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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN A. RICE, Defendant-Appellant.
    First District (Second Division)
    No. 1—90—1433
    Opinion filed August 25, 1992.

      Rita A. Fry, Public Defender, of Chicago (Michael Davidson and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Matthew L. Moodhe, and Susan Schierl, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

A jury found defendant Melvin A. Rice guilty of aggravated battery and he was subsequently sentenced to 10 years’ imprisonment. On appeal, he contends that the State improperly elicited testimony in violation of a motion in limine regarding a pending sex offense charge against him; the circuit court improperly restricted his cross-examination of a State witness; the circuit court erroneously admitted alleged prejudicial hearsay; he was denied a fair trial by several instances of alleged prosecutorial misconduct; the circuit court erred in instructing the jury on self-defense over his objection; and the circuit court improperly sentenced him to an extended term.

Evidence at trial showed that in November 1989, Demetra Anderson met defendant while both were students at Harold Washington College in Chicago. Thereafter, they began a relationship which ended during the first week of December 1989.

According to Anderson, on December 11, 1989, while she was home alone in her apartment, defendant telephoned three times between 8 p.m. and 10 p.m., wanting to talk about renewing their relationship. During each of defendant’s calls, he asked Anderson if he could come to her apartment that evening; Anderson repeatedly told defendant that he could not. At approximately 5 a.m., Anderson was awakened by someone ringing her doorbell; when she went to the door, she saw defendant, who told her that he needed a place to sleep because he could not go home, but that he did not desire sex. Although Anderson did not want defendant to stay with her, she “felt sorry” for him and allowed him to enter her apartment. Once inside, Anderson told him to sleep on a mattress on the floor of the living room; defendant, however, wanted to sleep with Anderson in her bedroom. Anderson again told defendant to sleep in the living room and he again refused. Not wanting to argue with defendant, Anderson went to her room. Defendant then followed her into the bedroom; when defendant asked Anderson if they could have sex, she refused.

At that point, defendant “snapped” and became “violent”; he yelled at Anderson and, when she sat on the bed, hit her in the face three times. She fell back onto the bed and began screaming and hitting the bedroom wall in order to summon her neighbors for help. When she began screaming, though, defendant pushed a pillow onto her face and told her to stop. Because she was suffocating and gasping for breath, Anderson struggled with defendant, scratching him in the face.

After Anderson told him that she would stop screaming, defendant removed the pillow from her face, though he still was on top of her. When Anderson began yelling again and reached for the phone, defendant choked her and hit her twice more, near the eye and nose.

Still screaming, Anderson begged defendant to let her get some ice for her face, which was bleeding. Defendant, however, refused and just looked at her face, stating, “Fucked up your pretty face, didn’t I.” Defendant then ordered Anderson to stay in the bedroom.

Shortly thereafter, while Anderson was in the bedroom, crying and wiping up her blood, the doorbell rang. Defendant told her not to move while he went to answer the door; Anderson, however, ran to the window adjacent to the front door and, pulling back the towel that covered the window, began screaming, “Help, somebody please call the police. He’s trying to kill me.” Defendant then told her, “Well, you got your police,” and opened the door after about two or three minutes, letting the police in. After the police arrived, Anderson was taken to the hospital, treated, and released.

On cross-examination, Anderson acknowledged that she had recently pled guilty in Federal court to unlawful secretion of the mail. She further admitted that she had once had a drug problem, but stated that she had not taken any drugs for 18 months and was not under the influence of drugs during the fight with defendant. She explained that, though she had regained custody of her son, she allowed her son to live with her great aunt because “it’s the best place for him because I’m not working and I’m a full time student.” Defense counsel attempted to question Anderson about her drug use; however, the court limited the examination regarding any recent drug use, stating that defendant was unable to present any evidence or offer proof to support his accusation that Anderson did not have custody of her son because she continued to use drugs.

The court further limited defendant’s cross-examination of Anderson concerning discrepancies between what she had said her follow-up instructions were when she left the hospital and what what was contained in her written instructions on the hospital’s discharge instruction sheet. Defense counsel attempted to show that, although Anderson testified that the doctor had told her to return to the hospital for treatment, the written instructions required her to return for treatment only “if needed.” Thus, defendant attempted to show that Anderson’s injuries were not as severe as she had led the jury to beHeve. The circuit court sustained the State’s objection to the admission of the discharge instruction sheet from the hospital, noting that it was inadmissible under the business records exception to the hearsay rule.

Chicago police officer Marie Watkins testified that, on December 12, 1989, at approximately 5:15 a.m., she and her partner responded to a battery-in-progress call occurring at Anderson’s apartment. Upon arrival, Watkins heard a woman screaming, “God, help me. Somebody, please help me. He’s trying to kill me.” Watkins then ran to the front window, where she saw Anderson with a bloody face, screaming. The two officers knocked on the apartment door and announced their office; after several minutes defendant opened the door.

While Watkins’ partner isolated defendant from Anderson, Watkins attempted to calm Anderson, who was hysterical and screaming and whose face was bloody and swollen. Shortly thereafter, Anderson was taken to South Chicago Hospital for emergency treatment.

Placing defendant under arrest, Watkins and her partner transported him to the police station. While in the squad car, defendant voluntarily told Watkins, “Do you want to know what happened? *** That bitch scratched me on my face. That’s why I hit her. *** I don’t let no bitch hit me in the face and get away with it.” Defendant also told Watkins that if he did not have handcuffs on he would “kick [her] ass,” because “every woman needs to get their ass kicked *** once in a while.” After arriving at the station, Watkins told defendant that hospital personnel had informed her that Anderson might lose an eye, to which defendant responded, “I don’t give a fuck if that bitch lose[s] her eye. She shouldn’t have scratched me in my face.” Watkins noticed that defendant had a small scratch on his face, less than an inch long and not bleeding.

Assistant State’s Attorney Laura Lambur testified that she spoke with defendant while he was at the police station. There, defendant told Lambur that he had hit Anderson because she had scratched his face. Lambur noticed that defendant had two or three “small marks” on his cheeks; according to Lambur, defendant’s “skin wasn’t broken. Rather it looked like if you take a nail and scratch your own skin when your skin is dry.”

Mohammed S. Baig, M.D., the emergency room physician at South Chicago Hospital, testified that he treated Anderson immediately after her arrival; he observed that her eye was extremely swollen, tender to the touch, discolored, and she had a laceration over her left eyebrow which required four stitches to close. Anderson also suffered from a blow-out fracture of the left orbit of her eye, consistent with a severe blow to the eye. Before she was released, Anderson was given a cold pack and two nonprescription Tylenol tablets.

Defendant testified that, after meeting Anderson, he began an affair with her despite being married and having a five-year-old child. On the night of December 11, 1989, he called Anderson three times; during the last call, sometime between 10 and 11 p.m., she asked him to come over. Because defendant did not arrive at Anderson’s apartment until about 3:30 or 4 a.m., she became upset. After telling Anderson that he just needed a place to sleep, she told him to sleep on a mattress in the living room; defendant, however, explained to her that he did not want to sleep there because it was very cold and the heat was not on. Following their disagreement as to where he would sleep, defendant followed Anderson into her bedroom, where he took off his coat and shoes and began to get into bed, as he had done in the past. Anderson, unprovoked, then scratched defendant’s face. Defendant reflexively reacted by hitting Anderson three times within a five-second period, unaware that he was hitting her in the face.

Defendant panicked when Anderson began screaming because he did not want anyone to think that he had hurt her intentionally. He reacted by placing a pillow over Anderson’s face, but removed it when he realized that it was not the right thing to do. He then began consoling Anderson and asked to see her eye, suggesting that he get a towel to clean her face. Approximately four or five minutes later, while defendant was on his way to the bathroom to get a towel, the police arrived and Anderson inexplicably ran to the door and began screaming. Defendant then immediately let the police into the apartment.

Defendant denied, however, telling the police officers that he had intentionally hit Anderson because she had scratched him. He further denied that Watkins told him that Anderson might lose an eye.

Following closing arguments, the jury found defendant guilty of aggravated battery. During the sentencing hearing, after arguments in aggravation and mitigation, the circuit court noted that defendant had a prior felony conviction which made him eligible for an extended-term sentence. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(bXl).) Stating that “I only wish that I could sentence you to more time, Mr. Rice, because it just seems to me that this is just an outrageous crime and you deserve more in my opinion listening to the evidence,” the court sentenced defendant to a 10-year term of imprisonment.

I

Defendant initially contends that the introduction of evidence of a pending sexual assault charge against him in violation of a motion in limine deprived him of a fair trial. The State responds that any error was immediately cured by the court’s promptly sustaining defendant’s objection, immediately admonishing the jury to disregard, and later instructing the jury to disregard stricken testimony.

In the instant case, the circuit court granted a motion in limine barring the introduction of a sexual assault charge pending against defendant. During the State’s redirect examination of Anderson, however, the State inquired as to a January 3, 1990, telephone conversation between defendant and Anderson, asking her, “What, if anything, did he say to you on January 3rd when he called you collect?” Anderson testified that “He asked me to drop the charges. To don’t come back to court. That he would pay me and that he would pay my doctor bills if I didn’t come back to court and he told me that I knew he was in the system for attempted rape already and that he was lookin’ at some time — .” Following an immediate objection by the defense, the court instructed the jury, “That last comment. The jury is instructed to disregard that.”

It is plain error for a prosecutor to imply that a defendant has committed crimes other than the one for which he is on trial. (People v. Valdery (1978), 65 Ill. App. 3d 375, 378-79, 381 N.E.2d 1217.) An instruction, however, to disregard evidence ordinarily cures error in its admission. (People v. Keen (1990), 206 Ill. App. 3d 940, 954-55, 564 N.E.2d 1314.) This is particularly true when the improper testimony is not directly responsive to the question and is promptly stricken, with an instruction to the jury to disregard it. People v. Thomas (1981), 96 Ill. App. 3d 443, 454, 421 N.E.2d 357.

In the present case, Anderson’s reference to defendant’s pending “attempted rape” charge was not solicited by the State’s question in a calculated attempt to prejudice the jury; rather, it appears as an inadvertent remark which went beyond the question asked and was then quickly stricken by the court and the jury was instructed to disregard it. Nonetheless, defendant asserts that this court, like the courts in People v. McCray (1978), 60 Ill. App. 3d 487, 377 N.E.2d 46, and People v. Harges (1967), 87 Ill. App. 2d 376, 231 N.E.2d 650, must find that Anderson’s statement was so “extremely inflammatory” and “volatile” that it prevented the jury from dispassionately evaluating the evidence. Neither McCray nor Harges is apposite.

In Harges, the defendant’s conviction was reversed because the State committed reversible error when the prosecutor asked the defendant on cross-examination whether he had ever seen the police station before. Finding that the prosecutor’s question was an obvious attempt to bring to the jury’s attention the fact that the defendant had been at the police station on a prior arrest, the court reversed defendant’s conviction. Harges, 87 Ill. App. 2d at 379-80.

In McCray, the prosecutor, after establishing that the defendant lived in a poor neighborhood and had a limited education, asked him if he had “[a]ny occupation other than robbing people.” Finding the statement “inexcusable” and noting that such prosecutorial misconduct strongly tended to lessen the credibility of the defendant, the court reversed the defendant’s conviction. McCray, 60 Ill. App. 3d at 489-90.

Unlike McCray and Harges, the State in the case sub judice did not elicit the response now challenged by defendant. Nonetheless, we note that the prosecutor’s question was broad and open-ended. We recognize that occasionally a witness’ testimony will be volunteered and unresponsive; however, this does not diminish a prosecutor’s responsibility to uphold a court’s evidentiary rulings and orders in limine and, to that end, communicate to State witnesses the importance of not testifying to restricted material. It is axiomatic that prosecutors have a certain amount of control over their witnesses; in the instant case, the State neglected to keep Anderson’s testimony within the bounds delineated by the court.

We find, however, that based upon the overwhelming evidence of defendant’s guilt presented at trial, defendant was not denied a fair trial by Anderson’s response to the State’s general question. Notwithstanding defendant’s contention that “[w]hen the jurors heard that ‘he was in the system for attempted rape already,’ they were given an improper picture of defendant as someone with a history of intentional violence against women,” it was the evidence at trial and not that one stricken statement that gave the jurors the impression that defendant was violent towards women. Anderson’s testimony related the brutal nature of the beating which defendant gave her. Watkins’ testimony that defendant wanted to “kick her ass” and that he stated that “every woman needs to get their ass kicked” further suggested to the jury that defendant was violent towards women. Accordingly, we find that the one complained-of statement did not so unfairly prejudice defendant that he was denied a fair trial. See Keen, 206 Ill. App. 3d 940, 564 N.E.2d 1314; Thomas, 96 Ill. App. 3d at 455.

Defendant’s final contention, that the State’s comment in closing that “You know with friends like that you don’t need enemies because you wouldn’t live very long with a guy like that” magnified the unfair prejudice, has no merit. Here, the State was referring to the brutal nature of defendant’s crime and not in any manner commenting upon his pending sexual assault charge.

II

Defendant next contends that he was denied his sixth amendment right to confrontation; specifically, he maintains that the court erred in restricting his cross-examination of Anderson. Defendant argues that he should have been able to examine Anderson on both her alleged current drug use and on the written instructions from the hospital concerning the extent of her injuries.

A defendant is entitled to cross-examine a witness concerning those matters which would show that witness’ bias or motive or which discredit that witness’ testimony. (People v. Thompkins (1988), 121 Ill. 2d 401, 441-42, 521 N.E.2d 38; In re W.D. (1990), 194 Ill. App. 3d 686, 702, 551 N.E.2d 357.) Wide latitude is afforded a defendant to show bias; however, the court is vested with broad discretion to restrict repetitive or unduly harassing interrogation. (People v. Sanders (1986), 143 Ill. App. 3d 402, 407, 493 N.E.2d 1; People v. Betts (1983), 116 Ill. App. 3d 551, 555, 451 N.E.2d 1028.) Correspondingly, a court may preclude cross-examination where no proof as to competency or relevancy is offered or that offer is unsatisfactory. (People v. Winfield (1983), 113 Ill. App. 3d 818, 831, 447 N.E.2d 1029.) Thus a reviewing court’s “substantial discretion” will be reversed only where an abuse of that discretion results in manifest prejudice to the defendant. Thompkins, 121 Ill. 2d at 441-42.

In the instant case, defendant attempted to cross-examine Anderson regarding any current drug use; Anderson, however, denied any recent drug use and stated that she had been drug-free for at least 18 months. The circuit court, after asking defense counsel whether he could substantiate his suggestion that Anderson’s current drug use prevented her from having custody of her son, limited defense counsel’s questioning, characterizing it as “just gross character assassination if you have no basis to back it up.” Defense counsel was unable to present any proof that the reason for Anderson not having custody of her son was different from those she provided: she was a full-time student and she was unemployed.

Nevertheless, defendant maintains that, like the defendant in People v. Garrett (1976), 44 Ill. App. 3d 429, 358 N.E.2d 364, he was substantially prejudiced by the court’s restriction of his cross-examination of a witness concerning her recent drug use. Garrett differs, however, on one significant point — the Garrett defense counsel argued that he could substantiate his claim that a witness was admitted for drug use to a hospital three weeks before trial. The Garrett court found that it was error for the circuit court to restrict the defendant’s cross-examination where “[djefense counsel indicated that he could link up this admission to the hospital with [the witness’] testimony that she had not taken any drugs [for several months].” Garrett, 44 Ill. App. 3d at 438.

Contrary to Garrett, we find untenable defendant’s assertion that Anderson’s testimony that she did not have custody of her son was enough support to suggest that she still used drugs. Similarly, his contention that the routine drug screening requirement of her probation for the Federal charge suggests recent drug use is not borne out by the record; rather, the record indicates that the drug screening requirement was simply an agreed-upon condition of probation in exchange for Anderson’s guilty plea. Accordingly, we find that the circuit court did not abuse its discretion in limiting defendant’s cross-examination of Anderson regarding any current drug use.

Defendant further argues that the circuit court erred in limiting his examination of Anderson regarding the instructions which she received from the hospital. He maintains that he should have been allowed to show that Anderson’s testimony concerning her injuries and the treatment required differed from the hospital’s discharge instruction sheet. In the case sub judice, the court restricted defendant’s cross-examination of Anderson, finding that the discharge instruction sheet was inadmissible under the business records exception to the hearsay rule. See 134 Ill. 2d R. 236(b).

We find that the circuit court did not abuse its discretion in limiting defendant’s cross-examination of Anderson regarding the instructions she received from the hospital. Not only did the court properly restrict the introduction of the discharge instruction sheet, but, as the State correctly argues, defendant failed to establish that the discharge sheet contained all the instructions received by Anderson. Dr. Baig could have given specific instructions to her beyond what was contained in the discharge sheet. Thus, even if the discharge sheet had been admitted into evidence, its efficacy to impeach Anderson is questionable.

Ill

Defendant next asserts that the court erred in allowing the introduetion of prejudicial hearsay; specifically, he maintains that Anderson’s testimony about a police officer’s statement to her was inadmissible hearsay and that Watkins' testimony regarding what hospital personnel told her about Anderson’s eye was also inadmissible hearsay.

In the instant case, defendant attaches error to Anderson’s testimony that, while she was at a preliminary hearing regarding the charge against defendant, he looked at her and “he said, ‘Don’t do this to me’, *** I was a bundle of nerves and I was shaking [so Watkins] did like — this little thing like hold my hand and she said, ‘Don’t let him get to you.’ ” Defendant’s objection as to what Watkins told Anderson was sustained. Defendant also claims error in Watkins’ testimony that she told defendant, “I had spoke[n] with South Chicago Hospital [and] they had told me that Miss Anderson might lose her eye as a result of the beating.” The court overruled defense counsel’s objection as to what hospital personnel had told Watkins, finding that the statement was not introduced to prove the truth of the matter asserted but rather “to lay the foundation as to the next remark.” That next remark was defendant’s response that he “did not give a fuck” if Anderson lost her eye.

Hearsay is testimony of an out-of-court statement offered to prove the truth of the matter asserted, the value of which rests on the credibility of the one who made the statement. (People v. Miles (1988), 176 Ill. App. 3d 758, 764, 531 N.E.2d 891.) The reason for excluding hearsay evidence is the absence of an opportunity to determine its veracity. (People v. Rogers (1980), 81 Ill. 2d 571, 577, 411 N.E.2d 223.) The admission of hearsay evidence, although error, is harmless beyond a reasonable doubt where there is no reasonable possibility that the outcome of the trial would have been different had the hearsay been excluded or, as otherwise stated, where there is overwhelming evidence of guilt. (People v. Negron (1991), 220 Ill. App. 3d 754, 769, 580 N.E.2d 1301; Miles, 176 Ill. App. 3d at 764.) Correspondingly, a trial court’s prompt action in sustaining an objection and instructing the jury to disregard the improper testimony serves to cure any prejudice suffered. People v. Paino (1985), 137 Ill. App. 3d 645, 650, 484 N.E.2d 1106.

In the instant case, the court properly sustained defendant’s objection as to what Watkins had told Anderson during the preliminary hearing. Nonetheless, contrary to defendant’s assertion that severe prejudice resulted from the statement despite the sustained objection, Anderson’s testimony merely showed that she was nervous and Watkins reassured her. The statement neither harmed nor prejudiced defendant’s right to a fair trial, particularly where there was substantial evidence of his guilt.

Moreover, although defendant asserts that Watkins’ testimony concerning what hospital personnel told her was hearsay, the circuit court was correct in ruling that it was not offered for the truth of the matter asserted, but was elicited only to show defendant’s remorseless response. Furthermore, contrary to defendant’s assertion, that statement did not prejudice him by exaggerating Anderson’s injuries, but was merely cumulative; the jury heard testimony from Anderson, Lambur, and Dr. Baig concerning the extent of her injuries. (See Miles, 176 Ill. App. 3d at 764.) Accordingly, we find that the complained-of statements did not prejudice defendant.

IV

Defendant next contends that he was deprived of his right to a fair trial by numerous instances of prosecutorial misconduct. Specifically, defendant maintains that the prosecutor unfairly aligned himself with the jury; improperly bolstered the testimony of a State witness; improperly aroused the jury’s passions and shifted the burden of proof; and improperly attacked defense counsel.

Defendant contends that the prosecutor improperly aligned himself with the jury by stating during opening, “We represent the community. The same community that you represent as jurors *** in this case,” and arguing during closing, “We represent the People of the State of Illinois. But you are the People of the State of Illinois.” For support defendant relies upon People v. Johnson (1986), 149 Ill. App. 3d 465, 500 N.E.2d 728, where the prosecutor unfairly aligned himself with the jury by referring to “our job” to find the facts, and upon People v. Vasquez (1972), 8 Ill. App. 3d 679, 291 N.E.2d 5, where the prosecutor improperly aligned himself with the jurors by telling them he was “the thirteenth juror” in the case.

Unlike those made in the instant case, the statements in Johnson and Vasquez improperly attempted to portray the State as an impartial member of the adversarial system. The State in the case at bar, however, accurately stated that it represented the people of the State of Illinois and did not suggest that it was either a member of the jury or its role was similar to the jury’s. Thus, we find that the State’s remarks were not so flagrant or inflammatory as to substantially prejudice defendant. See People v. Edwards (1991), 218 Ill. App. 3d 184, 195-96, 577 N.E.2d 1250 (State’s remark in closing that “[W]e, the People of the State of Illinois, me and Mr. Burke, who represent the People, we represent you, represent everyone in the courtroom, even in a manner of speaking the defendant, to present reliable, credible, evidence before the court and you are to determine that in the final analysis” held not to be improper alignment with the jury).

Defendant also contends that the prosecutor improperly bolstered the testimony of a State witness by arguing in closing that the witness should be believed more than others because of her office: “Where is the motive to lie for any of these persons? *** Is it going to be Assistant State’s Attorney Lambar [sic]? Is she going to lie about the injuries to the defendant’s face? Is she going to risk her 20 years of schooling, her license to practice law in the State of Illinois and elsewhere so she can lie to pin a case to some guy she had never seen before?”

For support defendant relies upon People v. Ford (1983), 113 Ill. App. 3d 659, 447 N.E.2d 564, where the State referred to the only two witnesses in the trial as “on the one hand you have got Donna Kurlinkus. She is a sworn Warren County Deputy, and on the other you have got Paula Ford who, in the words of her attorney, is a drug addict.” The prosecution in Ford further asked the jury “[w]hy would *** a sworn Warren County Deputy, pull a charade like this and lie and perjure herself for a lousy 15 gram purchase of marijuana?” The court held that the manner in which the prosecutor made repeated references to the witness’ status as a police officer and a sworn deputy was an improper attempt to enhance the credibility of his witness. Ford, 113 Ill. App. 3d at 661-62.

Unlike Ford, the prosecutor in the instant case did not repeatedly refer to the State’s Attorney’s testimony in order to enhance her credibility, but rather, mentioned the position of the witness only in developing his argument that none of the State’s witnesses had a motive to lie. Nevertheless, though we find that the prosecutor’s comment in the instant case did not rise to the level of error as found in Ford, we must express concern about the danger of a prosecutor’s rash passing comment during closing argument tainting an otherwise fair trial.

Defendant further asserts that the prosecutor improperly appealed to the jury’s passions and shifted the burden of proof when he remarked about Anderson, “Give her a fair trial. Think of her rights.” Relying upon People v. Beringer (1987), 151 Ill. App. 3d 558, 503 N.E.2d 778, defendant argues that the prosecutor’s comment warrants reversal.

In Beringer, the court found the State’s argument in closing that, “What about [the victim’s] rights[?] *** What about her right to grow old, to have a family. Her rights are never considered in this case ***. *** I’m not asking you to convict on *** [sympathy], my client who didn’t have a lawyer before she was destroyed; who didn’t have a jury trial before she was taken out,” was designed to arouse the sympathy and passions of the jurors and thus was improper. Beringer, 151 Ill. App. 3d at 562-63.

While attempts to arouse the passions and sympathy of the jury are improper and prejudicial, the remark by the prosecutor here did not rise to the level of prejudice suffered in Beringer; however, we again question the tactics of the prosecutor in the instant case. Though we cannot say that the prosecutor’s comments denied defendant a fair trial given the overwhelming evidence of guilt, we do question the prosecutor’s apparent persistence in walking the fine line between proper comment and prejudicial error.

Defendant’s further contention that the State’s comment shifted the burden of proof has no merit. Though defendant cites People v. Tyson (1985), 137 Ill. App. 3d 912, 920, 485 N.E.2d 523, for the proposition that shifting the burden of proof is clearly improper and prejudicial, that case involved the prosecutor arguing that the jury was “not presented with a theory of innocence” and insinuated that the defendant had a burden to present evidence to support his innocence; no such charge has been raised against the State in the instant case.

Defendant also contends that the State improperly attacked defense counsel by arguing that statements in defense counsel’s closing were “completely ridiculous and perverse” and characterized defense counsel’s cross-examination of Anderson as “a witch-hunt and a character assassination.” Defendant also attaches error to the prosecutor’s comment:

“This stuff about testimony being slanted? This attorney saying that [Watkins’] testimony is slanted. That’s cheap. If the testimony is slanted then that officer lied. You know, let’s call *** something by what it is. If the testimony was slanted, then that officer lied. No legal or $100 words thrown about by any lawyer up here is going to change anything.”

Defendant further argues that the prosecutor suggested that defense counsel and defendant had fabricated testimony:

“The defendant’s testimony in addition to show that he did not mean to do this, he mentioned the word malice aforethought. Remember when that came out of his mouth up here? *** I don’t think he heard that on L.A. Law or Dragnet. I think maybe he was — I don’t know where he got it. He seemed to know a lot about it though. Do you think he thought about his testimony before he got up there? Malice aforethought? That’s part of his conjured up lie that he told up there.”

It is not improper to call the defendant or a witness a “liar” if conflicts in evidence make such an assertion a fair inference; however, the same cannot be said for assertions that defense counsel is engaging in trickery or misrepresentation in order to win acquittal for his client. (People v. Emerson (1983), 97 Ill. 2d 487, 497, 455 N.E.2d 41.) Correspondingly, comments disparaging the integrity of defense counsel and implying that the defense was fabricated at the direction of counsel are improper. People v. Starks (1983), 116 Ill. App. 3d 384, 394, 451 N.E.2d 1298.

In Starks, upon which defendant relies, the prosecutor characterized the defense as a “pack of lies” and “layer upon layer of lies”; the prosecutor farther expressed chagrin that he and the jury had to listen to defense counsel’s argument which was “the most ridiculous double talk that I have ever heard.” He further stated that he was certain that the jury would not be “hoodwinked” or “fooled” by “that defense, that pack of lies you heard.” The court found that these remarks, taken with the general disparaging tone of the State’s argument, resulted in prejudice to defendant. Starks, 116 Ill. App. 3d at 394.

In the instant case, unlike Starks, the prosecutor’s statements did not suggest that defense counsel had fabricated a defense, but rather referred to defendant’s “conjured up lie.” Likewise, the prosecutor’s comment that defense counsel’s suggestion of Watkins’ “slanted” testimony was “cheap” merely referred to the manner in which defense counsel attempted to discredit Watkins.

Because an attorney is afforded substantial latitude in closing argument and a new trial is not to be granted unless the prosecutor’s remarks are so prejudicial as to materially contribute to a defendant’s conviction, we cannot reverse defendant’s conviction based upon the instances of alleged prosecutorial misconduct. We find, based upon the overwhelming evidence of guilt, that defendant was prejudiced neither by each of the complained-of instances of alleged prosecutorial misconduct nor by the cumulative effect of those remarks. See Keen, 206 Ill. App. 3d at 955.

V

Defendant next asserts that the circuit court erred in instructing the jury as to the elements of self-defense over defense counsel’s objection. Specifically, defendant maintains that those instructions ran counter to his theory of the case and thus weakened it in the eyes of the jurors.

In the instant case, the defense strategy was that, although defendant had struck Anderson, he did not have the requisite mental state for aggravated battery. The defense attempted to show that defendant did not intentionally or knowingly cause great bodily harm to Anderson, but rather only “reactively” and “reflexively” hit her in response to her scratching him. Accordingly, when the State tendered a self-defense instruction, the defense objected. The State argued, however, that the testimony of defendant himself put self-defense at issue: defendant testified that he hit Anderson “[i]n defense of myself” and caused Anderson’s injuries “[i]n self-defense.” When defense counsel asked him, “[w]hen you used the term ‘self-defense’ in describing your actions, by that do you mean that you were protecting yourself?” defendant replied, “I — yes, in a sense that’s what I mean. I felt that I was being attacked.” Over defense objection, the court instructed the jury on self-defense.

Both the State and the defendant are entitled to instructions presenting their theories of the case, if supported by evidence. (People v. Davis (1974), 18 Ill. App. 3d 173, 175, 309 N.E.2d 338.) This court, however, must be “particularly hesitant to require a court to give an instruction on its own motion where it may well have been part of the defense strategy not to have the instruction given.” (People v. Spataro (1978), 67 Ill. App. 3d 69, 74, 384 N.E.2d 553.) Likewise, where neither the State nor the defense presents a self-defense instruction, it is not error for the trial court to comply with defendant’s desire not to instruct the jury on self-defense. People v. Hughes (1982), 109 Ill. App. 3d 352, 362, 440 N.E.2d 432.

In the instant case, although the defense objected to the self-defense instruction, the State was entitled to such an instruction based upon defendant’s testimony at trial, stating that he acted in “self-defense” and was “protecting” himself when he hit Anderson. Nevertheless, even if the instruction was given in error, the evidence was so overwhelming that defendant did not “reactively” hit Anderson that any error was harmless. Anderson specifically testified that defendant began beating her when she would not have sex with him. Further, Watkins testified that defendant told her, “I don’t let no bitch hit me in the face and get away with it”; defendant also told Watkins that he would “kick her ass” if he weren’t handcuffed because “every woman needs to get their ass kicked.” Likewise, the injuries suffered by Anderson are not consistent with a “reflexive” punch, but rather indicate a severe and violent beating. Accordingly, we find that defendant was not denied a fair trial by the court’s instructing the jury on self-defense.

VI

Defendant lastly contends that the circuit court improperly sentenced him to an extended term. Specifically, defendant maintains that the circuit court placed undue emphasis on his prior conviction, failed to properly consider mitigating factors, and expressed bias against him.

A trial court may sentence a defendant to an extended term when that defendant is convicted of any felony, after having been previously convicted of the same or greater class of felony, when such conviction occurred within 10 years after the previous conviction, excluding time spent in custody. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(b)(1).) In the instant case, defendant pled guilty to a charge of armed robbery in 1978 and was released from State custody in May or June 1980, slightly less than 10 years prior to the trial at bar. Thus, notwithstanding defendant’s contention, although the court in the instant case partially granted a defense motion in limine regarding the use of defendant’s remote past conviction during trial, it properly considered defendant’s 1978 conviction during sentencing. See Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3.2.

Defendant also asserts that the court failed to consider mitigating factors, such as his family situation, his college studies, and his rehabilitative potential. Here, however, the court recognized, in mitigation, that for a long period of time “defendant did not commit any criminal offenses.” The court further noted that “[tjhere is other mitigation here. Defendant’s family situation and other mitigation.” The court, however, found there to be “quite a bit of aggravation here,” and thus sentenced him to the maximum term. Defendant’s argument that the court failed to consider the evidence in mitigation is thus not borne out by the record.

Correspondingly, defendant’s further contention that the circuit court was biased against him is not supported by the record. Defendant points to two statements made by the court — one, the court’s comment that defendant committed “obvious perjury” and two, the court’s misquote of Anderson’s testimony, stating “This black guy fucked up your pretty face, didn’t I.” (Emphasis added.) Characterizing the court’s sentencing as “vindictive,” defendant contends that the court lashed out at him with a “desire to punish defendant beyond what Illinois law allowed.”

Defendant’s sentence, though the maximum, however, is within the limits allowed by Illinois law (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 8—1(a)(6), 1005 — 8—2(a)(5), 1005-5-3.2(b)(l)); a reviewing court may not alter a sentence imposed by a trial court absent an abuse of discretion by the trial court, since the trial court is in a better position to determine an appropriate sentence. (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422; People v. Wyatt (1989), 186 Ill. App. 3d 772, 778-79, 542 N.E.2d 872.) In the instant case, we find that the circuit court heard extensive evidence in aggravation and mitigation and, accordingly, was in a better position to evaluate that evidence.

Based on the foregoing analysis, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN, P.J., and SCARIANO, J., concur.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOEL WIESNESKE, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—0068
    Opinion filed August 25, 1992.

      Rita A. Fry, Public Defender, of Chicago (Timothy J. Deeming, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Eileen O’Neill, and Clare M. Wesolik, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Defendant Joel Wiesneske was charged with felony theft from his employer, Schaumburg Datsun, Inc. Following a bench trial, the circuit court found defendant guilty; he was subsequently sentenced to three years’ imprisonment and ordered to pay $29,989.14 in restitution. On appeal, defendant contends that the evidence did not establish his guilt of felony theft beyond a reasonable doubt; the circuit court erred in allowing the prosecution to introduce a spread sheet exhibit; he was denied his sixth amendment right in that the circuit court permitted a witness to assert his fifth amendment privilege against self-incrimination; and the circuit court abused its discretion in sentencing him.

The evidence adduced at trial established that, during 1983 and 1984, Thomas Sondag was president and general manager of Schaumburg Datsun, a car dealership. As general manager of the dealership, Sondag would, in the course of his typical duties, oversee the operation of the dealership and work with all the managers, including the office manager, parts manager, service manager, anti the two delivery managers. Also during this time, defendant worked for Schaumburg Datsun as one of its two delivery managers, or finance managers. As a delivery manager, defendant collected the money received on all automobiles that were sold by the salespersons and completed the paperwork necessary for delivering a car to a customer.

Marie Bolf, the license and title clerk and cashier, Catherine Williams, the office manager, and Sondag all testified as to the typical procedures involved in the sale of an automobile: initially, the salespersons would negotiate a sale, write a buyer’s order form, and bring the customer’s deposit money to the cashier. The cashier would then issue a receipt for the customer’s deposit; the customer would receive one copy, another copy remained in the cash receipt machine, and yet another copy was put in the deal jacket. The deal jacket, prepared by a salesperson when a car was first received at the dealership, would contain all the paperwork involved in the sale of an automobile. Thereafter, the salesperson would take the customer and the deal jacket to the delivery manager.

The delivery manager would then discuss with the customer the method of payment and the time that the customer would take possession of the car. The delivery manager’s first function would be to collect all the money connected to the sale, either through finance contract, cash, check, or credit card; he would then make certain that all the paperwork, including the license and title, tax form, bill of sale, and warranty registration, pertaining to that sale was correct. After the customer paid, the delivery manager would then take the payment to the cashier, who would apply the money to the account number listed on the deal jacket. Occasionally the name on the payment check did not correspond to the name on the deal jacket. After a sale was completed, the information contained in the deal jacket would then be taken to the office manager, who would enter that information into the computer files. The office manager would also, in the course of her regular duties, maintain the dealership’s books, the schedules, the ledgers and the journals, and check the numbered receipts issued by the dealership.

Routinely, the dealership would allow customers to take possession of the cars prior to full payment of the purchase price. The decision to allow the customers “early” possession was the delivery manager’s; that decision was based upon his determination of the credit-worthiness of the customer. Once a car was delivered to a customer who had not paid in full, that customer’s name was then entered in the note list, which contained the stock number of the car, the amount owed to the dealership, and the approximate date that the customer would pay in full. The delivery managers controlled the note list, updating it as customers paid. Although the delivery managers were in control of the note list, both the office manager and Sondag reviewed' it occasionally to determine how much was owed to the dealership. Additionally, the office manager would, about once a week, print out a computer list to check that the note list and the information in the computer were in agreement.

In July of 1984, while defendant was on vacation, Sondag attempted to review the amount of money owed to the dealership, but was unable to find the note list. Not finding it in defendant’s office, where it would typically be kept, Sondag asked the office manager to prepare a print-out from the computer listing the money due from customers. Sondag was “amazed” at the amount of money still owed the dealership on cars which had already been delivered; accordingly, he called the first customer on the computer list. That customer indicated that he had already paid defendant in full. The second customer whom Sondag called also stated that he had paid in full. Thinking that there must be some “misunderstanding,” Son-dag sent mail-a-grams to all the customers on the computer list, stating that they owed the dealership money and that the dealership needed to collect the outstanding balances. Several customers responded to the mail-a-grams, informing Sondag that they had paid cash to a “clerk” in the dealership; several customers identified defendant as the employee they had paid.

Sondag then apprised the dealership’s owners, his father, Clayton Sondag and James Kussman, of the computer listing indicating an extensive amount of money still owed to the dealership. After further reviewing the computer listing and all the deal jackets, Son-dag prepared a “spread sheet,”' an accounting ledger summarizing each customer’s sale, the money paid, and the money received by the dealership.

Sondag wrote down on the spread sheet the results of each sale: the price of the car, the funds that the customer paid, the funds that were received, and any funds that had been put in another customer’s account. The last entry was necessary because Sondag had discovered that certain checks from one customer “got put” into other customers’ accounts. Sondag created his “spread sheet” with information contained in the deal jackets, information from customers, and information given to him by Catherine Williams, the office manager. At Sondag’s request, Williams prepared a computer listing detailing the money owed and paid by customers. According to Williams, only she entered information into the computer; Sondag never entered information into the computer on his own, nor did he ever tell her what information to put into the computer. After preparing his spread sheet, Sondag determined that approximately $43,000 was missing.

When defendant returned from vacation, Sondag, Kussman, and Clayton Sondag met -with him in Sondag’s office. There, they confronted defendant with the charge that he was responsible for the missing money. Defendant admitted taking money from the dealership, but stated that he did not know how much. In response to the owners’ question whether anyone else was involved in the lapping scheme, defendant answered no. He then agreed to reimburse the dealership and began that day by signing over his $4,000 paycheck. Telling the owners that he needed additional time to raise the rest of the money, defendant left the dealership, promising to return that day at 5 p.m.; however, he never came back to the dealership.

At trial, in addition to Sondag’s and Williams’ testimony, the State presented the testimony of several customers of Schaumburg Datsun. Suzanne Bobka testified that she purchased a $9,000 car from the dealership on December 27, 1983. On that day she gave a $200 deposit to James Kussman, Jr., the other delivery manager, for which she received a receipt. She then spoke with defendant about the various possibilities of financing. When defendant was unable to obtain financing for her, Bobka obtained her own and returned to the dealership, where she gave defendant a $1,300 cashier’s check; defendant, however, did not give her a receipt. Sometime after the sale, she received notice from the dealership that she still owed $1,300; in response, she sent the dealership a copy of her bill of sale and a copy of the cashier’s check to show that she had paid in full.

Sandra Biederstadt testified that on November 3, 1983, she purchased a car for $11,420, making a $50 down payment to a salesperson; she was issued a receipt for the $50. After her credit was approved, she met with defendant at the dealership, paying him $500 in cash and giving him a $1,650 personal check. She did not receive the “same kind” of receipt as she had for the $50 down payment; rather she received a “bill of sale” which indicated a $2,150 “cash on delivery” amount due, but did not indicate that that amount had been paid. Later, Biederstadt received notice from the dealership that she still owed $400. She, in turn, contacted the dealership and told Sondag that she had paid in full.

William McNamee testified that on March 30, 1984, he purchased a car from the dealership, giving a $100 deposit to a salesperson, for which he received a receipt. The following day, McNamee returned to the dealership, where he was introduced to defendant and spoke with him about financing the car. McNamee then gave defendant $2,000 in cash, but did not receive a receipt. After receiving notice from the dealership that he still owed $2,000 on the car, McNamee explained to Sondag that he had paid in full.

Gloria Brodie testified that on February 22, 1984, she purchased a car from the dealership for approximately $7,400. She gave a salesperson a $100 personal check and was issued a receipt. She later gave defendant $200 in cash but he did not issue her a receipt. When she was notified of an outstanding balance to her account, she also told the dealership that she had paid in full.

In addition, the State offered by stipulation the statements of 18 customers who had purchased their cars from the dealership and who had given money to defendant.

According to Sondag, from his review of the summary sheet, Bobka’s $1,300 cashier’s check was applied to another account; $2,100 was missing from Bierderstadt’s account; McNamee’s account was short $2,000; and, according to the dealership paperwork, Brodie still owed $200. Sondag also testified to the many discrepancies and misapplied or missing funds from defendant’s customers’ accounts.

Miles Elliot Levine testified for the defense that he worked as an assistant used-car manager at Schaumburg Datsun during 1981 and 1982. He explained that it was common procedure, even requested by Sondag, that customers not be given receipts for their payments, especially when the dealership was busy. Often, the high number of transactions would cause a backlog in the completion of dealership procedures; at these times, the deal jackets containing customer payments would be stacked around the dealership offices. Thus, anyone would be able to handle those deal jackets. Furthermore, all employees of the dealership had access to the note list. According to Levine, Sondag and Williams had final “review” of the deal jackets and the money contained therein.

Levine described the bookkeeping at the dealership as “sloppy” and stated that Sondag “just didn’t care” about the delays in collecting money from customers who had already taken delivery of their cars. He admitted on cross-examination, however, that, though he worked with defendant at the dealership in 1981 and 1982, he was not working at the dealership during the period of time that defendant was alleged to have taken money. He further admitted that beyond the initial down payment, if there was money paid to the dealership it would be paid in the finance office and would be given to the delivery managers.

James Emmett O’Connell testified that he was employed by Schaumburg Datsun as a delivery manager in 1978 and 1979. During his employment, deal jackets would often be lying about the dealership. Furthermore, during busy times, receipts would routinely not be given to customers. Later, after O’Connell had left Schaumburg Datsun and had begun working for another Sondagowned dealership, he was accused of theft and fired.

Gladys Brooks testified that she currently worked with defendant at King Nissan, his present place of business; however, she worked as a receptionist and cashier at Schaumburg Datsun for three months in 1987. While she was at Schaumburg Datsun, Son-dag frequently would ask her to take cash from the cash drawer and replace it with “auction” or personal checks. Sondag also asked her to give him the dealership receipts which documented the customers’ payments. When she gave him all three copies, the customers would receive no receipts. Though Brooks never saw the books and never made entries into them, she testified that there were two sets of books.

Defendant testified in his own behalf that, during his employment at Schaumburg Datsun, he would place all the completed forms and the customer’s payments in the deal jacket. The deal jacket would then be taken to the cashier by either a salesperson or Sondag. If sales were “slow” at the dealership, defendant would take the deal jacket to the cashier himself. Every one of the sales staff would at some time handle the cash and cash receipts. Occasionally, Sondag would direct defendant to “speed up” the delivery process; Sondag would then handle the “receipting” of money himself and, at times, replace monies from the deal jackets with checks. Sondag, who according to defendant was a heavy gambler, would also remove money from the cash box at least twice a week.

According to defendant, during the three years that he worked at the dealership, three other employees were fired after being accused of theft. Prior to August 5, 1984, however, defendant had never been accused of dishonesty or misappropriation of funds.

On August 5, 1984, defendant was asked into “the office” by Kussman; there, Sondag, Clayton Sondag, and Kussman told him about “all this missing money.” Defendant did not admit to the three men that he had taken the money; he did, however, sign over his $4,000 paycheck because they threatened to have his legs broken.

On cross-examination, defendant admitted that when he was asked by the three men how much money he had taken, he told them that he did not know how much. He further admitted that he told the three men, after being asked who else was involved, that no one else was involved.

Defendant attempted to call James Kussman to testify; however, Kussman invoked his fifth amendment right against self-incrimination. Following an in camera proceeding and an offer of proof, the circuit court excused Kussman as a witness.

Following closing arguments, the court found defendant guilty of theft, stating that “[t]he most important piece of evidence in this case I think by far is the conversation, the confrontation if you will when the defendant returned from his vacation.” After hearing evidence in aggravation and mitigation, the court sentenced defendant to three years’ imprisonment and ordered him to pay $29,989.14 in restitution.

I

Defendant initially contends that he was not proved guilty of felony theft beyond a reasonable doubt; specifically, he contends that the evidence indicated that the owners of the dealership were “thieves,” their records were “a mess,” the regular daily records did not show discrepancies, and the State did not show that he had exclusive control of the missing money. He further asserts that the allegation that he “admitted the crime was not proven beyond a reasonable doubt.”

In determining whether a defendant was proved guilty beyond a reasonable doubt, the relevant question is “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453; see People v. Hooper (1989), 133 Ill. 2d 469, 552 N.E.2d 684.) Where the State’s evidence is improbable, unconvincing and contrary to human experience, judgments of conviction should be reversed. (People v. Gordon (1990), 204 Ill. App. 3d 123, 126, 561 N.E.2d 1164.) A person commits theft when he knowingly obtains or exerts unauthorized control over property of the owner. Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)(1).

In the instant case, defendant asserts that he was not proved guilty of theft beyond a reasonable doubt where the evidence showed that the money allegedly stolen from the dealership had “passed through” several other employees. He further argues that the evidence indicated that the owners of the dealership routinely practiced “illegal conversion of cash and receipts.” Thus, defendant argues that the evidence did not prove that it was he who stole the money; rather, he maintains that the evidence showed that anyone in the dealership could have taken the money, especially Sondag, whom defendant characterizes as a “thief.”

Defendant is correct in his contention that the evidence indicates that the money in the deal jackets was available to a number of employees at the dealership; however, the record reflects that the delivery manager, not any other employee, collected payments from customers and controlled the influx of money into the dealership. Furthermore, the testimony from several customers indicating that defendant took their money but failed to give them a receipt would tend to contradict defendant’s and Gladys Brooks’ testimony that Sondag’s taking receipts out of deal jackets was the reason that customers would not receive receipts. Likewise, defendant’s testimony that during busy times it was standard procedure not to give customers receipts is directly contradicted by the several customers’ testimony that they did not receive a receipt from defendant on the same day that they had received receipts from salespersons for their down payments. That those customers’ money taken by defendant for which he failed to tender receipts was later discovered missing does indeed implicate defendant in the theft.

Most important, however, was Sondag’s testimony that, when confronted, defendant confessed to the theft and offered to begin repayment with his $4,000 check. That the court chose to accept Sondag’s version of the confrontation rather than defendant’s was within its discretion; it is the function of the trier of fact to determine the credibility of witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. (People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247.) It certainly follows from the evidence that the court would doubt defendant’s story, particularly where defendant, on cross-examination, acknowledged that he told Clayton Sondag, Kussman and Sondag, when asked how much money he had stolen, that he did not know. Moreover, the court’s assessment, that “people who last about 20 years in the automobile business are not weak, jellyfish kind of people” and would not likely hand over a “very hard earned” $4,000 paycheck, also refutes defendant’s version.

Defendant incorrectly asserts that the State did not prove “beyond a reasonable doubt” that he confessed during the confrontation; the State need prove only the elements of the offense beyond a reasonable doubt. An admission is not one of the elements of theft.

In the case sub judice, the court found that defendant’s act of signing over his $4,000 paycheck “together with his extremely damaging admissions in that confrontation taken with all the other evidence in the case convinced [it] beyond a reasonable doubt that the defendant is guilty” of theft. The circuit court was made well aware of the considerable allegations against Sondag and his and the dealership owners’ alleged illegal activity; the court, however, chose not to believe defendant’s story that he was a “fall guy.” Because the circuit court heard all the evidence and was better able to judge the credibility of the witnesses, we will not substitute our judgment for that of the circuit court, particularly where the court’s determination was supported by the evidence.

II

Defendant next contends that the circuit court erred in admitting Sondag’s “spread sheet” into evidence; specifically, he maintains that the spread sheet was not a business record, was based on unproduced data, was prepared during an investigation, and contained errors. The State initially responds that defendant has waived review of this issue by failing to raise it in his post-trial motion; assuming arguendo that the issue is not waived, the State asserts that the court properly admitted the spread sheet as a summary of voluminous material.

In so arguing, the State asserts that the spread sheet was merely a “summary” of voluminous documents; specifically, the State maintains that all the documents contained in the deal jackets were summarized in the spread sheet and, thus, the spread sheet was properly admitted. For support, the State relies upon several cases, all civil, holding that the admission of exhibits into evidence which contain a summary of voluminous original documents is proper. See Landmark Structures, Inc. v. F.E. Holmes & Sons Construction Co. (1990), 195 Ill. App. 3d 1036, 1051, 552 N.E.2d 1336; In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 30, 500 N.E.2d 612; Kohutko v. Four Columns, Ltd. (1986), 148 Ill. App. 3d 181, 188, 498 N.E.2d 522.

Those cases allow the circuit court, in its discretion, to admit into evidence exhibits containing summaries when the original documents upon which the summaries are based are voluminous and cannot conveniently be examined by the trier of fact. (Landmark Structures, Inc. v. F.E. Holmes & Sons Construction Co., 195 Ill. App. 3d at 1051.) The documents which are summarized, however, must be made available in court or made available to the opposing party. Landmark Structures, Inc. v. F.E. Holmes & Sons Construction Co., 195 Ill. App. 3d at 1051.

Defendant argues that the spread sheet was not kept in the regular course of business because it was prepared during an investigation and in anticipation of litigation. Defendant, however, misconstrues the “regularly conducted business activity” requirement. Section 115 — 5 of the Code of Criminal Procedure of 1963 makes admissible as evidence any record made in the regular course of any business “if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 5(a).) In contrast, “[n]o writing or record made in the regular course of any business shall become admissible as evidence *** if *** [s]uch writing or record has been made by anyone during an investigation of an alleged offense or during an investigation relating to pending or anticipated litigation of any kind.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 5(c)(2).) Neither section 115 — 5(a) nor 115 — 5(c), however, requires that a summary of data be kept in the regular course of business; rather, it is the underlying data upon which the summary is based that must be so kept. Once the underlying data are admissible under the business records exception, a summary of that data can be admitted, permitting a party to present a summary of the voluminous documents where the contents of voluminous writings cannot conveniently be examined in court.

The basis for the evidentiary use of summaries at trial is Federal Rule of Evidence 1006, which provides:

“The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.” (Fed. R. Evid. 1006.)

In the Federal courts, both Rule 1006 and “the established tradition” allow the introduction of summary evidence to aid the fact finder in the examination of testimony or documents in evidence. (United States v. Loney (5th Cir. 1992), 959 F.2d 1332, 1341; United States v. Paulino (6th Cir. 1991), 935 F.2d 739, 753.) Rule 1006 thus “removes the Best Evidence Doctrine as an impediment to proving the content of voluminous written, recorded, or photographic material by means of a ‘chart, summary, or calculation’ when the underlying material ‘cannot conveniently be examined in court.’ ” (United States v. Ashford (7th Cir. 1991), 924 F.2d 1416, 1422, quoting Fed. R. Evid. 1006.) The purpose then of Rule 1006 is to provide a practicable means of summarizing voluminous information. (Fed. R. Evid. 1006 Advisory Committee’s Notes.) The language of the rule, though, does not require that the original voluminous material be introduced into evidence; rather, it merely requires that the summarized material be made available to the opposing party. United States v. Bakker (4th Cir. 1991), 925 F.2d 728, 736.

The Federal courts have distinguished between those summaries which condense voluminous materials not admitted at trial and pedagogical summaries of testimony or documents already admitted into evidence. (United States v. Winn (5th Cir. 1991), 948 F.2d 145, 158-59; United States v. Wood (9th Cir. 1991), 943 F.2d 1048, 1053.) Those courts have long held that such pedagogical devices should be used only as a testimonial aid and should not be admitted into evidence or otherwise be used by the jury during deliberations. (United States v. Wood, 943 F.2d at 1053.) Nevertheless, it is within the trial court’s discretion to admit summary evidence even of documents admitted at trial where the review of those documents would be inconvenient; the fact that reports or documents are already in evidence does not mean that in-court examination would be necessarily convenient. (United States v. Winn, 948 F.2d at 158-59; United States v. Osum (5th Cir. 1991), 943 F.2d 1394, 1405.) Implicit in Rule 1006 is the notion that the trial court may, in the circumstances of a given case, determine that the jury, or the court in a bench trial, ought to consider the source documents in resolving a fact issue and that, on balance, a summarization of such evidence would not add to or detract from the proper weight or emphasis to be given such source documents.

Because, in the instant case, the data contained in one deal jacket must be perforce compared to the data in the others, we find that the evidence presented by the State was voluminous and clearly incapable of being conveniently examined in court. We thus find that an analysis pursuant to Rule 1006 is appropriately applied in the instant case and, furthermore, adopt the reasoning of the Federal courts relating to Rule 1006.

In the case sub judice, Sondag testified that he prepared the spread sheet after he determined that the computer listing did not reflect payments made, by several customers. Defense counsel continued to object to the use or admission of the spread sheet, arguing that it was not an original and arguing that he had seen only the deal jackets but not any ledgers, books or journals from the dealership. The court, after determining that the spread sheet was prepared using documents from the deal jackets and information from the customers themselves, found that the State had established a foundation “of where the numbers are from on the spread sheet.” The court further stated, however, that additional evidence had to be forthcoming “in terms of the truth and accuracy of what the customers are saying regarding these figures.”

Although Rule 1006 requires the party seeking to summarize the contents of voluminous records to make those records available for examination by other parties, defense counsel here explicitly stated that he had reviewed the deal jackets which were provided by the State. Thus, he cannot now assert that he was not provided the documents serving as a basis for the spread sheet. Likewise, defendant had full opportunity to cross-examine Sondag and thereby had an opportunity to demonstrate to the trier of fact any erroneous calculations in the spread sheet. While we recognize the powerful impression which charts and summaries can make upon a jury, vesting a summary with an air of credibility independent of the evidence purported to be summarized, the court in the instant case, as trier of fact, was cognizant of defendant’s allegations against Sondag and was thus better able to weigh the importance of the spread sheet. Furthermore, the introduced deal jackets underlying the spread sheet, though not made of record in this appeal, apparently were sufficient to support the calculations in the spread sheet.

Though we are unable, based on their absence from the record, to determine the contents of the deal jackets, from the testimony at trial, we find that the spread sheet was substantially consistent with the evidence adduced at trial. The spread sheet consisted of 10 headings: customer name, car, date, price of the car, deposit paid, deposit received, COD paid, COD received, “cover up,” and “stolen.” The last two headings delineated the funds that had been applied to other customers’ accounts and the funds that could not be accounted for, respectively. According to Sondag, after speaking with the customers and ascertaining who had paid the dealership in full, he prepared his spread sheet with the information contained in the deal jackets and the information contained in the computer listing. It follows that the deal jackets and the computer listing provided the data to determine the customer name, car, price, and the funds received from the customers — those would necessarily be contained in the deal jackets. Sondag would, however, have to rely upon the customer’s assertion of payment in order to determine the “COD paid” amount (if missing), unless the customer’s check was misapplied to, and thereby corroborated by, another account. This leads to the problematic conclusion that, in preparing his spread sheet, Sondag relied in part on his “interviews” or discussions with the customers.

Because a summary of voluminous evidence is admissible only if the underlying materials upon which the summary is based are admissible, we find that the spread sheet in the instant case suffers from the taint of inadmissible hearsay. Notwithstanding the admissibility of the deal jackets and the computer listing, as prepared in the ordinary course of business, the spread sheet was, in part, based upon the out-of-court statements of the customers telling Sondag that they had already paid in full. Thus, Sondag’s spread sheet and his conclusions therein were based in part on information not admissible during trial. We recognize that the State provided the testimony of several customers whose payments allegedly were stolen by defendant; however, the spread sheet also contained listings of customers whose payments were allegedly misappropriated and whose testimony the State did not provide. The accuracy of the summary as to those customers was therefore dependent upon Sondag’s testimony.

Notwithstanding the inadmissibility of the underlying basis of part of the spread sheet, we find that the circuit court considered it in its proper context and defendant was thus not prejudiced by its introduction. The court, here, recognized the requisite laying of a proper foundation “of where the numbers are from on the spread sheet,” and thus correctly perceived the nature of the spread sheet as summary evidence. Absent the introduction of the spread sheet, moreover, the evidence presented in the instant case supports defendant’s conviction. Though defendant characterizes the spread sheet as the State’s “key evidence of the missing funds,” the court relied primarily upon defendant’s admission to Clayton Sondag, Kussman, and Sondag. Further, the State introduced, and the court admitted into evidence, the dealership’s deal jackets for the 20 customers who were victims of defendant’s lapping scheme. Thus, though part of the spread sheet was arguably improperly admitted into evidence, defendant’s conviction did not rest solely upon that piece of evidence, but was amply supported by the other evidence admitted at trial.

III

Defendant next contends that he was denied his sixth amendment right to call witnesses in his own behalf when the circuit court permitted a witness to invoke his fifth amendment right to silence. The State responds that the court correctly held that the witness provided a valid basis to assert his fifth amendment right.

The right of a defendant to call witnesses in his own behalf is fundamental and essential to due process. (People v. Moore (1990), 199 Ill. App. 3d 747, 767, 557 N.E.2d 537; People v. Echols (1986), 146 Ill. App. 3d 965, 972, 497 N.E.2d 321.) Nonetheless, a defendant’s right to call witnesses does not include the right to compel a witness to waive his fifth amendment privilege to remain silent. (Bradford v. Soto (1987), 159 Ill. App. 3d 668, 673-74, 512 N.E.2d 765; see also People v. Katsigiannis (1988), 171 Ill. App. 3d 1090, 1101, 526 N.E.2d 508.) The right against self-incrimination, however, may be exercised only where the witness has reasonable cause to fear the possibility of subsequent prosecution from a direct answer. (People v. Redd (1990), 135 Ill. 2d 252, 304, 553 N.E.2d 316; People v. Cooper (1990), 202 Ill. App. 3d 336, 341, 559 N.E.2d 942.) Neither an unreasonable fear of self-incrimination nor a mere reluctance to testify is grounds for claiming the privilege. (Cooper, 202 Ill. App. 3d at 341.) The mere “say-so” of a witness does not in and of itself establish the privilege; it is for the circuit court to determine if under the particular facts there is a real danger of incrimination. Cooper, 202 Ill. App. 3d at 341.

In the instant case, after James Kussman invoked his fifth amendment right, the court held an in camera proceeding where Kussman’s attorney informed the court that Kussman, pursuant to a Federal grant of immunity, was cooperating in an investigation of Clayton Sondag and the Sondag-owned dealerships. According to Kussman’s attorney, Clayton Sondag and Kussman underreported Castle Oldsmobile’s (another Sondag-owned dealership) income for several years. Prior to 1984, Clayton Sondag had developed a practice in which he would take checks that had been received by Castle Oldsmobile and give those checks to the bookkeeper in exchange for cash. In July 1984, Kussman joined Clayton Sondag in his attempts to underreport Castle Oldsmobile’s and their own incomes. Shortly thereafter, in July 1984, when defendant admitted stealing the money and endorsed his paycheck over to the dealership, Clayton Sondag kept the check and, in accordance with his check-cashing procedure, had the check cashed at Castle Oldsmobile. He gave half to Kussman, keeping the other half for himself; thus, the proceeds of the check were not reported in the dealership’s books.

Following Kussman’s proffer, the court determined that valid grounds for the fifth amendment privilege had been shown. The court then allowed defendant an opportunity to make an offer of proof as to the testimony that would be elicited by Kussman. Defense counsel then stated that he would attempt to show that at various times the owners of the dealerships sued each other in the circuit court of Cook County over the monetary affairs of the dealerships. Defense counsel stated that he would further show that the exact amount of money missing from the dealership could not be shown because of the sloppy bookkeeping. Counsel averred that Kussman’s testimony would show that Sondag had an “extensive narcotic habit” and that others at the dealership had misappropriated the funds. Following defendant’s offer of proof, the court excused Kussman from testifying.

Defendant argues that the circuit court erred by recognizing “Kussman’s blanket fifth amendment privilege”; however, the court did not recognize a “blanket” privilege, but rather recognized Kussman’s specific right not to implicate himself in any illegal activities at the dealership. Despite defendant’s contention that he should have been allowed to elicit testimony from Kussman concerning financial crimes committed by the owners of the dealership, had Kussman testified to those “financial crimes” he would have incriminated himself. Moreover, no narrower privilege would have protected Kussman; defendant himself asserts that he would have asked Kussman about the confrontation and the $4,000 check, which Kussman and Clayton Sondag later misappropriated.

Based upon the contents of the in camera proceeding, we find that the circuit court did not err in allowing Kussman to exercise his fifth amendment privilege. Kussman’s privilege extended not only to answers that would in themselves support a conviction but also to answers that might furnish a link in a chain of evidence needed to prosecute him for a crime. (Cooper, 202 Ill. App. 3d at 341.) Accordingly, we find that defendant was not denied his right to call witnesses in his own behalf.

IV

Defendant lastly contends that the circuit court erred in sentencing him to three years’ imprisonment and ordering restitution; specifically, defendant maintains that the evidence did not establish that he stole $29,989.14; that the court failed to set off the restitution amount by the $4,000 that defendant had paid; that the State misrepresented factors in aggravation; and that the court failed to give adequate emphasis to substantial mitigation.

Sentencing is a matter of judicial discretion and, absent an abuse of that discretion, the sentence may not be altered on review. (People v. O’Neal (1988), 125 Ill. 2d 291, 297-98, 531 N.E.2d 366.) Correspondingly, the circuit court can determine if restitution, in conjunction with a term of imprisonment, is an appropriate sentence. See People v. Wagner (1989), 189 Ill. App. 3d 1041, 1055, 546 N.E.2d 283; People v. Jones (1986), 145 Ill. App. 3d 835, 839, 495 N.E.2d 1371.

During the sentencing hearing in the instant case, the circuit court heard evidence in aggravation and mitigation, including evidence of a pending indictment against defendant for theft from King Nissan. Defense counsel requested probation and community service and also presented the court with three different proposals for repayment of $29,000.

The State asserts that because defendant invited and promoted restitution as a sentence, this court should find that he has waived any objections to the court’s sentence. (See People v. Early (1987), 158 Ill. App. 3d 232, 240-41, 511 N.E.2d 847 (where a defendant invites a trial court to order restitution, he may be precluded from arguing that the court erred); People v. Eades (1984), 123 Ill. App. 3d 113, 118-19, 462 N.E.2d 819 (defendant waived any error in sentencing when he requested restitution as part of his sentence).) The record is unclear, however, whether defendant himself invited or requested restitution. During the sentencing hearing, defense counsel presented the court with three alternative payment schedules, stating “the court had asked me to put together a schedule. I have put together *** three alternative methods of payment for the court to consider.” At most, we find that the record indicates discussions between the court and defense counsel; contrary to the State’s assertion, we do not find that defendant himself promoted restitution.

Defendant’s further assertion, however, that the State erroneously argued that defendant was in a position of “trust” must fail. The prosecutor, in stating that defendant was in a position of public trust, merely argued that defendant’s crime was serious in that he abused his relationships with his customers in order to defraud his employer; the State in no manner maintained that the court consider defendant’s position of “public trust” as an aggravating factor.

Nevertheless, we find that defendant’s additional assertion that the court erred in failing to apply the $4,000 payment to the restitution order has merit. During the sentencing hearing, the court did not refer to defendant’s $4,000 payment in determining the amount of restitution. Furthermore, though the evidence at trial and in aggravation during the sentencing hearing reflected losses due to theft in excess of $40,000, the court ordered restitution only for the amount charged in the indictment. Although the State contends that the court’s sentence was proper where the evidence showed that defendant proximately caused losses in excess of the amount alleged in the indictment, we find that, because the record reflects that the court neglected to consider the $4,000 already paid by defendant, the amount of restitution must be reduced by that amount defendant has already paid towards the losses incurred by the dealership. See also Early, 158 Ill. App. 3d at 241.

Based on the foregoing, the judgment of the circuit court of Cook County finding defendant guilty of theft is affirmed. Defendant’s sentence, however, is reversed and remanded to the circuit court with directions to reduce the amount of restitution by $4,000.

Affirmed in part and reversed in part and remanded.

HARTMAN, P.J., and SCARIANO, J., concur.

      Defendant inappropriately relies upon People v. Holowko (1984), 124 Ill. App. 3d 426, 464 N.E.2d 813 (holding that a computer record generated from a telephone trap requested by the police was prepared during an investigation and thus inadmissible), later reversed by the supreme court in People v. Holowko (1985), 109 Ill. 2d 187, 486 N.E.2d 877 (holding that section 115 — 5(c)(1), restricting admission of business records prepared during investigation, was inapplicable to records made by a machine having no capacity to intentionally falsify information), and People v. Casey (1992), 225 Ill. App. 3d 82, 587 N.E.2d 511 (holding that an exhibit prepared during an investigation of theft was inadmissible) in support of his position that the spread sheet was inadmissible. Neither Casey nor Holowko addressed whether the documents were summaries based upon admissible evidence; rather, both cases confined their analyses to the issue of whether the documents were prepared during investigations.

      We emphasize that, because summaries are admissible as evidence under both Federal Rule of Evidence 1006 and in Illinois, care must be taken to omit argumentative and conclusional matter in their preparation lest a jury be misled. As for the “cover up” and “stolen” headings in the instant case, they accurately explained the significance that Sondag attached to those dollar amounts; in this sense, the headings reflected certain assumptions on Sondag’s part, but these assumptions were amply supported by the evidence already before the court. Moreover, we do not find that the characterization in the headings prejudiced defendant or unduly influenced the court.