz approached him, identified himself as a police officer, and “patted him down.” In Spears’ pocket Leracz found a key to the room and a newspaper clipping about the shooting.

Willie Streeter testified that, at the time of the shooting, he was a member of the Pay Masters; he described himself as “security” in the gang and Felder as the “Don,” or leader of the gang. He further described defendant as the “number 2” man under Felder and Spears as Felder’s “right hand man, bodyguard and enforcer.”

On March 15, 1987, Streeter was with Robert Byrd at a “safe house” that Felder had rented. While at the house, Streeter and Byrd received a phone call from Felder telling them to go to Guy Brack-ston’s house to pick up his money. Streeter and Byrd then went to Brackston’s .house. After Karen let them into the apartment, the two men entered the bedroom, where Brackston was on the phone. After Brackston got off the phone, Streeter told him that Felder had sent him there to pick up his necklace and $2,000 that had been taken at the party. Brackston then gave Streeter the gold necklace, but before he could give Streeter the money, the phone rang. Brackston answered and spoke for approximately two minutes before he gave the phone to Streeter, saying that it was Felder. Felder asked Streeter if “Bo-Bo” and “Spiro” had arrived yet and Streeter answered “no,” but that Brackston had given him the gold necklace and “was in the process of giving” him the money. Felder responded, “Fuck that shit. *** Keep everybody in the house there until Spiro and Bo-Bo get there.”

After he hung up the phone, Streeter told Brackston that Spears and defendant were on their way to the apartment. He then asked for the money and Brackston gave him $2,500. Immediately thereafter, the phone rang again, Streeter answered and spoke again with Felder. After Felder asked if Spears and defendant were there yet, Streeter told him that he had the necklace and the money; however, Felder stated, “Fuck that shit. *** Don’t let the bitches or Guy out of the house. *** Keep them there. *** Bo-Bo and Spiro going to gun them bitches.” After he hung up, Streeter warned Brackston to “get your girl and go,” because Spears and defendant were on the way to the apartment to “gun y’all down.”

Thereafter, Brackston, a drug dealer, packed up his drug paraphernalia and left the apartment with Streeter. As they were leaving the building, Spears, defendant, and another man drove up to the apartment in a van. After asking Streeter where Brackston was going, defendant and Spears entered the apartment. Streeter followed them in.

Once in the apartment, Spears began swearing at Karen and saying that she had made him look bad in front of “the Don”; when Spears, who had a .38 caliber gun, grabbed Karen by the wrist, Stree-ter attempted to “diffuse” the situation and told Spears to “freeze that shit.” Defendant, who had a .32 automatic, then walked over to Sharon and said he needed to talk to her in the bedroom. When Sharon left the bedroom, defendant asked Karen to come into the bedroom.

Shortly thereafter, defendant came out of the bedroom and gave the telephone to Streeter, saying that Felder wanted to talk to him. On the phone, Streeter tried to convince Felder that what was happening made no sense because he already had the money and the necklace. Felder, however, refused to listen and again said, “Man, fuck that shit. They are going to gun those bitches.” After he hung up, Streeter went into the kitchen and told Byrd that he was leaving; Byrd then followed him out of the apartment.

Once they left the house, Streeter and Byrd got into the van with the other man. Approximately five minutes later, defendant and Spears came running out and got into the van with their “pistols in their hands.” As he drove the van away, defendant turned to Spears and said, “You’s a cold mother-fucker”; Spears responded, with a grin, “Man, we gunned them bitches. We gave the bitches 2 to the head.” Defendant and Spears then emptied their guns, wiped them off, and gave them to the other man in the van.

After driving a short while, defendant, Spears, and the other man left the van. Streeter and Byrd drove the van for a little longer, but then parked it and took a cab to the house where Felder was staying.

When they entered the house, Felder asked Streeter what had happened and stated, “Spiro and Bo fucked up. I just got through to that bitch Karen on the phone. The bitch ain’t dead.”

After the shooting, Streeter never went to the police to give them information; moreover, he refused to answer the questions of both the police and the grand jury. According to Streeter, he did not want to jeopardize his life or his family’s safety. Nevertheless, after his arrest and conviction on charges not pertaining to the shooting, Streeter made a plea agreement with the State’s Attorney whereby he agreed to testify at defendant’s trial.

Chicago police officer Irwin Temoir testified for defendant that he handled the initial paperwork on the case. After speaking with several officers at the scene of the shooting, Temoir wrote in his report that the two offenders were “Bo” and “Jeff.”

According to Chicago police officer Fred Harris, a latent fingerprint examiner for the police department, he received numerous fingerprint lifts from the crime scene, 21 of which were suitable for comparison purposes. Of those prints, none matched Spears’ prints; further, a palm print taken from the scene did not match defendant’s print. One print, however, taken from a plastic bag found inside a tool box, matched Jeff Davis’ prints.

At the close of all the evidence, the jury found defendant guilty of murder, attempted murder, and home invasion. Finding that defendant was eligible for the death penalty, the circuit court sentenced defendant to 80 years for murder, 30 years for attempted murder to run consecutively with the murder sentence and 30 years for home invasion to run concurrently with the other sentences. Defendant appeals both his conviction and his sentence.

I

Defendant initially contends that the instructions given by the circuit court improperly allowed the jury to convict him of attempted murder if it found that he merely intended to do “great bodily harm” without the requisite intent to kill. In response, the State maintains that defendant has waived appellate review of this issue due to his failure to object at trial or to raise the issue in his post-trial motion. (See People v. Solis (1991), 216 Ill. App. 3d 11, 576 N.E.2d 120.) In the alternative, the State contends that any error which may have resulted from the instructions was harmless in light of the proper instructions which were given and the overwhelming evidence of defendant’s guilt.

At trial, the jury was instructed as follows:

“A person commits the offense of murder when he kills an individual without lawful justification if, in performing the acts which caused the death,
he intends to kill or do great bodily harm to that individual; or
he knows such acts will cause death to that individual; or
he knows that his acts created a strong probability of death or great bodily harm to that individual; or
he is committing the offense of home invasion.”

The court then instructed the jury on the propositions that the State must sustain in order to prove the charge of murder:

“First: That the defendant or one for whose conduct he is legally responsible, performed the acts which caused the death of Sharon Eskridge; and
that when the defendant or one for whose conduct he is legally responsible did so, he intended to kill or do great bodily harm to Sharon Eskridge; or
he knew that his act would cause death or great bodily harm to Sharon Eskridge; or
he was committing the offense of home invasion.”

The court next gave the jury an instruction which defined attempted murder:

“A person commits the offense of attempt murder when he, with the intent to commit the offense of murder, does any act which constitutes a substantial step towards the commission of the offense of murder.
The offense attempted need not have been committed.”

Thereafter, the court instructed the jury as to the elements necessary for an attempted murder conviction:

“To sustain the charge of attempt murder, the State must prove the following propositions:
First: That the defendant or one for whose conduct he is legally responsible performed an act which constituted a substantial step towards the commission of the offense of murder; and
Second: That the defendant or one for whose conduct he is legally responsible, did so with intent to commit the offense of murder.”

Thus, defendant contends, the jury was instructed that it could find him guilty of attempted murder on a finding that he intended to kill Karen Spaulding, but that the jury was also additionally, but erroneously, instructed that it could likewise find him guilty of attempted murder on the jury’s alternative finding that he solely intended to do great bodily harm to Karen.

Specific intent to kill is an essential element of the offense of attempted murder and, correspondingly, a finding of nothing less than proof of specific intent to kill is necessary to support a conviction for attempted murder. (People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343; People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28; People v. Velasco (1989), 184 Ill. App. 3d 618, 540 N.E.2d 521.) “Knowledge that the consequences of an accused’s act may result in death (or grave bodily injury), *** is not enough; specific intent to kill is required [citation]. Both the indictment and the instructions must unambiguously reflect this.” (Emphasis in original.) People v. Jones, 81 Ill. 2d at 8-9.

Where a defendant is tried for both murder and attempted murder, as here, the court, for the purpose of the attempted murder charge, must give a separate instruction defining murder which limits the murder definition to acts committed with the specific intent to kill. (People v. Velasco, 184 Ill. App. 3d at 632.) Attempted murder instructions such as those given in the instant case, which include the full definition of murder, are erroneous. People v. Harris, 72 Ill. 2d 16; People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888.

Nevertheless, the State asserts that, assuming arguendo that the jury should have received a modified instruction, any error was harmless. The State maintains that an error in instructions will not justify reversal where, as here, the evidence of defendant’s guilt was so overwhelming that even if properly instructed the jury could not reasonably have found him not guilty.

Because “[t]he interests of justice demand that the rule of waiver be modified, in criminal cases, where necessary to ensure fundamental fairness,” which includes “seeing to it that certain basic instructions” are given (People v. Ogunsola (1981), 87 Ill. 2d 216, 222, 429 N.E.2d 861), the State’s initial assertion that the error was effectively waived must fail. We find, however, that there was not grave or substantial error in the failure to give the proper instructions. “ ‘Even though error may have been committed in giving or refusing instructions it will not always justify reversal when the evidence of defendant’s guilt is so clear and convincing that the jury could not reasonably have found him not guilty.’ ” People v. Jones, 81 Ill. 2d at 9, quoting People v. Ward (1965), 32 Ill. 2d 253, 256, 204 N.E.2d 741.

In the instant case, that defendant and Spears attempted to murder Karen Spaulding was evident from the circumstances. Not only did Karen testify that defendant told her that he was going to kill her if she did not give him the money, but she also testified that, after he shot her in the left shoulder, he began shooting at Sharon. Moreover, Streeter testified that Felder told him a number of times that defendant and Spears were going to “gun them bitches.” Streeter also testified that, after the shooting, Spears stated that “we gave the bitches 2 to the head,” meaning he and defendant. (Emphasis added.)

Defendant’s contention that the evidence against him that he intended to kill Karen was not overwhelming is incorrect. Defendant asserts that “Sharon Eskridge was shot in the brain and killed by Sherman Spears”; however, the pathologist testified that the cause of death was multiple gunshot wounds, not just the wound to her head. Defendant additionally maintains that the evidence “shows that Spears *** fatally shot [Sharon] Eskridge in the head and also shot [Karen] Spaulding, while Mr. Felder may have only shot [Karen] Spaulding in the shoulder”; however, it is clear from Karen’s testimony that both defendant and Spears were shooting at both women. Defendant’s reliance upon People v. Okundaye (1989), 189 Ill. App. 3d 601, 545 N.E.2d 601, to support his argument is misplaced. There, the evidence “was far from overwhelming that the defendant intended to kill” his victim. People v. Okundaye, 189 Ill. App. 3d at 607.

Because the evidence in the case at bar that defendant intended to kill Karen was overwhelming, we find that any error in the court’s instructions was harmless.

II

Defendant next contends that the circuit court erred in allowing testimony from the State’s witnesses that they were reluctant to cooperate with the police out of fear for their safety. Specifically, defendant maintains that the admission of this testimony was prejudicial because it gave rise to the inference that the witnesses’ fears were due to threats by defendant.

In response, the State initially maintains that defendant has waived review of this issue because of his failure to object at trial. In the alternative, the State contends that the testimony was highly relevant as to the credibility of the witnesses and was not outweighed by any prejudicial effect.

Certainly, prosecutorial comments which suggest that witnesses were afraid to testify because the defendant had threatened or intimidated them, when not based upon any evidence in the record, are highly prejudicial and inflammatory. (People v. Mullen (1990), 141 Ill. 2d 394, 405, 566 N.E.2d 222.) Evidence of the fears of witnesses is relevant and admissible, however, where it tends to prove a material fact in issue and its probative value outweighs its prejudicial effect. See, e.g., People v. Eyler (1989), 133 Ill. 2d 173, 217-18, 549 N.E.2d 268.

Despite defendant’s contentions to the contrary, the witnesses’ testimony, in the instant case, did not give rise to the inference that defendant in any manner threatened them. Rather, the testimony merely explained why those witnesses initially were reluctant to speak to the police. Karen Spaulding explained that she did not, at first, give the detectives any names, even though she thought there was a good chance that she might die from her wounds, because she was fearful that defendant and Spears would be able to again “get to” her. Moreover, Streeter explained his failure to cooperate with the police or the grand jury by stating that he was afraid for himself and his family. Thus, the testimony concerning witnesses’ fears explained why those witnesses did not initially provide information to the police.

Accordingly, the court did not err in admitting the foregoing evidence; however, even if the evidence was improperly admitted, the alleged error is harmless where, as here, evidence supporting defendant’s conviction is so overwhelming that his conviction would have resulted even if the alleged error was eliminated. People v. Jackson (1990), 195 Ill. App. 3d 104, 551 N.E.2d 1025.

Ill

Defendant next contends that the circuit court erred in admitting both a photograph of Sharon taken prior to the shooting and the testimony of Laura Eskridge, Sharon’s mother, about the last time she saw her daughter alive. Specifically, defendant maintains that the admission of the photograph and the testimony from Sharon’s mother so prejudiced the jury that defendant was denied a fair trial.

In response, the State initially maintains that defendant has waived review of this issue because of his failure to object at trial. In the alternative, the State contends that, since the evidence was incidental and since the testimony was not related to defendant’s guilt, the evidence was properly admitted.

At trial, Laura Eskridge testified that the last time she saw her daughter alive was on March 13, 1987, when Sharon visited her father in the hospital; on that day, according to Eskridge, Sharon was in fíne health and in good spirits. The next time Eskridge saw her daughter was at the morgue.

During her testimony, Eskridge provided a photograph of Sharon depicting the way she looked prior to the shooting. Later in the trial, despite defense counsel’s objections to the photograph as prejudicial, the court entered the photograph into evidence and allowed the jury to use it during its deliberations.

Generally, the State is entitled to call “life and death” witnesses to establish that a murder victim had been alive prior to the events at issue. (People v. Toth (1982), 106 Ill. App. 3d 27, 435 N.E.2d 748.) Even where the defendant stipulates to the identity of the deceased and to her death, such testimony is properly elicited. (People v. Williams (1985), 137 Ill. App. 3d 736, 744, 484 N.E.2d 1191; People v. Starks (1983), 116 Ill. App. 3d 384, 390, 451 N.E.2d 1298.) However, where testimony “ ‘in a murder case respecting the fact the deceased has left a spouse and family is not elicited incidentally, but is presented in such a manner as to cause the jury to believe it is material, its admission is highly prejudicial and constitutes reversible error.’ ” People v. Free (1983), 94 Ill. 2d 378, 414, 447 N.E.2d 218, quoting People v. Bernette (1964), 30 Ill. 2d 359, 371, 197 N.E.2d 436.

In the instant case, the photograph, which Eskridge testified accurately depicted what Sharon looked like on the day of her death, merely illustrated her testimony. Moreover, Eskridge’s testimony that Sharon was 29 years old at her death and one of eight children in the family was incidental and not presented in such a manner as to cause the jury to believe it to be material to defendant’s guilt.

Although defendant urges this court to find that the admission of the testimony and the photograph was prejudicial, the cases relied upon by defendant reveal that the prosecution there did more than just make the jury aware of the fact that the deceased left behind a family. Rather, in those cases, the prosecution dwelt upon the deceased’s family in opening statement and closing argument to the point that the jury could have related the evidence to the defendant’s guilt. (See People v. Hope (1986), 116 Ill. 2d 265, 508 N.E.2d 202; People v. Logan (1991), 224 Ill. App. 3d 735; People v. Starks, 116 Ill. App. 3d 384, 451 N.E.2d 1298.) Here, the evidence was not accompanied by testimony or statements specifically regarding the family left behind by Sharon, nor was there an inflammatory closing argument.

“Common sense tells us that murder victims do not live in a vacuum and that, in most cases, they leave behind family members.” (People v. Free, 94 Ill. 2d at 415.) Thus, not every mention of a deceased’s family ipso facto entitles the defendant to a new trial, since in certain instances such a statement can be harmless. (People v. Free, 94 Ill. 2d at 414.) Accordingly, we find that defendant was not denied a fair trial due to the admission of the photograph of Sharon and Eskridge’s testimony.

IV

Defendant next contends that this case should be remanded to the circuit court for a hearing, pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, on whether the State violated his equal protection rights by exercising a peremptory challenge during jury selection to prevent a black venireperson from serving on his jury solely on account of her race.

In order to establish a prima facie case of purposeful discrimination during voir dire, a defendant must show that he is a member of a cognizable racial group, that the State exercised its peremptory challenges to remove members of that group, and that other relevant circumstances exist which raise an inference that the prosecutor used the peremptory challenges to exclude venirepersons from the jury on racial grounds. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712; People v. Baisten (1990), 203 Ill. App. 3d 64, 73-74, 560 N.E.2d 1060.) Further, the Supreme Court has recently held that “a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded jurors share the same race.” Powers v. Ohio (1991), 499 U.S. 400, 402, 113 L. Ed. 2d 411, 419, 111 S. Ct. 1364, 1366.

Although it is true, as defendant argues, that even the exclusion of just one minority venireperson for racial reasons is unconstitutional and grounds for reversal (People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357), a prima facie case of discriminatory use of peremptory challenges cannot be established merely by the numbers of venirepersons stricken by the prosecution. Rather, the issue is whether this fact, in addition to “any other relevant circumstances,” raises an inference that the prosecutor conducted purposeful discrimination. (People v. Holman (1989), 132 Ill. 2d 128, 172-73, 547 N.E.2d 124.) “Relevant circumstances” include a pattern of strikes against black venirepersons; a prosecutor’s questions and statements during voir dire examination and in exercising his challenges; the disproportionate use of peremptory challenges against blacks; whether the excluded blacks were a heterogeneous group sharing race as their only common characteristic; the level of black representation in the venire as compared to the jury; the race of the defendant and the victim; and the race of the witnesses. People v. Baisten, 203 Ill. App. 3d at 74-75; People v. Mahaffey (1989), 128 Ill. 2d 388, 413, 539 N.E.2d 1172.

In the instant case, during voir dire, the State excused potential juror Melanie Walters by exercising a peremptory challenge. The defense objected and requested a race-neutral reason for the exclusion. The circuit court declined to compel the State to provide a reason, stating that “there is not an appearance in my mind as to a violation of” Batson v. Kentucky. The court further found that several witnesses, defendant, and juror Walters were black.

At the conclusion of jury selection, the court found that

“the State has used six out of seven peremptory challenges. All of them were used for white jurors except one, and that one was Melanie Walters. The defense has used up seven peremptory challenges. Two of them were for blacks, one was for an Asian, and four were for white and some of those were tendered by the State. And on the jury right now we have four blacks, one Asian, and six whites.
The blacks in the jury are in a higher proportion than the number of prospective jurors that we had out there in the Court’s estimation, and further the Court sees no preliminary showing by the defense that the State is challenging blacks because of their race.”

Because a circuit court’s determination that a defendant failed to establish a prima facie Batson case will not be overturned unless it is against the manifest weight of the evidence (People v. Mahaffey, 128 Ill. 2d at 413; People v. Batchelor (1990), 202 Ill. App. 3d 316, 323, 559 N.E.2d 948), defendant’s request for a Batson hearing is denied. Applying the principles enunciated to the case at bar, we find that the record fails to establish a case of purposeful discrimination, and thus, the court did not err in finding that defendant failed to establish a prima facie case of discrimination.

V

Defendant next contends that the circuit court erroneously found him eligible for the death penalty. Specifically, defendant urges that the court erred in finding that he inflicted physical injuries on Sharon contemporaneously with those injuries inflicted by Spears. Rather, defendant contends that no evidence was presented as to whether his gun inflicted any of Sharon’s wounds. Thus, defendant maintains, the court’s error mandates that his sentence be vacated and the cause remanded for a new sentencing hearing.

For support, defendant points to the trial testimony of Robert Kirschner, the forensic pathologist, who testified that Sharon suffered several gunshot wounds: among them, one to the head, from which a .38 caliber bullet was recovered, and one to the neck, from which no bullet was recovered. According to Kirschner, the cause of her death was “multiple gunshot wounds.” Thus, defendant maintains, because no .32 caliber bullet was recovered from Sharon’s body, there was no proof that he actually shot her.

A defendant is eligible for the death penalty only if the State proves beyond a reasonable doubt that a statutory aggravating factor exists. (People v. Simms (1991), 143 Ill. 2d 154, 169, 572 N.E.2d 947.) In the instant ease, defendant’s eligibility for the death penalty was predicated upon the statutory aggravating factor set out in section 9 — l(bX6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(b)(6)), which authorizes the imposition of a death sentence upon a defendant who commits a murder, or inflicts injuries contemporaneously with those causing death, in the course of another felony. See People v. Kokoraleis (1989), 132 Ill. 2d 235, 276, 547 N.E.2d 202.

In the case at bar, during the eligibility hearing for the death penalty, the court made a series of findings before ruling that defendant was eligible. The court initially found that defendant was over 18 when the offense was committed and that the victim was killed during the course of another felony, home invasion. Next, the court found that the murdered victim “received physical injuries personally inflicted by the defendant substantially contemporaneously with physical injuries caused by” one for whose conduct the defendant was legally accountable. Based upon these findings, the court held that defendant qualified for the death penalty. See Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6).

Notwithstanding defendant’s argument, it does not appear that the circuit court sentenced defendant under a mistaken belief that he was eligible for the death penalty. Although defendant argues that the autopsy did not reveal that a bullet from his gun wounded Sharon, Karen testified that she saw both defendant and Spears shooting at Sharon and, further, she heard two different sounds coming from the two guns. Based on this evidence, the court properly found that the State met its burden to prove that defendant inflicted injuries on Sharon contemporaneously with those injuries inflicted by Spears beyond a reasonable doubt. Accordingly, defendant’s request for a new sentencing hearing is denied.

VI

Defendant lastly contends that the circuit court improperly sentenced him to consecutive terms for murder and attempted murder. Specifically, defendant maintains that the record fails to support the court’s conclusion that consecutive sentences were necessary to protect the public. The State maintains, in response, that in light of the evidence presented at trial and at the sentencing hearing, the court properly sentenced defendant to consecutive terms.

The applicable statute at the time of defendant’s sentencing granted the discretion to impose consecutive sentences where the court was of the opinion that such a term was necessary to protect the public from further criminal conduct by the defendant. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—4(b).) Although sentencing courts are vested with wide discretion so that reasoned judgments as to the penalty appropriate to the particular circumstances of each case can be accomplished, consecutive sentences should be imposed sparingly and only in instances demanding such sentences. People v. O’Neal (1988), 125 Ill. 2d 291, 297, 531 N.E.2d 366; People v. Timmons (1984), 127 Ill. App. 3d 679, 687-88, 469 N.E.2d 646.

In the case at bar, during the sentencing hearing, the circuit court reviewed the factors in mitigation — defendant’s one prior conviction for delivery of a controlled substance, his attendance of high school, his wife’s and friend’s testimony concerning his good character — but did not find that those factors effectively excused defendant's behavior. In aggravation, the court noted that defendant committed the shooting while on probation from the other offense, that defendant’s conduct was “cruel,” and that the sentence was necessary to deter others from committing crimes. The court did not, however, note specifically that a consecutive term was necessary for the protection of the public.

Although the sentencing court is not required to recite the language of the statute in reaching its determination that a consecutive sentence is warranted, the record must show that the court is of the opinion that a consecutive term is necessary for the protection of the public. (People v. O’Neal, 125 Ill. 2d at 299.) Here, it appears from the record that the circuit court did not abuse its discretion, but rather, seriously considered all factors in mitigation and aggravation, and determined, based on those factors and the evidence presented at trial, that a consecutive sentence was mandated. While the amended statute arguably mandates consecutive sentences in the instant case (see Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—2(a)), the former statute, applicable in this case, vested discretion in the court. Because we find that the circuit court did not abuse its discretion, we affirm defendant’s sentence.

VII

Defendant also claims, though not delineated as a separate issue, that he was denied effective assistance of trial counsel because of his attorney’s failure to object to the allegedly erroneous jury instructions; to the allegedly prejudicial testimony concerning witnesses’ fears; and to the allegedly prejudicial testimony of Sharon’s mother and the admission of Sharon’s photograph.

To establish a denial of his constitutional right to representation by competent counsel, defendant must establish that his representation fell below an objective standard of reasonableness and that his attorney’s shortcomings were so serious as to deprive him of Ms right to a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Johnson (1989), 128 Ill. 2d 253, 538 N.E.2d 1118.) Defendant must clearly establish not only that his attorney was actually incompetent in the performance of his duties, but also that were it not for that incompetence the outcome of the trial would likely have been different. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

Here, defendant has failed to establish a denial of his constitutional right to counsel; rather, defendant has raised only a cursory allegation of ineffective assistance of counsel. Because defendant has failed to establish that his representation fell below an objective standard of reasonableness, his assertion of ineffective assistance of counsel must fail.

For the reasons stated, we affirm defendant’s conviction and sentence.

Affirmed.

SCARIANO and McCORMICK, JJ., concur.