author: PRESIDING JUSTICE CHAPMAN

text:
      In re MARRIAGE OF HENRY E. BLAINE, Petitioner-Appellee, and MARY B. BLAINE, Respondent-Appellant.
    Fifth District
    No. 5 — 91—0885
    Opinion filed May 12, 1993.
    Rehearing denied July 27, 1993.

      Susan F. Grammer, of Bethalto, for appellant.
    William J. Meacham, of Smith, Allen, Mendenhall, Delaney & Associates, of Alton, for appellee.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

A judgment of dissolution of marriage as to Henry and Mary Blaine was entered on February 8, 1988. The judgment provided in pertinent part:

“[A]s and for rehabilitative maintenance, Henry Blaine shall pay to Mary Blaine the sum of $2,200.00 per month, and, in addition to rehabilitative maintenance, he shall pay the sum of $300.00 per month to be used by Mary Blaine to obtain education and training toward the goal of becoming able to obtain employment in contrast to her current status of being minimally qualified for employment; all such maintenance to be reviewed at the end of twenty-four (24) months from this date by the Court and subject to modification based upon the skills and training Mary Blaine will have received; maintenance award shall be subject to Mary Blaine’s death, her remarriage or cohabitation with a male on a regular conjugal basis.”

The order further provided:

“That Henry Blaine shall keep the name of Mary Blaine as beneficiary on the term life insurance policy provided by Olin on his life in the approximate amount of $670,000.00, and he shall pay premiums on such policy as long as he is eligible to have such policy provided by Olin; in the event of termination or conversion of the $670,000.00 term life insurance policy provided by Olin on the life of Henry Blaine, Mr. Blaine is ordered to exercise conversion rights he may have to another policy (not less than $250,000.00) for which he may be eligible and he shall pay premiums thereon, providing proof of payment annually to Mary Blaine and he shall deliver such policy or policies to Mary Blaine within thirty (30) days.
That Henry Blaine shall have as his sole and separate property the Provident Life Insurance Policy, the National Service Life Insurance Policy, Connecticut Mutual Insurance Policy.
Mary Blaine is awarded ownership of the Equitable Life Insurance Policy in the event that Henry Blaine cannot obtain conversion rights to term life insurance policy provided by Olin Industries, if the original Olin policy would be terminated and the conversion factor would come into existence. Mary Blaine is awarded the Metropolitan Life Insurance Policy on her life and she shall be responsible for paying premiums on same. Henry Blaine is ordered to pay premiums on the Equitable Life Insurance Policy as same come due and provide annual proof of payment of such policy, and deliver the policy to Mary Blaine within thirty (30) days of the time he is notified a) that the $670,000.00 term life insurance policy is no longer available to him, b) he has no conversion rights to the above term life insurance policy.”

On March 9, 1988, a joint stipulated order was entered by the court, striking the paragraph on maintenance, referencing that paragraph by page, paragraph, and line in the February 8, 1988, order, and substituting the following. (Note that the first paragraph elicited from the order of February 8, 1988, as set forth previously in this opinion is the paragraph on maintenance that was stricken.)

“That the Court having considered the factors of Section 504, Chapter 40, Illinois Revised Statutes concerning award of maintenance including marital property apportioned to Respondent, Mary Blaine, providing for her future needs, time necessary to acquire sufficient education or training to enable Respondent to find employment, the duration of the marriage, standard of living of the parties, Petitioner’s, Henry Eugene Blaine[’s], ability to pay maintenance, the ages and physical and emotional condition of both parties and the tax consequences of the property division upon the economic circumstances of the parties; therefore, as and for permanent, non-modifiable maintenance for Respondent, Petitioner shall pay to Respondent the sum of $30,000.00 per year for the first 2 years following the entry of the Judgment for Dissolution of Marriage. Payments shall be made on the first day of each month beginning with February 1, 1988, & shall be in the sum of $2,500.00 each for 24 consecutive months. After the first 24 months following the entry of the Judgment, Petitioner shall pay to Respondent as and for permanent, non-modifiable maintenance, the sum of $26,400.00 per year subject to Respondent’s death, remarriage or cohabitation with a male on a regular conjugal basis. Payments shall be made on the first day of each month beginning with February 1, 1990 and continuing on the first day of each and every month thereafter subject only to the contingencies aforesaid. Neither party shall have the right or the ability to petition this or any other court to modify the periodic maintenance schedule or amounts set forth herein. In addition to maintenance terminating upon the aforegoing events[,] said maintenance shall fully and absolutely terminate upon Petitioner’s death, and shall not be a claim against Petitioner’s estate provided Petitioner has provided Respondent with $250,000 insurance coverage as provided in Judgment of February 8, 1988, as now modified.
All payments to be made by the Petitioner to the Respondent pursuant to the provisions of this Judgment for Dissolution of Marriage will be periodic payments in discharge of a legal obligation, which, because of the marital or family relationship, is imposed on or incurred by the Petitioner under a written instrument incident to a dissolution of marriage, all within the meaning and intendment of Sections 71(a) and 215 of the Internal Revenue Code of 1954, as amended and as now in effect, and of similar provisions of future laws, and that such payments will be includible in the Respondent’s gross income pursuant to Section 71(a) and will be deductible by the Petitioner from his gross income pursuant to Section 215 in determining their respective taxable income.”

On September 11, 1989, Henry Blaine filed a motion for clarification of the order entered March 9, 1988. A hearing was held in November of 1989, and evidence was presented as to the status of Henry Blaine’s insurance policy provided by Olin. John Mulrean, a sales representative with Metropolitan Life Insurance Company, testified that the $670,000 Olin term insurance policy was converted into a one-year $250,000 term policy naming Mary Blaine as beneficiary and a one-year $381,000 term policy naming the estate of Henry Blaine as beneficiary. In August of 1988, Henry converted these two policies into one policy for $631,000 naming as beneficiary the estate of Henry Blaine. John Mulrean explained that, pursuant to New York law, wherein Olin is domiciled, after Henry retired from Olin he had 30 days to convert his Olin insurance to a one-year term policy or forfeit the insurance. Henry Blaine converted the Olin policy to the two one-year-term policies for $250,000 and $381,000, and then within that year he converted those two policies into a single universal life insurance policy for $631,000, naming the estate of Henry Blaine as beneficiary. Mulrean testified that Blaine had no choice but to convert the term policies into the permanent universal life policy because New York law would not allow Henry to convert the term policies into term policies. Henry Blaine’s new employer, Weatherby Corporation, agreed to pay $175,000 in premiums over a seven-year period in exchange for an assignment of $175,000 against the proceeds of the policy when they are disbursed.

On February 22, 1990, the court entered an order finding that the “terms and conditions of the court’s orders of March 9, 1988 and February 8, 1988, as they relate to Petitioner’s Motion to Modify are specific and unambiguous.” The court further found:

“The Court entered judgment of dissolution on February 8, 1988 that held in part: Mary Blaine is awarded ownership of the Equitable Life Insurance Policy in the event that Henry Blaine cannot obtain conversion rights to term life insurance policy provided by Olin Industries, if the original Olin policy would be terminated and the conversion factor would come into existence. *** Henry Blaine is ordered to pay premiums on the Equitable Life Insurance Policy as same come[ ] due and provide annual proof of payment of such policy, and deliver the policy to Mary Blaine within (30) days of the time he is notified a) that the $670,000.00 term life insurance policy is no longer available to him, b) he has no conversion rights to the above term life insurance policy.
The parties entered a Joint Stipulated Order on March 9, 1988 modifying the Judgment of Dissolution of February 8, 1988. ***
The Modification Order of March 9, 1988 further specifically ordered ‘said maintenance shall fully and absolutely terminate upon Petitioner’s death, and shall not be a claim against Petitioner’s estate provided Petitioner has provided with [sic] $250,000.00 insurance coverage as provided in Judgment of February 8, 1988, as now modified.’
The terms and conditions of the Court’s orders of March 9, 1988 and February 8, 1988 *** are specific and unambiguous: Respondent’s assertion that an ambiguity existed is not founded. ***
The Court finds from the evidence that Petitioner became ineligible for the specific term insurance coverage provided by Olin Industries *** through no fault or action attributable to Petitioner.
The Petitioner made and accepted the tender of the Equitable Life Insurance Policy to Respondent. This policy transfer was contingent upon Petitioner’s inability to obtain conversion rights to the term life policy provided by Olin Industries under this Court’s order of March 9,1988.
The Court finds from the testimony of Petitioner, and that of John Mulrean, *** that Petitioner could not convert the Olin term contract past a one year period ***.
The insurance coverage obtained for Petitioner by the Weatherby Company was not referred to or contemplated by the Court’s specific terms of the Court’s prior Order of February 8, 1988, or as modified by the Order of March 9, 1988. The Court further finds from the evidence that Petitioner had no control over the procurement of the policy which was universal and not a term type policy. Thus the Weatherby policy on Petitioner’s life cannot be considered by the Court in its decision.
The Court *** finds and orders the maintenance obligation of Petitioner to Respondent to fully and absolutely cease and terminate on Petitioner’s death. Respondent’s only claim against Petitioner’s estate shall be the monthly maintenance owed by Petitioner to Respondent up to the date of his death.”

The trial court denied Mary Blaine’s motion to vacate the order. Mary Blaine appeals.

Mary points out that the March 9, 1988, joint stipulated order retained the three events of termination that were in the original judgment of dissolution: Mary’s death, remarriage, or conjugal cohabitation. A fourth maintenance-terminating event was added:

“In addition to maintenance terminating upon the aforegoing events[,] said maintenance shall fully and absolutely terminate upon Petitioner’s death, and shall not be a claim against Petitioner’s estate provided Petitioner has provided Respondent with $250,000 insurance coverage as provided in Judgment of February 8, 1988, as now modified.”

Mary argues that in addition to establishing a fourth maintenance-terminating event, this particular provision provided Mary security in that maintenance would not cease upon Henry’s death unless he furnished a $250,000 insurance policy on his life. She maintains that such an insurance policy is separate and in addition to the Equitable life insurance policy to which she is entitled.

Mary argues that the joint stipulated order made maintenance permanent and nonmodifiable. She contends that the order tightened the insurance as security by giving Henry the choice of either furnishing a $250,000 policy on his life or having his estate stand liable for all maintenance installments that would accrue beyond his death and until Mary’s death.

Henry maintains that Mary’s position is without merit. He argues that the trial court properly found that no ambiguity existed in the orders entered February 8, 1988, and March 9, 1988. The March 9, 1988, order, which modified the February 8, 1988, order, specifically stated with reference to page, paragraph, and line the portions of the February 9, 1988, order which were stricken. Henry argues that the March 9 order specifically stated that maintenance payments fully and absolutely terminated upon Henry’s death and shall not be a claim against his estate provided he has provided Mary with insurance coverage as provided in the judgment of February 8, 1988, as modified. That part of the February 8, 1988, order referring to conversion rights to a term life insurance policy provided by Olin Industries and to the Equitable insurance policy, ownership of which was awarded to Mary in the event that Henry could not obtain conversion rights to the aforementioned term life insurance policy provided by Olin, was not stricken from the February 8, 1988, order by the specific terms of the March 9, 1988, order. Henry maintains that because the Olin insurance was terminated through no fault of his, Mary is entitled to the Equitable life insurance policy. He argues that beyond that, he need not secure another insurance policy in Mary’s name, nor need his estate pay maintenance beyond his death.

At oral arguments in this case, the parties made much of the question of who drafted the joint stipulated order. Husband claimed that wife’s attorney drafted it and, therefore, it should be construed liberally in his favor. Wife argued that the joint stipulated order was a document prepared jointly by the parties’ attorneys and because it is a guarantee contract it should be construed in favor of the creditor, who is the wife in this case. The argument concerning in whose favor the document should be construed assumes that the document is ambiguous. (See First National Bank v. Country Mutual Insurance Co. (1988), 175 Ill. App. 3d 860, 530 N.E.2d 521.) Without delving into the debate over the identity of the drafter, we turn first to an examination of the court’s orders of February 8, 1988, and March 9, 1988.

Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 502(f)) permits parties to expressly preclude or limit the modification of terms set forth in a judgment except for terms concerning the support, custody, or visitation of children. Provisions of divorce judgments are construed by applying the same rules as those governing the construction of contracts. (In re Marriage of Sherrick (1991), 214 Ill. App. 3d 92, 96, 573 N.E.2d 335, 338.) The principal objective in construing a contract is to give effect to the parties’ intentions, which are to be derived by reference to the contract as a whole. In re Marriage of Oldham (1991), 222 Ill. App. 3d 744, 750, 584 N.E.2d 385, 390.

The March 9, 1988, order provides:

“[Maintenance payments fully and absolutely terminate upon Henry’s death and shall not be a claim against his estate provided he has provided Mary with insurance coverage as provided in the judgment of February 8, 1988 as modified.” (Emphasis added.)

The italicized portion of this paragraph refers to the order of February 8, which in turn refers to the Olin insurance policy and Mary’s right to the Equitable life insurance policy in the event the Olin policy is terminated.

Under the terms of the February 8, 1988, order, Henry was required to attempt to convert his $670,000 term life policy in a manner which would provide a minimum of $250,000 coverage to Mary. The same order also provided that if Henry was unable to obtain conversion rights to the Olin term life policies Mary was to be awarded ownership of the Equitable life insurance policy. The only evidence elicited at the hearing established that Henry was unable to convert the Olin term life policy. This inability brought into play the safety valve of the award of the Equitable life insurance policy.

Contrary to Mary’s argument, the two court orders do not specify that Mary is to receive maintenance beyond Henry’s death except for her right to the Equitable policy. In fact, the order of March 9, 1988, specifically provides that maintenance shall terminate upon Henry’s death and shall not be a claim against his estate.

We affirm the decision of the trial court.

Affirmed.

WELCH and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN L. MARKIEWICZ, Defendant-Appellant.
    Second District
    No. 2 — 91—0499
    Opinion filed June 22, 1993.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    David R. Akemann, State’s Attorney, of Geneva (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Following a jury trial in January 1991 defendant, John Markiewicz, was found guilty of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1). Defendant was found to be eligible for the death penalty (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(b)(8)), but was sentenced to a term of natural-life imprisonment without parole. Defendant raises the following issues on appeal: (1) whether evidence of other crimes was properly admitted; (2) whether trial counsel was ineffective; (3) whether defendant was entitled to a hearing on his allegations of ineffective assistance of counsel; (4) whether the State’s comments during closing argument deprived defendant of a fair trial; and (5) whether the court abused its discretion in sentencing. For the following reasons, we affirm in part, reverse in part, and remand.

Defendant was charged with three counts of first degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(2)) arising from the death of the victim, Debra Shelton. Shelton was last seen alive on March 30, 1988. On April 27, 1989, her decomposed body was discovered buried on the banks of the Fox River in a 55-gallon drum. An autopsy conducted by Dr. Lawrence Blum found the cause of death to be acute cocaine overdose. At trial, the State argued that defendant repeatedly injected the victim with cocaine until she died to prevent her from revealing information about the abduction, kidnapping, aggravated battery, and murder of Frank Mahlendorf.

Ray Katzensky testified for the State in exchange for immunity from prosecution for his involvement in the kidnapping and aggravated battery of Frank Mahlendorf and Shelton’s murder and its concealment. Paul Schmitz testified for the State in exchange for immunity from prosecution for his involvement in Shelton’s murder and its concealment. Schmitz and Katzensky both testified that on March 23, 1988, they accompanied defendant to the home of Frank Mahlendorf to collect money owed for narcotics. When Mahlendorf opened the door, defendant forced him into Katzensky’s automobile. Defendant informed Mahlendorf that he wanted the money owed for drugs and repeatedly struck him. When Mahlendorf responded that he did not have the money, defendant drove to Schmitz’ home in South Elgin, Illinois. Defendant forced Mahlendorf into the garage and repeatedly slapped, beat, and kicked him, eventually breaking his nose. Katzensky and defendant tied Mahlendorf’s hands to his feet and threw him into the trunk of Katzensky’s automobile. Schmitz, Shelton, and defendant drove Katzensky’s automobile to Wisconsin. They dropped Shelton off on a gravel road and proceeded to Devil’s Lake. Defendant took Mahlendorf out of the trunk, dragged him into a culvert, and shot him. Defendant handed the gun to Schmitz and Schmitz shot Mahlendorf. Mahlendorf’s body was left in the ditch. Schmitz, Shelton, and defendant drove to Iowa for a few days, stopping to throw the gun in the Mississippi River. Schmitz was eventually convicted of Mahlendorf’s murder and is presently serving a double life term of imprisonment for that crime. The charges against defendant for Mahlendorf’s murder were dropped.

Schmitz testified that defendant told him Shelton needed to be killed because she knew about Mahlendorf’s murder. On March 30, 1988, a farewell party was held for Shelton at Katzensky’s apartment. Shelton was planning to leave for Tennessee the next day to live with her father. At the party, Shelton drank some champagne which was dosed with LSD by defendant. Later that evening, Shelton accompanied defendant to Schmitz’ home. Defendant filled three syringes of cocaine. Defendant and Shelton entered the garage at Schmitz’ residence and defendant began to inject cocaine into Shelton’s body. After a time, defendant informed Schmitz that Shelton was having a seizure. Schmitz observed that Shelton was shaking, groaning, and had urinated on herself. Shelton was shaking so severely that Schmitz had to hold her down while defendant sat on Shelton’s chest and attempted to inject her arm with another syringe filled with cocaine. After five or six unsuccessful attempts, defendant injected Shelton’s leg with the syringe. When Schmitz returned to the garage, Shelton was dead. Schmitz wrapped her body in a blanket and locked it in a room in the garage.

Three days after Shelton’s death, Katzensky, Schmitz and defendant placed her body into a 55-gallon drum. Katzensky and defendant drove to McHenry County and rolled the drum into the Fox River. Approximately one month later, defendant told Katzensky that they were going to have to bury the drum. Defendant and Katzensky rented a boat and bumped into the drum while searching for it on the Fox River. They towed the drum to the bank of the river, rolled the drum into a hole they dug, and covered it. Katzensky returned the next day with concrete and finished burying the drum.

On April 27, 1989, Katzensky led the police to the spot where he buried the drum containing Shelton’s body. An autopsy performed by Dr. Lawrence Blum and a toxicological analysis revealed a small amount of cocaine and a larger amount of benzoyl ecogonine, the chemical breakdown product of cocaine, in the gastric contents of Shelton’s body. Blum found no signs of blunt trauma, stabbing, gunshot wound, disease, or heart problems. Blum found the fact that traces of cocaine remained in Shelton’s body significant because the drug breaks down easily in the body. Based on this, Blum opined that Shelton died of an acute cocaine overdose.

Following a jury trial in January 1991, defendant was found guilty of first degree murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1.) Defendant was found to be eligible for the death penalty on the basis that he murdered Shelton to prevent her from testifying or otherwise assisting the State in prosecuting him for the Mahlendorf murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(b)(8).) However, the jury found the existence of mitigating factors sufficient to preclude a death sentence. Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(c).

At the sentencing hearing, 10 witnesses testified as to defendant’s childhood and his activities during incarceration. The court stated that it heard all the testimony and considered the presentence report and letters presented. However, the court determined that none of the evidence presented in mitigation could be considered “under any of the factors in mitigation listed by the statute.” Defendant was sentenced to a term of natural life in prison without parole.

Defendant’s attorneys filed a post-trial motion for a new trial alleging various errors. Defendant later filed two pro se post-trial motions alleging ineffective assistance of counsel. Defendant’s trial attorneys, John Paul Carroll and M. Lee Witte, were granted leave to withdraw as attorneys for defendant because of a conflict of interest created by defendant’s pro se post-trial motion alleging ineffective assistance of counsel. Defendant’s post-trial motions for a new trial were denied after a hearing, and this appeal followed.

EVIDENCE OF OTHER CRIMES

Defendant first contends that he was denied a fair trial by the admission of evidence of other crimes, including drug trafficking, drug abuse, possession of weapons, murder, and solicitation. Evidence of crimes, wrongs, or acts for which a defendant is not on trial is inadmissible for the purpose of establishing his propensity to commit crime. (People v. Lucas (1992), 151 Ill. 2d 461, 485.) This type of evidence is prejudicial because a jury may convict the defendant because it believes he is a bad person and deserves punishment. (People v. Thingvold (1991), 145 Ill. 2d 441, 452.) However, evidence of other crimes may be admitted when relevant to show motive, intent, mistake, absence of mistake, identity, common design, or modus operandi (Lucas, 151 Ill. 2d at 486), if the probative value of the evidence outweighs the risk of unfair prejudice (People v. Maxwell (1992), 148 Ill. 2d 116, 130). Our supreme court has gone so far as to hold that evidence of other offenses is admissible if it is relevant to establish any material issue other than the propensity to commit crime. People v. Stewart (1984), 105 Ill. 2d 22, 62; People v. McKibbins (1983), 96 Ill. 2d 176, 182.

Before such evidence is admitted, the State must first show that crime or misconduct occurred and that the defendant committed the offense or participated in its commission. (Lucas, 151 Ill. 2d at 486; Thingvold, 145 Ill. 2d at 455.) The degreé of proof necessary to show that the defendant participated in the commission of the crime need not be beyond a reasonable doubt, but must be more than a mere suspicion. (Thingvold, 145 Ill. 2d at 456.) When such evidence is offered, the trial court must establish the purpose for which the evidence is offered and weigh the relevance of the evidence against its prejudicial impact. (Thingvold, 145 Ill. 2d at 452.) The admissibility of such evidence is a matter within the sound discretion of the trial court which will not be reversed on review absent an abuse of that discretion. (People v. Illgen (1991), 145 Ill. 2d 353, 364.) An abuse of discretion will be found “only where the trial court’s decision is ‘arbitrary, fanciful or unreasonable’ or ‘where no reasonable man would take the view adopted by the trial court.’ ” Illgen, 145 Ill. 2d at 364, quoting People v. M.D. (1984), 101 Ill. 2d 73, 90.

In this case, evidence of other crimes was admitted through the testimony of several of the State’s witnesses. Defense counsel failed to raise a timely objection when this testimony was admitted. He also failed to pursue a motion in limine, filed by defendant’s prior attorney, which sought to limit the State from eliciting information concerning defendant’s reputation as a drug dealer, for violence, and that the State’s witnesses feared retaliation from defendant. Further, defense counsel failed to object when a pattern jury instruction was withdrawn which limited the jury’s use of evidence of other crimes. (Illinois Pattern Jury Instructions, Criminal, No. 3.14 (2d ed. 1981) (hereinafter IPI Criminal 2d).) For these reasons, defendant now claims that he was denied the effective assistance of counsel. Although both defense counsel and defendant filed post-trial motions for a new trial, these motions fail to raise the issue of any error which occurred by the admission of evidence of other crimes aside from that relating to the amount of detail admitted concerning Mahlendorf’s murder.

The failure to timely object when the evidence of other crimes is introduced and to raise the issue in a post-trial motion operates as a waiver of defendant’s right to raise the issue as a ground for reversal on review. (Lucas, 151 Ill. 2d at 481.) To preserve an issue for review, an objection to the alleged error must be made at trial and included in a post-trial motion. (People v. Turner (1989), 128 Ill. 2d 540, 555; People v. Enoch (1988), 122 Ill. 2d 176, 187.) However, the plain error rule (134 Ill. 2d R. 615(a)) permits a reviewing court to consider issues waived on appeal if (1) the evidence in a criminal case is closely balanced; or (2) the complained-of error “is so fundamental and of such magnitude that the accused was denied a fair trial.” People v. Herrett (1990), 137 Ill. 2d 195, 209-10.

The evidence in this case was not closely balanced. Both Schmitz and Katzensky testified that defendant intended to kill Shelton to prevent her from revealing her knowledge of Mahlendorf’s murder. Schmitz related his observations while aiding defendant in repeatedly injecting Shelton with cocaine until she died. Katzensky testified of his involvement while aiding defendant in concealing Shelton’s murder by placing her body in the drum and burying it in the Fox River. Although these witnesses testified in exchange for immunity from prosecution, their testimony was corroborated by other witnesses who testified that defendant admitted he murdered Shelton. Furthermore, no witnesses were called to testify for the defense to give a different explanation of the events related by the State’s witnesses. Thus, we find that the evidence in this case was not closely balanced.

The second basis upon which to invoke the plain error rule is where the error is so fundamental that it deprived defendant of a fair trial. Consequently, we must first determine whether it was error to admit the evidence of other crimes of which defendant now complains. If so, we must determine whether the error was of such magnitude that it deprived defendant of a fair trial.

In this case, Schmitz and Katzensky related the events occurring prior to Mahlendorf s murder. Defendant concedes that some information concerning the Mahlendorf murder was admissible to prove defendant’s motive in murdering Shelton. However, defendant contends that the facts admitted in support of the State’s motive theory should have been limited to the details of the Mahlendorf murder which Shelton knew. (See People v. Smith (1990), 141 Ill. 2d 40, 56.) He asserts that the detailed account of Mahlendorf’s murder amounted to a trial within a trial and should have been excluded as more prejudicial than probative.

We agree that it was not necessary to elicit all of the details concerning Mahlendorf’s murder. Even where some evidence of another crime is competent and relevant, the State may not put on a trial within a trial by means of detailed evidence of the other crime. (People v. Bartall (1983), 98 Ill. 2d 294, 315.) The trial court should carefully limit evidence of the other crime to that which is relevant to the issues on which the other crime evidence is admitted. Bartall, 98 Ill. 2d at 315; People v. Curtis (1986), 141 Ill. App. 3d 827, 831.

In this case, the State sought the death penalty on the basis that defendant murdered Shelton to prevent her from revealing information concerning his involvement in Mahlendorf’s murder. Thus, the details of Mahlendorf’s murder that Shelton knew or observed were admissible to prove defendant’s motive in murdering Shelton. According to Katzensky, Shelton observed Mahlendorf tied and beaten at Schmitz’ residence, accompanied defendant and Schmitz to Wisconsin with Mahlendorf in the trunk of the automobile, and drove to Iowa after Mahlendorf’s murder, stopping to dispose of the murder weapon in the Mississippi River. She did not observe what occurred prior to the time defendant brought Mahlendorf to Schmitz’ home. Thus, these details were arguably inadmissible.

Contrary to People v. Olson (1981), 96 Ill. App. 3d 193, which defendant cites, the details of Mahlendorf’s murder to which Schmitz and Katzensky testified and Shelton did not observe were not graphic or inflammatory. (See People v. Kincy (1982), 106 Ill. App. 3d 250, 257.) The witnesses simply related the events leading up to Mahlendorf’s murder, which included his abduction and beating in Katzensky’s automobile en route to Schmitz’ home, where Shelton first observed this victim. Accordingly, we find that the court did not abuse its discretion in admitting the details of the Mahlendorf murder. (See People v. Breton (1992), 237 Ill. App. 3d 355, 363.) Thus, as to this evidence, there was no error, let alone plain error.

The next type of evidence to which defendant objects concerns evidence of defendant’s extensive drug trafficking and drug abuse. At trial, the State’s witnesses related defendant’s use of intravenous drugs, his history of drug abuse, his involvement in the drug milieu, and his nickname, “doctor John,” which described his proficiency in delivering intravenous injections of narcotics.

Contrary to defendant’s contention, this evidence was not relevant merely to show defendant’s propensity to commit drug-related crimes. The State’s theory was that defendant murdered Shelton by repeatedly injecting her body with cocaine. His involvement with drugs and self-proclaimed proficiency at injecting narcotics was directly relevant to the method utilized in Shelton’s murder. Further, defendant’s knowledge of and experience with narcotics were relevant in illustrating that defendant knew the amount of cocaine he injected in Shelton’s body was lethal and that he intended to kill her. This evidence eliminates any speculation that defendant mistakenly injected Shelton with a fatal overdose of cocaine. The cases defendant cites where evidence of defendant’s drug-related activities was held to be prejudicial such that a new trial was warranted are factually inapposite because they do not involve a murder where the victim was killed by a fatal dose of a narcotic. (See People v. Speight (1992), 153 Ill. 2d 365, 372-73; People v. Mitran (1990), 194 Ill. App. 3d 344.) Again, as to this evidence, there was no error, let alone plain error.

Defendant next objects to Katzensky’s statement that defendant told him he dismembered a woman’s body, burned it, and threw it into a river. The following interchange occurred when Katzensky testified of his involvement in burying the drum containing Shelton’s body:

“Q. [Mr. Barsanti, for the State]: After you brought the boat back, did [defendant] give you any further instructions?
A. [Ray Katzensky]: Yeah, on the way home. Well, on the way back to taking the boat back he said tomorrow we’re going to have to come back and finish covering her up and get some concrete to put over the top. We needed a bucket and the concrete was the main thing to fix it up and throw it on there.
Q. Did he tell you to get those items?
A. Yes. Then he also said — after we got into my car and we were headed back, after we took the boat back, then John said, well, the same thing about I’m not supposed to tell nobody nothing, and then he told me what he did to a woman one time. I didn’t know whether he was lying or not, but I believed it. He said he cut off her head and her hands and her feet and burned them and cut the rest of her up and threw her in the river.
Q. You don’t know if that’s true or not?
A. No, I don’t.”

Defendant contends that this evidence should have not been admitted.

We agree. Even if this evidence was relevant to prove intent, modus operandi, or defendant’s willingness to commit murder, it was inadmissible. Evidence of other crimes is inadmissible even for a proper purpose until it is shown that a crime actually took place and that defendant committed it-or participated in its commission. (Lucas, 151 Ill. 2d at 486.) Katzensky’s statement should have been excluded because there was no foundation indicating that this murder actually took place. Therefore, the trial court abused its discretion in admitting this statement. However, Katzensky stated that he did not know whether this statement was true. Thus, the jury was on notice that defendant’s statement may have been untrue and was potentially unreliable. Accordingly, we do not find it rises to plain error.

Defendant also objects to evidence that he possessed an “Uzi.” This information was elicited when Schmitz gave the following details of the day Shelton’s body was placed in the drum and buried:

“Q. [by Mr. Barsanti, for the State]: Did you see [defendant] that morning?
A. [by Paul Schmitz]: Yes.
Q. Did you notice if he was carrying anything?
A. He might have had a gun on him. I think he had his Uzi, I don’t know.
Q. He had his what?
A. Uzi.
Q. Is that an automatic pistol?
Mr. Carroll [for the defense]: Excuse me, Judge.
The Witness: I guess.
Mr. Carroll: I think he said he might have had a gun. If he’s not sure, I would object to going into the status of what—
THE COURT: You want to rephrase the question.
By Mr. Barsanti:
Q. Did you see anything in his hands that morning when you got out of your room?
A. He didn’t have nothing in his hands, no. If he had his Uzi on him at that time, it was underneath his coat.
Q. Did you see it?

A. I don’t know if it was that morning or not.”

Defendant contends that the only relevant evidence of the use of a gun was that Mahlendorf was shot with a .22 caliber gun. We agree. While the testimony was improper, we determine that any prejudicial effect did not constitute plain error. (See People v. Prewitt (1987), 160 Ill. App. 3d 942, 950.) The witness stated that he did not actually see defendant’s “Uzi.” Thus, the jury was on notice that defendant actually may not have had this type of gun.

Even if all the evidence of other crimes was admissible, defendant contends that it was plain error to admit the evidence without an instruction limiting the jury’s use of the evidence for a proper purpose. At the instruction conference, the State withdrew the following instruction without objection by the defense:

“Evidence has been received that the defendant has been involved in offenses other than that charged in the indictment. This evidence has been received solely on the issue of defendant’s identification, presence, intent, motive, design and knowledge. This evidence may be considered by you only for the limited purpose for which it was received.” (Illinois Pattern Jury Instructions, Criminal, No. 3.14 (2d ed. 1981).)

Thus, the jury heard evidence of Mahlendorf’s murder, of defendant’s history and involvement with drugs, that defendant told Katzensky he once murdered a woman, cut up her body, and threw it in the river, and that defendant possessed an Uzi, without an instruction cautioning the limited purpose for which this information was admitted.

Under Supreme Court Rule 451(c), “substantial defects” in jury instructions in criminal cases are not waived by failing to timely object “if the interests of justice require.” (134 Ill. 2d R. 451(c).) This exception to the waiver rule is limited to “grave errors” or situations where the case is close factually and fundamental fairness requires the jury to be properly instructed. (People v. Ivory (1991), 217 Ill. App. 3d 619, 623.) A limiting instruction on the use of other crimes evidence would have been appropriate in this case. However, our research reveals no case law indicating that plain error always occurs when the court fails to instruct the jury of the limited purpose for which evidence of other crimes is admitted.

On the contrary, in People v. Crowder (1987), 161 Ill. App. 3d 1009, 1017, the court found that a defendant waived the issue of the prejudicial admission of other crimes evidence by failing to object when the evidence was admitted during trial and by failing to seek any cautionary instructions. Further, a trial court is not responsible for giving an instruction not offered sua sponte. It is the burden of the party who desires a specific instruction to present it to the court and request that it be given to the jury. (Turner, 128 Ill. 2d at 562.) Generally, the only instructions necessary to ensure a fair trial include the elements of the crime charged, the presumption of innocence, and the question of burden of proof. Turner, 128 Ill. 2d at 562-63.

In this case, the instruction was not given because the State withdrew it without objection by the defense. It can be inferred that the jury could have considered the evidence of other crimes committed by defendant for an improper purpose. However, an error in a jury instruction is harmless if the result of the trial would not have been different if a proper instruction was given. (People v. Johnson (1991), 146 Ill. 2d 109, 137.) As we previously determined, the evidence in the case was not closely balanced. One witness testified that defendant informed him that he was planning to murder Shelton because she knew too much about Mahlendorf’s murder. This same witness related his observations while aiding defendant in injecting Shelton with a syringe filled with cocaine and that she died shortly after. Another witness testified of his observations in aiding defendant in concealing Shelton’s murder. This evidence was corroborated by other witnesses who testified that defendant admitted he killed Shelton. On this basis, we find that any error resulting from the failure to instruct the jury i on the limited purpose for which the evidence of other crimes was received would not have affected the outcome of the trial.

INEFFECTIVE ASSISTANCE OF COUNSEL

In this case, defendant’s trial attorneys, John Paul Carroll and M. Lee Witte, filed a post-trial motion for a new trial alleging various errors. Subsequent to that time, defendant wrote a letter to his trial attorneys requesting that the post-trial motion be amended to include claims of ineffective assistance of counsel. Carroll responded by stating that he amended the post-trial motion to include several of defendant’s requests but would not amend it further because he found the additional issues defendant raised were meritless. In Carroll’s opinion, defendant would benefit more by concentrating on the sentencing phase of his trial since the chances of receiving a new trial were bleak. He informed defendant that his right to appeal was already protected and he would not file inappropriate motions. If defendant persisted, Carroll stated that he would be forced to withdraw as defendant’s attorney. Defendant’s post-trial motion was denied.

In spite of this, defendant filed two pro se post-trial motions following trial and sentencing which alleged ineffective assistance of counsel by virtue of errors made by the State and the court, including the court’s failure to procure an expert pathologist for the defense. Carroll filed a motion to withdraw as counsel for defendant based on an apparent conflict of interest. Carroll appeared before the court and presented a copy of a notice of the motion to withdraw which was signed by defendant. The court granted the motion believing that defendant consented to the withdrawal. The court subsequently requested that attorney Fred Morelli be appointed to represent defendant. Defendant advised Morelli that he was not confident in his abilities and did not want him as his attorney. Thus, the court informed defendant that he would have to retain private counsel.

When defendant appeared for a hearing on his pro se motions for a new trial, he requested that an attorney be appointed to represent him. Defendant informed the court that he signed the notice of the motion to withdraw only to indicate he was served. Thereafter, the court vacated its order of discharge and reappointed attorneys Carroll and Witte to represent defendant. Defendant expressed concern over the time during which he could file a notice of appeal since 27 days passed from the time he was sentenced. Since the court already denied the post-trial motion filed by his attorneys, the judge informed defendant that he was unsure whether the time during which defendant could file a notice of appeal was stopped while his pro se post-trial motions were pending. Defendant proceeded to argue his motions. The court reserved its ruling on three issues until attorney Carroll was able to appear before the court. Carroll appeared the following day and argued these issues on behalf of defendant. Defendant’s pro se post-trial motions for a new trial were denied in their entirety, including the issue of whether an expert pathologist should have been appointed for the defense.

Defendant contends that in accordance with People v. Krankel (1984), 102 Ill. 2d 181, this matter should be remanded to determine whether defendant was denied the effective assistance of counsel, as he should have had other counsel appointed to argue his pro se post-trial motions which raised the issue of ineffective assistance of trial counsel. Krankel did not establish a per se rule that all pro se motions for a new trial which allege ineffective assistance of counsel must result in the appointment of new counsel to assist in the motion. (Peo pie v. Crane (1991), 145 Ill. 2d 520, 533.) Rather, the trial court must examine the factual matters underlying the defendant’s claim. If the claim pertains to a matter of trial strategy or is otherwise spurious, new counsel is not necessary. (People v. Nitz (1991), 143 Ill. 2d 82, 134.) Only if the allegations illustrate possible neglect should new counsel be appointed to make an independent evaluation of the defendant’s complaint and present it to the court. People v. Williams (1991), 147 Ill. 2d 173, 251; Nitz, 143 Ill. 2d at 134.

It would be improper for the court to require attorney Carroll to argue that his own conduct at trial was ineffective. However, our review of defendant’s pro se post-trial motions reveals that the errors he alleges, including the issue of the appointment of an expert pathologist for the defense, although couched in terms of ineffective assistance of counsel, actually attack procedural and substantive rulings by the court and alleged errors by the State. Thus, defendant’s pro se post-trial motions were redundant of the post-trial motions previously filed by defendant’s trial attorneys and denied by the court. For these reasons, the trial court did not err in refusing to appoint a new attorney to represent defendant at the hearing on his pro se post-trial motions. His contentions either reiterated the previous post-trial motions filed by his attorneys or encompassed issues that might have been raised at that time.

On rehearing, defendant contends that he could not have raised the issue of attorney Carroll’s neglect in retaining an expert pathologist in his post-trial motion because the issue “did not arise until after the trial court informed the defendant [during the hearing on defendant’s pro se post-trial motion] that it never denied the defense expert fees because defense counsel never asked for them.” Our review of the record reveals that Carroll’s predecessor, Larry Wechter, filed a motion for an ex parte hearing regarding defendant’s request to appoint a forensic pathologist. The court denied the request for an ex parte hearing and, in doing so, informed attorney Wechter that no motion to appoint an expert was pending before the court. On the record, Wechter amended his motion and requested the court to provide a forensic pathologist. The court responded that it would not approve fees for an expert from Pennsylvania without a schedule of fees for other experts in the area. Thereafter, Wechter withdrew from the case, and Carroll was appointed to represent defendant. The record reveals that a fee schedule was never presented to the court and no expert was ever appointed.

We agree with defendant that the court may not have been aware of Carroll’s possible misrepresentation at the time of its ruling on defendant’s pro se post-trial motions. However, assuming arguendo defendant would be entitled to a Krankel hearing and appointment of new counsel to argue his pro se post-trial motions, defendant still has not demonstrated that he would be entitled to a new trial. Unlike the situations in Krankel, People v. Williams (1992), 224 Ill. App. 3d 517, People v. Finley (1991), 222 Ill. App. 3d 571, and People v. Jameson (1987), 155 Ill. App. 3d 650, where the identity of the uncontacted witness was known and the evidentiary value of the proposed testimony self-evident, there is no identified pathologist in this case or any proposed testimony. Since the record does not disclose the substance of the expert’s proposed testimony, its evidentiary value is entirely speculative. Thus, even if defendant was able to prove Carroll’s misrepresentation, he would be unable to show any prejudice resulting from such action or inaction. The indictment in this case was not confined to the theory that the victim died of a cocaine overdose. Even if a pathologist was retained to dispute Dr. Blum’s findings, this would not preclude a jury’s finding that defendant was responsible for the acts which caused Shelton’s death. Therefore, defendant has not demonstrated that an alternate pathologist’s opinion would have led to a different result. For these reasons, the trial court did not err in refusing to appoint new counsel to represent defendant at the hearing on his pro se post-trial motions.

Turning to defendant’s allegations of ineffective assistance of counsel which were not raised either in the post-trial motions filed by his attorneys or in his pro se post-trial motions, defendant asserts that his trial attorney, John Carroll, failed to preserve the record for review by (1) failing to object when the above evidence of other crimes was admitted; (2) failing to pursue a motion in limine to preclude the State from eliciting information concerning defendant’s reputation as a drug dealer, for violence, and that the State’s witnesses feared retaliation from defendant; and (3) failing to object when the State withdrew an instruction limiting the jury’s use of evidence of other crimes.

There is a strong presumption that counsel’s performance at trial and at sentencing fell within the range of acceptable behavior. (People v. Wright (1992), 149 Ill. 2d 36, 46.) To prevail on a claim of ineffective assistance of counsel, a defendant must establish that (1) counsel’s performance was so seriously deficient that it fell below an objective standard of reasonableness; and (2) the deficient performance was so prejudicial that the defendant was denied a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Albanese (1984), 104 Ill. 2d 504, 525.) To show actual prejudice, defendant must demonstrate that, but for counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Titone (1992), 151 Ill. 2d 19, 36.) An accused is entitled to competent, not perfect, representation. The fact that a defense tactic was unsuccessful does not retrospectively demonstrate incompetence. Therefore, counsel’s performance at trial will not be deemed ineffective if the claimed error was a matter of discretion, trial tactics, or strategy. People v. Williams (1992), 235 Ill. App. 3d 638, 651.

We previously discussed the admissibility of various evidence of other crimes admitted during trial. Although some of this evidence was admissible, defense counsel failed to object when the State withdrew a pattern jury instruction limiting the use of such evidence. Failing to object has been held to constitute a matter of sound trial strategy. (People v. Steidl (1991), 142 Ill. 2d 204, 240-41; People v. Bosek (1991), 210 Ill. App. 3d 573, 600-01.) However, defendant’s trial attorneys should have sought an instruction limiting the jury’s use of evidence of other crimes. It is not a matter of discretion or trial strategy for a defense attorney to fail to seek an instruction when extensive evidence of.another crime is admitted, even for a limited purpose.

Nevertheless, a reviewing court need not determine whether counsel’s performance was deficient prior to examining whether defendant suffered any prejudice as a result of the alleged deficiencies. An ineffectiveness claim may be disposed of on the ground of insufficient prejudice without deciding whether the alleged errors constitute constitutionally ineffective assistance of counsel. (Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Odie (1992), 151 Ill. 2d 168, 173.) We previously discussed the admissibility of evidence of the other crimes or wrongdoings committed by defendant. Some of the evidence was admissible for limited purposes of illustrating motive, intent, method, modus operandi, and consciousness of guilt. However, we further determined that allowing the evidence to be admitted, even without the limiting instruction, did not amount to plain error, as the evidence was not closely balanced or the error so fundamental that defendant was deprived of a fair trial. Similarly, any error which may have occurred when defendant’s trial attorneys failed to object when this evidence was admitted and to seek an instruction limiting the jury’s use of other crimes evidence was harmless, as defendant has failed to establish that, but for counsel’s errors, the result of the proceeding would have been different.

CLOSING ARGUMENTS

Defendant asserts that he was denied a fair trial by improper comments made by the State during closing argument. The State is allowed substantial latitude in closing argument. (Williams, 147 Ill. 2d at 231.) The prosecutor has the right to comment on the evidence and draw all legitimate inferences deducible from the evidence even if unfavorable to defendant. (People v. Johnson (1992), 149 Ill. 2d 118, 145.) Although the State’s comments may exceed the bounds of proper argument, the verdict must not be disturbed unless the remark clearly affected the outcome of the trial. (People v. Leger (1992), 149 Ill. 2d 355, 399.) Absent a clear abuse of discretion, the trial court’s determination of the propriety of the closing argument should be followed. Johnson, 149 Ill. 2d at 145.

In closing argument, the prosecuting attorney stated as follows:

“And you hear a lot about this term beyond a reasonable doubt and burden of proof and I’d just like to talk about that for a moment. The burden of proof means that the State has to prove the defendant guilty beyond a reasonable doubt. That’s our burden. That’s what we have to do, the State. We have to put on people to tell you.
I just want to let you know that that’s the same burden of proof in every criminal case in this country. Every criminal verdict that there has ever been entered of a guilty was based on that very same burden. Be it like this, a murder case, or bicycle theft case or some minor theft case or driving under the influence of alcohol case, it’s the same burden. Every time there is a guilty verdict, the State has sustained that burden. It’s nothing new. It’s nothing magical. It’s nothing different because of this particular case. That’s the way it is in every case, in every court, in every type of crime across this country.”

Defendant contends that the State erroneously minimized its burden of proof by comparing burden of proof in the instant case to that of a bicycle theft case.

Defendant failed to object to the prosecutor’s remarks during closing argument. Therefore, we would be justified in holding that the issue was waived. (Enoch, 122 Ill. 2d at 187.) Notwithstanding the waiver rule, we do not find plain error.

This court has held that proper commentary includes remarks which characterize the State’s burden of proof as one which is not unreasonable or impossible to meet and as one which prosecutors meet daily. (People v. Hicks (1987), 162 Ill. App. 3d 707, 714.) However, each case must be decided on its own facts. (People v. Bryant (1983), 94 Ill. 2d 514, 523.) It is interesting to note that the State discussed its burden of proof in a strikingly similar fashion in People v. Scaggs (1982) , 111 Ill. App. 3d 633, 637 (“Every defendant that has ever been convicted in this building in this country has been convicted beyond a reasonable doubt whether it is stealing a bicycle or committing a murder. It does not put this man on a pedestal. It is not some impossible thing floating up there in the air. It is a burden that is met every day”). In Scaggs, the court found that this “frequently used argument” has been repeatedly held to be improper because it may have the effect of lessening the importance of the State’s burden of proof. (Scaggs, 111 Ill. App. 3d at 637.) However, the Scaggs court did not make a finding of whether this error alone was sufficient to require a new trial. Rather, the court found that the cumulative impact of several errors mandated a new trial. See also People v. Starks (1983) , 116 Ill. App. 3d 384, 395-96.

We do not find that the prosecutor’s comments in this case constituted plain error. While we do not condone or encourage argument which compares the burden of proof in a murder case to that involving a bicycle theft, we find that the prosecutor’s comments were an honest reflection and statement of the law. Further, our review of the State’s entire closing argument reveals that its burden of proof was not minimized. The prosecutor accurately indicated that the jury was the finder of fact and would be instructed to decide the case based on the evidence it heard. The jury was informed of the State’s burden of proof and also that the defense had no burden and was not required to prove anything. Defendant may not choose one portion of the closing argument and ignore these other statements. For these reasons, we find the State’s closing did not constitute reversible error.

During opening argument, defense counsel suggested that Ray Katzensky and Paul Schmitz were responsible for murdering Mahlendorf and Shelton. During closing argument, the prosecuting attorney stated as follows:

“What I recall the defendant saying to you [during the State’s opening argument] is that Ray Katzensky and Paul Schmitz did this crime. *** In fact, I heard counsel a couple times ask witnesses isn’t it true, Mr. Schmitz, that it was you and Ray Katzensky who went in there and killed Mahlendorf or it was you and Ray Katzensky who went in that barn and gave the cocaine to Debra Shelton. And to those questions that were asked, the answer was no, that’s not true. No. That was the answers that were given to those questions.
* * *
Now, no one in this case has ever said that, what counsel suggested to you [during opening argument]. He has asked a question about it. The answer to that question is no. What is evidence is not what he asked, it’s what that person says. He can ask anything. What’s important is what they say. No one in this case ever said Katzensky and Schmitz did that. No one. There is no testimony of that. There is none. And he questioned along those lines and when it was posed it was knocked down and was answered in a negative manner. No, that’s not the case. It was this man, it was Markiewicz, it was not him.
You have to remember that and you have to keep that in mind because that’s very important. You can say whatever you want, ladies and gentlemen. I can say whatever I want here. Attorneys can say whatever they want in opening statement. But what it comes down to, what the proof is, what the proof of the pudding is will someone take that witness stand and say that. Is there some evidence in this record, some testimony in this record about what counsel suggested to you. And no, there is not.”

Defendant failed to object to these statements during trial. Nevertheless, we review defendant’s contentions on the merits under the plain error rule. 134 Ill. 2d R. 615(a).

On appeal, defendant contends that the State’s comments improperly emphasized the defense’s failure to present any witnesses to refute the evidence admitted during trial. We disagree. An accused has a constitutional right not to testify as a witness in his own behalf. (Herrett, 137 Ill. 2d at 210.) The prosecution may not directly or indirectly comment on the defendant’s failure to take the stand in his own defense. (People v. Lyles (1985), 106 Ill. 2d 373, 390.) The prosecution may, however, describe the State’s evidence as uncontradicted, even if the defendant is the only person who could have contradicted it (Herrett, 137 Ill. 2d at 211), if the comments are not intended or calculated to direct the jury’s attention to the defendant’s failure to testify. (People v. Moore (1991), 215 Ill. App. 3d 836, 842-43.) Further, prosecutorial comments based on facts in evidence, or reasonable inferences drawn therefrom, fall within the bounds of proper argument, and prosecutorial comments that are invited by the defense and are not prejudicial do not constitute error. People v. Franklin (1990), 135 Ill. 2d 78, 100.

In its opening statement, the defense revealed its theory that Katzensky and Schmitz were responsible for Shelton’s murder. Defense counsel attempted to prove this by cross-examining Katzensky and Schmitz and questioning whether they committed the murder. The State accurately stated during closing argument that the witnesses always responded negatively to such questions. We find that the State’s comments during closing argument were not calculated to highlight defendant’s failure to testify. Rather, the State’s closing argument consisted of reasonable comments based on the evidence, invited by the defense, and not prejudicial to defendant. See People v. Terry (1988), 176 Ill. App. 3d 947, 950.

Although the State’s comments may exceed the bounds of proper argument, the verdict must not be disturbed on review unless the remark clearly affected the outcome of the trial. (Leger, 149 Ill. 2d at 399.) We previously determined that the evidence in this case was not closely balanced, as there was substantial and uncontradicted evidence of defendant’s guilt. Even assuming both of the State’s comments were improper, we deem any error was harmless, as the record demonstrates that the comments were not a material factor in defendant’s conviction, nor did they result in substantial prejudice to defendant’s right to a fair trial.

SENTENCING

In this case, the jury found defendant eligible for the death penalty on the basis that he murdered Shelton to prevent her from testifying or giving material assistance to the State in an investigation or prosecution of Mahlendorf’s murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(b)(8).) However, the jury found the existence of one or more mitigating factors sufficient to preclude the imposition of the death penalty. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(c).) Thus, the judge imposed a sentence of natural-life imprisonment without parole as provided by section 5 — 8—1 of the Unified Code of Corrections. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(1)(b).) Defendant’s final contention on appeal is that this case should be remanded for re-sentencing because the court abused its discretion in sentencing.

A trial judge is given broad discretion in fashioning an appropriate sentence. (People v. Black (1992), 223 Ill. App. 3d 630, 633.) The trial court’s decision is given great weight and deference and will not be disturbed on review absent an abuse of discretion. (People v. Wilson (1991), 143 Ill. 2d 236, 250.) The reviewing court should not substitute its judgment for that of the trial court merely because it might have imposed a different sentence by balancing the aggravating and mitigating factors differently. People v. Carlson (1992), 224 Ill. App. 3d 1034, 1044.

We note that defendant’s pro se post-trial motions filed after sentencing did not raise any issues relating to defendant’s sentence. Further, a motion to reduce the sentence was not filed. People v. Pfister (1993), 240 Ill. App. 3d 931, 934-37, holding that some form of post-sentencing motion is required to preserve a sentencing issue for appeal, was not decided at the time defendant was sentenced. Notwithstanding the waiver rule of Pfister, we find the sentencing proceeding in the present case was so flawed that we choose to address the merits of the case on the basis of plain error. 134 Ill. 2d R. 615(a); see Pfister, 240 Ill. App. 3d at 937 (McLaren, J., dissenting); People v. Hess (1993), 241 Ill. App. 3d 276, 283.

In sentencing defendant to a term of natural-life imprisonment, the court commented as follows:

“One of the things that I have to take into consideration on sentencing anybody is the factors in aggravation and mitigation that are laid out in Chapter 38.
I’m going to consider three factors in aggravation. One, the defendant’s conduct caused or threatened serious harm; three, the defendant has a history of prior delinquency or criminal activity; and seven, the sentence is necessary to deter others from committing the same crime.
As far as the factors listed in mitigation, I don’t see where any of them apply here; therefore I’m not going to consider any of them.”

The judge proceeded to reiterate the testimony presented in mitigation, including defendant’s unfortunate upbringing with an abusive father, grammar school grades, testimony from various persons indicating that defendant is “a good guy,” scores in attaining a GED certificate while incarcerated, and goals toward further education. However, he also cited defendant’s criminal history, which includes several violent crimes, including battery, aggravated battery, armed robbery, theft, unlawful use of weapons, and felonious assault with a dangerous weapon. Then the judge stated as follows:

“If I were to listen to everything that everybody said today as well as combine that with what I heard in the hearing on aggravation and mitigation, I cannot place them under any of the factors in mitigation listed by the statute. I have to look at the strides you’ve made, but I pointed out the inconsistencies that I’ve seen in the testimony, the letters and the presentence report because for the last ten years or more you’ve been kind of doing the Dr. Jekyll and Mr. Hyde routine as far as I can see.
* * *
The only thing that I can see or the only reason that I could see that Debbie Shelton was killed is exactly what the jury found. She was killed to keep her from possibly testifying against you in Wisconsin in the Mahlendorf death.
* * *
I agree that [Shelton] probably didn’t have any pain as far as she knew ***. The testimony was that she was addicted to cocaine. She was being fed cocaine, only in larger amounts than she thought she was receiving. And she was fed that until she kind of shook like a bowl of jelly and then the final injection was administered to her and then she sat in kind of a shed for the next three days and then was buried in the Fox River and right next to it for the next ten months.
Any sympathy that I think should have been afforded to you was given to you by the jury. I see no reason at all why I should give you any more sympathy. T admire you for what you have done since you’ve been in the jail, but I’m not going to consider that in my sentencing. It has nothing to do with the factors in mitigation. Mr. Markiewicz, I’m going to sentence you to life without parole.”

Defendant asserts that the cause should be remanded for resentencing before a different judge because the sentencing judge abused his discretion by considering improper factors in aggravation and by failing to consider the mitigating evidence before the court.

Defendant contends that the court found Shelton felt no pain when she died. Because the death of the victim is inherent in the offense of murder, defendant asserts that the court abused its discretion by considering the degree of harm caused in imposing an aggravated sentence. We agree that the court may not consider the death of the victim in imposing an aggravated sentence for murder because death is implicit in the offense. (People v. Saldivar (1986), 113 Ill. 2d 256.) However, it is proper for the trial court to consider the force employed and the manner in which the death occurred in applying the serious bodily harm factor. (Saldivar, 113 Ill. 2d at 271; People v. Natty (1991), 216 Ill. App. 3d 742, 773-74.) We do not agree that the passage quoted above reveals that the sentencing judge placed improper emphasis on serious harm. The judge mentioned the manner in which Shelton was murdered and agreed that she probably felt no pain. We find this comment proper, as we do not necessarily equate the lack of pain with a lack of serious harm. Furthermore, the sentencing judge also considered the defendant’s history of prior delinquency or criminal activity, the fact that a sentence of imprisonment was necessary to deter others from committing the same crime, and, most significantly, that a sentence of natural life was statutorily authorized because the jury found that defendant murdered Shelton to prevent her from revealing information about Mahlendorf’s murder. (Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-1(a)(1)(b).) Therefore, we find that the court did not abuse its discretion in applying aggravating factors, including serious harm.

Section 5 — 5—3.1(a) of the Unified Code of Corrections states that certain enumerated grounds “shall be accorded weight in favor of withholding or minimizing a sentence of imprisonment.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.1(a).) As this language is mandatory rather than directory, the sentencing authority may not refuse to consider relevant evidence presented in mitigation. (See Hitchcock v. Dugger (1987), 481 U.S. 393, 398-99, 95 L. Ed. 2d 347, 353, 107 S. Ct. 1821, 1824; Maxwell, 148 Ill. 2d at 147.) This includes evidence that a defendant has adjusted well to incarceration. (Skipper v. South Carolina (1986), 476 U.S. 1, 90 L. Ed. 2d 1, 106 S. Ct. 1669; People v. Turner (1993), 156 Ill. 2d 354, 359; People v. St. Pierre (1992), 146 Ill. 2d 494, 514-15.) Although the sentencing body may not disregard evidence in mitigation, it may determine the weight attributed to relevant mitigating evidence. (Maxwell, 148 Ill. 2d at 148.) Thus, the existence of mitigating factors does not automatically oblige the trial court to reduce a sentence from the maximum allowed. (People v. Smith (1991), 214 Ill. App. 3d 327, 339.) Where mitigating evidence is before the court, it is presumed the court considered that evidence absent some contrary indication other than the sentence imposed. People v. Willis (1991), 210 Ill. App. 3d 379, 389-90.

• 12 In this case, the sentencing judge stated on more than one occasion that he was not going to consider the evidence presented in mitigation because it did not fit into any of the categories enumerated in section 5 — 5—3.1 of the Unified Code of Corrections. At the sentencing hearing, defendant introduced evidence that he acquired a GED certificate while incarcerated and that he was motivated toward furthering his education. However, the sentencing judge stated that he admired defendant for furthering his education, but was not going to consider that in sentencing. This approach is flawed.

The sentencing body should consider all matters reflecting upon the defendant’s personality, propensities, purposes, tendencies, and every aspect of his life relevant to the sentencing proceeding. (People v. Scott (1992), 148 Ill. 2d 479, 560; People v. Barrow (1989), 133 Ill. 2d 226, 281.) Defendant’s educational efforts are relevant as they relate to his rehabilitative potential. As such, this, and other evidence presented in mitigation, should have been considered by the court.

The sentencing judge was statutorily entitled to render a sentence of natural-life imprisonment, as the jury found that defendant was eligible for the death penalty. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005— 8 — 1(a)(1)(b), 9 — 1(b)(8).) However, contrary to the trial court’s repeated comments, the court should have considered defendant’s evidence presented in mitigation and determined that the aggravating factors outweighed the mitigating factors. (See Scott, 148 Ill. 2d at 559-60; Maxwell, 148 Ill. 2d at 147-48.) Although the sentencing judge reiterated the evidence in mitigation in sentencing, his comments state that he did not consider it. Accordingly, we find that the judge abused his discretion in failing to consider mitigating evidence in sentencing and remand this cause to the trial court for a new sentencing hearing.

On rehearing, defendant claims prejudice by the sentencing judge, Judge Thomas E. Hogan, and requests his remand for resentencing to be held before a different judge. Our review of the record indicates that Judge Hogan, who was also the trial judge, may have harbored a commitment to imposing the maximum possible penalty. During voir dire, Judge Hogan advised the jurors that, if they found a mitigating factor sufficient to preclude the death penalty, “[defendant] would be sentenced to life without parole in the penitentiary.” (Emphasis added.) Although Judge Hogan was entitled to render this sentence, it was not mandatory, as the Unified Code of Corrections states that a term of natural-life imprisonment “may” be imposed for this felony. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(1)(b).) Accordingly, we remand this cause for resentencing before a judge other than Judge Hogan. See People ex rel. Ward v. Moran (1973), 54 Ill. 2d 552.

For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed in part and reversed in part, and the cause is remanded to the trial court for sentencing.

Affirmed in part; reversed in part and remanded.

UNVERZAGT and QUETSCH, JJ., concur.


author: JUSTICE BOWMAN

text:
    OMNI PARTNERS, Plaintiff-Appellee, v. KATHLEEN M. DOWN, Defendant-Appellant.
    Second District
    No. 2 — 92—0505
    Opinion filed June 9, 1993.

      Theodore L. Kuzniar and Julie A. Coleman, both of Bochte & Kuzniar, of St. Charles, for appellant.
    Douglas Drenk and Jeffrey D. Baxendale, both of Douglas Drenk & Associates, P.C., of Wheaton, for appellee.
   JUSTICE BOWMAN

Defendant and seller, Kathleen M. Down, appeals from an order of the circuit court dated September 24, 1991, and entered September 25. That order granted specific performance to plaintiff, Omni Partners (Omni), which had contracted with defendant to buy certain real estate in Algonquin, Illinois. Defendant perfected this appeal following the court’s award of attorney fees to plaintiff in the amount of $12,600 on March 30, 1992, pursuant to the remedies provided for in the real estate sales contract.

On appeal, defendant argues that plaintiff was not ready, willing and able to perform the terms of the real estate contract and that the court’s order of specific performance was against the manifest weight of the evidence. We affirm.

On May 9, 1989, plaintiff filed a complaint for equitable relief to compel specific performance of the written real estate contract entered into between the parties for the sale of approximately 10 acres on Sleepy Hollow Road in Algonquin. The contract was dated June 10, 1988. The stated sale price of the property was $12,770 per gross acre. George Samatas signed on behalf of plaintiff. The contract provided that the closing would take place on or before March 1, 1989. This suit arose from the failure to close on that date.

At trial, the seller (defendant) testified as plaintiff’s adverse witness. She signed the contract on June 10, 1988. In July or August 1988, she contacted attorney Calvin Koeppel, who later became involved in correspondence with the buyer (plaintiff) concerning the real estate transaction. Defendant invoked the attorney-client privilege concerning certain communications with Koeppel.

Defendant testified concerning a letter dated March 6, 1989, from Koeppel to James Samatas, a licensed attorney and son of George Samatas; James was involved with his father George in the real estate transaction. Defendant stated that she had directed Koeppel to ask for a closing “immediately.” Regarding the purchase of the 10 acres, the Koeppel letter stated: “Enclosed herewith is a copy of the survey on the above-referenced property. Kindly review and contact me so that we can arrange for the closing of the above-referenced property.” Defendant testified that she received a copy of the letter.

Defendant also testified that she had seen a copy of a letter from Koeppel dated May 16, 1989, and sent to Byron Faermark concerning the property. The letter stated in pertinent part:

“As you know, your client, James Samatas, contacted me with reference to getting a letter from me as to what .it will require for my client to sell her property and to close immediately. In accordance with his request, it is my client’s desire to get $164,625.00 after paying real estate commissions for the sale of her property. This is the amount that is necessary for her to complete her trade.”

Defendant did not have conversations with George and James Samatas, but contacted them through her attorney. Although she had discussed a closing with her attorney, defendant acknowledged that she did not appear on March 1 at any office for a closing on that date. She did not receive any closing documents from her attorney prior to March 1 other than letters.

James Samatas testified that he was a licensed attorney and was employed by and was a general partner of Omni, a real estate investment and development firm. George Samatas, who signed the contract, was a general partner of Omni. James had been contacted by Koeppel prior to the closing date regarding certain other contingencies that are not the subject of this appeal. He recalled having a conversation in September with Koeppel regarding the waiver of the contingency to purchase the neighboring “Vehe” property as part of the transaction. In addition, there was some discussion concerning whether the March 1, 1989, closing date was reasonable and regarding Koeppel’s client’s desire to find a property suitable for a like-kind exchange for tax-saving purposes.

On February 17, 1989, James received a title commitment from the Chicago Title Insurance Company for the 10-acre parcel. James took particular notice of an exception in the commitment referring to an easement (exception No. 4) and certain covenants and restrictions contained in the trustee’s deed (exception No. 5). Several days later, James spoke to Koeppel on the telephone regarding these exceptions. James was concerned because he did not know where the easement was. On February 27, 1989, Koeppel faxed a copy of the survey, which did not show the location of the easement. James had a conversation by telephone with Koeppel in which he requested that a current survey be prepared because the one he had received was undated, and James considered the location of the easement critical. According to James, Koeppel stated he would forward a new survey and then they would discuss setting a specific closing date. In February, James also received a copy of the trustee’s deed, which included certain covenants and restrictions, and a copy of the right-of-way easement executed February 6,1942.

Prior to March 1, James did not obtain a closing statement or a notice of a time and place for the closing. James testified that he received a copy of the March 6 letter from Koeppel. He also received another faxed copy of a survey on March 6. With the March 6 letter, James also received a (new) plat of survey showing the location of the easement. After receiving the new survey, James spoke to Koeppel on the telephone on March 8 or 9; James indicated that he wanted to set a specific closing date. James recalled from that conversation that Koeppel’s client was still concerned about finding another parcel for an exchange, and Koeppel expressed a willingness to extend the time for closing.

Early in April, James had a telephone conversation with Koeppel to establish a final closing date. Koeppel stated that he could not give James a closing date because his client was now requesting additional funds over the original purchase price of the contract. The price was approximately $164,000 in addition to the realtor’s commission. James requested that Koeppel put this request in writing and demanded that defendant set a closing date pursuant to the original contract. Koeppel then issued the May 16, 1989, letter in which the defendant asked for the new price of $164,625 exclusive of the realtor’s commission; the original price had been $127,700. James further testified that during the period in question Omni was in good financial condition and had bank deposits in excess of $400,000 so that there were assets sufficient to close the deal.

On cross-examination, James testified that the reason for the original closing date was to provide sufficient time for his father to consummate the purchase of the adjacent Vehe property for development. Although plaintiff became aware in August 1988 that the Vehe property transaction could not be completed because someone else purchased the property, Omni decided nevertheless to purchase defendant’s property and waived the contingency. Despite his concern about the effect of the easement, James admitted that a private easement was not a title defect, but he maintained that it was an unpermitted exception to the contract. James was aware of the right-of-way easement in February 1989. He conceded that it was a permitted exception under the title commitment and that he eventually advised his father that there was no title defect. James testified that he was willing to close on March 1 despite his concern regarding the easement but that closing did not take place because it had been previously agreed that the closing would be postponed.

Defendant called George Samatas as an adverse witness. George testified that he had been in the real estate management business for 30 years and that James handled some of Omni’s legal affairs. When George signed the real estate contract, he was also interested in acquiring the Vehe property, which consisted of some 300 acres. George had offered $13,000 per acre. The contract with defendant was initially contingent on the purchase of the Vehe property before March 1, 1989. The contingency was later waived. George traveled to Florida in December 1988. He initially testified that he was unsure when he returned from Florida, but then admitted he returned on March 28, 1989. George admitted by way of impeachment that a developer had offered him $164,000 after he had signed the contract.

Defendant testified that, on March 1, 1989, she had located a trade parcel. She did not request an extension of time for the closing. She directed Koeppel to send the March 6 letter and she had received a copy of it. On cross-examination, she stated she did not go to any office to close; she did not execute a deed or review a closing statement.

Attorney Calvin Koeppel testified that he ordered the title report on February 7, 1989. On that date, he had a telephone conversation with James, who requested that a new survey be prepared. On February 17, James called and left a message for Koeppel, who was not in his office. On February 27, James called again and inquired about an easement on the property and asked that it be recorded on the survey. James said he could not close on March 1 and that his father was not in town. No date was set for the closing. The new survey was delivered to Koeppel’s office on March 3.

On March 6, 1989, Koeppel called James and told him that the survey was completed the way he wanted it and was ready to close. James did not know when his father was returning. Koeppel stated that his client had an exchange property. James said he would get back to Koeppel. On April 13, there was another telephone conversation in which James said his father was coming back and they wanted to set a date for closing. At this time, Koeppel told him that his client “considered them in default of the contract” and Koeppel could not set a date for closing. About a week later, Koeppel got a call from Byron Faermark, who Koeppel believed was the attorney of George Samatas. Koeppel did not testify regarding the substance of that conversation. Koeppel also received a call from James Samatas on May 14, 15 or 16 in which James asked him what it would take to resurrect the deal; his father was in town and he wanted to close. According to Koeppel, the letter of May 16 setting a new price was in response to this conversation. Koeppel asserted that he never asked for a continuance of the March 1 closing date.

On cross-examination, Koeppel stated that he did not remember preparing a deed or a closing statement for the March 1 closing. While he admitted that he did not receive the survey until March 3, it was available to be picked up from the engineering firm on February 28. Koeppel claimed that he had informed plaintiff that the closing would take place in his office on March 1. Although he considered plaintiff in default on March 1, he acknowledged that he did not send plaintiff a letter of default. On redirect examination, he stated that he had not set a new date.

In rebuttal, James Samatas stated he disagreed with any inference or specific statements made by Koeppel concerning James’ unwillingness to close or Koeppel’s offer to close or a demand to close on the specific date of March 1.

In response to the court’s examination, James stated he did not recall a conversation with Koeppel on May 16 regarding “resurrecting the deal.” James did recall an April conversation concerning the deal after his father had spoken with Faermark to close the transaction. According to James, it was Faermark who was communicating with Koeppel at that time.

After hearing the arguments of counsel, the trial court granted plaintiff’s prayer for an order of specific performance according to the terms of the original contract.

We now consider whether the court correctly granted specific performance. Specific performance may be granted where there is a valid and enforceable contract, and questions of contractual validity or interpretation are matters of law for the court to decide. (Perkins v. Garcia (1990), 194 Ill. App. 3d 590, 593.) Specific performance is an equitable remedy and is a matter of sound judicial discretion controlled by established principles of equity and exercised upon a consideration of all the facts and circumstances of a particular case. (Djomlija v. Urban (1982), 107 Ill. App. 3d 960, 967.) A court’s decision to grant such relief will not be disturbed absent an abuse of discretion, and the decision to grant it must be supported by evidence which is clear and convincing. Tantillo v. Janus (1980), 87 Ill. App. 3d 231, 239.

The main thrust of defendant’s contention is that plaintiff was not ready, willing and able to perform. Generally, a party will be entitled to specific performance of a contract for the conveyance of real estate only upon establishing either that the party has performed according to the terms of the contract or that the party was ready, willing and able to perform but was prevented, and thus excused, from doing so by the acts or conduct of the other party. (Tantillo, 87 Ill. App. 3d at 234.) First, defendant argues that, because the contract contained a provision that time was of the essence and plaintiff failed to close on March 1, plaintiff’s failure to close was a material breach of the contract, and defendant as the injured party had the choice of continuing the contract or refusing to go on. (See South Beloit Electric Co. v. Lar Gar Enterprises, Inc. (1967), 80 Ill. App. 2d 367, 374.) We note that the remainder of the rule left unstated by defendant is that, if the injured party chooses to continue performance, he has doubtless lost his right to stop performance. South Beloit, 80 Ill. App. 2d at 374.

Second, although defendant asserts that there was insufficient evidence to show that the time for closing was extended, defendant also argues alternatively that, even if the time for closing was orally extended, plaintiff was not ready, willing and able to close within a reasonable period of time. In Djomlija (107 Ill. App. 3d at 966), the court states the rule that, where a contract does not set a closing date and time is not made of the essence, the law will imply that the contract is to be performed within a reasonable time.

It is uncontested that until March 1 there was a valid and enforceable agreement in existence between the parties. Thus, this court must determine whether (1) there was a waiver of the time requirement or other circumstances excusing the performance of plaintiff and overcoming the claimed breach of contract and (2) whether plaintiff was ready, willing and able to perform within a reasonable period of time.

Defendant does not dispute that the parties to a contract may waive delays in performance by words or conduct which indicates an intention to regard the contract as still in force and effect even where the terms are in writing or where time is of the essence. (Barnes v. Brown (1990), 193 Ill. App. 3d 604, 610; Kitsos v. Terry’s Chrysler-Plymouth, Inc. (1979), 70 Ill. App. 3d 728, 731.) We are persuaded that this is what occurred in the case at bar.

It is clear from Koeppel’s March 6 letter to plaintiff, the faxed documents, and the telephone conversations on or prior to March 1 that the closing date was extended and the time-is-of-the-essence provision was waived. We therefore need to examine the ensuing conduct and determine what was the legal relationship between the parties after that date. Although the testimony is somewhat contradictory as to what occurred, plaintiff’s testimony was consistent in showing that it wished to perform at all times following the waiver of performance early in March. After he received the new survey, James called Koeppel on March 8 or 9 and asked to set a specific closing date. According to James, Koeppel was willing to extend the time for closing. James had another conversation early in April in which he sought to establish a closing date. At this time, Koeppel stated he could not give a closing date because his client was now requesting additional funds to consummate the transaction. Although James asked that this proposal be put in writing, he again requested that a closing be set pursuant to the original contract.

Koeppel’s testimony was consistent with that of James in stating that on April 13 he received a call from James in which James said his father was coming back and wanted to set a date for closing. However, it was at this time that Koeppel told him that his client considered plaintiff in default and would not set a date. In mid-May, plaintiff again requested a closing. According to Koeppel, at this time James asked what it would take to resurrect the deal. However, James denied that he had said this. Koeppel admitted that no letter of default was ever sent to plaintiff. Apparently as a result of further communications with Faermark, Koeppel wrote a letter dated May 16 in behalf of his client, who was now asking for $164,000 to close the deal. The evidence also showed that no final closing documents were ever prepared. This tends to negate any claim of eagerness on the part of defendant to close.

Plaintiff’s testimony, which the court chose to believe, shows that it was ready at all relevant times to consummate the transaction. It was for the trial court to assess the credibility of the witnesses. (Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 180.) There does not appear in the record any good-faith effort on the part of defendant to give plaintiff a closing date after repeated requests. Without giving plaintiff a clear, timely and unequivocal notice of default and an opportunity to cure it by setting a closing date, defendant arbitrarily chose instead to consider plaintiff in default, then unilaterally changed the terms of the transaction by demanding a large increase in the price of the property.

We believe that, in failing to demand strict performance on March 1 and in failing to give plaintiff a specific closing date while plaintiff was willing to close at all relevant times following the March 6 letter indicating waiver of the condition, plaintiff was prevented from performing and should be legally excused from doing so. Defendant’s overall conduct by silence, accommodation or acquiescence lulled plaintiff into a false sense of security, and therefore plaintiff could not be in material breach of the contract. See Tantillo, 87 Ill. App. 3d at 237 (acceptance of delays coupled with absence of demand to perform resulted in waiver, and there was no material breach of contract); Kitsos, 70 Ill. App. 3d at 732 (where specified date of performance is waived, date is extended to a reasonable time which becomes a question for the trier of fact); see also Aden v. Alwardt (1979), 76 Ill. App. 3d 54, 60 (where seller did not revive her right to strict compliance with the time-of-the-essence clause or warn buyer, specific performance was proper where seller received the benefit of her bargain; equity would consider time of performance merely a formal defect).

Even if plaintiff could be said to have committed a minor breach by delaying performance, we would consider it a nonmaterial breach of the agreement which would not preclude specific performance. (See Regan v. Garfield Ridge Trust & Savings Bank, (1991), 220 Ill. App. 3d 1078, 1086.) A court may relieve a defaulting purchaser and order specific performance if it would be unreasonable not to do so under the circumstances. See Regan, 220 Ill. App. 3d at 1086.

Because defendant waived the requirement that time was of the essence and failed or refused to give plaintiff a new closing date, plaintiff could not materially breach the contract so long as it was willing to perform and demonstrated its willingness to comply honestly with the contract within a reasonable period of time. From the second week of March, plaintiff attempted to get a new closing date over a period of a few weeks. In such a case, the law will provide a reasonable time for performance. The inescapable inference we draw from the evidence is that, despite her acquiescence in delaying the closing, defendant actually attempted to repudiate her contract only when she became convinced that she could get a higher price than she had agreed upon, and she now seeks to avoid performance on flimsy technicalities which find no support in law or in equity. See, e.g., Laegeler v. Bartlett (1957), 10 Ill. 2d 478, 486-87.

We conclude that defendant waived the time of performance and that plaintiff did not materially breach the contract and was ready, willing, and able to perform the contract within a reasonable period of time.

In considering all of the circumstances shown in the evidentiary record, we also conclude that it would have been inequitable to deny plaintiff the benefit of its contract. Having condoned delays of short duration, defendant should not be allowed to take advantage of those delays to plaintiff’s detriment. (See Kingsley v. Roeder (1954), 2 Ill. 2d 131, 142.) The evidence was clear and convincing and supports the trial court’s decision to grant specific performance. An opposite conclusion is not clearly evident.

The judgment of the circuit court is affirmed.

Affirmed.

INGLIS, P.J., and UNVERZAGT, J., concur.