author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MONICO CAMPOS, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—1143
    Opinion filed February 28, 1992.
    Rehearing denied April 10, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
    Clarke D. Forsythe and Kevin J. Tood, both of Americans United for Life, of Chicago for amici curiae.

   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Monico Campos, was found guilty of first degree murder of his wife, Victoria Campos, and intentional homicide of an unborn child, and was sentenced to concurrent prison terms of 35 years for each offense. Using a .22 caliber “pen gun,” defendant shot his wife, who was approximately 201/2 weeks pregnant.

On appeal, defendant contends that the following matters constitute reversible error: (1) the trial court’s revision of the issue instructions rendered to the jury on each offense; (2) refusal to query potential jurors during voir dire with questions posed by defense counsel to elicit their beliefs about fetal life; (3) the refusal to admit into evidence the attending physician’s medical records and the fetal death certificate; (4) improper impeachment of defendant; (5) improper prosecutorial remarks during closing arguments; (6) refusal to question a potential juror to ascertain whether she was pregnant; (7) ineffective assistance of counsel because of certain remarks made by defense counsel during closing argument; (8) improper expert testimony concerning the cause of death of the fetus; (9) gross prosecutorial misconduct; (10) inappropriate reference to defendant’s use of an illegal weapon; and (11) failure to prove the elements of criminal agency to support the conviction of intentional homicide of an unborn child.

In addition, defendant challenges the constitutionality of the intentional homicide of an unborn child and first degree murder statutes, and whether he was improperly convicted of a greater and lesser included offense as the result of a single act.

The shooting occurred at about 6:30 p.m. on December 31, 1987, in the apartment of Theresa Espinoza, the deceased’s mother. Defendant and the deceased, who lived in Cicero, were visiting at the time. After the offense, defendant attempted to flee, but was held for the police by a neighbor and family members.

The facts behind the shooting are as follows. The deceased met defendant, a restaurant busboy, in April 1987, and they began living together shortly thereafter. She became pregnant during the summer, and they married in October 1987.

The deceased had previously been married to Demetrius Dimoulas, with whom she had a daughter, age five at the time of trial. After divorcing Dimoulas, the deceased met David Briones and lived with him from 1985 through November 1986. Shortly before the deceased gave birth to his child, another daughter, Briones left the deceased. Briones was a migrant worker and left the Chicago area to harvest crops in other States.

Briones and the deceased remained on friendly terms after the end of their relationship, and he occasionally visited his daughter in Chicago. On December 17, 1987, Briones arrived in Chicago. He stayed at the apartment of the deceased’s mother. During this time, the mother arranged for Briones to see his daughter at her apartment several times.

On December 31, 1987, the family and Briones were at the mother’s apartment. The mother noticed that defendant was very moody and pouting, apparently because of Briones’ presence. The mother saw defendant enter the kitchen with both hands in his jacket pocket. After the deceased came into the kitchen, the mother left the room to get dressed for a party. Moments later, defendant shot and killed the deceased.

Defendant testified that on the afternoon of the offense, he telephoned the mother’s apartment from work, and Briones answered. Briones told defendant that the deceased and her mother were at the laundromat. After work, defendant went to the mother’s apartment, and the women arrived from the laundromat shortly thereafter.

Later, the deceased entered the kitchen briefly and asked defendant if he would take her father to a tavern. When the deceased entered the room again, defendant asked to speak to her. The deceased told defendant that she had nothing to say to him. Defendant asked the deceased whether she planned to go away with Briones. The deceased replied that she was going away with Briones because she loved him, and that she never loved defendant. Defendant became very upset, took the gun from his rear pocket, and shot it to scare her. He was approximately three meters from the deceased when he fired the gun. Defendant stated that he did not intend to shoot the deceased, but he was nervous and jealous. He aimed the gun towards the wall.

With regard to the medical evidence, the deceased was taken to Mount Sinai Hospital, where she remained alive for eight days. Dr. Stephen R. Meyers, director of fetal medicine at the hospital, testified that he was the deceased’s primary attending physician from January 4, 1988, until the time of her death. The deceased’s condition was consistent with the clinical diagnosis of brain death, and she was in a significant coma. Dr. Meyers noted a small hole under the decedent’s cheekbone, which he found indicative of the gunshot wound which she had sustained. The deceased was attached to several life-support systems.

Dr. Meyers’ ultrasound examination revealed that the deceased was pregnant with an alive, normal fetus at 21 to 22 weeks gestation. The deceased’s condition remained stable until January 8, at which time her blood pressure became unstable. Dr. Meyers increased the ventilator settings in an attempt to maintain normal oxygenation. Dr. Meyers remained at the deceased’s bedside from 8 a.m. until 11:30 a.m., during which time the fetus was alive and its heartbeat normal. Later that morning, the deceased went into shock. Attempts were made to resuscitate the deceased and normalize her blood pressure. However, at approximately 1:30 p.m., the deceased gave birth to a stillborn child that was found between her legs following what the doctors characterized as a “spontaneous delivery.” Later that evening, the deceased’s heart and lungs stopped functioning, and she was pronounced dead.

Dr. Robert Stein, chief medical examiner for Cook County, performed autopsies on the bodies of the deceased and the fetus on January 9, 1988. Dr. Stein concluded that the bullet entered the deceased through her right cheek, tracked from right to left perforating both cerebral hemispheres, and was retrieved in the back occipital area of the brain.

Although Dr. Stein did not review the medical records that were completed at Mount Sinai Hospital or speak to Dr. Meyers, he opined that the gunshot wound to the head caused the death of the deceased. Dr. Stein’s examination of the fetus revealed that it was perfectly normal, and that the cause of death was intrauterine asphyxia, defined as lack of oxygen to the fetus. Dr. Stein testified that the cause of death of the fetus was also the gunshot wound to the head of the deceased. Although the life-support system was sufficient to sustain the deceased’s life, it did not provide an adequate supply of oxygen through the placenta to keep the fetus alive. Dr. Stein further explained that the fetal death certificate and the autopsy protocol did not include a provision for manner of death; however, he would have indicated homicide if able to do so on the forms.

In addition to the charge of first degree murder and intentional homicide of an unborn child, the trial court, over the State’s objection, instructed the jury on the lesser included offenses of second degree murder of the deceased, voluntary manslaughter of an unborn child, and involuntary manslaughter of each victim. There are no Illinois Pattern Jury Instructions (IPI) for the intentional homicide of an unborn child.

The State’s proffered jury instructions comported with the requirements set forth in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, and instructed the jury that the State had to first establish the mental state necessary for intentional homicide, and then prove beyond a reasonable doubt that defendant did not act under a sudden and intense passion in order to sustain a charge of intentional homicide rather than voluntary manslaughter of an unborn child. The jury returned a verdict of guilty of first degree murder of the deceased and intentional homicide of an unborn child.

On appeal, defendant first contends that the issue instructions misdirected the jury that it could return verdicts of guilty of first or second degree murder, and verdicts of guilty of intentional homicide or voluntary manslaughter of an unborn child, without deliberating on the lesser offenses of involuntary manslaughter for each victim. The instruction at issue provides in relevant part:

“If you decide from your consideration of all the evidence that the State has proved beyond a reasonable doubt this additional proposition [defendant did not act under a sudden and intense passion resulting from serious provocation by some other person he endeavors to kill but negligently or accidentally kills the unborn child], you should find the defendant guilty of intentional homicide of an unborn child.
If you find from your consideration of all the evidence that the State has not proved beyond a reasonable doubt this additional proposition, you should find the defendant guilty of voluntary manslaughter of an unborn child.”

The instructions are similarly phrased for the first degree versus second degree murder of the deceased. Defendant maintains that the instructions specifically misdirected the jury that it could return a guilty verdict of intentional homicide of an unborn child if the State negated the provocation-voluntary manslaughter theory, without making any reference to evidence regarding the theory of involuntary manslaughter. In essence, defendant argues that if the jury found defendant guilty, the issue instructions direct the jury to choose only between the two most serious offenses, without taking into consideration the less serious alternative of involuntary manslaughter.

In order to assess the propriety of a particular jury instruction, it must be viewed in conjunction with all of the instructions given; thus, it is sufficient if the series of instructions in their entirety fully and fairly announce the applicable law. (People v. Hartfield (1985), 137 Ill. App. 3d 679, 484 N.E.2d 1136, citing People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746.) Moreover, any confusion or ambiguity in an instruction may be cleared up by another instruction, as no single instruction is required to set forth all relevant law on a single subject. People v. Morrison (1985), 138 Ill. App. 3d 595, 486 N.E.2d 345.

While we acknowledge that the jury instructions in this case may appear complicated, we find nonetheless that the instructions, viewed as a whole, were a correct statement of the law and adequately informed the jury of the nature of the charges against defendant, including involuntary manslaughter. In both the preliminary and concluding instructions, the trial judge informed the jury that defendant was charged with three offenses, which included involuntary manslaughter of each victim. Immediately following the giving of IPI Criminal 2d No. 704A (1989 Supp.), for first and second degree murder, the trial judge instructed the jury pursuant to IPI Criminal 2d Nos. 7.07 and 7.08 of the definition of involuntary manslaughter, and the mental state required to show that an act was committed with recklessness. Finally, the jury was provided with four verdict forms for each victim, which allowed the jury to find: (1) not guilty of any offense; (2) guilty of first degree murder (intentional homicide of an unborn child); (3) guilty of second degree murder (voluntary homicide of an unborn child); and (4) guilty of involuntary manslaughter (involuntary manslaughter of an unborn child). Thus, it cannot be said that if a finding of involuntary manslaughter was borne out by the evidence, the jury was not adequately informed that it could find defendant guilty of that offense.

Defendant also objects to the trial court’s use of a non-IPI instruction for the intentional homicide and voluntary manslaughter of an unborn child offenses. The intentional homicide of an unborn child statute replaced the previous feticide statute (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1.1 (repealed by Pub. Act 84 — 1414 §2, eff. Sept. 19, 1986; Pub. Act 85 — 293, art. II §21, eff. Sept. 8, 1987)), and was enacted shortly before the commission of this offense. As previously noted, there are no IPI instructions for the intentional homicide of an unborn child offense. However, defendant’s proffered instructions for this offense did not conform to the requirements of Reddick, which requires the State to disprove provocation in order to sustain the charge of intentional homicide of an unborn child. The State’s proposed instructions correctly incorporated this additional proposition, and were, therefore, properly tendered to the jury.

Defendant next assigns as error the trial court’s refusal to ask prospective jurors certain questions designed to probe their bias and experiences on the issue of fetal life and abortion. The questions requested are as follows:

“1) Do you believe that a fetus in the womb is a living being, separate and apart from the mother?
2) Do you believe that it is a sin or immoral to have an abortion?
3) Do you know anyone personally who has had an abortion?”

Instead of asking these specific questions to potential jurors, the trial court posed the following question: “Do you believe that the taking of the life of an unborn child is a crime or wrong in all instances?”

Defendant’s reliance upon People v. Murawski (1954), 2 HI. 2d 143, 117 N.E.2d 88, for the proposition that defendant should have been allowed to ascertain whether prospective jurors harbored potential bias about abortion or fetal life is misplaced. In that case, the supreme court found that it was error for the trial court to have refused to ask the following question to potential jurors during voir dire: “Are you of the opinion that an abortion should never be performed?” (2 Ill. 2d at 147.) In Murawski, however, defendant was charged with abortion and other related offenses. In this case, defendant’s attempts to determine potential jurors’ perspectives about abortion are irrelevant. Defendant was charged with intentional homicide of an unborn child and not with committing abortion or any related crime. Failure to ask the aforementioned questions during voir dire did not compromise defendant’s right to an impartial jury.

Defendant next contends that the trial court improperly refused to admit Dr. Meyers’ medical records into evidence. Dr. Meyers testified as to the medical condition of the deceased and her unborn child. Dr. Meyers stated that he had reviewed the medical records compiled prior to his involvement and concurred with the diagnosis of brain death. Defendant thereupon moved to admit the medical records into evidence. Initially, the trial court granted defendant’s motion but later reconsidered and refused to admit the records.

There are two steps required for the admission of medical records. The custodian of the records must verify that the records were kept in the ordinary course of business and are in the same condition as when made. The records also must be verified by the testimony of the persons who made the entries. (See Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322.) These requirements were not complied with in the present case, and the trial court properly refused to allow the medical records into evidence.

We next address defendant’s contention that the fetal death certificate prepared by Dr. Stein was also improperly excluded from evidence. Defendant correctly asserts that public records, such as the fetal death certificate prepared by Dr. Stein in his capacity as chief medical examiner of Cook County, are admissible in any criminal action as prima facie evidence of the facts, findings, opinions, diagnoses and conditions stated therein. Ill. Rev. Stat. 1987, ch. 38, par. 115 — 5.1.

The record, however, shows that the trial judge reconsidered his ruling only as it pertained to the medical records, and that the death certificate remained admissible in evidence. The record is devoid of any reference that the trial judge intended to exclude the fetal death certificate; rather, the only context in which it is discussed is that it was considered at the same time the trial judge first found the medical records to be admissible. We do not believe that the trial judge excluded the fetal death certificate from admission into evidence. In any event, in view of Dr. Stein’s testimony, defendant suffered no prejudice.

Defendant also maintains that the State’s attempts to impeach defendant’s testimony were prejudicial and improper because the cross-examination consisted of unsupported insinuations. The questions at issue included a threat made by defendant to kill the deceased and Briones, and requests made by defendant to other family members to leave him and the deceased alone in the kitchen on the evening in question. Defendant denied that he had made such a threat or requests. The State did not produce any witnesses to perfect the attempted impeachment.

We note, however, that defense counsel did not object to the failure of the State to perfect impeachment at trial, nor was the issue raised in defendant’s motion for a new trial. In view of the well-settled principle that in order to preserve an issue for appeal, defendant must raise that issue by objecting at trial and by including the matter in a written post-trial motion, we find that defendant has waived this argument for purposes of review. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Defendant farther assigns as reversible error inflammatory remarks made by the State during closing arguments. In particular, defense counsel complains that the State improperly “play-acted” a hypothetical conversation between the deceased and defendant moments before she was killed; that the prosecutor purported to “speak for the deceased”; and that the effect of the defense advanced would declare “open season” on spouses. Defense counsel, however, failed to object to these remarks at trial and, thus, they are not properly before us for review. Defendant’s failure to object at trial waives any error in the proceedings absent a showing of plain error. People v. Nevitt (1990), 135 Ill. 2d 423, 553 N.E.2d 368.

The State did make certain other comments that were objected to by defense counsel, including the statement that, “[ajfter 14 months he can say what he wants up there about that night,” and that the jury had the unique opportunity to hear a murderer take the stand and recount his version of the events. However, this court has consistently held that a prosecutor is allowed considerable latitude in closing argument as long as the comments are based on the evidence or reasonable inferences therefrom. (People v. Evans (1988), 173 Ill. App. 3d 186, 527 N.E.2d 448; People v. Williams (1986), 146 Ill. App. 3d 767, 497 N.E.2d 377; People v. Clay (1984), 124 Ill. App. 3d 140, 463 N.E.2d 929.) Improper remarks do not warrant reversal unless they are so prejudicial as to constitute a material factor in defendant’s conviction (People v. Merideth (1987), 152 Ill. App. 3d 304, 503 N.E.2d 1132), or otherwise deny defendant a fair trial. (People v. Branch (1987), 158 Ill. App. 3d 338, 511 N.E.2d 872.) We find that the remarks objected to were fair inferences based upon the evidence and did not deprive defendant of a fair trial.

Defendant also contends that the State misstated the law in its closing arguments concerning the offense of involuntary manslaughter. Specifically, the State commented that, “simply put, involuntary manslaughter is that it was an accident — he didn’t intend it at all.” The State’s attempt to provide a definition of involuntary manslaughter was interrupted, and the trial judge cautioned that he would instruct the jury as to the relevant law.

Upon review of the record, we find that any impropriety in the State’s reference to the law of involuntary manslaughter was adequately corrected by the trial judge’s timely and repeated directions that he would provide instructions on the law and that the jury should follow the law as presented by the court. The court provided proper jury instructions on the elements of involuntary manslaughter, including the requisite mental state of recklessness required for that offense. Where the trial court properly instructs the jury on the law, prosecutorial argument which misstates the law does not constitute reversible error. People v. Maloney (1990), 201 Ill. App. 3d 599, 558 N.E.2d 1277.

Defendant also contends that the trial court improperly refused during voir dire to ask follow-up questions to a juror who appeared to be pregnant. Defendant argues that it was crucial for counsel to ascertain whether or not the juror was pregnant because of the nature of the charges, which involved the murder of a pregnant woman and her unborn child. The trial judge declined to posit that question to the juror because he felt that it was too personal.

The purpose of voir dire is to permit counsel and the judge to ascertain whether the minds of prospective jurors are free from bias and prejudice. (People v. Allen (1986), 148 Ill. App. 3d 200, 498 N.E.2d 838.) Reversible error will only be found where the trial judge’s conduct during voir dire amounted to an abuse of discretion and thwarted the selection of an impartial jury. People v. Allen, 148 Ill. App. 3d 200, 498 N.E.2d 838; People v. Teague (1982), 108 Ill. App. 3d 891, 439 N.E.2d 1066.

The juror in question twice stated during voir dire that she did not believe that the taking of the life of an unborn child is a crime or wrong under all circumstances, and that she could follow the principles and instructions of law. She also indicated that she could be fair and impartial to both sides. We find, therefore, that defendant’s claim that the juror’s possible pregnancy precluded her from functioning as an impartial juror, without any further support, does not rise to the level of an abuse of judicial discretion.

Defendant next argues that he was denied effective assistance because of statements made by defense counsel during closing argument. Defendant contends that defense counsel repeatedly abandoned the request for not-guilty verdicts, and did not make any favorable legal arguments. Defendant particularly objects to the following comments made by defense counsel:

“I’m telling you right now we’re not asking for a finding of not guilty. I don’t believe the law would support it. I don’t believe the facts will support it. And I don’t even remember arguing ever in my career of [sic] a jury that I’m not asking for a not guilty. But I’m telling you right now lest my motives be questioned that the law does not support a not guilty in this case as to the death of Victoria Campos Espinoza.”

Defendant argues that the above concessions of defendant’s guilt constituted ineffective assistance of counsel per se. In order to establish a per se claim of ineffective assistance, defendant must demonstrate that defense counsel entirely failed to subject the prosecution’s case to meaningful adversarial testing; thus, prejudice will be presumed and defendant need not satisfy the Strickland test. That test requires defendant to prove two elements: (1) that his attorney failed to perform as a reasonably competent attorney, and (2) there exists a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the trial would have been different. Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698,104 S. Ct. 2052, 2068.

Defendant relies upon People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513, as support for his position that counsel’s concession of defendant’s guilt is sufficient to establish proof of per se ineffective assistance of counsel. However, this doctrine has evolved from simply a concession by defense counsel of defendant’s guilt to a requirement that defense counsel must have “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing.” (Emphasis omitted.) (People v. Johnson (1989), 128 Ill. 2d 253, 266, 538 N.E.2d 1118.) In Johnson, our supreme court stated:

“In situations where there is overwhelming evidence of guilt and no defense, if counsel contests all charges he is liable to lose credibility with the trier of fact when it comes to charges where a legitimate defense exists. Though concession of the murder was made, going to trial did preserve for the defendant matters that a guilty plea necessarily would have waived.” Johnson, 128 Ill. 2d at 270, 538 N.E.2d at 1125.

In People v. Combs (1990), 206 Ill. App. 3d 217, 563 N.E.2d 798, this court concluded that a defendant can establish per se ineffectiveness of counsel only if the facts establish that defense counsel had failed entirely to subject the prosecution’s case to meaningful adversarial testing. If defendant fails to do so, he must satisfy the Strickland test by proving that defense counsel’s deficiencies prejudiced him so as to deprive him of a fair trial.

In view of the fact that defendant shot the deceased in the kitchen of her mother’s apartment, with several members of the family in the apartment, that he admitted shooting the gun to frighten her, and that the deceased’s brother testified that he saw defendant standing over the body of the deceased with a gun in his hand, we find that the evidence amassed against defendant is indeed overwhelming.

We also find that defendant has failed to establish ineffective assistance of counsel pursuant to the Strickland test. In his closing argument, defense counsel attempted to portray defendant as a hard-working individual who loved and supported the deceased and her two children, as well as her father. Throughout the course of the trial, defense counsel consistently advanced the theory that defendant was upset at the prospect of the deceased leaving him for Briones. Finally, defense counsel stated in his closing argument that this case is “not a murder in the first-degree. Whether it’s murder in the second degree or whether it’s involuntary manslaughter is for you to decide.” We find, therefore, that defense counsel subjected the State’s case to meaningful adversarial testing, thereby negating defendant’s contention that he was denied effective assistance of counsel.

Defendant next contends that the admission of expert testimony by Dr. Stein that the fetus died from the gunshot wound to the mother’s head was beyond the scope of his expertise. Defendant maintains that Dr. Stein had no knowledge of the life-support systems monitoring the deceased and the fetus, nor any contact with the treating physician or familiarity with the hospital medical records. As such, defendant contends that Dr. Stein was not qualified to voice an opinion on the events which occurred at the hospital and caused the death of the fetus.

We believe that Dr. Stem’s testimony concerning the cause of death of the fetus as intrauterine asphyxia was proper. Our supreme court has held that an expert witness may testify to an opinion on an ultimate issue in a case. (People v. Harris (1989), 132 Ill. 2d 366, 547 N.E.2d 1241.) The rationale behind allowing such expert testimony as to ultimate issues is that the jury is not required to accept the opinion, and its responsibilities are not being usurped. Merchants National Bank v. Elgin, Joliet & Eastern Ry., Inc. (1971), 49 Ill. 2d 118, 273 N.E.2d 809; People v. Price (1988), 176 Ill. App. 3d 831, 531 N.E.2d 901.

Dr. Stein, a forensic pathologist with 30 years’ experience, who also functioned for over 12 years as the chief medical examiner of Cook County, was well qualified to render an opinion as to the cause of death of the fetus. Dr. Stein conducted an autopsy on the deceased, and was aware of the fact that she had sustained a gunshot wound to her face, and that she had been on a life-support system. We believe that these facts justified his giving an opinion as to the fetus’ death.

Defendant next maintains that the State engaged in gross misconduct at trial by requesting the surviving members of the deceased’s family to describe in detail the personal attributes of the deceased and the effect of the family’s loss. Specifically, defendant complains that testimony was elicited at trial from the deceased’s mother in which she described the deceased as a “happy-go-lucky person,” that she was “always happy” and that they had a close relationship and confided in each other. However, defendant only objected on the basis that the testimony was narrative. Because objections at trial on specific grounds waive all other grounds of objection (People v. Barrios (1986), 114 Ill. 2d 265, 500 N.E.2d 415; People v. Jones (1975), 60 v 2d 300, 325 N.E.2d 601), defendant has waived the right to object on the grounds he now asserts on appeal.

Defendant also complains that during closing arguments, the prosecutor mentioned that the deceased’s two little girls had lost their mother and that now they were being raised by their grandmother. In addition, the State prior to closing arguments displayed before the jury a family photograph of the deceased accompanied by her two children. Defendant argues that the State’s blatant and repeated appeals to the jury’s sympathy for the deceased’s family were highly improper and that defendant’s convictions should be reversed and remanded for a new trial.

Defendant correctly cites People v. Hope (1986), 116 Ill. 2d 265, 508 N.E.2d 202, as support for his position that evidence that a murder victim left a spouse and family has no relationship to guilt or innocence of an accused, but normally serves only to prejudice defendant in the eyes of the jury. However, the Hope court also emphasized that not every mention of a murder victim’s family per se entitles defendant to a new trial; such statements can be harmless, depending upon how the evidence is introduced.

Evidence concerning the deceased’s family is admissible to the extent that it is “necessarily involved in the proper presentation of the State’s case.” (People v. Barrow (1989), 133 Ill. 2d 226, 272, 549 N.E.2d 240.) Due to the circumstances of this case, wherein the deceased was shot at her mother’s apartment in close proximity to her two small children and her brother, some reference to the victim’s family during the trial was not only proper, but virtually inevitable. (People v. Simms (1988), 121 Ill. 2d 259, 520 N.E.2d 308.) The trial judge also recognized the impropriety of allowing a family photograph to remain within the purview of the jury and admonished the State not to show it to the jury and to turn it facedown on its counsel table. We find, therefore, that any reference to the loss experienced by the deceased’s family was harmless under the circumstances.

Defendant further contends that evidence of the illegality of the pen gun was prejudicial error because it was collateral to the crimes charged. Although evidence which tends to show that an accused has committed crimes or acts of misconduct which are distinct and entirely unrelated to the one for which he is being tried is both incompetent and prejudicial (People v. Pauli (1988), 176 Ill. App. 3d 960, 531 N.E.2d 1008), erroneous admission of evidence of other crimes, wrongs or acts does not constitute per se grounds for reversal where evidence of defendant’s guilt is demonstrated beyond a reasonable doubt. People v. Scott (1990), 194 Ill. App. 3d 634, 551 N.E.2d 288; People v. Foster (1989), 190 Ill. App. 3d 1018, 547 N.E.2d 478.

While defendant was not charged with unlawful use of weapons, it is undisputed that the pen gun was the weapon used in the commission of the offense. Consequently, certain references to the fact that defendant possessed the gun, and the mechanics of this particular weapon, were unavoidable under the circumstances. Moreover, during the State’s cross-examination of defendant, defense counsel first posed and later withdrew an objection to the State’s question as to whether defendant was aware of the illegality of the gun. Thus, we believe that any reference to the pen gun, in view of defense counsel’s tactical strategy to concede its illegality, was harmless.

Defendant next asserts that the State failed to prove the element of criminal agency necessary to support a conviction for intentional homicide of an unborn child, where the fetus died during a “spontaneous abortion” which did not exclude unknown causes of death. Defendant maintains that the failure of such proof requires the reversal of the conviction. Alternatively, defendant argues that because the homicidal death of the fetus was a factor expressly influencing the judge’s sentencing determination on both charges, his case should be remanded for resentencing on the remaining conviction.

The State’s burden is not to prove that the defendant’s act is the sole and immediate cause of death, but that the defendant’s act was, beyond a reasonable doubt, a contributing cause to a death such that the death did not result from a source unconnected with the defendant’s act. (People v. Carter (1988), 168 Ill. App. 3d 237, 522 N.E.2d 653; People v. Brown (1978), 57 Ill. App. 3d 528, 373 N.E.2d 459.) Extensive medical testimony is not always necessary to show this causal relationship between death and the act of the defendant. (People v. Jones (1961), 22 Ill. 2d 592, 177 N.E.2d 112.) The existence of a time interval between the defendant’s act and death does not preclude such a causal link. People v. Hughes (1977), 46 Ill. App. 3d 490, 360 N.E.2d 1363.

It is uncontroverted that the bullet defendant fired at the deceased did not cause an immediate injury to the fetus. However, it is reasonable to infer that such a trauma, which left the deceased in a significant coma and attached to several life-support systems to monitor her vital signs, would ultimately affect the life of the unborn child. Dr. Stein testified that the cause of death of the fetus was the gunshot wound to the head of the deceased, which caused intrauterine asphyxia. Dr. Stein also opined that while the life-support system was sufficient to sustain the deceased’s life, it did not provide an adequate supply of oxygen through the placenta to keep the fetus alive.

In the present case, the State has established a sufficient causal link to connect defendant’s act to the death of the fetus. When the facts engender such an obvious association between the act and death that the connection is easily understood from common knowledge and experience, no strenuous technical explanations are required by the law as adequate proof. (People v. Carter, 168 Ill. App. 3d 237, 522 N.E.2d 653; People v. Jones, 22 Ill. 2d 592, 177 N.E.2d 112; People v. Brown, 57 Ill. App. 3d 528, 373 N.E.2d 459.) After determining that criminal agency has been properly established, we need not address defendant’s alternate argument requesting remand for resentencing on the intentional homicide of an unborn child conviction.

Defendant’s next argument, a challenge to the constitutionality of the intentional homicide of an unborn child statute, has been rejected by this court. People v. Ford (1991), 221 Ill. App. 3d 354, 581 N.E.2d 1189.

In Ford, the defendant was found to have stomped or kicked the stomach of his 17-year-old stepdaughter who was 5V2 months pregnant, thereby causing the death of her unborn child. Similar to the issues raised in the present case, the defendant there claimed that the fetal homicide statute violated the equal protection clause because it failed to distinguish between viable and nonviable fetuses, and whether a valid legislative purpose existed for protecting the potentiality of human life.

After first distinguishing between a woman who chooses to terminate her pregnancy, as opposed to a defendant who assaults a pregnant woman which causes the death of her fetus, the Ford court held that they are not similarly situated. The statute simply protects the mother and the unborn child from the intentional wrongdoing of a third party by imposing criminal liability. Moreover, the distinction between an embryo or viable fetus versus a nonviable fetus was found to be immaterial to an equal protection challenge, in view of the State’s interest in protecting potential human life. We adhere to the Ford ruling, and we reject the attack on the constitutionality of the intentional homicide of an unborn child statute.

Belatedly, defendant also challenges the constitutionality of the first degree murder statute (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1) as violative of due process, equal protection, and separation of powers. However, the first degree murder statute has withstood challenges despite scrutiny on each of the grounds advanced by defendant. See People v. Jerome (1990), 206 Ill. App. 3d 428, 564 N.E.2d 221 (requiring defendant charged with first degree murder to prove mitigating factor in order to reduce offense to second degree murder did not violate due process); People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373 (first degree murder statute does not violate equal protection on theory that it requires a defendant to prove second degree murder to escape a presumption of guilt of first degree murder, as there is no presumption of guilt to first degree murder which must be rebutted by defendant); People v. Gore (1991), 212 Ill. App. 3d 984, 571 N.E.2d 1041 (homicide scheme did not violate separation-of-powers scheme; no language in statute indicated that prosecutor could not charge defendant with second degree murder).

Defendant’s final argument asserts that defendant was improperly convicted of a greater and lesser included offense arising from a single physical act. In People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183, our supreme court determined that the crime of feticide is not a lesser included offense of murder. The court in Shum held that since there were two victims involved and feticide is not a lesser included offense of murder, both convictions may stand. Applying the principles set forth in Shum to the present case, we find that defendant was properly convicted of both offenses.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

EGAN, P.J., and LaPORTA, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    HOUSEHOLD FINANCE CORPORATION III, Plaintiff-Appellee, v. ROBERT A. VOLPERT et al, Defendants-Appellants.
    First District (6th Division)
    No. 1—90—2293
    Opinion filed March 13, 1992.
    David M. Laz, of Wheaton, for appellant Robert A. Volpert.
    Richard A. Kamerman, of Elmhurst, for appellee Household Finance Corporation III.
    A. Donald Baumgartner, of Des Plaines, for appellee Zbigniew Sztukowski.
    Samuel H. Levine, of Harold I. Levine, Ltd., of Chicago, for appellees Radomir Delic and Gordana Delic.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Robert A. Volpert, appeals from an order of the circuit court of Cook County which denied his motion to vacate judgment of foreclosure and quash service by publication. The sole issue on appeal is whether plaintiff, Household Finance Corporation, demonstrated “due inquiry” in attempting to personally serve defendant before serving by publication.

On November 14, 1988, Household Finance filed a complaint to foreclose the mortgage on the house owned by defendant at 5751 N. Odell in Chicago. The sheriff’s return indicates that defendant was not served. On January 18, 1989, the trial court entered an order appointing a special process server, Randy Kadet. The two unnotarized returns from Kadet, dated March 1 and April 11, 1989, indicate that defendant was not found either at the Odell address or at “Mind Over Matter” at 5483 N. Northwest Highway in Chicago. On March 16, 1989, plaintiff filed an affidavit for service by publication which stated that upon “due inquiry defendant cannot be found so that process cannot be served.” On March 17, 24 and 31, 1989, service was made by publication. On May 24, 1989, upon plaintiff’s motion, the trial court entered an order of default and judgment of foreclosure against defendant.

More than six months later, on January 12, 1990, defendant filed a motion to vacate judgment and quash service by publication. Defendant’s motion challenged the validity of the special process server’s return, but did not raise the question of whether due inquiry had been made. In the motion and attached affidavit, defendant stated that he had resided at 5751 N. Odell since 1979. On June 13, 1990, pursuant to a sheriff’s sale, the property was sold to a third-party, Zbigniew Sztukowski, who subsequently .conveyed it to Radomir and Gordana Delic. (Sztukowski and the Delies have filed briefs in support of plaintiff’s position.) On July 26, 1990, after a hearing, the trial court found that “service was properly attempted” and denied defendant’s motion. This appeal followed.

Initially, we note that at oral argument before this court defendant conceded that the special process server’s unnotarized return of service does not render it void. Therefore, the only issue for our review is whether plaintiff established “due inquiry” to personally serve defendant before serving by publication.

Section 2 — 206 of the Code of Civil Procedure allows service by publication in actions affecting property. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 206.) The statute requires plaintiff to file an affidavit showing that defendant “on due inquiry cannot be found *** so that process cannot be served upon him,” and “stating the place of residence of the defendant, if known,” or that upon “diligent inquiry” defendant’s place of residence cannot be ascertained. (Ill. Rev. Stat. 1989, eh. 110, par. 2 — 206.) A defendant may challenge such affidavit by filing an affidavit showing that upon due inquiry he could have been found. (First Federal Savings & Loan Association v. Brown (1979), 74 Ill. App. 3d 901, 393 N.E.2d 574.) Upon defendant’s challenge, plaintiff must produce evidence establishing due inquiry. (Eckberg v. Benso (1989), 182 Ill. App. 3d 126, 537 N.E.2d 967.) Upon review of the record, we conclude that the trial court’s determination that plaintiff established due inquiry was not against the manifest weight of the evidence.

The record reveals the following facts surrounding plaintiff’s attempts at personal service of process on defendant. The deputy sheriff attempted service nine times between November 28 and December 7, 1988. The sheriff’s return indicates that when the deputy sheriff initially attempted service, he learned that defendant gets home “around 7:00 p.m.” The return shows that five of the eight subsequent attempts to serve defendant at the Odell address were made at 7 p.m. or later. The sheriff’s return also indicated as follows: “Lights on — car in drive — won’t answer door.” Kadet’s two returns, dated March 1 and April 11, 1989, reflect that defendant was not found at the Odell address or at “Mind Over Matter,” a business address which apparently was a possible place of service of defendant. In his sworn affidavit filed in February 1990, Kadet stated that he made “repeated attempts during the day, night and weekend, but was unable to serve defendant.” His affidavit indicated that although the house appeared occupied, no one answered the door. Finally, the affidavit of Roger Lance, plaintiff’s keeper of records, stated that he determined from reviewing the file that the Odell address was defendant’s last known address, and that he learned from plaintiff’s attorney that neither the sheriff nor the private process server was able to serve defendant there. In our view, plaintiff’s efforts fulfilled the due inquiry requirement.

Plaintiff made repeated attempts over a four-month period to serve defendant at the Odell address, which defendant’s affidavit confirmed was his residence. (Cf. City of Chicago v. Leakas (1972), 6 Ill. App. 3d 20, 284 N.E.2d 449 (service void for lack of due inquiry where process server drove to address of service and concluded that building was empty without exiting car).) Moreover, the sheriff’s return and Kadet’s affidavit suggest that someone was home, but refused to answer. Based upon the foregoing, we cannot say that the trial judge’s determination was against the manifest weight of the evidence.

We reject defendant’s contention that “due inquiry” as a matter of law requires plaintiff to make inquiry of defendant’s neighbors when defendant cannot be located. In this regard, we find defendant’s reliance on Bell Federal Savings & Loan Association v. Horton (1978), 59 Ill. App. 3d 923, 376 N.E.2d 1029, and Hartung v. Hartung (1881), 8 Ill. App. 156, misplaced. In Bell, a mortgage foreclosure action, plaintiff served defendants by publication after filing an affidavit stating that upon “due inquiry” defendants could not be found. Plaintiff never attempted personal service on defendant. Instead, plaintiff claimed that its reliance on a title report comment that the property “was vacant but appeared to be habitable” constituted “due inquiry.” This court disagreed, describing plaintiff’s attempts as “no more than a cursory inquiry.” (Bell, 59 Ill. App. 3d at 928, 376 N.E.2d at 1033.) In so deciding, we noted that plaintiff failed to locate defendant among neighbors or ascertain where defendant worked. Similarly, in Hartung, this court concluded that “diligent inquiry” to ascertain defendant’s address required plaintiff to inquire of neighbors. Bell and Hartung are inapposite here, however, because plaintiffs in those cases did not know where defendants resided. Plaintiff here, by contrast, knew that defendant lived at the Odell address and made repeated attempts to serve him there. This is not a case where plaintiff failed to make “diligent inquiry” to ascertain defendant’s place of residence as required by the publication statute. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 206; cf. City of Chicago v. Pittsburgh National Bank (1988), 169 Ill. App. 3d 933, 523 N.E.2d 1130; City of Rockford v. Lemar (1987), 157 Ill. App. 3d 350, 510 N.E.2d 128.

We also reject defendant’s argument that plaintiff’s failure to ascertain and attempt service at defendant’s workplace renders the service by publication void. Defendant cites no authority for this proposition, and his affidavit did not state that plaintiff could have located him at his place of employment. Nor did the record indicate whether or where defendant was working at the time of service by publication. Cf. First Federal Savings & Loan Association v. Brown (1979), 74 Ill. App. 3d 901, 393 N.E.2d 574.

We note that although the trial court found defendant guilty of laches, we decline to address this issue in light of our conclusion that service was proper.

In summary, we believe that plaintiff made a well-directed effort to serve defendant in conformance with section 2 — 206. We find that the trial court’s determination in this regard was consistent with the manifest weight of the evidence.

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

Judgment affirmed.

EGAN, P.J., and LaPORTA, J., concur.


author: PRESIDING JUSTICE McNULTY

text:
    FRANK MUSTACCI, Plaintiff-Appellee, v. AUSTIN BANK OF CHICAGO, Defendant-Appellant (The First National Bank of Des Plaines, Defendant).
    First District (5th Division)
    No. 1—91—0495
    Opinion filed March 13, 1992.
    Richard Lee Stavins, Harold L. Moskowitz, and Edward S. Salomon, all of Robbins, Rubinstein, Salomon & Greenblatt, Ltd., of Chicago, for appellant.

      Cynthia Giacchetti, of Chicago, for appellee.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

On June 20, 1980, James Aquilla established land trust number 98092994 at the First National Bank of Des Plaines, as trustee. At that time James Aquilla was the sole beneficiary of the land trust with the sole power of direction. The property in the trust was 420 Lauder Lane, Inverness, Illinois.

In the 1970s and early 1980s, plaintiff Frank Mustacci, an uncle of James Aquilla, loaned various sums of money to him. Aquilla promised to pay principal and interest on the loans but no such payments were ever made.

On September 27, 1982, Aquilla assigned the entire beneficial interest in land trust number 98092994 to Frank Mustacci. The assignment was absolute on its face and was lodged with the First National Bank of Des Plaines.

At the hearing on the motion for preliminary injunction, Austin Bank produced and marked as defendant’s exhibit 16 an undated security agreement signed by Aquilla and Mustacci purporting to grant Mustacci a security interest in the land trust described above to secure payment of certain indebtedness of Aquilla to Mustacci together with a promissory note for the indebtedness due signed by Aquilla in favor of Mustacci dated September 27, 1983. However, this security agreement and note were neither offered by the defendant nor received by the court in evidence at the hearing.

Mustacci in his discovery deposition testified that the assignment described above was given to him as collateral for his loan to Aquilla and that if Aquilla had repaid the $150,000 loan, Mustacci would have had no interest in the property. However, at the hearing on the request for preliminary injunction Mustacci testified that the assignment of the beneficial interest in the property was not as collateral, but was absolute and was in repayment of the $150,000 loan he had made to Aquilla.

Mustacci has a grammar school education, is employed as an equipment operator for Northern Illinois Gas Company and is the uncle of James Aquilla. Mustacci lived at the subject property with Aquilla and other family members from 1979 to 1990.

In 1980, Aquilla wanted to borrow an additional $60,000 and was referred to appellant Austin Bank by a good customer of the bank for a loan. Aquilla brought to Austin Bank a copy of the trust agreement and the prior existing assignment from Aquilla to Mustacci. Aquilla also brought to Austin Bank a collateral assignment of the beneficial interest in the land trust purportedly signed by Mustacci which it required to grant the loan. Aquilla received all the proceeds from the $60,000 loan. Evidence at the hearing revealed that Mustacci’s signature on the collateral assignment to Austin Bank was not genuine.

In 1990, Aquilla was convicted in United States District Court in Chicago of drug charges and in the same year defaulted on his loan from Austin Bank. In late 1990, when Mustacci attempted to sell the property, it was discovered that Austin Bank had scheduled a sale of the beneficial interest in the land trust pursuant to the terms of the collateral assignment and pursuant to article 9 of the Uniform Commercial Code (UCC). 111. Rev. Stat. 1989, ch. 26, par. 9 — 504.

Mustacci brought an action in the circuit court of Cook County to restrain Austin Bank’s sale of the property, contending that he was absolute assignee of the beneficial interest in the land trust, and not merely a collateral assignee with a security interest only. The trial court ruled that Mustacci was an absolute assignee and entitled to a preliminary injunction to restrain Austin Bank from enforcing its security interest by sale of the property until further order of court. Austin Bank timely filed notice of interlocutory appeal from the injunctive order.

A preliminary injunction is a provisional remedy, the purpose of which is to preserve the status quo until a final hearing is held and a decision rendered on the merits. (See, e.g., Gannett Outdoor v. Baise (1987), 163 Ill. App. 3d 717, 516 N.E.2d 915.) Although a mandatory injunction forcing a party to take action altering the positions of the parties comes under stricter scrutiny, injunctions that preserve the status quo until the trial court can determine the merits are within the court’s discretion. It must weigh the benefits of granting the injunction against the possible injury to the opposing party from the injunction. See Gannett, 163 Ill. App. 3d 717, 516 N.E.2d 915; Shodeen v. Chicago Title & Trust Co. (1987), 162 Ill. App. 3d 667, 515 N.E.2d 1339; In re Marriage of Schwartz (1985), 131 Ill. App. 3d 351, 475 N.E.2d 1077.

At the hearing on the motion for preliminary injunction, there was significant evidence that Mustacci’s signature was forged on the collateral assignment Aquilla gave Austin Bank to receive the $60,000 loan. Austin Bank was unable to persuade the trial judge that Mustacci had ratified the collateral assignment.

Austin Bank next proceeded on a theory that Mustacci was only a collateral beneficiary of the land trust and that the assignment of September 27, 1982, although absolute in its terms, was in fact only collateral. To support this theory Austin Bank argued that Mustacci’s testimony at his discovery deposition indicated that the land trust assignment was to secure an indebtedness of Aquilla to him for $150,000 and that if he had been repaid he would have had no interest in the property. In contrast, Mustacci’s testimony at the trial was that the assignment of the beneficial interest to him was absolute to satisfy the debt owed to him by Aquilla.

In further support of its collateral assignment, Austin Bank relied primarily on defendant’s exhibit 16, which purported to be an undated security agreement, and defendant’s exhibit 15, a note from Aquilla to Mustacci for the indebtedness owed executed on September 27, 1983, exactly a year after the execution of the assignment of beneficial interest to Mustacci on September 27, 1982.

There was no other evidence that directly linked the security agreement and note to the execution of the assignment of beneficial interest to Mustacci. However, Mustacci acknowledged his signature on the security agreement, but disclaimed any knowledge of its meaning or contents. It was undisputed that Aquilla never made payments to Mustacci on the note which accompanied the agreement.

In summary the evidence presented to the trial court was as follows:

(a) Conflicting testimony of Mustacci regarding his interest in the land trust. In his discovery deposition, he stated the assignment from Aquilla was to secure an indebtedness of $150,000 from Aquilla. At the hearing, Mustacci testified that the assignment was absolute and in repayment of the aforementioned indebtedness;
(b) An assignment of beneficial interest absolute on its face from Aquilla to Mustacci dated September 27,1982;
(c) An undated security agreement from Aquilla to Mustacci and a note executed on September 27, 1983, a year after the assignment referred to above with no other evidence linking these two documents to the assignment dated September 27, 1982;
(d) An assignment of beneficial interest in the land trust from Mustacci to Austin Bank on which Mustacci’s signature was forged.

Based upon the foregoing, we determine that evidence advanced at the hearing was adequate for the trial court to conclude that Mustacci had a sufficient interest in the property to support a preliminary injunction. As was stated in Rotary Club v. Harry F.

Shea & Co. (1983), 120 Ill. App. 3d 988, 995, 458 N.E.2d 1002, 1007, quoting Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 500, 422 N.E.2d 1166, 1171:

“ ‘All that is necessary is that the petitioning party raise a fair question as to the existence of the right claimed, lead the court to believe that he probably will be entitled to the relief prayed for if the proof should sustain his allegations, and make it appear advisable that the position of the parties should stay as they [sic] are until the court has had an opportunity to consider the case on the merits.’ ”

See also Gannett, 163 Ill. App. 3d 717, 516 N.E.2d 915.

It is certainly possible that Austin Bank may be able to demonstrate at a hearing on the merits that the assignment of the beneficial interest from Aquilla to Mustacci, although absolute on its face, was, in fact, a security interest only, thereby not entitling Mustacci to the injunctive relief he requests.

However, at the preliminary stage, to allow Austin Bank to proceed with a UCC sale based upon documents, one of which was forged, would deprive Mustacci of property although he received no benefit from the underlying loan transaction between Aquilla and Austin Bank. As was stated in Cross Wood Products, Inc. v. Suter (1981), 97 Ill. App. 3d 282, 422 N.E.2d 953, that would work an injury “that ought not be submitted to on the one hand or inflicted on the other.” Cross Wood Products, Inc., 97 Ill. App. 3d at 286, 422 N.E.2d at 957.

For the foregoing reasons, we affirm the trial court.

Affirmed.

MURRAY and GORDON, JJ., concur.


author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SONDRA BANKS, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—0628
    Opinion filed March 13, 1992.
    Randolph N. Stone, Public Defender, of Chicago (Robert D. Click, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Michael Latz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

A jury found defendant Sondra Banks guilty of one count of first degree murder and two counts of attempted murder. The court sentenced defendant to 25 years’ imprisonment for murder, and two terms of 12 years’ imprisonment for the two attempted murder counts, with the sentences to run concurrently. On appeal, defendant contends that the Illinois murder statute is unconstitutional and that the first degree murder conviction should be reduced to second degree murder because she acted “under a sudden and intense passion resulting from serious provocation.” Ill. Rev. Stat. 1987, ch. 38, par. 9-2.

On August 29, 1987, during an argument at a block party, 36-year-old Juliette Clayborn was shot and killed. Juliette’s brother and sister, Julius Clayborn and Veronica Grover, were shot and wounded. Defendant was also shot, although not by any of the three victims. She suffered a flesh wound entering her back and exiting her chest. She also had a laceration on her head and a bruised wrist.

Kerwana Clayborn, the 19-year-old niece of the three victims, testified for the State that on August 29, 1987, at about 5 p.m., she was at a restaurant with her 14-year-old cousin, a 14-year-old friend named Lonya Sylvester, and Juliette’s 17-year-old daughter Elvira Clayborn, when she saw two of defendant’s nieces, 14-year-old Kenya and her twin sister Kelly. Kenya and Kelly argued verbally with Lonya.

Later, at 9 p.m., Kerwana saw Kelly and Kenya again, in front of the home of Kerwana’s grandmother, Elvira Grover (hereinafter Mrs. Grover), during the block party. Defendant lived in a “courtway” building across the street but farther down the block. Lonya and the twins argued verbally again. The twins then left.

At about 11:30 p.m., Kerwana saw defendant and the twins down the block talking with Juliette, Lonya, and LaTonya Woodard. Mrs. Grover went over to the group of six people. Approximately 20 or more people gathered, including some people who had come out of defendant’s building. Kerwana walked over to the group and stood about 10 feet from Juliette and defendant.

Kerwana testified further that defendant asked Juliette why she had interfered in the argument between defendant’s nieces and Juliette’s nieces. Defendant also stated, “I’m Sondra B. You must [sic] don’t know who I am. You better read up on me.” Juliette tried to move away from defendant. Mrs. Grover stood between Juliette and defendant, encouraging Juliette to return to the house. Julius also stood near them. Kerwana did not see any weapons. As the argument continued, defendant “kind of moved my grandmother [Mrs. Grover] to the side or tried, and then she pushed Juliette.” Juliette was moved backwards by the push.

Kerwana saw Veronica, who stood behind defendant, then hit defendant on the right side of the face with her fist. At that point, “everybody got into a big crowd,” and they began “tussling” with and pushing each other. “Everybody was talking at the same time.” Kerwana did not see defendant walk over to a car and return. “Next thing I know *** I heard [two] gunshots ***.” Kerwana began running away, and within seconds she heard two more shots. Kerwana could not see who had the gun. She did observe, however, that Juliette had no weapon in her hands. She looked back and saw Juliette hold her stomach and fall to the ground.

At the hospital, Kerwana learned that Juliette died from an abdominal gunshot wound. Juliette’s brother, Julius, who was on crutches with a cast on one leg, was shot in the other leg. Juliette’s sister, Veronica, was shot in the arm.

Elvira Clayborn, Juliette’s 17-year-old daughter, testified for the State. She testified similarly to Kerwana regarding the 5 p.m. and 9 p.m. encounters with the twins.

At about 11:30 p.m., Elvira was in front of her grandmother’s home when she saw defendant and the twins cross the street and approach Juliette, Lonya and LaTonya, who were walking to a friend’s house to get diapers. While walking back from the friend’s house, defendant and the twins “crossed the street again, and that’s when I went down the street, and they stopped my mother,” LaTonya, and Lonya, who held a baby. One of the twins pushed Lonya. Juliette urged defendant not to get involved in “kids’ stuff,” i.e., the argument between defendant’s nieces and Juliette’s nieces.

Elvira heard defendant say, “I’m Sondra B. You don’t know me. You better ask somebody. I’ll kill somebody around here.” Defendant kept repeating, “I’ll kill somebody around here.” Juliette tried to “go home. But [defendant] kept getting in my mother’s face pushing her and kept arguing with my grandmother.” Defendant pushed Mrs. Grover “out of the way” and pushed Juliette two or three times. Defendant told Mrs. Grover to “get out of the way [bejfore somebody get [sic] killed.”

There were about 25 people present, some of whom were defendant’s family or friends, and some of whom were Juliette’s family or friends. Juliette did not have a weapon. Elvira did not see anybody in her family with weapons. At no time did she see her mother raise her hands, even when defendant pushed her.

Elvira saw Veronica punch defendant on the side of the face. Defendant then “ducked like, like tried to weave it out, and then went over to the car.” Elvira stood about 10 feet away from the car. A man, whom Elvira had seen before but did not know his name, was standing next to the car and handed defendant something. “I don’t know what she got, but some man put something in her hand, and that’s when I heard the shots.”

Elvira heard two shots, then looked over and saw defendant holding a gun, aiming it at Juliette. Elvira looked at defendant and heard defendant say to Juliette: “Now, bitch, you gon’ die.” Elvira watched as defendant fired a third shot directly at Juliette, hitting her in the stomach. Juliette fell to the ground. Elvira then heard more shooting from the courtway building across the street.

Julius Clayborn, Juliette’s 35-year-old brother, testified for the State that on August 29, 1987, at 11:30 p.m., he was at his mother’s home. At the time, he had a broken knee and wore a cast on one leg and could walk only with crutches. He saw his sister Juliette walking down the street with Lonya, LaTonya and the baby, going to a friend’s house. Defendant and the twins crossed the street and approached Juliette. Julius heard them arguing, and he went down the block and stood next to his sister.

Julius heard defendant ask what Juliette “had to with the argument,” and Juliette replied, “This is kids’ arguments, *** so grownups have no business getting off into it.” Defendant replied, “Bitch, don’t you know me.” Defendant began shoving Juliette. Julius and another man “broke them up.” Defendant went “back across the street,” and Juliette “continued down the street” to her friend’s house.

Soon Julius saw Juliette, LaTonya, Lonya and the baby returning. Defendant and the twins again “came across the street, and one of them hit Lonya when she was carrying the baby.” Julius again walked down the street, along with his mother, Mrs. Grover. Defendant was pushing and shoving Juliette, saying: “I’m Sondra B. I’m Miss B. Bitch, don’t you know me?” Juliette replied: “I don’t feel like fighting, Sondra, because this is kids’ arguments. We grown-ups don’t have no business fighting about kids’ arguments.” Julius tried to step in between them, but defendant “wouldn’t let me. She moved me.” Mrs. Grover tried to intercede, but defendant “nudged” Mrs. Grover, pushing her off to the side, and “shoved [Juliette] again.” “Everytime we pulled my sister back, [defendant] kept approaching her getting up in her face.”

Julius then saw Veronica hit defendant in the face. Defendant then “faded back out [of] the crowd,” and went over to a car where four or five men were standing. The 20 or 25 people in the crowd were shoving and pushing each other. Julius saw one of the twins “grab a pipe and attempt to swing at my sister” Veronica. Julius, leaning on his crutches, was able to take the pipe away from the twin. Julius looked over at defendant, who stood at the car about 10 feet away, and Julius had a clear, unobstructed view of defendant. “At that instant I seen Sondra grabbed a pistol from somebody’s hands.”

Defendant then fired the gun at Julius, striking his left thigh with the first shot. She next aimed at Veronica, shooting her in the arm. Defendant then walked towards Juliette, saying, “Bitch, I told you there would be dead bodies out here tonight.” Julius saw defendant shoot Juliette in the stomach. He then saw her fire a fourth shot “[i]nto the crowd.” As defendant ran from the scene, Julius heard further gunshots from the courtway building across the street. Julius never saw any weapons in the hands of his family members. Julius also testified that Juliette was blind in one eye and she had vision problems with the other eye.

Julius had pled guilty, five years earlier, to a misdemeanor theft charge.

Louis Clayborn, Juliette’s 15-year-old son, testified for the State that on August 29, 1987, he was at his grandmother’s home. Louis saw Juliette talking with defendant and the twins. Louis walked over to them. Defendant was “arguing at my mother and pushing her, shoving her.” Defendant was also shoving Mrs. Grover. “I was walking around, like, and I was fixing to hit her and my mother said no.” Juliette told Louis: “No. Don’t do nothing. Don’t hit her. We fixing to go home.” Then he heard three shots. Louis was standing next to Veronica when she was shot. “Before I got a chance to run, I saw [defendant] with a gun cursing ***.” Defendant said: “M— f-— going to die tonight. Told y’all somebody going to be laying out here dead. It’s going to be some dead bodies.” Defendant then walked towards Juliette and shot her. Defendant then ran towards the car “and somebody pulled her down. *** And then she started running towards the courtway and I ran after her.” At that point, Louis heard additional shots fired while defendant was running toward the courtway building.

Elvira Grover, the mother of the three victims, testified for the State that on August 29, 1987, she saw Juliette, Lonya and LaTonya walking home when defendant and the twins crossed the street and approached them. Mrs. Grover heard arguing and she ran over to Juliette. A crowd started to gather. Mrs. Grover urged defendant not to argue.

“[Defendant] was calling my daughter a lot of bitches and whores and telling her ‘You going to whip this bad ass tonight or I’m going to whip yours.’ My daughter said, ‘I’ll be whatever you call me, but I’m not going to fight about no kidstuff [sic] because it don’t make sense.’ She said the argument was over. [Defendant] start[ed] throwing her coat off and said, ‘You’re going to whip this bad ass today.’ So my daughter said no. I caught her by the arm, and I said, ‘Come on Juliette and let’s go home.’ ”

Mrs. Grover moved between defendant and Juliette. “[Defendant] told me to get out of her m— f-— face and she pushed me back.” Defendant continued pushing Juliette. “Juliette tried to go home, but [defendant] would get between myself and Juliette to keep her from going. She would step around in front of her so she couldn’t pass by.” Defendant kept “jumping around past me in front of my daughter’s face telling me, ‘No. She gon’ fight tonight.’ ”

Defendant then “went into the crowd.” “The next thing I saw, I saw [defendant] come out of the crowd and back up beside of a car. At that time I saw someone put a gun in her hand.” Mrs. Grover heard two shots fired. “Then [defendant] stepped up one step toward my daughter and myself. She said, ‘Now, m— f- — .’ My daughter said, ‘Now, m— f- — , what?’ [Defendant] said, ‘It’s going to be some dead bodies out here tonight.’ ” Defendant then shot Juliette in the stomach. Mrs. Grover heard or felt a bullet go past her as she bent over to help Juliette.

Veronica Grover, Juliette’s 23-year-old sister, testified for the State that on August 29, 1987, at about 11:30 p.m., she saw a crowd of people around Juliette and defendant, who were arguing. Defendant kept telling Juliette “that she is going to fight her, going to make her fight her tonight.” Juliette tried to walk away, but defendant “grabbed her and said, ‘Don’t walk away from me, bitch. I’m going to make you fight me tonight.’ ”

Defendant pushed Mrs. Grover twice, calling her a bitch, and pushed Juliette four or five times. Veronica then reached past her mother and struck defendant in the side of the face with her hand. Defendant swung back at Veronica, but she missed. “Then [defendant] bit down and went through the crowd to her car where men were standing. *** I seen a man. I don’t know his name or who he was.” The man, “who was leaning against the car opened up his black leather jacket, opened it up and handed [defendant] the gun and she reached for it.” Defendant grabbed the gun, “came up with it like this and said, ‘Bitch, is going to be a lot of dead bodies lying out here tonight.’ ” Defendant fired twice, striking Veronica once and Julius once. Defendant turned toward Juliette and said, “ ‘Bitch, I told you there was going to be some dead bodies lying out here tonight,’ ” Juliette said, “No way,” and then defendant shot Juliette in the stomach. Juliette at no time had a weapon. No one had a gun other than defendant.

Officer Charles Popielarz testified for the State that on August 29, 1987, he and his partner investigated the shootings. They were unable to locate a weapon. At about 1:30 a.m., they learned that defendant had been arrested leaving the hospital. At about 2:30 a.m., they brought defendant back to the hospital when she requested medical treatment for an injury to her head and one hand.

The parties stipulated that hospital personnel would testify that on August 30, 1987, at 12 p.m., Juliette was admitted with a gunshot wound in the abdomen. She was pronounced dead at 1:19 a.m. The hospital personnel would also testify that Julius was shot in the left thigh and was admitted to the hospital. On August 31, 1987, he underwent surgery to remove the bullet. The hospital personnel would testify further that Veronica was admitted and treated for a gunshot wound in the right forearm.

The hospital personnel would testify further that defendant entered the hospital in the early morning hours of August 30, 1987, giving the name of Dionne Banks and asking for treatment. Thereafter, she left the hospital without accepting treatment. She was then arrested. Later she was brought back by the police for treatment for a laceration on the back of her head, a bruised left wrist, and a “through-and-through gunshot wound *** with the entry on the right side of the back, *** and exit wound on the right side of the chest.”

The parties also stipulated that the medical examiner would testify that the cause of Juliette’s death was a gunshot wound to the abdomen and that a blood analysis showed no signs of alcohol.

Officer Jack Wilkins testified for the State that at the scene the police recovered an expended .38 cartridge. No weapon was recovered. Wilkins spoke with a man named Jerry Cunningham, who stated that he saw defendant shoot the victims. Wilkins later arrested defendant. The gunshot wound to defendant was such that it indicated she had been shot from behind.

Wilkins testified further that defendant gave the police five different versions of the incident. First, defendant said “that she had shot at the individual because they [the three victims] all had guns.” Second, defendant said “that she had been arguing with a person and that they had all jumped on her and taken her gun away from her and shot her with it and she returned fire because of that.” Third, defendant said that a “third party [not one of the victims] had been out on the street arguing and that she refused to identify that person. The victim’s friend had taken the gun from him and shot her and that as she was running away she had produced her own gun and fired and she was returning [fire] over her shoulder.” Fourth, defendant stated that she argued with a woman “and that someone had struck her and that at that time she pulled the revolver from her pants pocket which she said she always carried and she shot that person and that she fired a gun subsequently in the direction of a person on crutches.” Fifth, defendant gave a statement to an assistant State’s Attorney, but then refused to sign it.

Linis Kelecius, an assistant State’s Attorney, testified for the State that on August 30, 1987, he took a statement from defendant. Defendant gave him several versions of the shooting incident. The final version was that she argued with Juliette, and then someone hit her on the back of the head and pulled her hair. Defendant then “went into her pocket and pulled out a gun that she had with her all along, and after she pulled out her gun, [defendant] said that, that she saw a light-skinned Black man pull out a gun. After the light-skinned Black man pulled out the gun, he shot the gun at [defendant].” Defendant shot back at the man, but hit Juliette by mistake. Juliette had no weapons. Defendant fired another shot at the light-skinned black man, hitting him, and then began running. She then ran away and threw her gun down a garbage chute. After reducing the statement to writing, the assistant State’s Attorney asked defendant to sign it, but she refused to read it or sign it.

Nineteen-year-old LaTonya Wood testified for the defense that she was present at the shooting. She walked down the street with Juliette and her 13-year-old sister Lonya, who carried LaTonya’s four-month-old baby. Defendant and the twins crossed the street and approached them. Defendant and Juliette argued. Juliette said she did not want to get involved in kids’ business. Defendant kept pushing Juliette. Juliette “wasn’t really arguing or nothing like that. She really didn’t even want to fight that night.” Mrs. Grover tried to intervene.

LaTonya then saw Veronica hit defendant in the face. Defendant tried to strike back. LaTonya also struck defendant. “I was helping Veronica fight Sondra.” LaTonya then saw defendant go over to a car. “Then she got a gun and then she started shooting.” LaTonya saw Robert, one of Mrs. Grover’s sons, throw defendant on the ground. LaTonya saw defendant shoot Veronica, who stood next to LaTonya.

LaTonya also testified that “[s]omebody gave Mrs. Grover a gun.” LaTonya never saw the gun, however. She merely “heard [Mrs. Grover] tell one of her sons to go get it” before the fight began. La-Tonya testified on cross-examination that it was Robert who left to get the gun. She had lied when she testified on direct examination that she did not know which son left to get the gun. LaTonya had never told the assistant State’s Attorney about a second gun. She had, however, previously told defense counsel about the second gun. She never saw a second gun, but there was one. “Because I know. *** I didn’t have to see it, but I know another gun [was] out there.”

LaTonya had previously been convicted of arson and placed on one year’s probation.

Jerry Cunningham testified for the defense that on August 29, 1987, he lived in the same building as defendant. He walked over to where defendant stood arguing with Juliette. Juliette left, but later returned with “at least 14 people behind.” They started arguing again. Julius and Mrs. Grover were also present. Mrs. Grover tried to intervene, urging defendant not to fight about “kids’ stuff.” Julius told defendant “to get out of his mother’s face.” Cunningham stepped in between defendant and Mrs. Grover and Juliette. Cunningham pushed defendant, telling defendant that she was being “disrespectful” to Mrs. Grover. Then Veronica reached over Cunningham and hit defendant. Defendant, however, did not strike Juliette. “She couldn’t because I was between them.” A “young stud about 14, 15” hit defendant with the jack. “[T]hat’s when I started hearing the shot [sic].” There were “shots coming from both sides.” He did not see which way defendant went. He never saw defendant with a gun. He did not see defendant shoot anybody. “She couldn’t have because I was in the middle.”

On cross-examination, Cunningham testified that defendant was a good friend of his. Cunningham admitted telling the police that defendant had reported to him that she had hidden the gun. “Right, because they asked me to do it because they tried to hook me up, involve me in this murder.” Therefore, he lied to the police. “Yes, I lied to them. I told them I know where the gun’s at. I was trying to get me out of the police station so I could break and run on them.”

Cunningham testified that he was on parole for attempted murder and armed robbery. At the time of trial, however, he was in custody and on parole hold because of a pending aggravated battery charge.

Defendant, who was 24 years old, testified that on the night of August 29, 1987, she was shot in the side, her arm was fractured, and her head was “busted” and required stitches.

During the argument with Juliette, Veronica reached over Mrs. Grover and hit defendant on the side of her face. Louis, Juliette’s 15-year-old son, hit defendant in the back of the head with something hard, like steel. She did not remember whether or not LaTonya struck her.

Defendant testified further that, at some point, Robert (Juliette’s brother) shot defendant. She never told the police that Robert had shot her because “I didn’t know his name at the time.” She learned his name when someone visited her in jail. When Robert shot her, she was turned sideways, and he was not behind her, notwithstanding the fact that the bullet’s entry wound was in her back.

She tried to fight her way out of the crowd, but she did not run to a car. “As I sat there and I seen the blood coming from my head, I said a couple of things to one of the Clayborns, and as I turned around, a guy handed me a gun. I did not run to no car.” When she turned around, a young man said, “Hon, Sondra, this is what’s happening,” and he handed her a gun. She did not recall who the man was or whether he was a friend of hers.

Defendant was frightened and was “seeing death. I’m scared they are trying to kill me.” It was definitely prior to getting the gun that she had been shot, hit in the head and face, and had fractured her arm.

Defendant then fired the gun once at Veronica, striking her arm. Defendant was not angry at Veronica for hitting her in the face. She mainly was “trying to protect myself for fear I was in.” She did not intend to kill Veronica. She did not know if Veronica had a gun or other weapon. She shot because Veronica “was coming at me with the rest of them.”

After the single shot fired at Veronica, defendant did not fire the gun again. Defendant heard several more shots, but did not know where they came from. Defendant saw “a couple guns out there” in the crowd. There could have been four, five, or more guns. “Looked like fifty of them out there.”

Defendant did not shoot — or even see — Juliette. “Well, I was looking and it was more of them than us as it was like thirty there to twenty and talking to Veronica, they telling her, you know, this is the way you all want to play. These are my exact words. I did not see Juliette].”

Defendant admitted lying to the police and to the assistant State’s Attorney. She told the police five different stories “[b]ecause of fear. I was scared. *** The things that they were saying in there to me ***. You’re a cold-blooded murderer and all those things.”

In rebuttal, 15-year-old Louis Claybom testified for the State that on August 29, 1987, he never had a car jack or steel object in his hand, and never struck defendant in the back of the head.

Mrs. Grover testified in rebuttal for the State that there were no guns in her home, that she did not see her son Robert in the crowd prior to the shooting, and that she did not tell Robert to go home and get a gun.

Linis Kelecius testified in rebuttal that defendant told him she pulled out her gun and that she fired at and hit a light-skinned man who had shot her, but that she hit Juliette instead. Kelecius also took a statement from Cunningham, who never said that someone hit defendant in the head with a jack and in fact said that he never saw anyone hit defendant.

Jack Wilkins testified in rebuttal that he and his partner interviewed defendant at the station. She never said one of the Clayborn brothers shot her. She never said that Louis hit her in the back of the head with a car jack.

Opinion

Defendant contends that the Illinois first degree murder statute (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1 et seq.) is unconstitutional on due process, equal protection and separation of powers grounds.

We have recently rejected identical arguments, and we follow those" decisions here. (See, e.g., People v. Davis (1991), 221 Ill. App. 3d 1023, 583 N.E.2d 64 (and citations contained therein); People v. Newbern (1991), 219 Ill. App. 3d 333, 579 N.E.2d 583; People v. Wright (1991), 218 Ill. App. 3d 764, 578 N.E.2d 1090; People v. Thomas (1991), 216 Ill. App. 3d 469, 576 N.E.2d 1020; People v. Doss (1991), 214 Ill. App. 3d 1051, 574 N.E.2d 806; People v. Gore (1991), 212 Ill. App. 3d 984, 571 N.E.2d 1041.) We hold that the statute under which defendant was convicted is constitutional.

Defendant next contends that her conviction for first degree murder should be reduced to second degree murder because she acted with a “sudden and intense passion resulting from serious provocation.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)(1).

The relevant question on review, when faced with a challenge to the sufficiency of the proof, is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.

Whether a homicide is classified as first or second degree murder is a question for the trier of fact. (People v. Falconer (1988), 168 Ill. App. 3d 618, 522 N.E.2d 903.) The burden of proof is on defendant to prove the mitigating factor by a preponderance of the evidence. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(c).) A person commits second degree murder if she kills an individual without lawful justification under a “sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)(1).) Serious provocation is defined as “conduct sufficient to excite an intense passion in a reasonable person.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(b).

Defendant maintains that “before she fired any shots during the incident in question, she had been shot, hit in the ribs, the wrist, and the side of the head with a hard metal object.” She argues that her testimony was corroborated by the “undeniable evidence of the serious injuries she sustained.”

Initially we note that, contrary to defendant’s testimony, the stipulated medical evidence does not indicate that defendant’s arm was fractured or that the head laceration required stitches. Instead, the stipulated medical evidence merely established that defendant was “treated for a laceration on the back of her head, a bruised left -wrist, and a through-and-through gunshot wound on the right side of her body, *** with entry on the right side of [defendant’s] back *** and exit wound on the right side of the chest.”

Nevertheless, defendant argues that her injuries were sustained in “mutual combat” and were “surely provocation serious enough to reduce an alleged act of first degree murder to one of second degree murder.”

Serious provocation may arise from mutual combat. (People v. Bacon (1980), 91 Ill. App. 3d 673, 415 N.E.2d 678.) Mutual combat qualifies as serious provocation only if decedent’s conduct is serious enough to unleash an intense passion in a reasonable person. (People v. Pugh (1989), 187 Ill. App. 3d 860, 543 N.E.2d 875; People v. Dortch (1974), 20 Ill. App. 3d 911, 314 N.E.2d 324 (assault by several persons armed with knives is sufficient provocation for shooting one of the people).) Defendant herself testified that she was not angry at Juliette or Veronica. In fact, she did not even see Juliette at the point in time when she fired the gun. Clearly, then, defendant’s own testimony destroys her theory that she shot the victims out of intense and sudden passion. See People v. Tate (1974), 25 Ill. App. 3d 411, 419, 323 N.E.2d 485, aff’d (1976), 63 Ill. 2d 105, 345 N.E.2d 480 (upholding jury’s finding that defendant committed murder, not voluntary manslaughter, where defendant testified that she was not angry at the time the two victims were shot).

In fact, defendant testified that she fired the gun because she was protecting herself, since she had been shot and there were as many as “50 guns” in the crowd of 25 people.

Defendant does not argue the second mitigating factor which can reduce first degree murder to second degree murder, i.e., if “[a]t the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing” as self-defense, but “his belief is unreasonable.” (Ill. Rev. Stat. 1987, ch. 38, par. 9— 2(a)(2).) While defendant argued that mitigating theory before the jury, she has abandoned the “unreasonable belief of self-defense” theory before this court. In the IV2 pages of her brief devoted to this issue, defendant argues only that the evidence shows that she acted “under a sudden and intense passion resulting from serious provocation,” quoting section 9 — 2(a)(1) of the statute.

The two mitigating factors require different frames of mind that cannot both be present in the same act. A deliberate act of self-defense would negate inferences of intense passion under provocation. See People v. Bailey (1986), 141 Ill. App. 3d 1090, 490 N.E.2d 1334.

Thus, defendant’s current second degree murder theory is “inconsistent with the theory she advocated at trial.” People v. Tate, 25 Ill. App. 3d at 419 (on appeal, defendant argued that she acted under a sudden and intense passion, while at trial she argued that in self-defense, she struggled over a gun, which then accidentally discharged, killing two people).

Moreover, the evidence here showed that defendant instigated the fight. A defendant cannot characterize a fight as “mutual combat” where defendant instigated the fight. (People v. Bacon (1980), 91 Ill. App. 3d 673, 415 N.E.2d 678.) Defendant twice crossed the street to approach Juliette and challenge her to fight. Defendant was the first person to make physical contact by repeatedly pushing and shoving Mrs. Grover and Juliette. The jury could also believe the strong and consistent testimony that Juliette repeatedly refused to fight and tried to leave. Even defense witnesses LaTonya and Cunningham testified that Juliette refused to fight and that Juliette never threatened or struck defendant.

The jury could also find credible the testimony of the State’s witnesses who heard defendant repeatedly threaten to “kill somebody around here” and who heard defendant specifically threaten to kill Juliette.

The evidence also showed that the “retaliation” by defendant was disproportionate to the provocation, if any. Where the provocation, if any, is slight and retaliation disproportionately great, the crime is first degree murder. (People v. Dowdell (1980), 84 Ill. App. 3d 707, 406 N.E.2d 123.) The only evidence tending to indicate that defendant was shot before she fired her gun was defendant’s own testimony. No other witness testified that the first shots fired struck defendant, and that she then returned fire. Moreover, when she did fire the gun, she aimed at and shot Veronica, yet she testified that it was Robert who had shot her. Defendant testified she did not see Juliette, Julius or Veronica with any weapons.

Moreover, the jury could well have disbelieved defendant’s trial testimony that Robert Claybom shot her. Defendant’s testimony that she did not know who shot her until someone visited her in jail and told her it was Robert lacks credibility, particularly where she never made a visual identification of Robert as the shooter.

Moreover, the jury could reasonably believe that the three victims posed little threat to defendant since Julius was in a full leg cast and on crutches, Juliette was blind in one eye and had vision problems with the other eye, and Veronica was prevented from getting close to defendant by Mrs. Grover, Julius and Cunningham.

Defendant’s case was further undermined by the testimony of defense witness Cunningham, who said that defendant did not shoot anyone. This conflicted with defendant’s testimony that she shot Veronica. Moreover, Cunningham admitted lying to the police. Defendant testified that she also had lied to the police, giving them five different versions of the incident.

The jury was instructed regarding second degree murder and it did not find in defendant’s favor on that issue. It is the province of the trier of fact to weigh the credibility of the witnesses. Here, “where there are numerous variations in the [eyewitnesses’] testimony concerning what occurred, the trier of fact’s observation of the demeanor of witnesses is particularly significant.” People v. Tate, 25 Ill. App. 3d at 419 (eight eyewitnesses to shooting). See also People v. Irvin (1969), 115 Ill. App. 2d 332, 252 N.E.2d 764 (abstract of opinion) (issue was for the trier of fact as to whether defendant was provoked to a sudden and intense passion causing him to fire gun at deceased after, during melee in part involving many people, deceased threw bottle at defendant).

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McNULTY, P.J., and LORENZ, J., concur.