author: PRESIDING JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VIDA NOLAN, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—3145
    Opinion filed May 15, 1991.

      Randolph N. Stone, Public Defender, of Chicago (John T. Kennedy and Donald S. Honchell, Assistant Public Defenders, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Defendant, Vida Nolan, was convicted after a jury trial of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(a)(2)) and was sentenced to 20 years’ imprisonment. Defendant argues on appeal that it was error not to instruct the jury on voluntary manslaughter (Ill. Rev. Stat. 1985, ch. 38, par. 9—2(b)) and self-defense (Ill. Rev. Stat. 1985, ch. 38, par. 7—1) and that defendant’s trial counsel was ineffective.

Defendant waived a preliminary hearing, and there is no transcript of the voir dire. At the beginning of the trial, the trial court advised the jury that opening statements were merely statements of the facts that the attorneys expected the evidence to prove.

Defense counsel stated at the beginning of his opening statement that lawyers’ statements were not evidence. He also stated that: defendant had been in the course of ZVz years the live-in girl friend of the victim, Dion Frazier; while living at Frazier’s mother’s house, Frazier used to beat defendant; defendant left a lounge in the morning of October 5 after having had a considerable amount of gin and saw Darleen Davidson with Frazier; Davidson started an argument with defendant, the women pulled each other’s hair, and Frazier stepped in and pulled defendant’s hair; later, defendant took a knife from her purse and warned Frazier not to approach but he came towards her and virtually stabbed himself; and Frazier had been smoking marijuana laced with “pep” and his eyes were “bugged-out.”

Darleen Davidson testified that she was Frazier’s girl friend. At about 4 a.m. on October 4, 1986, she was in front of the projects in Robbins, Illinois. Defendant walked past her and Frazier and called Frazier names. Frazier called defendant a name, and someone in the nearby crowd said that defendant should hit Frazier in the head with a bottle. Defendant approached and threatened Frazier, who stood with his hands in his pockets and who said to “go ahead.” Defendant swung her purse at Frazier, but the purse hit the building. After someone handed defendant back her purse, she took a knife out of it and pointed the knife in Frazier’s face. Defendant stood facing Frazier. Frazier said that it was the same knife he had taken from defendant two weeks earlier. Then defendant stabbed Frazier in the heart and stabbed Davidson in the hand. Davidson took Frazier to the hospital.

On cross-examination, Davidson testified that Frazier did not look “high.” She talked to a police officer and to two assistant State’s Attorneys before she testified.

Tony Yates testified that he saw defendant and Frazier arguing at about 4 a.m. on October 4, 1986. They were calling each other names, and Frazier told her to “get out of” his face. Frazier had his hands in his pockets. Defendant’s mother hit Frazier, and defendant swung her purse at Frazier. Neva Hughes returned to defendant the purse from which defendant took a knife that she swung at Frazier’s face. Frazier continued to stand with his hands in his pockets, and Frazier asked defendant whether that was the knife he had taken from her two weeks earlier. While defendant waved the knife close to Frazier’s face, she said she was going to kill him. She then stabbed him in the chest and ran over to Davidson and tried to stab her. Yates took Frazier to the hospital.

On cross-examination, Yates testified that prior to taking the stand, he was in a room at the courthouse with Davidson, Frazier’s mother, and the assistant State’s Attorney, and he heard Davidson tell her story. Yates told his story on an earlier day in the presence of Davidson, “Eric,” and Kenny Brown. He did not believe that Frazier was drunk or “high.”

Neva Hughes testified that defendant was talking loudly to Frazier, who was telling her to leave him alone. Defendant swung at Frazier with the purse and then defendant’s mother walked outside. Frazier told defendant’s mother to take defendant inside and that he did not want to fight with her. After defendant took out the knife, Frazier said that the knife was the same one he had taken from her the week before. When defendant stabbed Frazier, he had his hands in his pockets.

Robbins police sergeant Anthony Koetzle testified that defendant was crying and her head was hanging down when he arrested her. He did not detect any alcohol on her breath.

A stipulation was entered into that: (1) Frazier was examined upon arrival at the emergency room at St. Francis Hospital at 4:20 a.m. by Dr. Bruce Johnson, who noted a stab wound to the left chest; (2) Frazier died at 6:08 a.m.; (3) Dr. Yuksel Kinachki performed an autopsy on Frazier on October 6, 1986, and noted that the cause of death was a stab in the chest; (4) Dr. Michael Schaeffer performed a toxicological examination of Frazier’s blood and did not find the presence of alcohol or opiates; and the State’s exhibits Nos. 1 and 3 were photographs of Frazier which were prepared during the autopsy and which accurately portrayed the condition of Frazier and his clothing.

Anna Cole testified for defendant that defendant and Frazier stayed at her home together off and on until the winter of 1984. Defense counsel asked Cole how Frazier treated defendant, but an objection was sustained. Defense counsel then asked whether Cole knew of any beatings of defendant by Frazier. An objection was made on the basis of irrelevancy, and prior to a ruling on the objection, defense counsel stated that he had no further questions.

Aretha Mills testified for defendant that she saw Frazier and defendant at 8 p.m. on October 3, 1986, arguing in front of the projects. Defendant said that she would give Frazier his clothes when he returned her money. Frazier grabbed her by the arm, and they went into defendant’s mother’s apartment. Mills followed them inside and saw Frazier “snatch” defendant into the washroom. Frazier closed the door but Mills could hear them “tussling.” Mills asked Frazier to open the door, but he responded that he was talking to defendant. When the door opened, defendant’s clothes were “unraveled” and “twisted all about.”

Defendant testified that she had been in custody since her arrest. She and Frazier started living together in November 1985. They stayed at his mother’s house for about two months, and they stayed together at an aunt’s house on and off for about two or three months. She had a couple of gin drinks at a lounge the evening of October 3 or the morning of October 4. Later, outside her home, she walked past Frazier and Davidson. She had an argument with Davidson, and Frazier kept getting in between them. Frazier’s hands were at his sides. She swung the purse at him but it went over his head. She grabbed his hair after he grabbed her hair. She told him not to put a hand on her anymore. She took out her knife after he grabbed her hair, and he “advanced towards” her. That is when the knife struck him. The testimony was not clear whether defendant thrust the knife at Frazier or whether he walked into the knife. Defense counsel attempted to clarify defendant’s testimony, but an objection was sustained. Defendant further testified that after the knife struck Frazier, he stood there for five minutes before running away. She did not intend to kill Frazier. Defendant then fought with Davidson. She told someone later that she had not stabbed Frazier.

On cross-examination, defendant testified that she had lived with Frazier on and off for about two or three months and that she had seen him for over three years. She was upset that he was also seeing Davidson.

After the close of the evidence, defense counsel stated outside of the presence of the jury that he had information that certain of the State’s witnesses had penitentiary records, that he had asked counsel for the records, and that counsel told him that he did not have such information. The assistant State’s Attorney responded that he asked the witnesses about their backgrounds and that they claimed they had none.

Defendant tendered instructions on voluntary manslaughter but not on self-defense. The trial court found that self-defense was not raised because defendant testified that she did not stab him, so the jury was instructed only on murder and not on voluntary manslaughter.

Defense counsel stated in closing argument that defendant offered evidence that the victim beat her on previous occasions but that the evidence was “dismissed” because it was “remote” in time. It was also argued that defendant, who had several drinks, only intended to frighten off the victim, told the victim not to come, and that the victim walked towards defendant and accidentally stabbed himself to death.

Defendant’s motion for a new trial argued in part that the trial court erred in refusing to give the jury instructions on voluntary manslaughter. The motion was denied.

Defendant first argues on appeal that the trial court erred in refusing to instruct the jury on voluntary manslaughter because there was evidence that defendant had an unreasonable belief that she had to defend herself from the victim, who had beaten defendant in the past and who had advanced on defendant after she pulled the knife out from her purse. Defendant also refers to the testimony that the victim stated that the knife was the same one he had taken from defendant two weeks earlier and that the victim had grabbed defendant’s hair just before defendant stabbed him.

The State argues in response that there was no evidence that would have supported a finding that defendant acted in the unreasonable belief that she was acting in justifiable self-defense and that defendant was the aggressor so that self-defense was not available to her as a defense.

A trial judge in deciding whether to give an instruction to a jury must decide if there is evidence which if believed by a jury would reduce a crime to a lesser included offense. (People v. Dortch (1974), 20 Ill. App. 3d 911, 914, 314 N.E.2d 324.) If there is evidence, then the jury instruction must be given.

Voluntary manslaughter includes the intentional or knowing killing if at the time one unreasonably believed the circumstances to be such that, if they existed, would justify or exonerate the killing. (Ill. Rev. Stat. 1985, ch. 38, par. 9—2(b).) A voluntary manslaughter instruction must be given if there is any evidence presented that, if believed by the jury, would reduce the crime to manslaughter. People v. Robinson (1989), 192 Ill. App. 3d 225, 231, 548 N.E.2d 674.

An instruction on justifiable use of force should be given if there is some evidence in the record which, if believed by a jury, would support a claim of self-defense. (People v. Lockett (1980), 82 Ill. 2d 546, 551, 413 N.E.2d 378, 381.) This would give the jury an opportunity to decide whether the defendant subjectively believed that the use of force was necessary but that defendant’s subjective belief was unreasonable under the circumstances. This conclusion would give rise to a verdict of voluntary manslaughter. Accordingly, instructions on justifiable use of force and voluntary manslaughter should be given when any evidence is presented showing defendant’s subjective belief that use of force was necessary. People v. Holloway (1985), 131 Ill. App. 3d 290, 311, 475 N.E.2d 915.

Defendant was the only person who testified that the victim did anything in response to her pulling out a knife. She testified that she and the victim grabbed each other’s hair, that the victim advanced towards her after she took out the knife, and that the knife then struck him. Defendant did not testify that she believed that deadly force was necessary to protect herself. She did not even testify that she stabbed the victim but suggested, through ambiguous testimony that the knife “struck” the victim, that the victim was stabbed either in an accident or by his walking into the knife.

In People v. Simpson (1984), 129 Ill. App. 3d 822, 473 N.E.2d 350, defendant shot and killed a man he believed was having an affair with his wife. When defendant threatened the victim, the victim opened the door to his van and reached inside. Defendant immediately shot the victim. On appeal, defendant argued that he was entitled to a voluntary manslaughter instruction because he had an unreasonable belief that he had to protect himself from the possible threat of being shot by a weapon from the van. Upheld on appeal was the trial court’s conclusion that there was no evidence that would allow a jury to reduce the homicide from murder to voluntary manslaughter. Simpson, 129 Ill. App. 3d at 840.

An instruction for voluntary manslaughter was properly refused in this case. See People v. Holloway (1985), 131 Ill. App. 3d 290, 311, 475 N.E.2d 915 (there was no basis for an instruction on voluntary manslaughter because the death was either accidental or intentional).

Defendant next argues that the jury should have been instructed on self-defense even though no such instructions were tendered. Although, in general, the failure to tender an instruction waives any error in not so instructing the jury (People v. Turner (1989), 128 Ill. 2d 540, 562-63, 539 N.E.2d 1196), the issue can be addressed under the plain error rule, because if there was evidence of self-defense, the failure to instruct the jury on self-defense would have been a serious error that would have denied defendant a fair trial. See People v. Thomas (1989), 189 Ill. App. 3d 365, 373, 545 N.E.2d 289 (the plain error exception to the waiver rule will be applied only when either the evidence was closely balanced or if the error is of such a magnitude that defendant is denied a fair and impartial trial).

Defendant argues that the evidence of self-defense was the prior fight between her and the victim, the victim’s grabbing of her hair, and the victim’s advancing towards her after she drew the knife. But this evidence does not establish at least three of the elements of self-defense, i.e., force was threatened against a person, the danger of harm was imminent, and a reasonable belief that the use of force was necessary to avert the danger and that the kind and amount of force she used was necessary. (People v. Isbell (1988), 177 Ill. App. 3d 854, 865, 532 N.E.2d 964.) The use of deadly force in self-defense has restrictions. As stated in People v. Stokes (1989), 185 Ill. App. 3d 643, 655-56, 541 N.E.2d 1129, deadly force is limited to those situations in which: (a) the threatened force will cause death or great bodily harm; or (b) the force threatened is a forcible felony.

Jury instructions must be based upon the evidence introduced in a trial and, when the evidence provides no basis upon which the jury could find that the killing of the victim by the defendant was self-defense, it is improper to give the jury an instruction on self-defense. People v. Cannon (1988), 176 Ill. App. 3d 49, 54, 530 N.E.2d 1035.

Even if defendant and the victim had fought on an earlier occasion and even if he grabbed her hair, the stabbing was clearly unnec- j essary. Defendant took a knife from her purse, verbally threatened to harm the victim, pointed the knife towards the face of the victim, and then stabbed him in the heart.

Since the evidence did not produce any threat of deadly force by the victim against defendant, the court did not have to instruct the jury as to self-defense.

Defendant next argues that her trial counsel was ineffective. Defendant must prove that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s alleged errors, the outcome of the proceeding would have been different. People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246.

In the opening statement, defendant’s trial counsel allegedly stated that defendant lived with the victim for 3^2 years, which was incorrect because she actually lived with him for two to three months on and off. Defense counsel actually stated that defendant had been “in the course of three and one-half years” the live-in girl friend of the victim. This statement could be interpreted to mean that they had lived together during some portion of their 3x/2-year relationship. This statement did not necessarily contradict defendant’s testimony, which was itself conflicting. Defendant testified that she had lived with the victim for two months at one location and on and off for about two months at another location.

It is true that in defense counsel’s opening statement he stated that Davidson started the fight, that the victim’s eyes were “bugged out” from drugs, and that defendant had drunk a lot, and that there was no evidence of these facts during the trial. These errors were not prejudicial to her case, which was based on the relevant facts of how the stabbing occurred and the theory that defendant did not intend to kill the victim.

Defendant argued that her trial counsel was ineffective because in the opening statement the attorney presented an incorrect theory of defense, apparently the absence of intent to kill. The decision to argue or not to argue in the opening statement that the facts would show that defendant did not intend to kill the victim or that defendant acted in self-defense was a matter of trial strategy. Defendant’s case was based on the facts of how the stabbing occurred and the theories of lack of intent to kill and voluntary manslaughter.

Defendant argues that her counsel was ineffective by failing to make an offer of proof as to prior beatings of defendant by the vietim after objections were sustained to his attempted questioning of Anna Cole. An offer of proof could have established, for purposes of review of the issue of the admissibility of evidence of the beatings to show defendant’s belief that the stabbing was justified, the number and extent of the beatings and when and where they occurred. But even if these details were necessary for review in general of the admissibility of the victim’s prior beatings of defendant, defense counsel dismissed the witness before the trial court ruled on the relevancy objection to his question whether the witness had any knowledge of any beatings. Ironically, because there was no offer of proof, the record does not show to what Cole would have testified and, therefore, there is no basis for finding that the abandonment of this line of questioning was ineffectiveness of counsel that prejudiced defendant. But because there was no evidence that defendant stabbed the victim in order to defend herself, evidence of prior beatings would not have changed the outcome.

Defendant argues that counsel was ineffective because in the closing argument he did not argue a viable defense and argued instead that the death was an accident caused by the victim’s stabbing himself to death. A justifiable self-defense theory could not have been argued to the jury because there was no evidence of self-defense and no self-defense instructions had been tendered. Defendant could not have argued that she stabbed the victim in the unreasonable belief that he was going to harm her because the trial court refused the voluntary manslaughter instruction. The argument that the stabbing was an accident caused by the victim was proper.

Defendant argues that her trial counsel was ineffective because he did not cross-examine the officer who interviewed defendant and the victim’s mother. Neither of them witnessed the stabbing so defense counsel could have believed that their testimony was not harmful to defendant’s case. It could have been a matter of trial strategy.

Defense counsel is faulted for bringing out the fact that defendant was incarcerated at the time of trial. Defendant does not specify how her case was harmed, but speculates that there might have been some adverse effect from this revelation by defense counsel. In this case such speculation shows neither unprofessional error nor prejudice to defendant as a result of the evidence.

Defendant criticizes defense counsel for failing to object to the admission of several photographs of the victim and the failure to impound the photographs. Without viewing the photographs, which were not part of the record, it cannot be determined that defense counsel should have objected to them and should have requested that they be impounded. There is nothing here to show that the failure to object was a professional error or that, had objection been made, it would have been sustained. Defendant does not state how the outcome would have been different if the photographs had not been admitted.

Defense counsel is also faulted for stipulating to a toxicologist’s report concerning a blood sample of decedent when the blood sample had been taken two days after the death. The stipulation concerning the test indicates that the autopsy was performed on the day of death and that the toxicological tests were ordered during the autopsy. There is nothing in the record to support defendant’s argument that the blood sample was taken two days after the death. Even assuming that the findings of no alcohol or opiates in the blood were questionable, defendant does not stjate how the outcome would have been different.

Defendant criticizes defense counsel for never obtaining the arrest records of the prosecution witnesses and for waiting until both sides had rested before informing the court that he had asked the State for information about the penitentiary records of certain witnesses. The record indicates that defense counsel had requested the State to produce any criminal record of the State’s witnesses before trial and that the State informed him that according to those witnesses they had no criminal records. The State denied that it had such information. There is no record of any conviction records. Defense counsel cannot be found to be incompetent for failure to obtain criminal records in this case.

Numerous other allegations of ineffectiveness of trial counsel were reviewed and considered; however, none of them could possibly have affected the outcome of the trial.

Defendant clearly could have received better representation but her representation was competent. The evidence of her guilt was overwhelming and defendant received a fair trial.

The judgment of the circuit court is affirmed.

Affirmed.

RIZZI and WHITE, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DIANE WILLIAMS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—0333
    Opinion filed May 15, 1991.

      Debra R. Salinger, of State Appellate Defender’s Office, of Chicago, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Judy L. De Angelis, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the

court:

Following a jury trial, defendant Diane Williams was convicted of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9—1) and sentenced to 37 years’ imprisonment. Her defense at trial was self-defense based on the child sexual assault syndrome. On appeal, defendant argues that (1) the trial court erred in giving the Illinois Pattern Jury Instructions, Criminal, Nos. 7.02, 7.06 (2d ed. 1981) (hereinafter IPI Criminal 2d) for murder and voluntary manslaughter that were found erroneous in People v. Reddick (1988), 123 Ill. 2d 184; (2) she was denied a fair trial when the State falsely insinuated that a psychiatrist’s evaluation of defendant refuted expert testimony from a psychotherapist; (3) she was denied a fair trial when prior bad acts evidence was improperly admitted to show her propensity to commit acts of misconduct; (4) she was denied a fair trial due to prosecutorial misconduct in the closing argument; and (5) the trial court erred in imposing the sentence of 37 years’ imprisonment.

On February 25, 1986, Howard Brown was shot and killed. His adopted daughter, defendant Diane Williams, and her friend, Dale Davis, were indicted for the murder, concealment of a homicidal death, and armed violence. The trial was severed, and the State nol pressed the concealment and armed violence charges before the jury trial began.

Emma and Howard Brown adopted defendant when she was a child. Defendant testified that her father began sexually abusing her when she was young by putting his hands on her vagina and fondling her. By the time defendant was eight or nine years old, her father would make her lie down and would touch her breasts and her vagina. When defendant was in the eighth grade, her father began having sexual intercourse with her. Defendant further testified that her father performed these sexual acts when her mother was out of town for her job. He never tried anything when her mother was around. Defendant testified that she had told her mother and her aunt about her father’s actions, but her mother denied ever being told about any abuse. Defendant’s mother testified that she never saw her husband abuse defendant and that defendant was never left alone with her father. Defendant’s aunt is now deceased.

Defendant stated that she ran away twice to get out of the house because it hurt too much to stay in the house. In the late 1970’s, she left home and moved to Texas, where she met and married Emmett Williams, who was nearly 20 years older than she. Defendant testified that during their seven-year marriage, her husband abused her by hitting her in the head with a telephone, turning a table on her feet, and nailing the house windows shut. Mr. Williams denied ever hurting the defendant. Defendant left Texas and returned to Chicago, occasionally living with her adoptive parents from 1979 through 1986.

Defendant stated that after her mother began going out of town in August 1985, she moved to Kalamazoo, Michigan, to avoid being alone with her father. In September 1985, defendant was badly injured in an automobile accident. After being hospitalized and undergoing surgery, she returned to her parents’ home in November 1985. In Chicago, defendant underwent therapy for her leg injury under the care of Dr. Spitz, who testified at trial. When her mother began traveling in January 1986, defendant moved out of her parents’ house and went to stay with Gladys Griffin and Earnestine Williams until March 5,1986, when she was arrested.

During the first week of February 1986, codefendant Davis asked Ms. Griffin to get her a gun. Ms. Griffin arranged for the purchase and gave the gun to Davis. Defendant testified that she sometimes carried the gun because she lived in a violent neighborhood and could not run due to her leg injury.

Defendant testified that she called her mother on the morning of February 26, 1986, to ask if she would be at home because defendant wanted to get her things and show her parents her new used car. Mrs. Brown testified that she received a collect call from defendant at approximately 8 or 8:30 a.m. When she asked defendant where she had been, defendant answered that she had been out of town and had just returned with her boyfriend. Mrs. Brown told defendant that she had been sick for two weeks and was going to the doctor that day.

Later that morning, Mrs. Brown received another collect call from defendant at approximately 10:30 a.m. Defendant offered Mrs. Brown a ride to the clinic, then asked what time she was going to the clinic and when she would be home. Mrs. Brown told defendant that she would be leaving in a few minutes with a friend who was driving her, and asked defendant to clean the kitchen when she came over. Mr. Brown was in the apartment at the time.

Defendant testified that she and codefendant Davis went to her parents’ home and drove down the alley three or four times. When defendant got to the apartment, only her father was home. Her father told her to go to the clinic to pick up her mother, which she did. Defendant arrived at the Mercy Hospital clinic at approximately 1 p.m. and told Mrs. Brown, “Daddy told me to come and pick you up.” After telling defendant that she already had a ride, Mrs. Brown gave defendant $2 for gas. When Mrs. Brown again told the defendant to go home and do the dishes, defendant left.

Defendant went back to her parents’ apartment. Defendant stated that she told codefendant Davis that she was not going to do any dishes, but was going to get her things and leave as quickly as possible. Davis waited in the car while defendant went inside. Initially, defendant was locked out of the building, and the landlord’s niece, Eloise Lee, let her into the building. Mrs. Lee testified that defendant did not look unusual for someone who was locked out, and did not appear nervous, upset, or distraught.

Defendant further testified that when she entered the apartment, her father began arguing with her about missing pots and pans. She stated that she begged her father to leave her alone, but he grabbed her and pushed her against the wall. Defendant stated that her father was ready to fight, which usually meant he was going to “try something else.” She said that she was afraid that he was going to sexually assault her. When her father said, “It had been a long time,” defendant believed that her father was going to hurt her. She told him to leave her alone. After he turned off the water in the kitchen, defendant took out the gun she was carrying, closed her eyes, and pulled the trigger, hitting her father twice in the back.

When her father did not move, defendant panicked and ran downstairs to get Davis. After defendant told Davis she did not know what to do, the two women went upstairs, put plastic bags over Mr. Brown’s body, and dragged him into the front closet. Defendant testified that she was too scared to call the police because she thought her father was already dead. Defendant also testified that she had never before fired a gun. According to police, defendant made a statement that she and Davis displaced items in the apartment and broke the back door window to make it look like a burglary. After leaving the apartment, defendant and Davis went to Griffin’s house, where defendant gave the gun to Griffin and told her to put it away. Griffin placed the gun in her purse in a closet.

Mrs. Lee stated that she saw defendant come downstairs one-half hour after she arrived. Defendant did not appear nervous or injured, nor was she crying. She did not make any complaints about her father. Mrs. Lee then saw defendant and another person walk upstairs. At that time, defendant was not using a cane or crutches.

After being treated by the doctor, Mrs. Brown returned home around 3 or 3:30 p.m. She walked up the back stairs to her third-floor apartment, where she noticed the door cracked, the gate across the door, and her dog not barking. After seeing glass on the back porch floor, Mrs. Brown went down to the first-floor apartment and called the police. When the police arrived, Mrs. Brown told them what she saw and accompanied them to her apartment. When the police officers discovered Mr. Brown’s body in a plastic bag in the front closet, they told Mrs. Brown to leave the apartment. When she returned later, Mrs. Brown noticed that various items were in disarray or missing.

Police officer Frank Ford testified that around 4 p.m. on February 25, 1986, he went to the crime scene. He met Mrs. Brown, who told him that she thought her apartment had been burglarized. Officer Ford noticed that the kitchen door was slightly ajar, the lower left window pane of the kitchen door had been broken, and glass lay on the outside porch. While searching the apartment, Mrs. Brown opened a closet door and an object in a plastic bag fell out. Recognizing the object as a body, Ford asked his partner to take Mrs. Brown out of the apartment while he performed CPR on the warm body. After the paramedic team came and attempted to revive the victim, the officer secured the apartment.

Detective Albert Wolff testified that on March 5, 1986, he went to Ms. Griffin’s apartment, searched it, and arrested the defendant and codefendant. At the police station, the defendant admitted shooting her father, but stated that she did so because she was afraid of him.

At trial, Judith Roth, a psychotherapist, testified that she examined the defendant six times between December 1986 and June 1987. It was her opinion that the defendant was suffering from child sexual abuse syndrome. Ms. Roth testified that the defendant is affected by the same type of things that post-traumatic stress disorder consists of, including: (1) a recognized stressor; (2) flashbacks or dreams; (3) a noticed detachment from the world; and (4) at least two of the following: hyperalertness, sleep disturbances, survivor guilt, memory impairment, avoidance of feelings, and intensification when exposed to similar trauma. Ms. Roth also testified that defendant suffers from child sexual abuse syndrome, which consists of (1) a sense of helplessness; (2) secrecy around the event; (3) an accommodation to the event; (4) delayed or conflicted disclosure about the event; and (5) retraction of that disclosure. Ms. Roth believed that the defendant was not faking her claim that she was sexually abused by her father during her childhood.

On cross-examination, the State asked Ms. Roth whether Dr. Stipes at the Psychiatric Institute had examined defendant. Defense counsel objected, arguing irrelevance in a sidebar. The court overruled the objection, and Ms. Roth stated that defendant did not see Dr. Stipes, and that Ms. Roth did not consult with Dr. Stipes. Ms. Roth also testified that defendant was never submitted to psychological testing prior to Ms. Roth’s evaluation. On redirect examination, Roth testified that no one at the Psychiatric Institute was qualified to do child sexual abuse evaluations.

In rebuttal, the State presented the testimony of Emmett Williams, defendant’s ex-husband. Mr. Williams testified that he had seen defendant shoot a .357 magnum gun and a .22 caliber revolver, and handle a sawed-off shotgun. He further stated that defendant had shot through a door at a man who was repossessing their television.

After closing arguments, the court instructed the jury, including giving the IPI instructions for murder and voluntary manslaughter. The jury returned a guilty verdict. Defendant’s motion for a new trial was denied.

At the sentencing hearing, Sister Evelyn Sommers, Deputy Sheriff Roger Watson, and Superintendent Debra Hopkins testified on defendant’s behalf. Defendant expressed her sorrow at what had happened. Following argument, the trial court sentenced defendant to 37 years’ imprisonment.

Defendant asserts that she must be given a new trial because the IPI instructions for murder (IPI Criminal 2d No. 7.02) and voluntary manslaughter/unreasonable belief in justification (IPI Criminal 2d No. 7.06) given at her trial were deficient. The trial court instructed the jury:

“To sustain the charge of murder, the State must prove the following propositions:
1. That the defendant performed the acts which caused the death of Howard Brown; and
2. That when the defendant did so, she intended to kill or do great bodily harm to Howard Brown; or she knew that her act would cause death or great bodily harm to Howard Brown; or she knew that her acts created a strong probability of death or great bodily harm to Howard Brown; and
3. She was not justified in using the force which she used.” ' See IPI Criminal 2d No. 7.02.
“To sustain the charge of voluntary manslaughter, the State must prove the following propositions:
1. That the defendant performed the acts which caused the death of Howard Brown; and
2. That when defendant did so, she intended to kill or do greatly bodily harm to Howard Brown; or she knew that her act would cause death or great bodily harm to Howard Brown; or she knew that her acts created a strong probability of death or great bodily harm to Howard Brown; and
3. That when the defendant did so she believed that circumstances existed which would have justified killing Howard Brown;
4. That the defendant’s belief that such circumstances existed was unreasonable.” See IPI Criminal 2d No. 7.06.

The Illinois Supreme Court in People v. Reddick (1988), 123 Ill. 2d 184, held that tendering these IPI murder and voluntary manslaughter instructions together was grave error because they incorrectly set forth the State’s burden of proof regarding the mental state necessary to reduce a murder charge to voluntary manslaughter. (123 Ill. 2d at 197-99.) Under the statute effective at the time of the trial, once the defendant presented some evidence that would reduce a murder charge to voluntary manslaughter, the State had the burden of proving beyond a reasonable doubt that those defenses were merit-less as well as proving beyond a reasonable doubt the statutory elements of murder. (Reddick, 123 Ill. 2d at 197.) When those murder and voluntary manslaughter instructions are read together, however, they fail to inform the jury that the State has the burden of disproving the mitigating mental states necessary to reduce murder to manslaughter. (People v. Fercsi (1989), 182 Ill. App. 3d 13, 15.) Consequently, if the State does not prove beyond a reasonable doubt that the defendant had an unreasonable belief in justification for her actions, the jury is precluded from convicting the defendant of voluntary manslaughter. Reddick, 123 Ill. 2d at 194-95.

Although the State concedes that Reddick is applicable in this case, it argues that the instructional error was harmless because no voluntary manslaughter instruction should have been given. The State, however, did not object at trial. For a voluntary manslaughter instruction to be given, there must be some evidence at trial, if believed by the jury, that would reduce the crime of murder to manslaughter. (People v. Austin (1989), 133 Ill. 2d 118, 124-25.) A Reddick instructional error can be harmless if the defendant fails to present sufficient evidence to justify instructions on voluntary manslaughter. (People v. Riggins (1990), 205 Ill. App. 3d 904, 912.) An error that affects the constitutional right to a fair trial must be harmless beyond a reasonable doubt (People v. Fierer (1988), 124 Ill. 2d 176, 187); that is, there must be no reasonable possibility that the error might have contributed to the conviction. People v. Fields (1988), 170 Ill. App. 3d 1, 13.

Defendant relies on Falconer v. Lane (7th Cir. 1990), 905 F.2d 1129, 1137, which granted a new trial in the Illinois State court because the incorrect Reddick instructions were given. The Federal court rejected the State’s argument that the error was harmless because there was sufficient evidence to support the jury’s verdict of murder instead of voluntary manslaughter. The Falconer court stated:

“The central point is that the jury might have decided to convict the petitioner of murder because the State proved that she intentionally killed another without a reasonable belief that she acted in self defense — despite clear proof that the petitioner *** held an unreasonable belief that she was justified in killing the victim.” 905 F.2d at 1136.

Defendant further relies on People v. Stewart (1986), 143 Ill. App. 3d 933, 935, which held that it was error not to give voluntary manslaughter instructions based on the defendant’s version of the occurrence. The court stated that as long as there was slight evidence showing the defendant’s subjective belief that use of force was necessary, the voluntary manslaughter instruction is to be given. (Stewart, 143 Ill. App. 3d at 935.) The only evidence that the defendant acted in self-defense came from the defendant, while all the other eyewitnesses testified that the defendant was the aggressor. Nevertheless, the court concluded that it was for the jury to decide whether the defendant had a subjective belief, and if so, whether that belief was reasonable or unreasonable. Stewart, 143 Ill. App. 3d at 935.

All the cases the State cites to support its contention that the instruction error was harmless are distinguishable. People v. Thomas (1989), 185 Ill. App. 3d 1050, actually supports the defendant’s argument. The Thomas court reversed and remanded the case due to incorrect Reddick instructions, holding that there was enough evidence presented by the defendant to tender the voluntary manslaughter instructions even though the defendant’s testimony was contradicted by all the other witnesses. The court stated that the defendant’s testimony that he heard shots coming from the victim’s direction was enough to allow the jury to consider voluntary manslaughter. Thomas, 185 Ill. App. 3d at 1054.

The State’s reliance on People v. Harris (1989), 132 Ill. 2d 366, Austin (133 Ill. 2d 118), and Fierer (124 Ill. 2d 176) is misplaced. None of these cases involved incorrect Reddick instructions. There was a hybrid instruction unlike the Reddick instructions given in Harris (132 Ill. 2d at 395), and guilty but mentally ill instructions misstating the statute given in Fierer. (Fierer, 124 Ill. 2d at 186.) The Fierer court also concluded that the error was not harmless since the incorrect instruction might have affected the outcome. (124 Ill. 2d at 187-88.) In Austin, the trial court’s refusal to tender a voluntary manslaughter/provocation instruction was ruled proper since there was no evidence presented of mutual combat. Austin, 133 Ill. 2d at 124.

The State also cites People v. Foster (1987), 119 Ill. 2d 69, 88, and People v. Ward (1984), 101 Ill. 2d 443, 451, where evidence was insufficient for an involuntary manslaughter/recklessness instruction. In Foster, the defense argued that the defendant’s behavior was reckless and unintentional because he was intoxicated and drugged at the time of the killing. The defendant’s own testimony, however, was that he deliberately struck the victim with a baseball bat numerous times on the head and the rest of her body. (Foster, 119 Ill. 2d at 88.) The court ruled that a witness’ observation that the defendant looked “high” was insufficient to tender an involuntary manslaughter instruction. (Foster, 119 Ill. 2d at 88.) In Ward, the supreme court stated that the defendant denied beating the victim to death and did not present any evidence of recklessness. Ward, 101 Ill. 2d at 451.

In People v. Daniel (1989), 191 Ill. App. 3d 837, the court ruled that, even though Reddick instructions were erroneously given, the error was harmless since the State overwhelmingly proved the defendant guilty of murder. In his sworn custodial statement, which was introduced into evidence, the defendant stated that he shot into the car after one of the passengers in the car used a gang slogan and may have pointed something at him. He thought the victim would have a gun since he was a Gangster Disciple even though he never saw a gun. A witness, who also never saw a gun, made a custodial statement to the assistant State’s Attorney that the defendant reached for his gun and fired two shots into the car after one of the passengers used a gang slogan. There was no testimony that the person who was killed either had a gun or posed any threat to defendant. Daniel, 191 Ill. App. 3d at 848.

Here, the erroneous instructions given at trial were not harmless beyond a reasonable doubt since the defendant presented sufficient evidence that warranted a voluntary manslaughter instruction. Defendant testified that her father had sexually abused her since she was a young child, that he began having sexual intercourse with her when she was in the eighth grade, and that before she shot her father, his actions led her to believe it was necessary to defend herself against criminal sexual assault. Further, the expert witness, psychotherapist Judith Roth, testified that it was her opinion that defendant suffered from child sexual abuse syndrome, which is associated with post-traumatic stress syndrome. Ms. Roth stated that, given the syndrome, the victim’s actions could have caused a flashback, leading defendant to believe self-defense was justified.

The State’s argument that any instructional error was caused by defendant is without merit. In Reddick, not only did the defendants not object to the instruction or include it in their post-trial motions, but one of the defendants did not even raise the issue in his appeal. (Reddick, 123 Ill. 2d at 198.) The Illinois Supreme Court rejected the waiver argument, stating that burden of proof and elements of the offense instructions are essential to a fair trial. Failure to give such instructions constituted grave error when the jury was not apprised of the State’s burden of proof. Reddick, 123 Ill. 2d at 198.

The court in Fercsi stated that the defendant could not waive a right that he did not know he had. (Fercsi, 182 Ill. App. 3d at 16.) Because that trial occurred before the Reddick decision, the defendant did not know at the time the instructions were tendered that the Illinois Supreme Court would later find that the instructions were improper. Fercsi, 182 Ill. App. 3d at 15.

We reject the State’s argument that Reddick should not be applied retroactively because it is based on statutory interpretation rather than on constitutional principles. The Illinois Supreme Court has granted leave to appeal in a number of cases which raise the issue of whether Reddick should be applied retroactively or prospectively. There have been no decisions to date on these cases. (E.g., People v. Shields (1989), 181 Ill. App. 3d 260; Fercsi, 182 Ill. App. 3d 13.) The First District Appellate Court, however, has found Reddick to apply retroactively in direct appeals. (People v. Brooks (1988), 175 Ill. App. 3d 136; Shields, 181 Ill. App. 3d 260; Fercsi, 182 Ill. App. 3d 13; Thomas, 185 Ill. App. 3d 1050.) We follow this precedent.

Since the incorrect Reddick instructions given constituted grave error and were not harmless beyond a reasonable doubt, the defendant’s murder conviction is reversed and this cause remanded for a new trial. Defendant raises a number of other issues on appeal. We will address the remaining issues insofar as they are likely to recur after remand.

Defendant asserts that she was denied a fair trial because the State improperly cross-examined the expert witness. To support the self-defense theory that defendant was suffering from post-traumatic stress disorder when she shot her father, psychotherapist Judith Roth testified as an expert. When the State asked Ms. Roth during cross-examination whether she knew that defendant was examined by psychiatrist Dr. Stipes of the Psychiatric Institute, defense counsel objected.

In a sidebar, defense counsel argued irrelevance because Dr. Stipes never examined the defendant for child sexual assault syndrome, but merely to determine her fitness to stand trial. In addition, there was no one qualified at the Psychiatric Institute to evaluate child sexual abuse cases. The State responded that it was attempting to discredit Ms. Roth’s testimony by showing that she did not consult with any other doctors who had evaluated defendant. The objection was overruled, and Ms. Roth testified that she did not know of Dr. Stipes’ examination of defendant. On redirect, Ms. Roth testified that the Psychiatric Institute did not have any personnel who could evaluate child sexual abuse cases.

Defendant asserts that the clear implication of the State’s questioning was to impeach Roth by insinuating that a board-certified medical doctor found nothing wrong with defendant. Because Ms. Roth’s testimony was critical to the post traumatic stress defense, defendant claims that the State’s cross-examination denied her right to a fair trial. The State contends that the cross-examination of Ms. Roth was proper because it was intended to discredit her testimony by showing that her investigation of defendant’s mental state was based on poor and incomplete investigative procedures.

The scope of cross-examination is largely within the discretion of the trial court, and its rulings will not be overturned unless an abuse of discretion results in manifest prejudice to the defendant. (People v. Evans (1988), 173 Ill. App. 3d 186, 203.) An expert can be cross-examined for the purpose of explaining, modifying, or discrediting the expert’s testimony. (Fields, 170 Ill. App. 3d at 14.) An expert may also be cross-examined to determine which factors were taken into consideration and which ones disregarded in arriving at the conclusion. (Fields, 170 Ill. App. 3d at 14.) Therefore, the trial court did not abuse its discretion in allowing the cross-examination of Ms. Roth.

The State’s use in closing argument of the expert’s testimony regarding Dr. Stipes is more troublesome. There, the State commented that defendant had seen a psychiatrist from the Psychiatric Institute and “everything checked out” and that she was found fit and sane. Improper use during closing argument of evidence that was introduced for a limited purpose can be deemed reversible error. (Fields, 170 Ill. App. 3d at 15.) The State’s comments, however, although improper, were not enough to be reversible error.

Defendant also claims that she was denied a fair trial by the cumulative effect of the State’s comments during closing argument regarding defense counsel’s actions and her testimony. Taken as a whole, however, the State’s comments did not accuse the defense counsel of fabricating a defense or improperly coaching the defendant’s testimony. Therefore, they were not improper.

Defendant waived her argument that the State’s comments during closing argument improperly aroused the sympathy of the jury by focusing on Mr. Brown’s memory being defiled and Mrs. Brown’s horror and terror. There was neither an objection made nor a specific reference in the post-trial motion to these comments. A reference in a post-trial motion to “prejudiced” or “erroneous” statements in closing argument, without factual detail, is not sufficient to preserve the issue for review. People v. Phillips (1989), 186 Ill. App. 3d 668, 682.

Defendant also waived her argument that the trial court improperly allowed rebuttal testimony that showed defendant’s propensity to commit acts of misconduct. No objection was made at trial and the issue was not included in the motion for a new trial. Since we have reversed the conviction and ordered a new trial in this cause, we will not address the sentencing issues.

Reversed and remanded.

WHITE and RIZZI, JJ., concur.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEFEN HART, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—1434
    Opinion filed May 17, 1991.

      Randolph N. Stone, Public Defender, of Chicago (James S. Jacobs, Assistant Public Defender, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Kathleen Howlett, Special Assistant State’s Attorney, and Renee Goldfarb and Lisa Goldsand, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant Stefen Hart (Hart) was charged with criminal sexual assault, aggravated criminal sexual assault, and aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, pars. 12—13, 12—14, 12—15) in connection with an incident that occurred on November 18, 1987, involving M.T., a four-year-old girl. After a bench trial Hart was found guilty on the one count of aggravated criminal sexual abuse and was sentenced to a term of seven years’ imprisonment in the Illinois Department of Corrections. He now brings this appeal contending that there was insufficient credible evidence to prove him guilty beyond a reasonable doubt.

Hart’s arguments center around the admission of statements made by the four-year-old victim, M.T., to her mother and the investigating police officer, Officer Hertz. Hart contends that the trial court erred by admitting the statements under either the spontaneous declaration exception to the hearsay rule or the amended version of section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10). We shall first give an account of the evidence which was presented at trial.

Just prior to trial the judge held a hearing in chambers, at which time M.T. was questioned to determine her competency to testify. M.T., who was then five years old, was able to recite her ABC’s, count to 10 (omitting the number 8), and identify various objects in court. She knew her name, where she lived, her birthday, and the names of her family members. M.T. also indicated that she knew the difference between a lie and the truth and stated that she would tell the truth. However, she stated that she did not know what it meant to swear to tell the truth and the court questioned whether she could appreciate the moral obligation to tell the truth or comprehend the solemnity of taking an oath. For this reason, the court reserved judgment concerning the competency of the witness and the trial proceeded without a decision being made on whether M.T. would be allowed to testify.

The case then proceeded to trial, and the first witness called was Dr. Villaneuva, a physician at Central Community Hospital. He testified that at about 5:10 p.m. on November 18, 1987, M.T. was brought to the emergency room at the hospital. He stated that M.T. was “scared looking and very quiet” and that she was reluctant to answer any questions. Because of her fear, M.T.. permitted a rather limited vaginal examination. However, it appeared that the hymen was not intact and there was a high degree of redness all over her genitalia, including the labia. After the physical examine, swabs were taken for further analysis.

Although Dr. Villaneuva testified that the redness was consistent with abuse, he agreed that it could also be caused by other things. He also did not remember seeing any evidence of blood on the child or her clothing.

The next witness to testify was Dasha T., M.T.’s mother. She testified that on the afternoon of November 18, 1987, she had been lying down due to a headache. Although she had been unaware that M.T. ever left the apartment, she heard M.T.’s sister, Davora, say to M.T., “Ooh wee, I’m telling mama.” Davora then told Dasha that “Eyeball was messing with her (M.T.).” Hearing this, Dasha called M.T. into the room and asked her what Davora meant when she said “messing with” her. She testified that M.T. had tears in her eyes and, at first, would say nothing. Then M.T. told her “he pulled my pants down.” At hearing this Dasha became upset and immediately called the police. Although Dasha did not know how long it had been since M.T. returned home from defendant’s apartment, she estimated that her conversation with M.T. took place sometime after 3 o’clock in the afternoon.

The next witness to testify was Officer Mertz, who responded to the police call to M.T.’s home at about 4:15 p.m. on November 18, 1987. Officer Mertz stated that upon his arrival he interviewed M.T. outside the presence of her mother. M.T. told him that “Eyeball” (defendant’s nickname), who lived next door, had “put his thing in her booty.” M.T. explained that “Eyeball” lived in the apartment where her friend “Nay-Nay” lived. When M.T. went over to her friend’s home to ask her to play, Eyeball told her that Nay-Nay wasn’t home but that she could come in. He offered her a piece of “turtle” candy and she entered the apartment.

M.T. told Officer Mertz that once she was in the apartment, Eyeball took her into the bedroom and told her to lie down on the bed. She said that he then pulled her pants down and “put his thing in her booty.” She pointed toward her vagina and said “it hurt.” After this happened Eyeball got up and told M.T. she could leave. M.T. got dressed and left the apartment. M.T. also told the officer that defendant had been wearing grey underwear.

According to Officer Mertz, after the interview he, M.T. and Dasha walked over to defendant’s apartment. At the apartment Dasha confronted defendant while the officer stood off to the side. Defendant denied that he had done anything to M.T. or that M.T. had been there that afternoon. Officer Mertz then stepped up to the door and informed defendant of the reason that they were there. Defendant opened the burglar bars and allowed them into the apartment. Inside the apartment M.T. pointed out the box of “turtle” candy on the kitchen table and led Officer Mertz to the bedroom and pointed to the spot on the bed where she said the incident occurred. Defendant was then placed under arrest.

In court, Officer Mertz identified the box of candy and the bed-sheet from defendant’s room, which were marked as exhibits and later offered into evidence.

The next witness was Timothy Kern, a Chicago police officer. He testified that he had been with defendant at about 8 p.m. on November 18, 1987, at the 7th District police station, where defendant had been taken upon his arrest. Defendant was asked to remove his clothes. At that time officer Kern observed that defendant had been wearing grey bikini underwear.

Next it was stipulated that Christine Braun, if called, would testify that she was employed by the Chicago police crime lab in the serology department. In that capacity she had the opportunity to perform certain tests on a Vitullo kit from M.T., designated as case No. 448034. The specimens taken from M.T. were negative for the presence of spermatozoa and semen, and M.T.’s clothing also tested negative for semen and blood. However, specimens from the fitted sheet taken from defendant’s bed tested positive for the presence of both blood and semen, although the samples were small and further identifying tests could not be performed.

At this point the prosecutor stated his intention to call M.T. and it was necessary, therefore, for the court to make its ruling on her competency to testify. At this time the court ruled that, although it found that M.T. knew the difference between the truth and a lie, she did not appreciate the meaning of an oath. Based upon this finding the court would not allow M.T. to testify. The court ruled, however, that the testimony of M.T.’s mother and Officer Mertz, concerning the statements M.T. had made to them, would be admissible as substantive evidence pursuant to the excited utterance or spontaneous declaration exception to the hearsay rule and pursuant to section 115—10 of the Code of Criminal Procedure, as amended. Ill. Rev. Stat. 1989, ch. 38, par. 115-10.

The State then presented the testimony of Carol Rynne, a nurse at Central Community Hospital who had been working in the emergency room the evening of November 18, 1987, and had been present when the doctor examined M.T. She noted that M.T. clung closely to her mother and was very fearful during the physical examination, fighting the doctor’s efforts to examine her. She felt that this was unusual because a child that age is usually very trusting. She also noted that M.T’s vaginal area was extremely red. Finally, Nurse Rynne testified that tests were performed on a urine sample taken from M.T. The tests showed that there was no infection present but that there were some red blood cells in the urine.

After the exhibits were admitted into evidence and it was stipulated that defendant, whose nickname was “Eyeball,” was over the age of 17, the State rested.

Hart then testified on his own behalf. He stated that he was 40 years old and that on November 18, 1987, had been living with Vanessa Tate and her two children. He admitted that he had been arrested in 1979 for attempted armed robbery and again in 1982 for unlawful use of a weapon. He also admitted that on the afternoon of November 18, 1987, M.T. knocked at his apartment door and asked for “Lena,” but he denied that M.T. came into the apartment. He claimed that he had answered the door wearing only his underwear and a robe and that after telling M.T. that Lena was not home, M.T. left. He stated that he didn’t see M.T. again until a couple of hours later, when she came back with her mother and a police officer.

Defendant also claimed that he knew Dasha, M.T’s mother, and that they had had some problems in the past. However, in rebuttal, Dasha was called back to the stand and she denied knowing defendant or having any dealings with him in the past. She further testified that she had been offered money by defendant’s girl friend, Vanessa, to refrain from testifying in court.

In surrebuttal, Vanessa Tate testified that Dasha knew defendant because she had purchased cocaine from him in the past. She also testified that it had been Dasha, not her, who had suggested that defendant give her money to “throw out the case.” It was then stipulated that there were five witnesses who were willing to testify that they had seen defendant and Dasha together at some point in time prior to the incident.

After the evidence was presented the trial court found defendant guilty of the one count of aggravated criminal sexual abuse. Defendant appeals from this conviction.

Defendant’s first issue on appeal is that the trial court erred when it relied, in part, upon the amended version of section 115 — 10 of the Code of Criminal Procedure to admit the statements made by M.T. to her mother and Officer Mertz. Because the alleged incident occurred on November 18, 1987, and the statute was amended effective January 1, 1988, defendant contends that application of the amended version of the statute constitutes an unconstitutional ex post facto application of the law. We disagree.

Two courts have already considered the issue raised by defendant here and have ruled against defendant’s position. (See People v. Priola (1990), 203 Ill. App. 3d 401, 561 N.E.2d 82; People v. Morton (1989), 188 Ill. App. 3d 95, 543 N.E.2d 1366.) While it is true that these cases involved the admission of the corroborative testimony of a testifying child witness, we do not find that the opinions expressed in these cases were limited to the “corroborative complaint” aspect of the amended statute.

Nor do we find that the statute must be deemed ex post facto and retroactive application precluded based on defendant’s allegation that it operated to deny him his substantive right to confrontation. The confrontation clause does not strictly prohibit the introduction of all out-of-court statements. The focus for admissibility is whether there exist adequate indicia of reliability, which may be predicated upon the fact that the statement falls within a firmly rooted hearsay exception or where the evidence shows a particularized guarantee of trustworthiness. (People v. White (1990), 198 Ill. App. 3d 641, 555 N.E.2d 1241; People v. Rocha (1989), 191 Ill. App. 3d 529, 541, 547 N.E.2d 1335.) Hence, out-of-court statements have always been admissible under certain circumstances.

For this reason we find that the amended statute did not abrogate defendant’s right to confrontation. It merely provided a new procedure whereby an out-of-court statement could be found admissible. We adopt the rationale expressed by the court in Priola and hold that the trial court did not err by applying the amended version of the statute retroactively. The statute, as amended, is a procedural rather than a substantive change, which does not alter the elements of the offense, increase the punishment, or decrease the State’s burden of proof. Such alterations, which merely remove existing restrictions upon the competency of certain witnesses, relate to modes of procedure only, in which no one has a vested right. (Thompson v. Missouri (1898), 171 U.S. 380, 43 L. Ed. 204, 18 S. Ct. 922; Hopt v. Utah (1884), 110 U.S. 574, 28 L. Ed. 262, 4 S. Ct. 202; People v. Dorff (1979), 77 Ill. App. 3d 882, 396 N.E.2d 827.) Accordingly, the retroactive application of the amended statute does not offend our constitutional concepts concerning ex post facto laws.

The next issue raised by Hart is the sufficiency of the evidence. Hart contends that the evidence, even when considering M.T.’s statements to her mother and Officer Hertz, which he believes were improperly admitted, does not support his conviction beyond a reasonable doubt. He argues that the evidence of sexual abuse, in order to have been sufficient, had to be either clear and convincing or substantially corroborated. In this case, M.T. did not testify. However, Hart asserts that her statements, as testified to by her mother and the officer, were neither clear and convincing nor substantially corroborated. We disagree.

Initially, we note that there is some question whether defendant has cited the proper standard of review to be applied to this case. It is true, as defendant states, that because allegations of sexual misconduct are easily made and hard to defend, it has been held that a conviction for sexual abuse could only be upheld where the complainant’s testimony was clear and convincing or substantially corroborated. (See People v. Diaz (1990), 201 Ill. App. 3d 830, 558 N.E.2d 1363; People v. Douglas (1989), 183 Ill. App. 3d 241, 538 N.E.2d 1335; People v. Findlay (1988), 177 Ill. App. 3d 903, 532 N.E.2d 1035.) However, recent case law has held that the “clear and convincing or substantially corroborated” standard is a “particularized definition of reasonable doubt,” which, as such, should be rejected as disapproved of by our supreme court. (See People v. Westfield (1990), 207 Ill. App. 3d 772, 566 N.E.2d 392; People v. Byrd (1990), 206 Ill. App. 3d 996, 562 N.E.2d 176; People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208; People v. James (1990), 200 Ill. App. 3d 380, 558 N.E.2d 732; People v. Evans (1990), 199 Ill. App. 3d 330, 556 N.E.2d 904.) These courts have applied the same standard of review typically applied to criminal cases, i.e., whether the evidence, when viewed in a light most favorable to the prosecution, allows a rational trier of fact in finding all the elements of the offense beyond a reasonable doubt. This standard had been adopted by our supreme court as the standard to be applied “to all criminal prosecutions.” People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344.

This court agrees that there is no just reason for placing additional evidentiary requirements on cases involving sex offenses. However, we find that, in this case, assuming that M.T.’s statements were admissible, there was sufficient evidence regardless of which standard is applied.

When considering M.T.’s declarations to her mother and the officer, the trial court had to determine their credibility and the weight that they were to be given. When making this assessment, the court was able to consider all the evidence that tended to establish their reliability, i.e., the fact that there was “turtle” candy at defendant’s residence and M.T.’s knowledge of the color of defendant’s underwear. Also, although defendant denied the sexual assault, he admitted that M.T. had come to his apartment that afternoon. This evidence, though not corroborative of the sexual assault itself, was corroborative of the veracity of M.T.’s statements. Based on this type of corroboration, the trial court could have found that the statements were clear and convincing.

Additionally, there was sufficient evidence to corroborate the sexual assault itself. There was the medical evidence that M.T.’s vagina was extremely red, consistent with the mechanical action of rubbing. Although the doctor admitted that there could be other causes for redness, such as rash or infection, none of these factors were found to be present. Furthermore, the fact that defendant has postulated other reasons for the redness of M.T.’s vagina does not alter the fact that the redness was also corroborative of abuse. There was also the evidence that semen and blood were present on the bedsheets in the location on the bed where M.T. stated that the assault took place.

While none of these facts, alone, are conclusive, taken together they provide the trial court with sufficient evidence upon which to conclude that defendant was guilty of aggravated criminal sexual abuse beyond a reasonable doubt. The fact that the trial court found defendant guilty of criminal sexual abuse rather than criminal sexual assault does not reflect, in this court’s mind, the trial court’s doubt as to the veracity of the statements.

The real issue in this case, however, is the admissibility of the nontestifying child-declarant’s statements. The trial court found that the statements were admissible under both common law and statutory exceptions to the hearsay rule. Since the admissibility of the statements need be predicated on only one basis, this court will review the trial court’s rulings to determine whether either basis was proper.

First, we shall consider whether the statements may be deemed spontaneous declarations. It is undisputed that there are three factors to be considered when determining the admissibility of a statement under the spontaneous declaration exception: (1) there must be an occurrence sufficiently startling to produce a spontaneous and unreflected statement, (2) absence of time to fabricate, and (3) the statement must relate to the circumstances of the occurrence. (In re L.S. (1989), 190 Ill. App. 3d 1031, 547 N.E.2d 510; People v. Hatfield (1987), 161 Ill. App. 3d 401, 514 N.E.2d 572.) The competency of the declarant to testify at trial, or even the identity of the declarant, for that matter, need not be established since the accuracy and reliability of such statements are founded more on the spontaneity of the statements and the lack of time to fabricate. Moore v. Bellamy (1989), 183 Ill. App. 3d 110, 538 N.E.2d 1214; People v. Hatfield, 161 Ill. App. 3d at 410.

It seems firmly established that an incident of sexual conduct between an adult and a child of “tender years” is an occurrence sufficiently startling to produce a spontaneous statement. (People v. Roy, 201 Ill. App. 3d 166, 558 N.E.2d 1208.) Although defendant questions the validity of this assumption, we believe it to be accurate. It may be true that a young child, because of his or her innocence, may not be aware of the nature of the act that took place, and, therefore, may not react in an “excited” manner, as, for example, a rape victim might be expected to react. However, we believe that the “stress” of the sexual encounter may stem from the fact that it is an unusual or extraordinary occurrence or because it caused the child pain. Conse- j quently, a child is likely to report the sexual encounter while under the “stress” of the event even though he or she may not have any outward appearance of excitement.

In any event, we do not believe that a child’s display of excitement, or lack thereof, is controlling in the determination of whether the statement should be deemed admissible as a spontaneous declaration. Rather, we believe that the more relevant inquiry is whether the facts of the particular case demonstrate sufficient guarantees of trustworthiness and reliability. (See People v. Nevitt (1990), 135 Ill. 2d 423, 553 N.E.2d 368 (wherein the court reaffirmed the viability of the excited utterance exception under circumstances similar to the case at bar).) The “totality of the circumstances” approach should be employed to determine whether or not the statements appear to be the product of reflection or fabrication. (People v. Hatfield, 161 Ill. App. 3d 401, 514 N.E.2d 572.) Furthermore, a trial court’s decision that the statements are reliable and, as such, fall within the excited utterance rule, should not be overturned unless it appears to be an abuse of discretion. People v. Nevitt, 135 Ill. 2d 423, 553 N.E.2d 368.

We do not find that, under the facts of this case, the trial court abused its discretion when it found that M.T.’s statements to her mother and Officer Hertz were excited utterances. (See People v. White, 198 Ill. App. 3d at 654.) The evidence at trial indicates that M.T. returned home from defendant’s apartment and told her sister about the encounter with defendant. M.T’s sister told her mother, Dasha, and Dasha then questioned M.T. briefly about what happened. The police were then called immediately and Officer Mertz arrived soon thereafter. He then questioned M.T. outside the presence of her mother, after which time they walked to defendant’s apartment and confronted him. By defendant’s own testimony the lapse of time between M.T.’s initial visit to his apartment and the time that M.T. came to his apartment with the police was “a couple of hours.” Consequently, M.T.’s statements to her mother and Officer Mertz occurred within a couple of hours of the sexual attack. When considering the age of the child and the brief amount of time between the incident and M.T.’s statements, we agree with the trial court that there was an absence of time to fabricate the statements, and we find that the trial court did not abuse its discretion by finding that the statements were reliable and not the product of reflection or fabrication, and admissible as excited utterances.

Although defendant directs this court’s attention to our decision in In re L.S. as support for the proposition that M.T.’s statements should not be deemed spontaneous declarations, we disagree that our prior decision conflicts with our present holding. In In re L.S. this court found the record was insufficient to allow a fair review of the trustworthiness of the statements.

Based upon our above ruling, that M.T.’s statements were admissible as spontaneous declarations, it is unnecessary for us to consider whether M.T.’s statements were also admissible under section 115—10 of the Code of Criminal Procedure (Ill. Rev. Stat. 1989, ch. 38, par. 115—10). However, we shall briefly address the issues raised by defendant relative to the admissibility of M.T.’s statements under the statute.

Effective January 1, 1988, section 115—10 of the Code was amended to state:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12—13 through 12—16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.
(c) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.
(d) The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.” Ill. Rev. Stat. 1989, ch. 38, par. 115—10.

Hart contends that M.T.’s statements were inadmissible under this statute because (1) no separate hearing was held to determine the reliability of the statements admitted, (2) M.T. was not “unavailable” within the meaning of the statute, and (3) because there was insufficient corroborative evidence of the act which was the subject of the statement.

It is true that the trial court did not conduct a separate hearing to determine the admissibility of the statements prior to trial. However, defendant was tried before the bench and the trial judge determined the admissibility of the evidence after hearing the State’s evidence. As stated in People v. Roy, the requirement of a “hearing outside the presence of the jury” is not wholly inapplicable to bench trials. However, since the trial judge is presumed to have considered only admissible evidence, he may be presumed to have considered the time, content, and circumstances under which the statement was made in determining the reliability of the statements. People v. Roy, 201 Ill. App. 3d at 183.

In Roy, the failure to conduct a hearing was not held to be error even though the trial court never specifically articulated its findings as to the reliability of the statements. In the present case, however, the court noted, when making its determination regarding the admissibility of the statements, that it believed that there were sufficient safeguards of reliability. Again, at the close of the trial, when determining defendant’s guilt, the court once again noted that it admitted M.T’s statements because it believed that she did not have time to fabricate the story concerning the sexual encounter. We find that under these circumstances, the fact that no separate hearing was held was harmless error.

We also disagree with defendant’s claim that M.T. was not “unavailable” within the meaning of the statute. M.T. was deemed incompetent to testify because the court found that she could not appreciate the meaning of an oath. Incompetency to testify falls within the parameters of “unavailable,” as contemplated by the statute. People v. Rocha, 191 Ill. App. 3d at 538-39.

As noted in Rocha, there is, at first blush, a seeming paradox in allowing an out-of-court statement into evidence when the declarant is found to be incompetent. However, upon closer inspection the practice is based upon sound reasoning, i.e., that a child’s earlier statement may actually be more reliable where the time and circumstances under which it was made indicate that it was not the product of fabrication or reflection. Therefore, in this case, where the trial court found that M.T. was incompetent by virtue of her inability to appreciate the meaning of an oath, the trial court was indicating that M.T.’s in-court testimony might have been more easily susceptible to outside influence and, consequently, less reliable. This, however, should not and does not reflect in any adverse manner upon the reliability of the out-of-court statements that are found to be admissible because their time, content and circumstances provided sufficient indicia of reliability.

Lastly, we reject defendant’s claim that there was insufficient corroboration. As noted earlier in our discussion concerning admissibility under the excited utterance rule, M.T.’s statements were corroborated by medical evidence, namely, the redness of M.T.’s vagina and the fact that semen was found to be present in the exact location of defendant’s bed where M.T. indicated that the incident took place.

For all the reasons stated above the judgment of the circuit court of Cook County, finding Hart guilty of aggravated criminal sexual abuse, is hereby affirmed.

Affirmed.

GORDON and McNULTY, JJ., concur.

       After leave to appeal was denied by the Illinois Supreme Court (see People v. White (1990), 133 Ill. 2d 570, 561 N.E.2d 705), the case was granted certification by the United States Supreme Court (White v. Illinois (1991), _ U.S. _, 114 L. Ed. 2d 76, 111 S. Ct. 1681) and presently pends before that Court on a point not directly applicable to the case at bar. See Chicago Law Bulletin, April 29, 1991.


text:
    CLOVERHILL PASTRY-VEND CORPORATION, Plaintiff-Appellant, v. CONTINENTAL CARBONICS PRODUCTS, INC., Defendant-Appellee.
    First District (5th Division)
    No. 1—90—2187
    Opinion filed May 17, 1991.

      Law Offices of Alan I. Boyer, of Skokie (William S. Piper and Joan C. Clements, of counsel), for appellant.
    Kathryn L. Krueger, of Leahy, Eisenberg & Fraenkel, Ltd., of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Cloverhill Pastry-Vend Corporation (Cloverhill) appeals from the dismissal of one count of a five-count complaint filed against Continental Carbonics Products, Inc. (Continental). Despite the fact that the case still pends in the lower court on the remaining counts, this appeal is proper because the trial court ordered that the dismissal was final and appealable pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

The only issue before this court on appeal is whether the trial court properly dismissed plaintiffs count V. The trial court ruled that, as a tort claim seeking purely economic damages, it was prohibited by the so-called “Moorman Doctrine.” (See Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443.) The facts of the case are not materially in dispute.

In April 1984 Continental sold dry ice and a dry ice crusher to Cloverhill. Although the contract did not reflect the fact, Cloverhill contends that Continental was aware that the crushed dry ice was to be used by Cloverhill in the preparation of its bakery dough to accelerate the production process.

Cloverhill began using the dry ice crusher and dry ice purchased from Continental until May 4, 1984, when it was discovered, after having received complaints from customers concerning its baked goods, that the machine was causing small chips or flakes of metal to be dispersed through the dough. Defendant was immediately notified, and it reimbursed Cloverhill the amount of $112,663.93 for the cost of the contaminated baked goods, which were recalled and destroyed.

On November 28, 1984, Cloverhill filed a five-count complaint against Continental, which was amended on August 25, 1989. Continental subsequently moved to dismiss count V of the amended complaint, which alleged that Continental was negligent in its manufacture of the dry ice crusher and sought recovery for lost business which resulted from the loss of customers and accounts stemming from the contaminated baked goods. Cloverhill amended count V again on November 27, 1989, to include as damages the loss of its reputation and goodwill, but the trial court granted Continental’s motion to dismiss, holding that the count sought recovery for purely economic damages which were not recoverable in a tort action pursuant to Moorman.

Cloverhill disputes the trial court’s strict application of Moorman to this case and relies on the more recent Illinois Supreme Court case, Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 546 N.E.2d 580, as support for its contention that economic losses are recoverable in a case of this nature, although personal injury did not occur and is not alleged. We disagree with plaintiff’s interpretation of the case law cited and we affirm the trial court’s judgment.

In Moorman the plaintiff sought recovery for the cost of repairs and the consequential damages resulting from the loss of use of a grain storage tank. The court rejected plaintiff’s claim that these elements of damage were noneconomic and concluded that qualitative defects were best handled by contract rather than tort law.

In Board of Education, the case primarily relied upon by plaintiff in this appeal, the court did not overturn Moorman, but rather distinguished and explained Moorman, when it found that a claim for damage to buildings caused by the presence of friable asbestos stated a claim in tort. Acknowledging that it might seem “somewhat artificial” to fit a claim for asbestos damage into the traditional framework for tort actions because of the unique nature of the “defect” and “damage” caused by asbestos, the court nonetheless found that a claim in strict liability and negligence had been stated. This, however, was because the court found that the product itself was inherently and unreasonably dangerous so that its mere presence in the building caused damage to the building and its occupants.

However, the court specifically stated that its decision was not to be construed as an “invitation to bring economic loss contract actions within the sphere of tort law.” (131 Ill. 2d at 445.) Moreover, the court in Board of Education affirmed Moorman and noted that mere allegations of “risk of injury” or the unreasonably dangerous nature of the product were insufficient in tort where no physical injury to property (other than the product itself) and no personal injury had been sustained or alleged. 131 Ill. 2d at 442, 444.

While it is true that the facts of the present case do not fit neatly into either of these previously decided cases, we do not believe that they support an expansion or deviation from the tenets of the Moor-man doctrine.

Initially, we note that Cloverhill did not allege in its complaint that the dry ice crusher or dry ice was inherently or unreasonably dangerous. Instead, this is plaintiff’s claim on appeal in an attempt to bring the facts of the present case within the parameters of the case in Board of Education. We note, too, that Cloverhill has not indicated how Continental’s products were inherently dangerous or caused its baked goods to become inherently dangerous. Plaintiff relies on the fact that the baked goods were contaminated and had to be recalled under Illinois law. However, we do not agree that the fact that the baked goods were contaminated automatically requires a finding that the baked goods were toxic or that they presented a threat to human life.

We are not unmindful of Justice Simon’s comments in his specially concurring opinion in Moorman, wherein he states:

“Conversely, I believe there should be recovery for lost profits where a plaintiff restaurant buys and serves the defendant’s unfit packaged food, so that a patron, though uninjured, jumps up and denounces the restaurant, wrecking its reputation.” Moorman, 91 Ill. 2d at 95 (Simon, J., specially concurring).

Although this statement does provide plaintiff with some support for its claim, we must keep in mind that Justice Simon’s comments are merely dicta and we have found no Illinois cases that have followed its proposed direction. In fact, a Federal case interpreting Illinois law, including Moorman and its progeny, refused a plaintiff’s claim for lost business and lost profits under somewhat similar circumstances. In Dixie-Portland Flour Mills, Inc. v. Nation Enterprises, Inc. (N.D. Ill. 1985), 613 F. Supp. 985, Nation Enterprises, which was in the business of manufacturing pizzas, discovered that the flour it purchased from Dixie-Portland and used to prepare its pizzas was contaminated with sand. Nation Enterprises refused to pay for the flour and, in addition, sued, both in tort and in contract for the damage to its other pizza ingredients and materials as well as for their lost business and profits. The court dismissed the tort claims, finding that a .qualitative defect had been alleged and that recovery in tort was precluded by Moorman and its progeny.

We concur with the Federal court’s interpretation of Moorman and the subsequent cases that have followed its holding. We believe that plaintiff here, as the plaintiff in Dixie-Portland, has only succeeded in demonstrating that defendant’s products were not fit for the particular use contemplated.

Additionally, because plaintiff claims that defendant represented that its dry ice crusher could crush dry ice to be used in the baking process does not bring this case under a recognized exception to Moorman. Plaintiff does not allege that defendant intentionally misrepresented its equipment falsely and, although it may have been a negligent misrepresentation, because defendant was not in the business of supplying information, solely economic loss stemming from this negligent misrepresentation is not recoverable. See Collins v. Reynard (1990), 195 Ill. App. 3d 1067, 1070, 553 N.E.2d 69.

We must keep in mind that plaintiff is not seeking to recover for personal injury or for injury to property. In fact, Continental has already reimbursed plaintiff for whatever injury plaintiff sustained to its “property,” i.e., its bakery goods which were recalled and destroyed. Rather, plaintiff is seeking to recover for the intangible and consequential damages of lost profits, lost business, and damage to reputation and goodwill. We believe that, in this way, plaintiff is seeking to recover purely economic damages. For this reason, we affirm the decision of the trial court.

The order entered by the the circuit court of Cook County, dismissing plaintiff’s count V, is hereby affirmed.

Affirmed.

LORENZ, P.J., and GORDON, J., concur.

       The contract involved in this case indicates that defendant sold the dry ice crusher to Cloverhill Bakery, Inc., which is a different corporation from plaintiff. In count I of plaintiff’s complaint, plaintiff seeks reformation of the contract to reflect the fact that the true purchaser of the ice crusher was Cloverhill Pastry-Vend Corporation (plaintiff). In count I plaintiff contends that Cloverhill Pastry-Vend Corporation was the entity in the business of preparing, baking and selling bakery products, while Cloverhill Bakery, Inc., was involved exclusively in the business of developing the sales and marketing of products manufactured by Cloverhill Pastry-Vend Corp. (plaintiff). Plaintiff further contends that it was merely an oversight and mistake that the contract did not correctly reflect the true purchaser when it was reduced to writing.
      For the purposes of this appeal, we shall assume, as plaintiff alleges, that it was the purchaser of the dry ice crusher.