author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD SYKES, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—3456
    Opinion filed December 30, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Stephanie L. Ellbogen, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Mary Eri-gid Kenney, and Theresa Harney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant Edward Sykes was convicted of robbery and sentenced to an extended term of 14 years. On appeal, defendant contends that: (1) the trial court erred in refusing to admit testimony from a State’s witness on cross-examination that defendant filed an Office of Professional Standards complaint against his arresting officer; (2) defendant was denied a fair trial because the trial judge improperly assumed the role of the prosecutor in examining a defense witness; and (3) the trial court relied on an improper factor in sentencing defendant to an extended term of 14 years. For the following reasons, the judgment of the trial court is affirmed.

The record sets forth the following facts relevant to this appeal. At trial, Jason Anthony testified on behalf of the State that in June of 1988 he was a student living on the Evanston campus of Northwestern University. On June 16, he met his high school friend Darren Cowitt at 12:30 a.m. and they headed toward the elevated tracks (the “L”) to go to downtown Chicago for a party.

Anthony and Cowitt boarded the “L” at the Howard stop, and defendant sat down next to Anthony. Defendant commented that he liked Anthony’s watch and asked Anthony at what stop he was getting off the train. Anthony replied that they were getting off at the Addison stop.

Anthony and Cowitt got off of the train at Addison. Defendant and Tommie Evans did the same. Defendant, who was in front of the boys on the stairs, turned around to face the boys and told them that the man behind them had a gun. Defendant advised them “don’t do anything stupid, hand over the wallet and your watches.”

Anthony handed his wallet and watch to defendant. Defendant searched his wallet then asked Anthony if he had any other money with him. Then defendant searched Anthony’s body looking for money, and felt around Cowitt’s neck for a gold chain. Evans took a gold chain and money from Cowitt, then defendant told them to turn around and they walked back up to the “L” platform. Defendant said he was going to “put both of [them] back on the train so [they] couldn’t make a phone call.”

Anthony and Cowitt sat down on a bench and waited for a train. Defendant stood on Anthony’s left and Evans stood on Cowitt’s right. Then Anthony saw a policeman walk up the steps. Defendant said, “Don’t do anything stupid. Just sit still. Act calm. If you do anything, we will blow your heads off.”

At that point Anthony stood up and yelled, “Help, we are being robbed.” Defendant and Evans started to run. The officer caught Evans, and defendant jumped onto the “L” tracks and ran southbound along the tracks. Another policeman chased defendant. The first officer handcuffed Evans, searched him and recovered Cowitt’s stolen property. Anthony stated that it was well lit at the “L” platform where they were robbed.

Anthony and Cowitt accompanied the officer and Evans to the police station where Anthony saw defendant. On cross-examination, Anthony stated that defendant was in front of them on the “L” stairs and that defendant did all the talking. Anthony was able to see defendant’s face throughout the robbery.

Next, Officer Marvin Bonnstetter testified on behalf of the State that at approximately 1:35 a.m. on June 16, he and his partner, Tom Aquina, responded to a call that there was a robbery in progress at 940 West Addison on the “L” platform. Bonnstetter climbed the southbound stairs and at the top saw Anthony and Cowitt sitting on a bench. Defendant and Evans were standing on either side of them a few feet away. As Bonnstetter walked toward them, Anthony stood up and yelled “Help, we are being robbed.”

Defendant and Evans started to run. Bonnstetter grabbed Evans and defendant climbed down off the platform onto the tracks and ran southbound. Bonnstetter put Evans on the ground, and dispatched a call that a black male, 6 feet 3 inches, 180 pounds, wearing a green windbreaker was running down the tracks.

Darren Cowitt testified on behalf of the State to essentially the same facts as Anthony. Cowitt noted that when he and Anthony boarded the southbound “L” he took a seat facing east. Defendant was wearing a lime green coat. Cowitt told defendant they were getting off at Argyle, and Anthony said, “No, we are not. We are getting off at Addison.” Then defendant wandered off down the “L” car.

Defendant was ahead of the boys as they descended the stairs. Defendant stopped at the landing and wouldn’t let Cowitt and Anthony pass. Defendant turned around and asked them if he could have a “moment of their time.” Cowitt said, “I am sorry, we are in a rush.” Defendant said he was in a rush also. Defendant then asked Cowitt and Anthony to hand over their belongings. Cowitt and Anthony turned around to see if they could get up the stairs and at that point saw Evans. Evans had a bag under his arm. Defendant said that Evans had a gun.

Cowitt gave defendant his wallet, and defendant took the cash out and returned the wallet. Then defendant took Cowitt’s gold chain and watch.

Defendant told the boys to go back up to the platform to wait for the next “L” train. On the platform, defendant told them to “sit quiet” and not to do anything “heroic or funny.”

When Anthony yelled to the police officer, defendant said “get ready to jump onto the tracks,” and Evans attempted to jump, but did not make it.

Next, Officer Don Eichler testified that on June 16, he responded to a call that an armed robbery was in progress at the Addison “L” station. Eichler saw defendant running southbound on the platform. The lighting condition was good.

After hearing a second broadcast that a male in a green coat was wanted for robbery, Eichler ran under the “L” tracks southbound, keeping defendant in sight above him on the tracks. At one point, defendant dove from the “L” tracks onto the landing of an adjacent building. Several times while he was running, defendant fell through the rungs of the “L” tracks. Eichler finally caught up with defendant and handcuffed him in the middle of the tracks. Eichler called for assistance from the Chicago fire department, which carried them both off the tracks. Both Eichler and defendant were scratched and bruised. Eichler brought defendant into the police station, searched him and recovered a gold chain.

On cross-examination, Eichler testified that he did not push defendant down onto the track rungs and that he did not push his head into a railroad tie. Defense counsel asked Eichler if he knew what the letters “OPS” stood for on the police inventory sheet and Eichler said he did. Then defense counsel started questioning Eichler about the Office of Professional Standards. The State objected to defense counsel’s line of questioning and the court sustained the objection.

At the end of testimony, the State rested and defendant’s motion for directed verdict of acquittal was denied.

Tommie Evans then testified on behalf of defendant. Evans stated that he was with defendant on June 16. At 1:30 a.m., they were on their way to the south side of Chicago to “get some dope.” When they were leaving the “L” train at the Addison stop, they saw two “average white men” and felt they would be easy victims to get the money they needed for drugs. When Anthony and Cowitt got off the train, Evans jumped up and grabbed the door. He indicated to defendant to get off behind him. As defendant left the train, Evans followed the men down the stairs.

Evans testified that Anthony and Cowitt were behind defendant and that he was behind them. When Evans got to the stairs, he announced he had a gun and that he wanted their money and their jewelry. Anthony and Cowitt stopped, turned around and looked at Evans and he said “start handing it over.” Evans got cash, two watches and a gold chain.

Defendant ran up the stairs and Evans told Cowitt and Anthony to sit on a bench on the platform. Then Evans heard the police running up the stairs. As Evans was arrested, defendant jumped down on the tracks and started running.

Evans saw defendant later at the station. Defendant had on a green windbreaker and the front was covered with blood. Defendant was moaning and bleeding.

Evans told the police he committed the robbery because he was “on dope and was trying to get a fix.” Evans pled guilty to the charge of robbery on September 13,1988.

On cross-examination, Evans stated that he knew defendant and that they hung around and partied together. On June 16, Evans and defendant had been riding the “L” train back and forth trying to “get some dope.” Evans said that he never told defendant what to do or asked him to participate in the robbery. When the police caught Evans, he said defendant’s name was Nathaniel Hill.

Evans further stated that he told OPS investigator Polito that the reason they were on the “L” platform was “we were doing wrong.” Evans admitted that in June 1984 he was found guilty of retail theft and did time in the House of Corrections. He didn’t remember what was taken from either Cowitt or Anthony because at the time of the robbery he was high on alcohol. Evans stated that defendant was sober at the time of the robbery. The police found two watches and a chain on Evans and took them from his pocket. On redirect, Evans testified that the saying “doing wrong” meant they were “going to get some dope.”

Following the court’s examination of the witness, defendant’s motion for mistrial was denied, and the defense rested.

The jury found defendant guilty of robbery. After a sentencing hearing in aggravation and mitigation, the court sentenced defendant to 14 years, extended term. In making his decision, the trial judge considered that defendant had two prior convictions for armed robbery, one within 10 years of his conviction of this crime. The judge also took into consideration that defendant is a drug addict and that he lacks recognition of the need for drug rehabilitation and that defendant does not exhibit a readiness for drug treatment. The judge further found that the college students testified “clearly and convincingly that they were scared to death of this defendant,” and that the crime was brutal and heinous.

Initially, defendant contends that he was deprived of his constitutional right to confront the witnesses against him. Defendant argues that the trial court erred in refusing testimony from Officer Eichler regarding the fact that defendant had filed an Office of Professional Standards (OPS) complaint against the arresting officer. During the cross-examination of Officer Eichler, defense counsel engaged in the following questioning:

“Q. Officer, you know what the letters OPS stand for; do you not?

A. Yes, sir.

Q. And that’s Office of Professional Standards; is that correct?

A. Yes, sir.

Q. And that’s a special section of the Chicago Police Department; isn’t it?

A. Yes, sir.

Q. And they investigate, among other things, complaints that are filed by citizens regarding police brutality and other charges?

ASSISTANT STATES ATTORNEY: Objection, Judge.

THE COURT: Sidebar.”

In response, the State argues that such testimony was properly restricted as irrelevant to the present case. The State further argues that any error in restricting admission of the testimony was harmless.

Although a witness may be impeached by a showing of interest, bias, or motive to testify falsely, such evidence need not be admitted where it is remote or uncertain. (People v. Testa (1984), 125 Ill. App. 3d 1039, 1046, 466 N.E.2d 1126, 1132.) The latitude permitted on cross-examination is within the discretion of the trial court. (People v. Jenkins (1989), 190 Ill. App. 3d 115, 131, 545 N.E.2d 986.) As the scope of cross-examination rests largely within the sound discretion of the trial court (People v. Hinton (1984), 122 Ill. App. 3d 89, 95, 460 N.E.2d 791), a defendant seeking to reverse a trial court’s decision must prove that the court clearly abused its discretion and that the abuse of discretion resulted in manifest prejudice to him. Hinton, 122 Ill. App. 3d at 95.

Defendant’s reliance on People v. Crosser (1983), 117 Ill. App. 3d 24, 29-30, 452 N.E.2d 857, 862, is misplaced. The Crosser court held that when impeaching witnesses, defendants may raise the fact of a civil suit filed by the witness against the defendant. However, in the present case, the defendant is attempting to elicit testimony regarding his filing of an OPS complaint against Officer Eichler. Defendant cites no authority for the proposition that an OPS complaint should be treated in the same manner as a civil suit, accompanied by all the same safeguards and protections afforded a plaintiff in a civil suit. Other cases cited by defendant are both legally and factually distinguishable to the present case. The record further indicates that defendant was able to question Eichler on cross-examination regarding Eichler’s actions at the time of arrest. Thus, defendant has failed to show that he was manifestly prejudiced by the court’s refusal to admit the testimony.

Next, defendant contends that he was denied a fair trial because the trial judge improperly assumed the role of the prosecutor in examining witness Tommie Evans at trial. Defendant argues that the questions asked by the trial judge amounted to comments appropriate to closing argument and elicited evidence otherwise not adduced which helped to establish the State’s case. In response, the State argues that the trial judge properly questioned Evans in order to clarify ambiguities in his testimony.

It is an abuse of discretion for the trial court to assume the role of an advocate. (People v. Murray (1990), 194 Ill. App. 3d 653, 551 N.E.2d 283; People v. Galan (1986), 151 Ill. App. 3d 481, 483, 502 N.E.2d 853.) The trial court may nevertheless question a witness “ ‘to elicit the truth or to bring enlightenment on material issues which seem obscure.’ ” (Murray, 194 Ill. App. 3d at 658, quoting People v. Palmer (1963), 27 Ill. 2d 311, 314, 189 N.E.2d 265; People v. Wesley (1959), 18 Ill. 2d 138, 163 N.E.2d 500.) But the court must question the witness “in a fair and impartial manner, without showing prejudice or bias against either party.” (People v. Gilbert (1957), 12 Ill. 2d 410, 415, 147 N.E.2d 44, 47.) Whether the trial court’s questioning is proper is determined by the circumstances of each case and rests largely in the discretion of the trial court. People v. Trefonas (1956), 9 Ill. 2d 92, 100, 136 N.E.2d 817; People v. Marino (1953), 414 Ill. 445, 450, 111 N.E.2d 534.

The trial court does not improperly assume the role of the prosecutor merely because its unbiased and impartial questions elicit evidence material to the State’s case. (Murray, 194 Ill. App. 3d at 658.) To the contrary, “[i]t is the judge’s duty to see that justice is done, and where justice is liable to fail because a certain fact has not been developed or a certain line of inquiry has not been pursued it is his duty to interpose and either by suggestions to counsel or an examination conducted by himself avoid the miscarriage of justice.” (People v. Franceschini (1960), 20 Ill. 2d 126, 132, 169 N.E.2d 244; People v. Bolton (1927), 324 Ill. 322, 329, 155 N.E. 310; People v. Lurie (1917), 276 Ill. 630, 641, 115 N.E. 130.) Thus, the trial judge “may act to ensure that evidence essential to the proper disposition of a case is not inadvertently omitted.” (Galan, 151 Ill. App. 3d at 483; People v. Walter (1980), 90 Ill. App. 3d 687, 688-89, 413 N.E.2d 542.) The only limitation to this rule is that the judge must not forget his function and “assume the function of the advocate.” Franceschini, 20 Ill. 2d at 132.

In Lurie, the court reversed the defendant’s conviction only because the judge “frame[d] his questions as to intimate [an] opinion as to the credibility of [the] witness[es].” (See Lurie, 276 Ill. at 641-42.) In Franceschini, the trial court properly advised the State, at the close of the evidence, that proof of breaking and entering was lacking, and properly allowed a State’s witness to then testify to that material element of the charged offense. (See Franceschini, 20 Ill. 2d at 131-32.) Similarly, in Bolton, Galan, and Walter, the trial judges properly acted to ensure that evidence material to the prosecution was brought forth. In Murray, the court asked a witness whether anything was said during a struggle. The court held that the questioning was neutral and unbiased.

In the present case, the court engaged in the following examination of Evans:

“THE COURT: And did you see Mr. Sykes sit down next to these two average white boys?

MR. EVANS: Did I see?

THE COURT: Did you see him sit down and talk to the two white boys?

MR. EVANS: No. He was sitting down. Like they were sitting in a seat like — I think he was sitting across from them.

THE COURT: Is that when the thought originated in your mind that these would be two—

MR. EVANS: Yes. I looked at them and thought they might be.

THE COURT: What was it about these two gentleman [sic] that you thought they were easy marks?

MR. EVANS: Well — Well, okay, for one thing, I think one of them had — he had some money. Had white shirt on if I am not mistaken. And by the material being thin, I could see money being in the shirt pocket.

THE COURT: Had nothing to do with what they appeared?

MR. EVANS: They were kind of giggling. And I am thinking it would really make it easy for me to get this over with.

THE COURT: And while you were riding the “L” did you see Mr. Sykes sit down next to these gentlemen?

MR. EVANS: Yes. He was sitting not next to them. Like sitting next to me. * * *

THE COURT: So, now the two boys get off first. You say you held the door for them.

MR. EVANS: Right.

THE COURT: They — and suddenly, Mr. Sykes is in front of them walking down the stairs and you were behind them?

MR. EVANS: Yes.

THE COURT: Okay. How did that happen?

MR. EVANS: When I came off the train, he, you know, went straight down. And I told him to come on. He came off the doors and went downstairs.

THE COURT: Not knowing where he was going?

MR. EVANS: He knew — he guess — he imagine[d] we are going outside.

THE COURT: He imagined?

MR. EVANS: That we were going outside the turnstiles.

THE COURT: And you then announce that this is a stickup, I got a gun, don’t do anything foolish?

MR. EVANS: Right.

THE COURT: Did he say don’t do that? Did he try to help these two boys or try to stop you or tell you not to do that?

MR. EVANS: No.

THE COURT: He just walked past you, that’s what what you are saying?

MR. EVANS: Just disassociated himself.

THE COURT: Disassociated himself.”

In the present case, the completely neutral questions asked of Evans did not exhibit any bias on the part of the trial court. The trial court here did not repeatedly interrogate or lead the witness as in Lurie, or intervene in the State’s questioning, asking critical questions and supplying his own objections to defense counsel’s questioning as in People v. Moriarity (1966), 33 Ill. 2d 606, 613-16, 213 N.E.2d 516, 520-21, relied on by defendant.

The cases relied on by defendant are inapposite. People v. Santucci (1962), 24 Ill. 2d 93, 180 N.E.2d 491, involved interrogations reflecting on the credibility of witnesses. Here, the questions put to defendant did not reflect on his credibility. People v. Cofield (1973), 9 Ill. App. 3d 1048, 293 N.E.2d 692, is distinguishable from the present case on the ground that the trial court there called and examined each of the State’s witnesses, clearly assuming the role of the prosecutor. Therefore, we find that the court’s examination does not provide grounds for a mistrial.

Defendant further contends that the trial judge erred in denying a mistrial because he assumed the role of the prosecution in his advice to the State regarding the preparation of a jury instruction. Defendant fails to cite any authority to support this argument. This argument does not satisfy Illinois Supreme Court Rule 341(e)(7) (134 Ill. 2d 341(e)(7)) and does not merit further consideration on appeal.

Finally, defendant contends that the court relied on an improper factor in sentencing him to an extended term of 14 years for a robbery conviction.

Imposition of a sentence is a matter of judicial discretion and a sentence will not be disturbed absent a clear abuse of that discretion. People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 547; People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 884.

In sentencing a defendant, the trial court may consider the gravity and circumstances of the offense, as well as defendant’s mental capacity, age, demeanor and credibility. (E.g., Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.) Furthermore, the trial court must balance the objectives of protecting society and rehabilitating the defendant. (See People v. Harris (1989), 187 Ill. App. 3d 832, 844, 543 N.E.2d 859, 866.) Once struck, a reviewing court will hesitate to upset this balance, especially where the sentence falls within the statutory limitation. People v. Lambrechts (1977), 69 Ill. 2d 544, 559, 372 N.E.2d 641, 649.

The record in this case indicates that defendant was sentenced to a 14-year extended term of imprisonment, which is well within the statutory guidelines for a Class 2 felony such as robbery. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—2(a)(4) (for a Class 2 felony, a term shall be not less than 7 years and not more than 14 years).) The record indicates that the court considered that defendant is an addict, that he lacks recognition of the need for drug rehabilitation and that he does not exhibit a readiness for drug treatment. The record also indicates that the court took into account that defendant has a GED high school equivalency degree, that he was occasionally employed as a musician, and that he had two prior felony convictions within the last 10 years. The court found the crime to be exceptionally brutal and heinous in that the college students testified “clearly and convincingly that they were scared to death of this defendant.” Consequently, we conclude that defendant has failed to show that the trial court erred in sentencing him to an extended term of 14 years.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE LaPORTA

license: Public Domain

text:
    NOREEN WILSON, Plaintiff-Appellant, v. FRITZ MICHEL, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—0773
    Opinion filed December 13, 1991.
    Modified on denial of rehearing January 24, 1992.

      Leahy & Donovan, of Chicago (Tom Leahy and Leatrice S. Somogyi, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Norman J. Barry, Jr., and Michael A. Pollard, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff sued defendant for negligence after she hired him to perform a sterilization procedure on her and she subsequently experienced the birth of a healthy child and three miscarriages. Following trial, the jury awarded plaintiff $160,000 for pain and suffering and $15,000 for disability and the court entered judgment in that amount. Subsequently the court granted defendant’s timely motion for a new trial. This court then granted plaintiff’s petition for leave to appeal pursuant to Supreme Court Rule 306 (134 Ill. 2d R. 306).

On appeal, plaintiff raises these issues: (1) was the jury’s verdict excessive or was it fair, reasonable and amply supported by the evidence, (2) did plaintiff prove the required elements of res ipsa loqui-tur so as to entitle her to an appropriate res ipsa loquitur jury instruction, (3) was defendant’s negligence the proximate cause of plaintiff’s three subsequent miscarriages for which plaintiff claims damages, (4) were the comments of plaintiff’s counsel during closing arguments relevant and supported by evidence and therefore not reversible error, and (5) was it reversible error for plaintiff’s mental and emotional state to be considered by the jury?

Plaintiff, the mother of three, approached defendant doctor about a sterilization procedure because she did not want to have more children. Defendant recommended a tubal ligation, a procedure that would not be permanent but could be reversed to permit future pregnancies. On May 30, 1980, plaintiff underwent surgery in which defendant was to apply silastic rings to her fallopian tubes. Ten months later plaintiff became pregnant. Her son, Ernest, was bom in December 1981. Thereafter plaintiff suffered miscarriages in January 1983, November 1983 and October 1988.

Plaintiff sued defendant in a two-count complaint, alleging medical malpractice based on negligence and res ipsa loquitur. Plaintiff’s expert, Dr. John Freedom, testified that defendant failed to locate at least one fallopian tube, in part because he chose to do a laparoscopy instead of a laparotomy. In a laparotomy procedure, an incision is made in the abdominal wall and the fallopian tubes are physically lifted out of the body and silastic rings applied. Whereas in the la-paroscopy procedure, the internal organs are viewed through a telescope at the end of a tube that is inserted through the abdominal wall and the silastic rings are applied internally and without incision. Plaintiff’s expert theorized that defendant failed to apply a silastic ring to one of the fallopian tubes and instead applied it somewhere else in the uterine cavity, perhaps on a ligament located in the same area.

On cross-examination plaintiff’s expert conceded that “recannuli-zation” — the process where a fallopian tube repairs itself, permitting pregnancy — can and does occur even though the surgeon performing the tubal ligation does not deviate from the standard of care. Defendant’s expert, Dr. Marcia Siegel, also testified about the types of procedures available to accomplish a tubal ligation. She testified that later pregnancy is an anticipated risk of any tubal ligation because recannu-lization can occur even when the surgery is performed properly. The defendant testified, after having his memory refreshed by his office file, that he warned plaintiff of her future risk of pregnancy.

Following a five-day trial, the jury found in favor of plaintiff and returned a verdict of $175,000. Defendant filed a post-trial motion for a new trial, citing errors by the trial judge, inappropriate remarks by plaintiff’s counsel and improper instructions to the jury.

In granting the motion for a new trial, the trial judge stated:

“This Court concludes that the jury’s verdict cannot be allowed to stand. It was the result of passion and prejudice in the amount of the verdict. It was also the result of error by this Court, in allowing the jury to be instructed in the matter of res ipsa loquitur when, under Clay v. Brodski, it is clear that the voluntary acts of plaintiff in engaging in sexual intercourse after she knew she was not sterile, caused the subsequent injury of the three miscarriages. For the same reason, this Court admits error in not barring these three miscarriages under the settled law on proximate cause. The words, ‘Acting at the same time’ found in IPI 15.01, which was given, have particular application here.
Additionally, the language of plaintiff’s counsel both during the trial and in his final argument, went beyond the boundary of what is permitted even under liberal standards of advocacy. There were too many instances of improper appeals to the emotions of the jury. All too often, the question of plaintiff’s emotional and mental state was raised by her attorney. This had no business in the case, as plaintiff’s third complaint did not claim any emotional or mental distress.”

The trial court further stated that if its ruling was reversed, set aside or vacated, “the Court conditionally rules, B, that the compensatory verdict in favor of the plaintiff and against the defendant is to be set aside, or C, judgment is to be entered in favor of the defendant and against the plaintiff, or D, judgment is to be entered in favor of the defendant and against the plaintiff on all counts, or E, an order [of] remittitur to reduce the verdict of $175,000 in favor of the plaintiff, to the sum of $43,750.”

Plaintiff was granted leave to appeal the trial court’s order pursuant to Supreme Court Rule 306.

Plaintiff’s overriding premise in her argument is that a jury’s verdict should be given great deference and that it should not be disturbed unless all reasonable persons would agree that the verdict was obviously excessive. (Zueck v. Nokomis (1987), 160 Ill. App. 3d 140, 513 N.E.2d 125.) Defendant’s basic premise is that a trial court’s decision to grant a motion for a new trial is within the sound discretion of the trial court and should not be disturbed unless a clear abuse of discretion appears in the record and plaintiff has proven that abuse of discretion. McKenzie v. Romeiser (1990), 205 Ill. App. 3d 830, 833, 563 N.E.2d 837.

Initially we consider whether defendant’s negligence was the proximate cause of plaintiff’s three miscarriages for which plaintiff is entitled to damages.

Proximate cause is amply defined by the court in Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360, 493 N.E.2d 372:

“A proximate cause is one which produces the injury through a natural and continuous sequence of events unbroken by any effective intervening cause. [Citation.] If the negligence charged does nothing more than furnish a condition which made the injury possible and that condition causes an injury by the subsequent independent [action of another], the creation of that condition is not the proximate cause of the injury. [Citation.] The subsequent independent act becomes the effective intervening cause which breaks the causal connection, and itself becomes the proximate cause.” Kemp, 143 Ill. App. 3d at 361.

The existence of proximate cause is for the trier of fact to determine (Batteast v. Wyeth Laboratories, Inc. (1988), 172 Ill. App. 3d 114, 128, 526 N.E.2d 428, rev’d, on other grounds (1990), 137 Ill. 2d 175, 560 N.E.2d 315), but foreseeability is a question of law. Parvin v. Sill (1985), 138 Ill. App. 3d 325, 486 N.E.2d 262.

Plaintiff argues that defendant is responsible for all “natural and probable causes of his action.” (Gould v. Spreitzer (1986), 145 Ill. App. 3d 938, 496 N.E.2d 307.) The intervention of a new and independent cause does not relieve a wrongdoer of responsibility for his negligence if the intervening cause could have reasonably been anticipated. Culhane v. Ludford (1986), 148 Ill. App. 3d 763, 499 N.E.2d 686.

Plaintiff argues that proximate cause need not be the only cause or the last or the nearest cause of the injury. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury. Batteast, 172 Ill. App. 3d at 128.

Plaintiff contends that the three miscarriages were proximately caused by defendant’s act, “even though the failed sterilization must be combined with the act of intercourse to result in the injury.” Plaintiff argues that the defendant should have reasonably foreseen that plaintiff would continue to have intercourse. Plaintiff argues that defendant should have known that, based on her “history,” plaintiff would continue to engage in sexual intercourse even while the possibility of conception existed. She cites no pages in the record to support this statement. Plaintiff adds that she had no obligation to abstain from intimate relations or to undergo further surgery in order to mitigate damages and that defendant is liable for the foreseeable consequences of the failed medical procedure.

Defendant contends that it was error for the jury to hear and consider any evidence regarding the miscarriages. Defendant argues that the reasoning in Kemp applies here since plaintiff’s voluntary participation in intercourse after she knew she was not sterile was her own subsequent independent act. Defendant argues that the trial court correctly found that the jury was improperly instructed to consider damages with regard to the miscarriages. To accept plaintiff’s reasoning, he argues, would make defendant liable each and every time plaintiff conceives for an unlimited period of time into the future.

Defendant cites Watson v. Byerly Aviation, Inc. (1972), 7 Ill. App. 3d 662, 288 N.E.2d 233, for its discussion of proximate cause and foreseeable consequences from subsequent conduct. In Watson, the court found a fuel distributor employee’s action of filling the wrong tank was not the proximate cause of plaintiff’s injuries when plaintiff started the engines of his plane after being informed that fuel was leaking from the wing. The Watson court held: “It is our conclusion that the consequences of the defendant’s conduct in filling the wrong tank terminated at least at the point where the pilot and co-pilot had been fully advised of what had happened. The decision which they made thereafter was an independent decision not subject to the control of the defendant or foreseeable as to consequences of the linemen’s conduct.” Watson, 7 Ill. App. 3d at 669.

Defendant argues that Watson is analogous here because in both cases the plaintiffs were injured when they created an intervening act though fully aware of the potential consequences. Defendant contends that the trial court ruled correctly when it found that it improperly instructed the jury on proximate cause.

We find the trial court properly acknowledged error in the jury instructions. Evidence of the fact of the miscarriages should not have been considered by the jury. Plaintiff sought a sterilization procedure from defendant, received one and then became pregnant and delivered a child. At that point, plaintiff was fully aware of her fertile condition. We find her decision then to have intercourse was a subsequent intervening act not proximately caused by the doctor’s negligence, and therefore, the evidence of the later miscarriages and jury instructions related thereto were improperly submitted to the jury.

Next we consider whether the plaintiff established the necessary elements of res ipsa loquitur that would have entitled her to an appropriate res ipsa loquitur jury instruction. Since we have already determined that it was improper to instruct the jury with regard to the miscarriages, we will only consider whether the trial court properly instructed the jury on res ipsa loquitur with regard to the pregnancy and birth of Ernest.

Under res ipsa loquitur, the facts of the occurrence constitute a prima facie showing of the defendant’s negligence provided that the plaintiff first has established (1) the occurrence does not usually happen in the absence of negligence, (2) the defendant was in exclusive control of the instrumentality that caused the injury and (3) circumstances indicated that the injury was not due to any voluntary act or neglect on the part of the plaintiff. Spidle v. Steward (1980), 79 Ill. 2d 1, 5, 402 N.E.2d 216; Barkei v. Delnor Hospital (1988), 176 Ill. App. 3d 681, 688, 531 N.E.2d 413.

The doctrine of res ipsa loquitur is not a separate legal theory but rather is a type of circumstantial evidence which permits the trier of fact to infer negligence when the precise cause of the injury is not known by the plaintiff. Briones v. Mobil Oil Corp. (1986), 150 Ill. App. 3d 41, 45, 501 N.E.2d 821.

A plaintiff bears the burden of proving the elements of res ipsa loquitur, but proof of the elements need not be absolute or conclusive. (Barkei, 176 Ill. App. 3d at 688.) Initially, a trial court must decide whether, as a matter of law, the res ipsa loquitur doctrine is applicable, and it will not apply unless a duty of care is owed to the plaintiff. Spidle, 79 Ill. 2d at 5.

Plaintiff argues that the jury heard sufficient evidence regarding the knowledge by defendant of plaintiff’s past behavior and the foreseeability of plaintiff’s conduct in the future “to allow the jury to infer negligence through a res ipsa loquitur instruction.”

Plaintiff primarily relies on Clay v. Brodsky (1986), 148 Ill. App. 3d 63, 67, 499 N.E.2d 68, for her contention that the res ipsa loquitur instruction was proper. Such an instruction was given to the jury in Clay, a case with similar facts. In Clay, a woman sued her doctor after giving birth to a child due to a failed tubal ligation. As occurred here, Clay went to the jury on both a negligence and res ipsa loquitur theory. The jury awarded Clay $75,000 and awarded the child’s father $8,000.

Defendant contends that plaintiff failed to establish that an injury such as plaintiff’s does not ordinarily occur absent negligence. The trial court noted that all experts at trial testified that a tubal ligation could fail without negligence on the part of the surgeon.

The trial court was in the best position to consider the witnesses’ testimony (Silas v. Robinson (1985), 131 Ill. App. 3d 1058, 477 N.E.2d 4) and determine, as a matter of law, whether the elements that would permit a res ipsa loquitur instruction were present.

While it is true that a res ipsa loquitur instruction was given in Clay and upheld on appeal, the appellate court’s review of testimony elicited at Clay’s trial gives no indication that any doctor testified that a tubal ligation could fail without negligence on the part of the surgeon. The trial judge here specifically referred to the experts’ testimony when he determined that the instruction on res ipsa loqui-tur was given in error.

Even if this court believed the instruction on res ipsa loquitur was proper with regard to plaintiff’s initial pregnancy and her son’s birth, it would have been necessary for the trial court to indicate to the jury that the theory was not applicable with regard to the miscarriages because of the subsequent acts of the plaintiff. Therefore, the fact situation here is distinguishable from Clay with regard to the res ipsa loquitur issue, and the trial court’s finding that it was error to give a res ipsa loquitur instruction was correct.

Finally, we consider whether the jury’s verdict was excessive or in the alternative whether it was fair, reasonable and amply supported by the evidence.

Plaintiff primarily relies on Clay for her contention that the jury’s verdict was fair and not excessive. The Clay case has similar facts to this case, and the jury awarded Clay $75,000 and awarded the child’s father $8,000. Plaintiff argues that the higher award here is justified because Wilson’s injuries were more extensive than Clay’s and each woman could be expected to experience differing pain, suffering and disability. Plaintiff contends that where only a few cases for this particular type of injury are reported, the reviewing court should give greater deference to the jury’s award.

Finally, plaintiff argues that even if this court finds it was error for the jury to consider damages for the three miscarriages, there was sufficient evidence of plaintiff’s pain, suffering and disability during her pregnancy, labor and the birth of Ernest to support the jury’s award. She contends that it is “highly likely that no damages were awarded for the miscarriages.”

We cannot presume the jury only relied on proper instructions and disregarded improper instruction. We have already determined that the jury improperly heard evidence of the miscarriages and as to the miscarriages was improperly instructed on res ipsa loquitur. Therefore the jury did not have the proper foundation on which to make a reasoned judgment based on alleged damages for the pregnancy and birth of her son.

We find inappropriate plaintiff’s assumption that it is “highly likely that no damages were awarded for the miscarriages.” The jury did not break down its award into damages for the miscarriages and damages for the pregnancy and resulting birth. On this record we cannot determine the basis for the jury’s award.

Under the holding of McKenzie (205 Ill. App. 3d at 833), plaintiff must show on appeal that the record indicates the trial court committed a clear abuse of discretion when it granted a new trial. We find plaintiff has failed to meet that burden and we therefore affirm the trial court’s order granting defendant a new trial.

Plaintiff also urges us to make a finding on the propriety of statements made by plaintiff’s counsel at trial; however, plaintiff does not identify specific comments to which she refers. Defendant identifies specific comments by plaintiff’s counsel which he contends were improper. However, the trial judge, in his ruling, did not identify specific comments and therefore we find this argument is mere speculation not supported by the record. Since we affirm the trial court’s order for a new trial, we need not address this issue.

Affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANCISCO ECHENIQUE, Defendant-Appellee (The City of Chicago, Nonparty-Appellant).
    First District (1st Division)
    No. 1—89—1854
    Opinion filed December 30, 1991.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Frederick S. Rhine, Assistant Corporation Counsel, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago, for the People.
    Frank H. Brady, Jr., of Hazel Crest, for appellee Francisco Echenique.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

This appeal arises from the trial court’s entry of an order imposing sanctions against the City of Chicago based on the theory of vicarious liability for its failure to secure the attendance of an arresting police officer at trial.

On August 14, 1987, defendant Francisco Echenique was arrested by Chicago police officer Guiffra Kaizer and subsequently charged with possession of cocaine with intent to deliver. (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(b).) The City of Chicago was not named as a party in that action.

On December 27, 1988, defendant pled not guilty and waived his right to a jury trial. The case was set for trial and continued several times until February 14, 1989. Officer Kaizer was not requested to be present on that date because the chemist who would testify to the chain of custody could not be located. The case was subsequently con-tinned until March 29, 1989. Because the chemist was again unavailable, the State could not prosecute the cause. The officer, once again, was not requested to be present and the case was continued until April 27, 1989. Officer Kaizer, however, was informed by the 14th District police station to appear on April 26, 1989. The chemist appeared on April 27, 1989, but because Kaizer was incorrectly advised of the date, he did not appear and the case was continued until June 15,1989.

On May 2, 1989, the State served a subpoena for Officer Kaizer on the Chicago police department returnable on June 15, 1989. The superintendent’s office of the Chicago police department acknowledged receiving this subpoena May 4, 1989. The subpoena was then transferred to the 14th District and Officer Kaizer was given notice to appear on June 15,1989.

On June 15, 1989, Officer Kaizer failed to appear. The State at that time requested a continuance, which request was denied. Prior to the commencement of trial, defendant presented a motion to dismiss based on prejudice and for sanctions and attorney fees based upon alleged misconduct by the assistant State’s Attorney, including failure of the assistant to secure attendance of Officer Kaizer at trial. The motion did not name or allude to the City of Chicago and was not served upon the City or any agent thereof. The court deferred ruling on the motion until after the trial was completed.

At trial the State’s criminalist testified to the chain of custody of the substance recovered from defendant. After cross-examination by defense counsel, the State rested its case. The State renewed its request for a continuance based on the absence of Officer Kaizer, which request was denied. Defense counsel then made a motion for a directed finding, asserting that the State had failed to present any evidence to the court. After hearing arguments, the court granted a directed finding for defendant and discharged him.

It is not clear from the record whether the court entered a motion sua sponte, or whether defense counsel made an oral motion, but subsequent to the court’s entry of the directed finding it issued a rule to show cause, returnable July 5, 1989, against Officer Kaizer for failing to appear in court. Notwithstanding the fact that the city was not present, the court at that same proceeding awarded defense counsel attorney fees of $1,500 against the City of Chicago.

On July 5, 1989, Officer Kaizer testified at the hearing on the rule to show cause. He stated that on May 26, 1989, he contacted the State’s Attorney’s office and was advised that the case would not be heard. About June 5, while on furlough, he was contacted by the State’s Attorney’s office and advised to be in court on June 15, 1989. Kaizer testified that the procedure followed when an officer is on furlough is to report to the station to complete forms, and the commander is responsible for notifying all courts of the fact that an officer is on furlough. He stated that on June 5 a subpoena was left for him. He went to the station that next day and filled out the forms notifying the commander that he would be out of town for two weeks. He stated that the department’s procedure is to hold all notifications until one week before the court date, and that he was not given sufficient time to notify anyone. After hearing his explanation, the court discharged the rule against Kaizer.

On July 10, 1989, counsel for the City of Chicago filed a limited and special appearance, and a motion, instanter, to vacate the judgment assessing the City $1,500 in attorney fees. After hearing argument by both corporation counsel and defense counsel, the court held that vicarious liability attached and denied the city’s motion to vacate the judgment.

The City of Chicago filed this appeal as a nonparty appellant. The City argues on appeal that the order entered on June 15, 1989, assessing it $1,500 in attorney fees is void, and that the order has no basis in law. Specifically, the city contends that the court lacked personal jurisdiction over it and that the imposition of criminal liability upon it was improper because there was no showing that the city’s conduct was willful.

Essential to the validity of any judgment by the trial court is the court’s jurisdiction over the subject matter of the litigation and the parties to the proceeding. (In re Marriage of Gluszek (1988), 168 Ill. App. 3d 987, 990, 523 N.E.2d 126.) In the absence of a personal appearance by a named party, personal jurisdiction may only be acquired by service of process in the manner directed by statute. (Kappel v. Errera (1987), 164 Ill. App. 3d 673, 677, 518 N.E.2d 226.) Service of process on a governmental or municipal corporation may be obtained by leaving a copy of summons with the mayor or city clerk in the case of a city. Ill. Rev. Stat. 1989, ch. 110, par. 2—211.

In the instant case, the City of Chicago was not named as a party in the contempt proceeding, neither was it served with process in that cause. Further, the city was not given notice of defendant’s petition for attorney fees. The court, however, stated that liability attached to the city under the doctrine of respondeat superior. We disagree.

When an action is brought against a master based on the alleged negligent acts of his servant, and no independent wrong is charged on behalf of the master, the liability is entirely derivative, being founded upon the doctrine of respondeat superior. The liability of the master and servant for the acts of the servant is deemed that of one tortfeasor and is a consolidated or unified one. (Stroud v. New Groups Chicago, Inc. (1991), 215 Ill. App. 3d 1006, 1011, 576 N.E.2d 152.) The operative facts which comprise the alleged bases for liability of the master are identical to those which would prove the servant liable. Stroud, 215 Ill. App. 3d at 1011.

Here, the court lacked personal jurisdiction over the city by its failure to comply with the statutory procedure for service of process on a governmental corporation. Further, the city was not given notice or an opportunity to defend against defendant’s request for attorney fees. Moreover, the court’s affirmative release of Officer Kaizer from liability thereby released the city. For liability to attach to the city on the basis of respondeat superior, the officer must have first been found guilty.

The court’s theory of liability was the doctrine of respondeat superior. However, the court explained that it was the city’s “poor policy” of notifying police officers of court dates that was the basis for its imposition of the fees. Hence, the court was apparently punishing the city for what it viewed as an inadequate policy. The failure to have an efficient policy to notify police officers of a trial date cannot be said to be a willful and knowing violation of a court order, sufficient to find the city in contempt. Therefore, the trial court erred in awarding attorney fees against the city.

Accordingly, the judgment of the circuit court of Cook County is reversed.

Reversed.

CAMPBELL and BUCKLEY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH SMALLWOOD et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1—89—2235, 1—89—2432 cons.
    Opinion filed December 30, 1991.

      Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, and Winston & Strawn, both of Chicago (Timothy P. O’Con-nor, of counsel), for appellant Kenneth Smallwood.
    Randolph N. Stone, Public Defender, of Chicago (Z. Peter Tokatlian, Assistant Public Defender, of counsel), for appellant Gregory Smallwood.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Robyn Berman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

This is a consolidated appeal. Defendants Kenneth and Gregory Smallwood (brothers) were charged by indictment with the murder of Larry Echols. Following a jury trial, the jury entered a verdict of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9—1) as to each of the defendants. Kenneth and Gregory were each sentenced to prison terms of 35 years.

On appeal, Kenneth and Gregory each contend that: (1) he was not proved guilty beyond a reasonable doubt; (2) during closing argument, the prosecutor made prejudicial remarks which denied each of them a fair trial; and (3) he was prejudiced by the trial court’s limitation of defense counsel’s cross-examination of a State’s eyewitness. Kenneth, individually, contends that: (4) he was prejudiced by the rebuttal testimony of Assistant State’s Attorney Sherie Weisberg regarding his post-arrest statement; (5) the trial court erred in admitting the rebuttal testimony of Chicago police detective George Tracy because the prosecutor failed to lay a proper foundation for admission of a prior inconsistent statement; and (6) the cumulative effect of alleged trial errors deprived him of a fair trial. Gregory, individually, contends that: (7) the Illinois homicide act violates the due process, equal protection, and separation of powers clauses of the United States Constitution; and (8) the trial court erred in sentencing him to an extended prison term of 35 years.

The record sets forth the following facts relevant to this appeal. At trial, Chicago police officer Henry Harris testified on behalf of the State that on August 13, 1987, at approximately 3:30 p.m., he and his partner William Parker were flagged down by people who stated there was gunfire in the alley behind 57th and Wabash Streets. Harris found Larry Echols (hereinafter Larry or Echols) lying in a pool of blood, and nearby saw three spent nine-millimeter shells and one live round of ammunition. Harris called for an ambulance and backup officers.

On cross-examination, Harris testified that his work involves gang-activity investigations and that some blocks close to 57th and Wabash are areas of high gang concentration. He acknowledged that some gang members tattoo their bodies, but did not notice any gang tattoos on Echols’ body; he was concerned at the time with getting Echols into an ambulance. Harris did not know if the shooting was gang related. He was unable to recall whether Echols was wearing a jacket, but saw a leather jacket on a car parked next to Echols’ body. He acknowledged that a six-pointed star tattoo can indicate membership in five or six different gangs in Chicago. He tried to talk to the large group of people in the area, but most of the people he talked to were reluctant to cooperate with the police and did not want to give him their names.

Dr. Edmond Donoghue, deputy chief medical examiner for Cook County, testified that he performed an autopsy on Echols on August 14, and that Echols suffered four gunshot wounds. Three of the wounds were to Echols’ head; two wounds exhibited evidence of close-range firing. He noted the six-pointed star tattoo on Echols’ body in his report because it provided “sociological” information. Donoghue also stated that he received trousers, socks, shoes and a white T-shirt along with Echols’ body. He determined that Echols died of multiple gunshot wounds.

Next, Lonell Echols, brother of the deceased, testified that the defendants’ father, Willie Smallwood, had been married to his sister, Della. Lonell stated that in July 1986, he was prosecuted on charges of first degree murder in the shooting death of Willie Smallwood, but found not guilty on grounds of self-defense.

Lonell testified that on August 13 at approximately 2 p.m. he and Larry were standing near 57th Street and Michigan Avenue talking to Larry’s friend “Nate.” At 2:30, Nate left, and he and Larry noticed Kenneth walking toward them. Immediately thereafter, Lonell saw Gregory driving a green and white Oldsmobile 98 toward them from 56th and Michigan. Lonell and Larry ran through the alley connecting 57th and 56th Streets, and Lonell called their sister Willie Mae from a pay phone. While Lonell was on the phone, defendants pulled up on the west side of the street. Kenneth got out of the car and shot twice over the car at Lonell and Larry, who ran in different directions. Lonell ran to 57th and Wabash, and Larry ran to Nate’s house at 57th and Michigan.

Willie Mae picked up Lonell at 57th and Wabash and Larry at 57th and Michigan. Larry got out of the car at 57th and Wabash to speak to Joe Hunley, and Lonell last saw Larry speaking to Hunley at the mouth of an alley located there.

Lonell acknowledged that Larry was a gang member in jail in 1986, but stated that Larry was not in a gang at the time of his death in 1987. Lonell stated that Larry had two tattoos, one on his chest of his initials, and another on his left arm which said “I Love Mom.” When Lonell was shown an autopsy photo of Larry, he acknowledged the presence of a six-pointed star tattoo, but maintained that he had never seen the tattoo on Larry.

On cross-examination, Lonell testified that a six-pointed star signifies membership in the “Disciples” street gang. He stated that there were no bad feelings between his family and the Smallwood family, but that he had no social contact with the Smallwoods since Willie Smallwood’s death. He stated that he never called the police on the day of Larry’s death, because his sister did not have a telephone, and that he returned with a cousin to the area in the early evening of the next day.

Willie Mae Echols testified to the same facts as Lonell regarding his phone call to her for a ride. She testified that later that day, she received a second call from Lonell, after which she called the police. The police later came to her house and told her that she had to identify the body of her brother Larry, which she did on the next day. On cross-examination, she testified that she had always had a telephone in her apartment and that Lonell knew that she had a phone. She stated that no one called the police when she arrived at her home with Lonell and Larry.

Next, Joe Hunley testified on behalf of the State. Hunley testified that at 2:30 p.m. on August 13, he was standing in the alley of 57th Street between State and Wabash with a guy named “Ray” and Larry Echols. Larry went to a nearby garage to light a cigarette, and while he walked back toward Hunley, two men pulled up in a blue Gremlin automobile with white stripes. At the time, Hunley was six feet from Larry. Both men got out of the car and started shooting at Larry, who ran from them. Both men, whom Hunley identified in court as defendants, ran past him and after Larry. Hunley ran to a nearby store and remained there until the car pulled away. When he returned, Larry lay dead in the alley. Later that evening, Hunley identified defendants in a photo lineup at the police station.

On cross-examination, Hunley testified that he did not know defendants and had never seen them before August 13, 1987. He was aware that Larry had a six-pointed star on his arm, and that the tattoo was a symbol of the Disciples street gang. Hunley acknowledged the presence of a Disciples tattoo on his own arm similar to the tattoo on Larry’s arm, but stated that his membership in the gang ended over 10 years prior to the trial.

Next, LaShune Williams testified that on August 13, at approximately 3:30 p.m., she was in the alley on 57th Street between Wabash and State, having a beer with some friends, when she was approached by Larry Echols, who asked for a light. She did not know Larry at that time.. She did not have a light, and Larry walked on toward the other end of the alley at 58th Street. Shortly thereafter, she saw Larry running from defendants, who were armed with guns. Defendants stopped near her for a minute and fired their guns at Larry as he ran from them. After a few shots were fired, the defendants walked up to Larry, and she did not see Larry standing. She noticed that one of the defendants was taller than the other and had fuller hair. The taller defendant told the other to “give him three to the head,” but the other defendant’s gun jammed. The taller defendant then shot his gun three times at Larry, and they both ran away. On the evening of the next day, Williams identified defendants in a police photographic lineup. She also identified defendants in open court. Initially, Williams could not see defendants in court to identify them, but when she stood up, she could see clearly and identified defendants immediately. - Williams stated that she is 5 feet 3 inches tall. On cross-examination, Williams testified that her view of the incident was clear from where she was sitting.

Chicago police detective George Tracy then testified that on August 13, he investigated the crime scene and interviewed six or seven witnesses, including Hunley and Williams. Tracy saw three spent bullets and one live round at the scene. Tracy testified that based on his experience as a police officer, and as a former owner of a nine-millimeter automatic pistol, when the weapon jams, the “slide” must be pulled back in order to eject the live round that did not fire. Tracy and other officers undertook extensive efforts to locate the defendants. On October 6, 1988, Tracy and Detective George Holmes brought Kenneth back to Chicago from Las Vegas, Nevada.

Chicago police officers Michael Carrol and John Robertson testified that they were present during the photo identification of defendants. They each stated that Williams and Hunley identified defendants from the photos and that neither Williams nor Hunley looked at the backs of the pictures before choosing defendants’ photos. Robertson testified that he and a Markham, Illinois, detective brought Gregory back to Chicago from San Bemadino, California, on February 16, 1988.

Della Tucker, the sister of Larry and Lonell Echols, then testified that she had been married to Willie SmaUwood, the father of her child. Tucker testified that on the Saturday prior to the murder, August 8, 1987, she and Larry were leaving the Bud Billiken Day parade when they were approached by defendants in a green and white Oldsmobile 98. Kenneth got out of the car and asked them if they knew where Lonell was, to which Della and Larry replied they did not. Kenneth told Larry that if he found Lonell, he was going to kill him. He also threatened to kill Larry as well if he saw Larry with Lonell.

At the close of the State’s evidence, defendants’ motions for directed verdict were denied. As alibi testimony for defendants, defendants’ sisters Jacqueline Smallwood and Carolyn McClure, and their boyfriends, Jimmy Ward and David Irving, testified. Each defense witness testified that they attended a birthday party for Ward at McClure’s house on August 13, and that Irving left at 2:45 p.m. to go to work, but that both defendants never left the house until nearly midnight. Each defense witness knew that the party was sometime in August, but could not recall the exact date. McClure, upon seeing Ward’s driver’s license, testified that since Ward’s birthday is August 12, the party occurred on the following day. Jacqueline Smallwood testified that defendants were playing cards with Ward at the party. Irving stated that Jacqueline and McClure were also playing cards with them. Ward stated that he had been with McClure off and on for 14 years. He also claimed that he had only been to her apartment twice, despite the fact that his son lived there. McClure stated that she never spoke to the police about this case after her brothers’ arrest.

Kenneth Smallwood then testified on his own behalf. Kenneth admitted that he spoke to Larry and Tucker several days before the murder. He admitted telling Larry that he and Lonell had better stay away from him. About 15 minutes later, Kenneth approached Lonell and three or four of his friends and asked Lonell why he killed his father. Kenneth stated that he left Chicago and went to Nevada after Larry was killed because he was afraid the police thought he had something to do with Larry’s death. Kenneth could not recall where he was on August 13, 1987. At the time he talked to the police and the State’s Attorney, he told them that on August 13, he was at Jacqueline’s house working outside on her car.

On cross-examination, Kenneth testified that he never drove an Oldsmobile 98, and that his family car was a green Buick. He stated that he had been afraid of LoneU ever since LoneU had killed his father. He denied telling Assistant State’s Attorney Sherie Weisberg that he couldn’t have shot Larry because when he shoots someone he doesn’t miss. He admitted that he told Weisberg a number of different stories following his arrest, but said that he did that just to get her out of the room. He admitted that he had been convicted of two felonies, in 1979 and 1985.

Gregory Smallwood then testified on his own behalf to the same essential facts as Kenneth. Gregory stated that although he had bad feelings for Lonell, he did not shoot at him or Larry. He knew that the police were looking for him after Larry’s murder, so he left Chicago one week later for California.

The State then offered two witnesses in rebuttal. Assistant State’s Attorney Sherie Weisberg testified that she spoke with Kenneth on October 7, 1988, at approximately 1:20 a.m. Kenneth denied any involvement in Larry’s murder. Weisberg told him that he had been seen shooting at Larry and Lonell earlier on August 13, although he had missed his target. Kenneth replied, “[I]t couldn’t have been me because when I shoot I don’t miss.” Weisberg left the interview room to transcribe Kenneth’s story when she heard him pounding on the wall. She reentered the room with Tracy. Kenneth told her he wanted to tell her where he was on August 13.

Detective Tracy testified that on October 18, 1988, he was working on an aggravated assault case where Carolyn McClure, defendants’ sister, was the victim. McClure spoke to Tracy about Larry’s murder and confirmed what Kenneth had already told him, that on August 13, 1987, he was working on a car until approximately 2:30 p.m. Kenneth did not see McClure because she was upstairs in another apartment.

Following closing arguments and deliberations, the jury found both defendants guilty of the murder of Larry Echols. A hearing in aggravation and mitigation was then held, after which the trial court sentenced each defendant to prison terms of 35 years. This timely appeal followed.

Initially, both Kenneth and Gregory contend that the State failed to prove them guilty of murder beyond a reasonable doubt. Defendants argue that the testimony of State’s eyewitnesses Joe Hunley and LaShune Williams was not credible and that their identification of defendants was unreliable. Defendants further argue that they presented strong alibi testimony and established a credible possibility that the shooting might have been the result of gang violence.

It is within the province of the trier of fact to determine the credibility of witnesses and the weight to be accorded their testimony. On review, mere conflicting evidence does not constitute sufficient grounds for reversal, and a reviewing court will not disturb a verdict of guilty unless the evidence is so improbable that it raises a reasonable doubt as to guilt. People v. Rader (1988), 178 Ill. App. 3d 453, 532 N.E.2d 1365.

Gregory argues that Hunley’s testimony should be viewed with skepticism because Hunley was a member of the Disciples street gang, and that Williams’ in-court identification was shaky and improperly bolstered by the judge. Gregory relies on People v. Coulson (1958), 13 Ill. 2d 290, 149 N.E.2d 96, and People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, as support for the general proposition that where the evidence is insufficient to prove guilt, defendants’ convictions must be reversed outright. In our view, Gregory’s argument is insufficient to demonstrate that the evidence was so improbable as to raise a reasonable doubt as to his guilt.

Kenneth contends that the identification of the assailants by Hunley and Williams was vague and doubtful under the factors set forth in People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317. There, the court looked to the following in assessing an identification of defendants:

(1) The opportunity the victim had to view the criminal at the time of the crime;

(2) the witness’ degree of attention;

(3) the accuracy of the witness’ prior description of the criminal;

(4) the level of certainty demonstrated by the victim at the identification confrontation; and

(5) the length of time between the crime and the identification confrontation.

Kenneth argues that Hunley had a bad vantage point and was unnerved and agitated by the shooting, that he did not call the police and that he failed to write down the license plate number of the assailants’ car. Thus, Kenneth argues, Hunley did not have the presence of mind to pay attention to the events. Kenneth further argues that Hunley did not demonstrate certainty in his identification of defendants because at trial, he admitted that his general recollection of the events of two years ago was incomplete, i.e., he could not recall what day upon which August 13, 1987, fell, or which defendant began shooting first.

Kenneth argues that Williams was at a poor vantage point to view the events and that her view was constrained to a gap between two cars, that she tried to escape from the area and that she was not looking at the events in the alley. Kenneth contends that because Williams could not initially see defendants in court when asked to identify them, her identification was uncertain:

“Q. Now, the two persons that you saw run past you while you were in the alley, stop and then fire, do you see them in court today?

A. No.

Q. Why don’t you stand up, LaShune. Look around the courtroom again and see if you see them in court today?

A. Yes.

Q. Where are they?

A. Right there.”

The State responds that there is no evidence that Hunley’s and Williams’ identification of defendants was vague and uncertain. Both witnesses testified that they saw defendants at the scene and that they did not know either defendant prior to the incident. Williams specifically testified that her view of the defendants was unobstructed, even though there were cars in the area. Each witness chose defendants’ pictures from a photo lineup the day after the shooting without hesitation. In addition, each witness identified defendants in open court.

Further, the eyewitness testimony was corroborated by other witness testimony. Williams testified that she saw defendants shoot Echols three times in the head. Donoghue, the medical examiner, testified that three of the four gunshot wounds to Echols were to his head. Williams also saw defendant’s gun fail to fire. Tracy testified that he found a live round of ammunition at the scene, evidence of a gun that failed to fire.

Also, although defendants presented alibi testimony, there is no obligation on a trial court to believe alibi testimony over positive identification of the accused, even though the alibi testimony may be given by a greater number of witnesses. (People v. Setzke (1961), 22 Ill. 2d 582, 586, 177 N.E.2d 168.) Accordingly, we do not find the evidence presented against defendants so improbable as to raise a reasonable doubt as to the guilt of either defendant.

Next, defendants each contend that comments made by the assistant State’s Attorney during closing argument prejudiced them and thereby denied them a fair trial. Defendants argue that the prosecutor’s comments were not based on any evidence offered at trial. Defendants object to the following comments made by the prosecutor during closing argument:

“The police had to come in and find Mr. Hunley. And he had the courage to come in here and testify when others who were there would not and did not. And you can — your common sense can also tell you, ladies and gentlemen, why those other persons did not want to come — .”

Defense counsel objected and the court sustained the objection and instructed the jury to disregard the statement. Defendants argue that the trial record does not show that either defendant ever threatened any potential witnesses, and thus, the comment is prejudicial.

It is well recognized that great latitude is afforded a prosecutor during closing argument and that the determination as to the propriety of the comments is within the trial court’s discretion and will not be reversed on appeal absent a showing of abuse of discretion or substantial prejudice to defendant. (People v. Neumann (1986), 148 Ill. App. 3d 362, 499 N.E.2d 487.) In closing argument, the prosecutor has the right to comment on the evidence that has been adduced at trial and make all reasonable inferences drawn from that evidence. People v. Rader (1988), 178 Ill. App. 3d 453, 532 N.E.2d 1365.

The State responds that the prosecutor properly based his argument on evidence adduced at trial, brought forth by defense counsel. The State argues that the prosecutor’s comments relate directly to Officer Harris’ testimony. Harris testified that he was flagged down by people who stated that there was shooting in the alley. He found Larry Echols’ body lying in a pool of blood and called for assistance. Harris gave the following testimony on cross-examination:

“Q. And there were some other people in the alley that you tried to talk to figure out what happened, is that right?

A. Yes.

Q. And at that point, you didn’t know who it was whose body you found on the ground? You didn’t know it was Larry Echols, did you?

A. That’s correct.

Q. You didn’t know if this was gang related or not, did you?

A. No, I did not.

Q. As a matter of fact, you didn’t know who shot him or why they shot him, did you?

A. No, not when I initially arrived.

Q. You had no idea if it was self-defense or contract murder?

[MS. QUATTROCCHI]: Objection to this.

THE COURT: Sustained.

[MR. LINN]: Very well.

Q. You did find, however, that there was a large group of people around there, correct?

A. Yes.

Q. You tried to talk to these people to find out some information about what happened, is that correct?

A. That’s correct.

Q. It’s fair to say that most of the people that you talked to didn’t want to cooperate with you at all, did they?

A. Yes.

Q. Most of the people didn’t even want to give you their names, is that correct?

A. That’s correct.

Q. Okay. Now, did you try to spend some time convincing these people that they — that you needed their help, they should get involved by giving you their names so you could talk to them later maybe away from the scene where they wouldn’t be seen talking to the police? Did you make any efforts to do things like that?

A. Yes.

Q. But you wrote down in your report that most of them— these people refused to get involved, refused to talk to you?

A. That’s correct.

Q. The people that had originally volunteered to help you out with your investigation, were they anywhere around the alley by the time you got there?

A. No.

Q. Did you ever see them again?

A. No.”

Defendants’ reliance on People v. Mullen (1989), 184 Ill. App. 3d 539, 540 N.E.2d 473, is unpersuasive, as Mullen is factually distinguishable from the present case. There, a witness was offering testimony, when he abruptly stopped and refused to testify any further. The witness told the court, in closed chambers, that he was afraid to testify any further. When the witness agreed to testify the next day, the court instructed counsel not to ask the witness any questions or make any reference to his reluctance to testify, or a mistrial would be granted. (Mullen, 184 Ill. App. 3d at 540.) During closing rebuttal argument, the prosecutor violated the trial court’s order and told the jury to “use [their] common sense” as to why the witness refused to testify during the trial. (Emphasis in original.) (184 Ill. App. 3d at 543.) He further told the jury that the witness did not want a dagger in his back. (Mullen, 184 Ill. App. 3d at 543.) The court reversed and remanded the case for a new trial, stating that the comments were in error and there was no evidence that the witness’ fear of testifying was based on any threats by the defendant.

In the present case, the record establishes that the comments were directly related to witness testimony, and not related to a witness refusing to testify. Even if the comments made by the prosecutor were improper, in light of the jury’s verdict against both defendants and the trial court’s instruction to the jury that it should disregard the comments, any possible error was harmless and does not provide grounds for reversal. (People v. Sawczenko (1989), 180 Ill. App. 3d 406, 535 N.E.2d 1105.) Further, any prejudice is cured by the court’s instruction that closing arguments are not evidence in the case and any argument not based on the evidence should be disregarded. (People v. Wheatley (1989), 183 Ill. App. 3d 590, 602, 539 N.E.2d 276.) For these reasons, the prosecutor’s comments during closing argument do not provide grounds for reversal of defendants’ convictions.

Next, Kenneth and Gregory each contend he was deprived of the right to have the jury evaluate the identification evidence. Defendants first argue that in sustaining the prosecutor’s objection, the trial court improperly invaded the province of the jury by offering its opinion that Williams’ identification testimony was positive and credible. During the cross-examination of LaShune Williams by defense counsel, Mr. Linn, the following occurred:

“Q. [by Mr. Linn:] Now, the next time, very next time that you saw these people in person was when?

A. I didn’t see them in person.

Q. Well, today you stood up and you pointed to some people today, is that right?

A. Yes.

Q. And the people you pointed to looked like the guys that you saw in the alley, is that right?

A. Yes.

[MS. QUATTROCCHI]: Objection, judge.

THE COURT: Sustained.

MR. LINN: Judge, I think she can answer that question.

THE COURT: Well, I don’t think I’m going to let her answer it, Mr. Linn. Because you’re putting the words into her mouth. Let’s make the statement clear. Okay. She identified two people in the courtroom. Now, go ahead and ask her a question.”

In response, the State initially contends that the trial court properly sustained the prosecutor’s objection, thereby precluding defense counsel from examining Williams on a legal issue that had already been ruled upon. (In re Interest of Lamb (1974), 21 Ill. App. 3d 827, 837, 316 N.E.2d 42.) The record in this case indicates that both Williams and Hunley positively identified defendants in open court and, thus, identification of defendants was established to the satisfaction of the jury.

The State further argues that the prosecutor’s objection was to the form of the question. It is well settled that matters such as the form of the question are within the discretion of the trial court and will not be reversed absent an abuse of that discretion. (People v. Price (1979), 76 Ill. App. 3d 613, 394 N.E.2d 1256.) We find no error on this issue.

The remark by the court in the present case closely resembles the remark of the court in Price. There, the defense counsel asked the State’s eyewitness on cross-examination: “The day of the incident, how long was the person that you believe to be Eugene standing near you?” The prosecutor objected and the trial judge sustained the objection, stating: “He has identified the defendant as being that person.” On appeal, the court held that the trial judge’s remark was a ruling sustaining the prosecutor’s objections and the reasons therefor, and that the statement of the trial judge was not of such a nature to prejudice defendant in the eyes of the jury and result in reversible error. (Price, 76 Ill. App. 3d at 629.) Accordingly, we conclude that the remark of the trial judge in the present case did not indicate such prejudice.

In reliance on People v. Eckert (1990), 194 Ill. App. 3d 667, 551 N.E.2d 820, defendants finally contend that the remark of the trial judge demonstrated bias in favor of the State by suggesting that defense counsel was “engaging in trickery” and wasting the court’s time. Eckert is distinguishable on the facts and therefore unpersuasive. In Eckert, the trial judge, in the presence of the jury, goaded the defense attorney (“You are trying to louse up the case, too”), refused to allow him to approach the bench, and threatened to stop listening to his argument (“Paul, I’m deaf and getting deafer”). Finally, the trial judge recessed the court, and when defense counsel told him he had a trial scheduled the next day the judge responded, “Look at poor Paul, he’ll be in jail.” (Eckert, 194 Ill. App. 3d at 673.) On appeal, the court held that the trial judge’s remarks not only conveyed an impression to the jury that he felt defense counsel was not doing his job properly, but also that the defense was wasting the court’s time. (194 Ill. App. 3d at 674.) We find no similarity between the remarks of the trial judge in the present case and the ongoing, inciting commentary engaged in by the trial judge in Eckert.

Next, Kenneth, individually, contends that he was unfairly prejudiced by the rebuttal testimony of Assistant State’s Attorney Sherie Weisberg and Chicago police detective George Tracy. Kenneth argues that the rebuttal testimony was improper because it contradicted prior defense testimony.

The decision to admit rebuttal testimony is within the sound discretion of the trial court, and its determination will not be reversed absent a showing of abuse of discretion. (People v. Buckner (1984), 121 Ill. App. 3d 391, 398, 459 N.E.2d 1102.) Rebuttal testimony which serves to contradict a defense witness is proper if it reflects adversely upon the credibility of that witness. People v. Green (1975), 26 Ill. App. 3d 662, 669, 325 N.E.2d 316.

Weisberg testified that during her conversation with Kenneth, she told him that he had been seen shooting at Larry and Lonell Echols earlier on August 13, 1987, but when he missed, he fled. Weisberg testified that Kenneth responded that “it couldn’t have been me because when I shoot, I don’t miss.” Kenneth previously testified that he had been working on his sister Jacqueline’s car on that day. The record indicates that the statement contradicts Kenneth’s own testimony, and its admission is therefore proper to attack his credibility.

Kenneth also urges that his alleged statement to Weisberg was not relevant and has virtually no probative value because it does not make any fact more or less likely. Relevant evidence is that having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without such evidence. (People v. Johnson (1986), 114 Ill. 2d 170, 193, 499 N.E.2d 1355.) We agree with the State that Kenneth’s statement was relevant to the crime charged because Echols was killed with a gun, and that the statement indicates Kenneth’s familiarity with guns and expertise at using them.

We also agree with the State that Kenneth’s statement was properly presented as his own admission. An admission is a statement of independent facts which, when taken in connection with proof of other facts, may lead to an inference of guilt of the crime charged, but from which guilt does not necessarily follow. (People v. Houseton (1986), 141 Ill. App. 3d 987, 993-94, 490 N.E.2d 1354.) Any and every statement by an accused person, so far as not excluded by the doctrine of confessions, or by the privilege against self-incrimination, is usable against him as an admission. (People v. Howell (1977), 53 Ill. App. 3d 465, 470, 368 N.E.2d 689.) The statement is Kenneth’s own admission, admissible to infer his guilt. Howell, 53 Ill. App. 3d 465, 368 N.E.2d 689.

Kenneth further contends that he was unfairly prejudiced by the rebuttal testimony of Detective Tracy because it contradicted McClure’s statements in corroboration of defendants’ alibi defense. Kenneth’s sister, Carolyn McClure, testified on defendants’ behalf, that on August 13, 1987, both Kenneth and Gregory were with her at a birthday party that lasted from the early afternoon until late into the evening. On cross-examination, McClure denied ever speaking to the police about this case prior to trial. Thereafter, the State recalled Detective Tracy on rebuttal who testified that McClure had in fact spoken to him prior to trial. Tracy testified that on October 18, 1988, he was working on a case where McClure was an aggravated assault victim. He stated that he spoke to McClure about the Echols murder case, but the trial judge would not allow the State to ask further about the content of the conversation.

During Tracy’s cross-examination, Tracy testified that he did not record in writing his conversation with McClure. Out of the presence of the jury, the State asked Tracy why he did not transcribe their conversation and he answered “because it was a very short conversation and she only corroborated what Kenneth Smallwood told me two weeks prior.” Tracy then testified as to what Kenneth had told him, that on the day of the murder, he had been working on a car.

Kenneth contends that the State failed to lay a proper foundation to impeach McClure with a prior inconsistent statement in reliance on People v. Galindo (1981), 95 Ill. App. 3d 927, 420 N.E.2d 773. There, the court held that before a witness may be impeached by a prior inconsistent statement, a proper foundation must be established by directing the attention of the witness to the time, place, and circumstances of the statement, as well as to the substance of the statement. (95 Ill. App. 3d at 934.) Kenneth argues that the State failed to lay the proper foundation to impeach McClure’s statement that defendants were at her house at a party on the day of the murder.

However, the State responds that rebuttal evidence is that which is adduced by the prosecution to explain, repel, contradict, or disprove evidence presented by the accused. (People v. Rios (1986), 145 Ill. App. 3d 571, 584, 495 N.E.2d 1103.) The State argues that Tracy’s rebuttal testimony did not impeach McClure as to the substance of her alibi testimony, but merely refuted that she had spoken to the police. We agree. The record indicates that the trial judge refused to allow the State to question Tracy regarding the content of McClure’s conversation, and Tracy only testified as to what Kenneth told him. We find the error, if any, harmless since Kenneth had testified as to the content of the statement earlier in the trial.

Finally, Kenneth contends that even if none of the above alleged errors individually warrants reversal of the judgment, he is nevertheless entitled to relief because the cumulative effect of the errors deprived him of a fair trial. This argument is without merit as “[t]he whole can be no greater than the sum of its parts” (People v. Albanese (1984), 102 Ill. 2d 54, 82-83, 464 N.E.2d 206), and where there is no reversible error on any individual issue, these errors cannot cumulatively warrant a new trial. 102 Ill. 2d at 83-84.

Next, Gregory, individually, contends that the Illinois homicide statute (Ill. Rev. Stat. 1989, ch. 38, pars. 9—1, 9—2) is unconstitutional because it violates the due process, equal protection, and separation of powers clauses of the United States and Illinois constitutions. This court recently addressed this issue in great detail in People v. Wright (1991), 218 Ill. App. 3d 764, 578 N.E.2d 1090, and People v. Willis (1991), 217 Ill. App. 3d 909, 577 N.E.2d 1215, and rejected the same argument. Thus, a lengthy discussion of defendant’s arguments is not necessary.

Defendant first argues that the statute shifts the burden of proof to defendant to prove mitigating factors in order to avoid a conviction of first degree murder, and that such a burden on defendant violates due process. Under the statute, a defendant is guilty of second degree murder when he commits first degree murder but is able to prove by a preponderance of the evidence the presence of a valid mitigating factor. (Ill. Rev. Stat. 1987, ch. 38, par. 9—2.) The statute provides in relevant part:

“(c) When a defendant is on trial for first degree murder and evidence of either of the mitigating factors *** has been presented, *** the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder and, when appropriately raised, the absence of circumstances at the time of the killing that would justify or exonerate the killing [as self-defense].” Ill. Rev. Stat. 1987, ch. 38, par. 9—2(c).

Due process requires that the prosecution prove every element of an offense beyond a reasonable doubt. (In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068.) It is a denial of due process to shift the burden of proving an element of an offense to a defendant. (Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881.) However, a defendant is not denied due process when he is required to prove a mitigating factor, which is an affirmative defense rather than an element of the offense, to reduce his murder charge to a lesser charge. (Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319.) Sections 9—1 and 9—2 of the Criminal Code do not violate the due process clause by requiring defendant to prove a mitigating factor to reduce a first degree murder charge to second degree murder. People v. Davis (1991), 221 Ill. App. 3d 1023, 1026-27; People v. Gore (1991), 212 Ill. App. 3d 984, 571 N.E.2d 1041; People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373; People v. Jerome (1990), 206 Ill. App. 3d 428, 564 N.E.2d 221; People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335.

Defendant next argues that the statute violated equal protection because under the statute, defendants encounter obstacles that defendants charged with other crimes do not. The equal protection clause requires that the State treat similarly situated groups of persons equally, but it does not require equal treatment for groups that are dissimilar. (People v. Willis, 217 Ill. App. 3d at 928.) Defendants charged with first degree murder are not similarly situated with defendants charged with other offenses. (217 Ill. App. 3d at 928.) The statutory scheme is rationally designed to meet a legitimate State purpose, and thus, does not violate equal protection. Gore, 212 Ill. App. 3d at 996.

Finally, defendant contends that the statute violates the separation of powers provisions of the Federal and State constitutions by requiring the prosecution to always initially charge defendants with first degree murder, thereby revoking the power of the State’s Attorney to choose to charge a defendant with a lesser crime. Under the separation of powers clause, the legislative, executive, and judicial branches of the government are separate and no branch may exercise powers belonging to another branch. (Ill. Const. 1970, art. II, §1.) A party has standing to challenge the constitutional validity of a statute only if he has sustained or is in immediate danger of having sustained some direct injury as a result of enforcement of the statute. (People v. Willis, 217 Ill. App. 3d at 928.) To establish standing, defendant must show that the State was barred from charging him with second degree murder. (217 Ill. App. 3d at 928.) Defendant does not have standing to raise this argument because the State did not attempt to charge him with second degree murder, and even if he does have standing, the statute does not prevent the State from charging a defendant with second degree murder. People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373 (the State has the discretion to charge a defendant with second degree murder pursuant to section 9 — 2).

Lastly, Gregory contends that 35 years is an excessive sentence and should be reduced in light of his potential for rehabilitation. The trial court is the proper forum in which a sentence is to be determined, and the trial judge’s decision regarding sentencing is given great weight and deference. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 884; People v. La Pointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344.) It is well established that the imposition of a sentence is a matter of judicial discretion and that absent an abuse of that discretion, the sentence as determined by the trial court should stand. Perruquet, 68 Ill. 2d at 153.

In sentencing a defendant, the trial court may consider the gravity and circumstances of the offense, as well as defendant’s mental capacity, age, demeanor and credibility. (E.g., Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.) Furthermore, the trial court must balance the objectives of protecting society and rehabilitating the defendant. (See People v. Harris (1989), 187 Ill. App. 3d 832, 844, 543 N.E.2d 859, 866.) A reviewing court will hesitate to upset this balance, especially where the sentence falls within the statutory limitation. People v. Lambrechts (1977), 69 Ill. 2d 544, 559, 372 N.E.2d 641, 649.

The record in this case indicates that defendant was sentenced to a 35-year extended term of imprisonment, which is well within the statutory guidelines for first degree murder. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(1) (first degree murder is punishable with a term of not less than 20 years and not more than 60 years).) The record indicates that the court considered that Gregory was previously convicted of voluntary manslaughter as a juvenile, that he had a close relationship with his family and that the motive was revenge for his father’s death. The court also considered that defendant had sought counseling, and that he was a follower and not the actual planner of Echols’ murder. The trial court found that in light of the jury’s verdict against him for the taking of a life, along with his background, and the factors mentioned, a sentence of 35 years was appropriate.

Accordingly, Gregory has failed to show that the trial court erred in sentencing him to an extended term of 35 years.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

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