author: JUSTICE COUSINS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AARON TRAMAINE WESLEY, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 90—3210
    Opinion filed July 30, 1993.
    —Rehearing denied September 2, 1993.

      Rita A. Fry, Public Defender, of Chicago (Andrea Monsees, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Joan F. Frazier, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE COUSINS

delivered the opinion of the court:

Aaron Wesley (defendant) appeals the portion of the jury’s verdict which found him guilty of one count of aggravated criminal sexual assault to the anus. Defendant also appeals his 14-year sentence.

The issues presented for review are: (1) whether defendant’s venire was constitutionally composed; (2) whether the trial court properly exercised its discretion in evaluating whether there was reasonable assurance that the jurors were impartial; (3) whether the verdicts were legally inconsistent; (4) whether defendant was entitled to an instruction on battery as a lesser included offense of the offense of aggravated criminal sexual assault; (5) whether defendant was proven guilty beyond a reasonable doubt; (6) whether the trial court erred by rejecting several of defendant’s evidentiary objections; and (7) whether the trial court abused its discretion by imposing a 14-year sentence on defendant.

We affirm.

Background

In the early eve of July 8, 1989, EC’s boyfriend (Baumann) left their apartment and, while outside, saw defendant and invited him to a birthday party. Baumann did not know defendant but had seen him at Baumann’s apartment complex pool. Defendant went to the party with one of his friends. He was the only African-American present.

EC testified that she spent most of the evening sick in her bedroom because she was suffering from a long-standing ailment which caused her jaw to pop out of its joint. She later emerged from her bedroom to sing “Happy Birthday.” At approximately 11:30 p.m., she sat on a couch talking to a friend. Defendant approached her and asked if he could play a cassette (Jungle Brothers). She consented and defendant inserted the cassette in the cassette player. Defendant then sat next to LC and her friend and began to talk to them.

During the course of the party, Baumann and LC had an argument because LC would not permit Baumann to use her car. She retreated to her bedroom but went back out to the living room when she heard a door slam. Defendant was present during this exchange.

Baumann testified that, at approximately 12:30 a.m., he cleared everyone out of the apartment except defendant. Baumann told defendant to leave but defendant stated that he would leave after he finished his beer. Baumann agreed and told defendant to lock up before he left. Baumann left the apartment.

LC testified that she left her bedroom when she heard the apartment door slam. Defendant, alone, remained in the living room drinking his beer. The only other people in the apartment were Allen Haayer (Haayer) and his girl friend, Tammie Trahan (Trahan). These two had retired earlier to a second bedroom in the apartment. She knew that they were in the apartment.

She told defendant to finish his beer and leave. Defendant told her that Baumann said that he could sleep on the couch. She told defendant that she preferred for him to finish his beer and either wait outside or leave. Defendant remarked that Baumann was not really going to get something to eat but that he was actually going to see another woman named Stephanie. She knew of this woman and told defendant that it was none of his business. Defendant continued to talk about the “other woman.” She asked defendant to leave. Defendant changed the subject, sat next to her, and put his hand on her thigh. She stood up, pushed defendant’s hand away, and told him that his behavior was unacceptable. Defendant said okay but later moved over to the couch and put his hand on her thigh. She stood up and told defendant to leave.

As she started walking back to her bedroom so that she could feed her cat, defendant arose and asked for a pair of sweat pants. She thought that defendant had spilled something on his pants so she grabbed a pair of Baumann’s shorts from their bedroom and threw them at defendant.

She returned to her bedroom, thought she heard the front door open and close, and went to investigate. As she emerged from the bedroom to lock the front door, defendant punched her in the face. The impact from defendant’s blow caused her to fly into the bedroom door and dresser. A dent that was in the door became a hole. She told defendant to get out and began to scream for Haayer, who was in the second bedroom.

She further testified that defendant punched her, put his fingers down her mouth and throat, and pulled her down to the floor. After getting defendant’s fingers out of her mouth, she began to scream. Defendant straddled her and struck her in the arms, face, and neck. Defendant forced himself between her legs, told her to shut up, and put his penis into her vagina. Defendant continued to strike her.

She tried to get defendant off her by telling him that she heard a door opening. Defendant told her that she was lying. Defendant picked her up and threw her on the bed. As she was trying to get away from defendant, she put her foot through the bedroom wall above the headboard.

At some point, Trahan, who was in the adjoining bedroom with Haayer, woke up to what she testified as being a loud and consistent scream. Haayer also heard screams, but was unsure from whence they came. He listened at the bedroom door but heard nothing. Haayer heard more screams and listened at the wall that was common to both bedrooms. He heard LC’s voice, “Don’t, don’t you have to stop.” He heard a man answer, “Shut up, all’s I’m gonna do is fuck you.”

With that, Haayer and Trahan left the apartment and went to the apartment next door to enlist help from a neighbor (Dan Todd). Haayer told Dan Todd that something was wrong with LC and asked him to go next door and investigate. Dan Todd, his brother (George Todd), and Haayer went to Baumann and LC’s apartment. Dan Todd knocked on the bedroom door and asked LC whether she was all right. The bedroom door was ajar and hanging on its hinges. LC responded by asking who was at her door. Dan Todd replied that it was “Danny.” LC testified that she recognized Dan Todd’s voice but was attempting to signal that something was wrong by asking, “Danny who?”

She testified that, at that point, defendant was straddling her, warning her not to say anything. Dan Todd responded, “It's me Dan. Are you all right?” She hesitated but answered in the affirmative. The Todd brothers, concluding that everything was all right, left the apartment. However, Trahan and Haayer remained in the hallway.

After everyone had left, defendant put on a pair of pants and pulled LC out to the living room to show her that no one was there. Defendant then pushed LC back into the bedroom and onto the bed, straddled her, pushed her around, rolled her on her stomach, and tried to enter her rectally. LC testified that she felt a lot of pain, jerked around, rolled over, and pushed defendant away. Defendant then straddled her and put his penis in her vagina. Defendant ran his mouth over her bloodied nose and mouth and spit her blood back into her face.

Haayer and Trahan, who were sitting in the apartment complex’ glass-enclosed foyer, flagged down Doug Ridenour (Ridenour) as he was driving by. Ridenour had attended the party and had driven Baumann to a convenience store and later to Stephanie’s (the other woman’s) house.

Haayer told Ridenour that he was worried because LC and “the black guy” (defendant) were in the bedroom together. At that moment, two other male partygoers, Dave Shetka (Shetka) and Brian Sonn (Sonn), drove by. Haayer told them that he had heard LC screaming.

The men went up to the apartment, Ridenour knocked on the door, and asked LC whether she was all right. There was no reply.

Meanwhile, defendant warned LC that he did not want any trouble with the police, that he was going to tell the others that she was his girl friend, that they had a fight, and that everything was fine. Defendant wiped her face with one of Baumann’s shirts and told her to be quiet.

Defendant left the room telling her not to move. He was wearing a pair of jeans. Ridenour asked defendant what was going on and defendant replied that everything was fine, that his “ride” was there, and that he had to leave.

Testimony was elicited that, as defendant was approaching the front door, LC emerged from the bedroom covering herself with a shirt. She was crying, her face was red and swollen, and she was covered with blood. Ridenour asked her what happened and she responded that defendant raped her.

There was additional testimony that defendant walked quickly towards the front door and grabbed a knife. Ridenour told him to stay. Defendant pushed Ridenour aside, opened the door, and ran out of the apartment. Ridenour, Shetka, and Sonn chased defendant but defendant disappeared.

LC asked for Baumann so Ridenour called Stephanie’s house, told her that LC had been raped, and told her to drive Baumann home. Ridenour then reported the incident to the police.

Baumann arrived a few minutes later. He testified that he could tell that LC had been beaten up. Schaumburg police arrived 5 to 10 minutes thereafter. Paramedics arrived, examined LC, and took her to the hospital.

The nurse found her vital signs abnormal. She was bruised under one eye, had abrasions behind one ear, a reddened cheek and scratches to the neck, and a swollen and bleeding lip. The nurse also observed reddened areas on her arms. The nurse did not find any bruises on LG’s torso, legs, thighs, buttocks, or feet.

Kathy Matousek (Matousek), one of the paramedics, testified that Baumann’s hands were not bruised and that no blood was on Baumann’s clothing, and that there was nothing remarkable about his appearance.

The emergency room physician, aside from injuries that the nurse noted, also found that LC had suffered a one-half-inch cut on the roof of her mouth along with bruised tonsils.

The doctor found no signs of external trauma in his gynecological examination. The doctor testified that while one might expect to see signs of trauma in children or virginal females who had been raped, it was common not to find signs of trauma in a case where a nonvirginal woman had been sexually assaulted.

A forensic scientist later examined vaginal and rectal smears taken from LC and found that seminal material was present on both. However, the semen was not typed because the forensic scientist did not have standards from defendant.

Detective Muth (Muth) of the Schaumburg police created a photo lineup from which LC identified defendant as her assailant. Muth testified that LC did not relate to him all of the details to which she testified at trial. Muth attributed that to her physical condition. Even though LC told Muth that Baumann was at the apartment when she emerged from the bedroom, several other witnesses told him that Baumann was not present. Muth testified that he did not attempt to clarify this because he did not notice the discrepancy at first.

The following evening, Delphine Robinson, defendant’s mother, went to the Schaumburg police station to report that she knew of her son’s whereabouts. Patrol units were immediately dispatched to defendant’s Schaumburg home. There, the police arrested defendant.

Muth asked defendant if he knew the whereabouts of his clothing which he had worn to the party. Muth, with defendant’s mother’s permission, entered defendant’s bedroom but did not find any bloodied jeans.

At the Schaumburg police station, Muth read defendant the Miranda warnings and a waiver form. Muth asked defendant whether he understood each right. Defendant said that he did but declined to initial the form because he said he did not want to put anything down in writing. Detective Muth asked defendant whether he wanted to waive his Miranda rights and talk, and defendant said he did.

Muth asked defendant to tell him. what had happened at the party. Defendant said that earlier that day he had been at a party in Elgin where he drank a few beers. Later, at the convenience store, defendant said that an unknown subject (Baumann) invited him and his friend to a party.

Defendant told Muth that he went to the party, drank a few beers, and just stayed by himself in a comer because he did not know any people there. Everyone started filtering out of the party and by 1 a.m., only he and LC were left in the apartment. Defendant said LC approached him in the living room and said she was upset because she thought that her boyfriend (Baumann) was cheating on her. Defendant said LC told him that it would be okay to have sex with her. The two then went into the bedroom, removed their clothing, and had sexual intercourse. Defendant said that the next thing he knew was that someone was knocking on the door, and LC told him to leave. Defendant slipped on a pair of jeans and left. Muth asked defendant whether he might have gotten carried away during foreplay and struck, slapped, or punched LC. Defendant replied that he never touched LC with his hands as far as slapping or punching.

Defendant told Muth that as he left the apartment that night, he saw some people in the living room who had been at the party earlier that evening. He told these people that he had to get a ride, went to the convenience store, and hitched a ride home from an unknown person.

After defendant rendered this account, defendant’s mother and her son Lords Wesley joined defendant and Muth in the room. Muth showed defendant’s mother the preprinted Miranda waiver form that he had earlier shown defendant. Muth told her that he had read defendant all of his rights but that defendant did not feel comfortable signing anything. Defendant’s mother asked some questions about the form, Muth read through the list again and asked defendant whether he understood each right. Defendant answered in the affirmative. Defendant’s mother instructed defendant that if he understood his rights, he should initial each line. Defendant initialled the form, dated it, signed his name, and noted the time. Defendant’s mother, brother, and detective also signed, dated, and marked the time. At Muth’s request, defendant told his mother what had happened the night before.

Muth asked defendant whether he would be willing to make a written statement of the facts he had just recited. Defendant conferred briefly with his mother, who instructed him to give a written statement. Defendant’s mother dictated a three-sentence statement which defendant wrote down. The statement said that defendant had cooperated with the Schaumburg police and that he would continue to cooperate with the police until formal charges were brought against him. The statement also indicated that defendant wanted to withhold a written statement until he could obtain legal counsel. Defendant, his mother, his brother, and Muth all signed the form. Defendant’s mother and brother left the police station. Muth took photographs of defendant.

George Todd (George) testified for the defense. He did not live in the building, but rather, was visiting his brother, Danny Todd. George had only met LC on two or three prior occasions, and he had never been in her apartment. George had previously met Baumann, but he did not know him well either.

George testified that when he and his brother Danny went to check on LC, he could hear a male and female talking in the bedroom. He did not think LC sounded frightened or nervous, but admitted that four or five seconds elapsed between the time his brother identified himself as “Dan” and the time that LC responded “Dan who?” George assumed that LC was cheating on her boyfriend.

Danny Todd (Danny) lived with his family in the apartment next door to LC and Baumann. He testified that he had known LC and Baumann for about eight months, and that LC had talked with him a number of times about her relationship with Baumann.

According to Danny, one week prior to the rape, he talked with LC and she told him that she was tired of the constant fighting between her and Baumann. She told Danny that the two fought over money, his relationship with Stephanie, and his unemployment. Just the night before, LC had told Todd that she and Baumann had fought about Stephanie, and Baumann put his hand through the bedroom door and his fist through the wall in the bedroom. Danny said that LC told him that Baumann tore the bedroom door off its hinges.

Danny never saw the damage to the door, but his wife Donna did. At trial, she viewed a photograph of the bedroom door taken after the assault, and testified that the condition of the door in the photograph was worse than when she had seen the door a week prior to the rape.

Danny also testified that he had heard Baumann threaten LC but had never known Baumann to make good on his threats, that LC never told him that Baumann had actually hit her, and that he had never seen LC beaten up by Baumann.

On the night in question, Danny testified that he had earlier gone to LG’s apartment to ask that the music be turned down. Danny testified that LG, defendant, and LG’s friend were the only ones in the apartment. LC told Danny that Baumann had gone to that “fucking bitch’s” house, meaning Stephanie.

Danny further testified that when Haayer came over for help on July 8, 1989, Haayer was frantic and said he heard screams. Danny said that when he went to LG’s apartment to investigate, he heard LC say, “I don’t know where your pants are. They could be over there.” Danny did not think he heard anything unusual in LG’s voice, and he did not think she was being assaulted. Danny could not tell from LG’s voice, however, whether she was having difficulty talking or whether she had been crying. Danny agreed that he thought it was a little strange that LC asked “Dan who?”

Danny testified that about 45 minutes after he had returned to his apartment, he saw Baumann get out of his car and run up the apartment house stairs. Baumann asked where that “fucking nigger” was and said, “I’m going to kill him.” Danny said that he stood in front of LG’s apartment until Baumann told everybody to leave. Danny then returned to his apartment, where he could hear LC crying.

Peter Sonnefeldt (Sonnefeldt) testified that he investigated this case for the public defender’s office. He interviewed Ridenour in his home on three different occasions. Sonnefeldt testified that he took no notes during any of these interviews. After the first interview, he said he sat in his car and made some notes which he later discarded after preparing a written summary. With regard to the second and third interviews, however, Sonnefeldt said he never took any notes or prepared any written summary. Sonnefeldt testified that Doug Ridenour’s mother was present for some part of the first interview, although he was not exactly sure which part.

Mrs. Ridenour later testified that she was the one who let Sonnefeldt into her home for the first interview. She said she was present for the entire interview and did not leave at any point, because she was not sure whether her son should be speaking with the investigator. Mrs. Ridenour remembered that Sonnefeldt took notes during this interview. Mrs. Ridenour said she was present during the entire second and third interviews as well.

Sonnefeldt testified that Ridenour told him during the first interview that he thought that LC was trying to get even with Baumann. Ridenour denied ever having made this statement, and Mrs. Ridenour testified she never heard her son say that either. Mrs. Ridenour did not remember hearing Stephanie’s name being mentioned. Sonnefeldt also testified that Mrs. Ridenour told him she thought Baumann was a bum. At trial, Mrs. Ridenour said Sonnefeldt never asked her opinion of Baumann and she never volunteered it because she did not know him.

Defendant’s defense was based on consent, the theory that LC had fabricated the rape claim to appease Baumann, and that it was Baumann who inflicted LG’s injuries after his friend summoned him back to the apartment.

The jury acquitted defendant on the vaginal assault claim but found defendant guilty of aggravated sexual assault to the anus.

A sentencing hearing was held and the trial court sentenced defendant to serve a term of 14 years in the Illinois Department of Corrections.

Opinion

I

Defendant contends that his venire was unconstitutionally composed because African-Americans were systematically underrepresented. We disagree.

Section 9.2 of the Jury Commissioner’s Act (Act) (Ill. Rev. Stat. 1991, ch. 78, par. 32.2) provides that in counties containing more than one million inhabitants, jurors may be drawn from “such parts of the county” as determined by court rule to be most favorable to an impartial trial, and which division of parts will not incur unnecessary expense or unduly burden citizens from any part of the county. The statute provides that the rule may utilize established divisions within the county.

Cook County Circuit Court Rule 0.4 divides Cook County into three parts for the purpose of calling prospective jurors. Part I includes registered voters living anywhere in Cook County, part II includes registered voters living in zip code areas falling north of a certain area, and part III includes registered voters living in zip code areas falling south of the same area.

To establish a prima facie violation of the fair-cross-section requirement, the defendant must show:

“(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren v. Missouri (1979), 439 U.S. 357, 364, 58 L. Ed. 2d 579, 587, 99 S. Ct. 664, 668.

African-Americans are a distinctive group in the community. Thus, prong 1 on the Duren test is satisfied. Regarding the second prong of the Duren test, defendant argued that Cook County was a community for sixth amendment purposes and that the venires summoned on the two days of his hearing underrepresented African-Americans as compared to the eligible jury pool in the community of Cook County as a whole. Defendant also asserted that the venires drawn from the northern segment of the county underrepresented a distinct racial group and that 11 months preceding his trial, the venires drawn using this system had underrepresented African-Americans.

However, prong 2 of the Duren test has not been satisfied because the venire selection process comported with the due process principles as set out in section 9.2 of the Act. See also People v. Johnson (1987), 154 Ill. App. 3d 301, 304, 507 N.E.2d 179.

Prong 3 fails for the same reason. African-Americans were not systematically excluded because the jury selection process was in accordance with County Rule 0.4 and the Act. Further, defendant’s attempt to show systematic exclusion of African-Americans in the third municipal district over an 11-month period by having a jury supervisor “count heads” is without probative force because he testified that he based his opinion on personal observation. There is no evidence of record which demonstrates how or under what circumstances this jury supervisor kept count.

Defendant’s venire was constitutionally composed.

II

Defendant next contends that the trial court improperly exercised its discretion in evaluating prospective jurors’ impartiality. We disagree.

Supreme Court Rule 234 (Voir Dire Examination of Jurors and Cautionary Instructions) (134 Ill. 2d R. 234) provides:

“The court shall conduct voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial.”

Absent special circumstance, voir dire must be left to the discretion of the trial court because the “determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge.” Ristaino v. Ross (1976), 424 U.S. 589. 594-95. 47 L. Ed. 2d 258. 263. 96 S. Ct. 1017.1020.

We note that in Turner v. Murray (1986), 476 U.S. 28, 90 L. Ed. 2d 27, 106 S. Ct. 1683 (an interracial capital case), the Court stated that the

“fact of interracial violence alone is not a ‘special circumstance’ entitling the defendant to have prospective jurors questioned about racial prejudice.” (Turner, 476 U.S. at 35 n.7, 90 L. Ed. 2d at 36 n.7, 106 S. Ct. at 1688 n.7.)

In Turner, the court indicated that the proper analytical framework for evaluating a defendant’s argument is

“whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be indifferent as [they stand] unsworn.” Turner, 476 U.S. at 33, 90 L. Ed. 2d at 34-35,106 S. Ct. at 1687.

Here, during the course of the judge’s opening remarks to the venire, the trial court advised the jury that they were not to permit sympathy, bias, or prejudice to influence their verdict. With regard to the issue of race, the trial court stated:

“This happens to be a case where the defendant is black and the victim is white, but it is in no way a racial situation, and any race prejudice, anything like that, has nothing to do with this case, and if you have any attitudes reflecting that element, you must set them aside because I can assure you they don’t belong in this case, and they should not become involved in this case.”

Furthermore, during voir dire, the judge asked prospective jurors these questions, among others:

“Do any of you have any bias or prejudice against a person simply because he is charged with a crime?
Would the defendant’s race or the fact that the defendant and complaining witness are of different races tend to affect your ability to render a fair and impartial verdict?
Is there anything about the nature of the charge that would affect your ability to be fair and impartial?”

The judge also asked each panel of four prospective jurors the following questions, among others:

“Will you use any sympathy, bias or prejudice in reaching your decision? The purpose of this questioning of the jurors is to select a jury which is free from prejudice. As you sit there now, is there anything on your mind or is there some reason known only to you which would prevent you from reaching a fair and impartial decision in this case?
Are you a member of any fraternal organization which excludes anyone from membership on the basis of race?”

Arguably, the better discretion would have been to ask some of the additional questions requested by defendant. However, the trial court did not abuse its discretion.

Ill

Defendant contends that the verdicts were legally inconsistent. We disagree.

LC testified that there were three separate assaults in this case: an act of vaginal penetration, an act of anal penetration, and another act of vaginal penetration. Testimony was elicited that there was a break in time between each act: after the initial vaginal rape took place, Danny and his brother went to the apartment to check on LC. After the Todd brothers left, defendant walked LC around the apartment to show her that no one else was present. Defendant then committed anal sexual assault against LC. To stop this assault, LC rolled over and pushed defendant away. Defendant then committed his second vaginal rape.

The vaginal rape and the rectal rape were charged separately, and the jurors received separate instructions on these counts. The manner of charging and the jury instructions given are considered strong indicators of whether acts are separable for purposes of legal inconsistency analysis. People v. Spears (1986), 112 Ill. 2d 396, 405, 493 N.E.2d 1030.

In the instant case, the jurors could have found the evidence sufficient to prove LC’s lack of consent to the rectal act, but insufficient to prove her lack of consent to the act of vaginal intercourse. In support of the guilty anal assault verdict, the jury could have relied on LC’s testimony that she felt a lot of pain when defendant attempted to penetrate her rectally, and that she rolled over and pushed defendant away.

The verdicts were not legally inconsistent because the findings with respect to each verdict were not mutually exclusive.

The facts in the case at bar are distinguishable from those in People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335, where the Illinois Supreme Court reversed .and remanded for new trial the jury’s verdicts because the mental states to support the verdicts were legally and logically inconsistent. The Hoffer jury found the defendant guilty of murder, voluntary manslaughter, and involuntary manslaughter. Hoffer, 106 Ill. 2d 186, 478 N.E.2d 335.

In the instant case, the verdicts were not legally inconsistent.

IV

Defendant contends that he was entitled to an instruction on battery as a lesser included offense of aggravated criminal sexual assault. We disagree.

A lesser included offense is statutorily defined as an offense which is “established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” Ill. Rev. Stat. 1991, ch. 38, par. 2 — 9.

An included-offense instruction is required only in cases where the jury could rationally find the defendant guilty of the lesser offense and not guilty of the greater offense. People v. Perez (1985), 108 Ill. 2d 70, 81, 483 N.E.2d 250.

Reviewing courts need not consider alleged error in rejecting a defendant’s request for a jury instruction on the lesser included offense of simple battery if the evidence is so overwhelming that no rational jury could have concluded that simple battery was an appropriate verdict. See People v. Mitchell (1984), 105 Ill. 2d 1, 14, 473 N.E.2d 1270.

In People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, the Illinois Supreme Court set forth the analysis applicable here. The rationale for permitting instructions on lesser included offenses is to provide “an important third option to a jury which, believing that the defendant is guilty of something but uncertain whether the charged offense has been proved, might otherwise convict rather than acquit the defendant of the greater offense.” Bryant, 113 Ill. 2d at 502.

Further, instructions on lesser included offenses are not appropriate in every case because the evidence adduced at trial might preclude the use of an instruction on a lesser offense. (Bryant, 113 Ill. 2d at 507.) Thus, a lesser included offense instruction is properly given when the evidence would permit the jury rationally to find the defendant guilty of the lesser included offense and not guilty of the greater offense, and where the charged greater offense would require the jury to find a disputed factual element which is not required for conviction on the lesser included offense. Bryant, 113 Ill. 2d at 507.

Aggravated criminal sexual assault is defined as follows:

“(a) The accused commits aggravated criminal sexual assault if he or she commits criminal sexual assault and any of the following aggravating circumstances existed during the commission of the offense:
(2) the accused caused bodily harm to the victim; or
(3) the accused acted in such a manner as to threaten or endanger the life of the victim or any other person.” Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14.

Defendant requested the following instruction on battery as a lesser included offense:

“A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.” Ill. Rev. Stat. 1991, ch. 38, par. 12 — 3.

The Illinois Supreme Court has held that battery by bodily harm is not an included offense of rape and a defendant is not entitled to an instruction on battery by bodily harm in a prosecution for rape. People v. Mays (1982), 91 Ill. 2d 251, 258, 437 N.E.2d 633.

Defendant contends that battery committed when an offender makes physical contact of an insulting or provoking nature is properly considered a lesser included offense of rape. Defendant relies, for this contention, upon the case of People v. Margiolas (1983), 117 Ill. App. 3d 363, 366, 453 N.E.2d 842.

However, Margiolas is factually distinguishable from the case at bar. In Margiolas, once inside the bedroom, the defendant attempted to unbutton complainant’s blouse and told her to give him “some.” The complainant made a verbal objection and tried to stop him by grabbing his hand. The defendant, however, continued to fumble with the complainant’s blouse until it was unbuttoned halfway. The defendant forced complainant to sit on a bed, pulled down her pants and underpants, and unzipped his trousers. Complainant lay back on the bed and told him, “Just don’t hurt me.” The defendant got on top of the complainant and had sexual intercourse with her.

At trial, the Margiolas court granted the defendant’s motion for a directed finding as to the rape charge due to the lack of evidence of resistance, as well as the lack of evidence of “futility of fear.” The lower court then ordered the trial to proceed as to the lesser included offense of battery based on contact of an insulting or provoking nature. Defense rested, the court entered a finding of guilty, and the defendant appealed. On these facts, the appellate court affirmed the trial court. Margiolas, 117 Ill. App. 3d at 365.

The magnitude of the physical acts charged in this case could not be accurately categorized as physical contact of merely an insulting or provoking nature. Instructions on lesser included offenses are not appropriate in every case because the evidence adduced at trial might preclude the instruction. Bryant, 113 Ill. 2d at 507.

Based on the evidence adduced at trial in this case, the trial court correctly rejected the battery instructions.

V

Defendant contends that he was not proven guilty beyond a reasonable doubt. We disagree.

On review, the test 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.” (Emphasis in original.) (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Moreover, it is the jury’s responsibility to “resolve factual disputes, assess the credibility of the witnesses, and determine the weight and sufficiency of the evidence.” (People v. Yates (1983), 98 Ill. 2d 502, 518, 456 N.E.2d 1369.) And, the jury’s judgment will not be usurped unless the evidence is so unsatisfactory or improbable that a reasonable doubt remains. Yates, 98 Ill. 2d at 518-19.

Trahan testified that she was awakened when she heard someone screaming loudly. Haayer also testified that he heard screaming.

Additionally, defendant claims that LG’s failure to cry for help when Danny was at her door lessens her credibility. But LC testified that when Danny came to check on her, defendant was straddling her and warning her to stay silent. Defendant also argues that it defies credibility to believe that he would give up rectal assault simply because LC said that it was painful. However, LC testified that defendant simply straddled her again and put his penis in her vagina.

Defendant asserts that the sufficiency of the evidence was weakened because the police did not recover LC’s tom clothing on the night of her assault. However, a police officer testified that clothing was strewn all over the bedroom, and he recovered only those items which were in the area where he was told the assault took place. Also, there was testimony that the police did recover a bloodstained white tee-shirt, a bloodstained jersey, a bloodstained pillow case, and a bloodstained bed sheet.

A police officer further testified that although he did not recover the print shirt on the night of the assault, he remembered seeing it by the bed, and in fact it was visible in one of the photographs he had taken that night.

VI

Defendant contends that the trial court erred by rejecting defendant’s various evidentiary objections. We disagree.

A

Defendant’s contention that the court erred in permitting LC to testify that she suffered from permanent vision problems and continued to suffer headaches as a result of the assault is not well founded.

LC testified as to the effects of the incident but she did not testify that her condition was permanent. Such testimony was permissible.

B

Defendant contends that the trial court erroneously allowed a prosecution witness to opine on whether absence of genital trauma was consistent with rape thus invading the province of the jury.

This contention is not well founded as the doctor testified that absence of genital trauma did not necessarily constitute absence of penetration. He did not determine the ultimate issue, which was whether the victim had been raped. Thus, he did not invade the province of the jury.

C

Defendant contends that his conviction should be reversed because the State added paramedic Matousek to its list of witnesses mid-trial and called her. Defendant also asserts error because it was barred from cross-examining Matousek on her refusal to talk to defense counsel concerning her testimony.

Paramedic Matousek’s testimony did not constitute error because she was called as a rebuttal witness. Trial courts may allow rebuttal witnesses to be called.

While it would have been error for the State to advise Matousek not to talk to the defense, defendant did not present evidence demonstrating that the State so advised Matousek. We are cognizant of a third district opinion, People v. McCollum (1992), 239 Ill. App. 3d 593, 607 N.E.2d 240, which provides that a witness’ refusal to talk to the other side in advance of trial may be brought out on cross-examination. However, the better rule is that an objection sustained by the court as to an attempt to cross-examine a witness about his refusal to talk to an adverse party generally is not error. People v. Brown (1980), 87 Ill. App. 3d 368, 372, 409 N.E.2d 81.

D

Defendant’s contention that his stationhouse statement was erroneously admitted as a false exculpatory statement against penal interest when defendant conceded intercourse with LC is without merit as the State may choose to present any statement made by defendant even if it appears to be exculpatory on the theory that it may be treated as an admission.

E

Defendant’s contention that the trial court erroneously denied defendant the opportunity to introduce evidence of his reputation for veracity when it granted the State’s motion in limine and barred evidence of his reputation for truthfulness is without merit because defendant’s character for truthfulness was not in issue.

F

Defendant’s contention that the trial court improperly denied his motion in limine to bar admission of his prior theft conviction is without merit because the evidence was admissible under People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.

G

Defendant’s contention that the trial court should have excluded testimony concerning photographs of defendant which were obtained from police files because their use prejudicially informed the jury that defendant had a prior police record is without merit because the officer testified neither that the photograph was a mug shot nor about a prior arrest.

H

Defendant’s contention that the trial court’s refusal to allow certain testimony on the relative sizes of defendant and an available rescuer was error is without merit because the jury could give appropriate weight to this issue based upon testimony already heard regarding the size of LG’s “available rescuer.”

Further, trial courts are vested with wide discretion in allowing the cross-examination of witnesses.

Defendant’s contention that the trial court erroneously restricted cross-examination of LC on the nature and quality of her relationship with Baumann is without merit because it was within the trial court’s province to determine whether the scope and relevance of such cross-examination was proper.

I

Defendant contends that the trial court improperly admitted the “Jungle Brothers” cassette tape into evidence because it was irrelevant. We disagree.

Evidence is admissible if it is relevant to an issue in dispute and its probative value is not substantially outweighed by its prejudicial effect. (People v. Gonzalez (1991), 142 Ill. 2d 481, 487, 568 N.E.2d 864.) Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence. (Gonzalez, 142 Ill. 2d at 487-88.) Trial courts are given broad discretion in ruling on issues of relevancy and materiality, and a court’s decision is generally not overturned absent an abuse of discretion. People v. Williams (1990), 196 Ill. App. 3d 851, 866, 554 N.E.2d 1040.

Here, the cassette tape was relevant because the testimony surrounding it showed that, contrary to defendant’s story as elicited through Detective Muth that defendant was uncomfortably standing alone in a comer at the birthday party, he in fact asked LC if he could play his cassette, showed LG’s friend some dance moves, and asked a woman to dance.

VII

Defendant contends that the trial court abused its discretion by imposing a 14-year sentence. We disagree.

A trial court’s sentencing decisions are entitled to great deference and weight since it is in a better position than a reviewing court to fashion an appropriate penalty. People v. Streit (1991), 142 Ill. 2d 13, 18-19, 566 N.E.2d 1351.

Although a trial court’s discretion in making sentencing decisions is not unbridled, reviewing courts may not alter the sentence absent an abuse of discretion. Streit, 142 Ill. 2d at 19.

Here, the trial court affirmed that in reaching its sentencing decision, it took into account the. evidence at trial, the contents of the presentence report, the evidence and information offered by the respective parties during the sentencing hearing, and the statements offered by LC and the defendant.

Finally, we note that a juror dispatched a post-trial communication appealing for leniency because she felt that defendant was simply in the wrong place at the wrong time. However, this letter cannot properly be considered on appeal. The sentence was within the permissible range of the trial court’s discretion.

Affirmed.

GORDON, RJ., and McNULTY, J., concur.


source: Caselaw Access Project

author: JUSTICE BRESLIN

license: Public Domain

text:
      In re CUSTODY OF KRISTINA PFAFF (Pamela Pfaff, n/k/a Pamela Steep, Petitioner-Appellee, v. Stephen Pfaff, Respondent-Appellant).
    Third District
    No. 3-92-0970
    Opinion filed September 3, 1993.

      Chris D. Rouskey, of Rouskey & Kucinic, of Joliet, for appellant.
    No brief filed for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The respondent, Stephen Pfaff, appeals from a judgment of the trial court which terminated a joint custody arrangement and awarded sole custody to the petitioner, Pamela (Pfaff) Steep. We affirm.

We initially note that an appellee’s brief was not filed in this case. However, since the record is simple and the issue can be easily decided without an appellee’s brief, we shall address the issue on the merits. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The record shows that the parties’ daughter, Kristina, was born on November 24, 1986. The parties’ marriage was dissolved on May 27, 1988. Pursuant to the dissolution order, the parties were awarded joint custody of Kristina, and Pamela was named the custodial parent.

On May 12, 1992, Pamela filed a petition seeking sole custody of Kristina. She alleged that Stephen had not cooperated with her regarding custody arrangements and that they could no longer consult each other concerning Kristina’s best interests.

At a hearing on the petition, Pamela testified that she and Stephen disagreed about which days of the week Stephen would have custody of Kristina. She also said there were disagreements over Stephen’s summer vacation time with Kristina as well as with whom Kristina would be on Christmas day. Lastly, Pamela testified that they argued over which dentist Kristina would go to and which kindergarten she would attend.

At the conclusion of the hearing, the trial judge awarded sole custody to Pamela. In making its ruling, the court found that it was in Kristina’s best interest to terminate the joint custody order. The judge stated as follows:

“The problem is when [the parties] can’t agree somebody has to make the decision and that person should be the custodial parent.
* * *
*** [I]t is just obvious to me that these folks don’t communicate, period.
* * *
I am really not too much concerned about these [two] people. I am concerned about Kristina. When they argue, when they can’t agree on which dentist she should go to, which school she should go to, what she can do on every step of the way, the only one that suffers is the child.”

These comments were not included in the judge’s written order.

On appeal, Stephen argues that the trial judge failed to make a specific finding as required by section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 610(b)).

Section 610 of the Act provides that if two years have elapsed following a custody judgment, a court shall not modify the custody order unless it finds clear and convincing evidence that a change has occurred in the circumstances of the child or custodian and that modification is necessary to serve the best interest of the child. (Ill. Rev. Stat. 1991, ch. 40, pars. 610(a), (b).) The court’s decision must be based upon facts arising since the judgment or upon facts unknown at the time of the judgment. (Ill. Rev. Stat. 1991, ch. 40, par. 610(b).) The Act requires the court to make specific findings to support a change in a prior custody order. (Vollmer v. Mattox (1985), 137 Ill. App. 3d 1, 484 N.E.2d 311; In re Marriage of Oliver (1987), 155 Ill. App. 3d 181, 507 N.E.2d 1298.) However, specific findings need not be contained in the written order when they are mentioned orally by the judge at the time he makes his decision. In re Marriage of Cripe (1989), 183 Ill. App. 3d 37, 538 N.E.2d 1175.

In the instant case, the trial judge specifically found that after the marriage had been dissolved, the parties were unable to agree on important aspects of Kristina’s care. The judge further found that it was in the best interest of the child to terminate the joint custody order. Based on those statements, we hold that the trial court made findings that were specific enough to satisfy section 610(b), although we note that the better procedure is to reduce those findings to a written order. Regardless, the findings were made and will be upheld by this court.

Stephen also argues on appeal that the trial court’s custody modification was against the manifest weight of the evidence. Specifically, he contends that Pamela should not have been rewarded for her lack of cooperation by gaining sole custody of Kristina.

We note that in cases involving a transfer of custody, there is a legislative presumption favoring retention of the current custodian in order to promote stability and continuity in the child’s environment. (In re Marriage of Eldert (1987), 158 Ill. App. 3d 798, 511 N.E.2d 945.) A change in custody will not be disturbed on appeal unless the trial court’s decision was contrary to the manifest weight of the evidence or constituted an abuse of discretion. In re Custody of Dykhuis (1985), 131 Ill. App. 3d 371, 475 N.E.2d 1107.

Here, the record shows that the parties were unable to agree on important aspects of Kristina’s care. It does not appear that either party was solely to blame for the disagreements. In these circumstances, the presumption in favor of the current custodian provides an adequate basis for the trial court’s decision. This is not a “reward” to Pamela but a recognition of the importance of stability in Kristina’s life. We therefore find that the trial judge’s award of sole custody to Pamela was not against the manifest weight of the evidence or an abuse of discretion.

The decision of the circuit court of Grundy County is affirmed.

Affirmed.

McCUSKEY, P.J., and STOUDER, J., concur.


author: JUSTICE QUETSCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID DENSON, Defendant-Appellant.
    Second District
    No. 2 — 91—0125
    Opinion filed September 7, 1993.

      Theodore Gottfried, of State Appellate Defender’s Office, of Springfield, and Kathleen T. Zellner, of Kathleen T. Zellner & Associates, of Naperville, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE QUETSCH

delivered the opinion of the court:

Defendant, David Denson, appeals from an order of the circuit court of Lake County denying his petition under the Post-Conviction Hearing Act (725 ILCS 5/122 — 1 et seq. (West 1992)). The issues presented for review are: (1) whether decisions invalidating certain pattern jury instructions given at defendant’s trial may be applied retroactively in post-conviction proceedings, and (2) whether defendant was denied the effective assistance of counsel.

Following a jury trial, defendant was convicted of two counts of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1 (now codified, as amended, at 720 ILCS 5/9 — 1 (West 1992))) arising from the fatal shootings of Angela Gardner and George Coleman in Waukegan. Defendant was originally sentenced to two concurrent 40-year terms of imprisonment, but on the State’s petition, the Illinois Supreme Court, in the exercise of its supervisory jurisdiction, ordered the trial court to vacate the sentence and to sentence defendant to a term of natural-life imprisonment pursuant to section 5 — 8— 1(a)(1)(c) of the Unified Code of Corrections (730 ILCS 5/5 — 8—1 (West 1992)). In defendant’s direct appeal, we affirmed the conviction and the sentence entered pursuant to the supreme court’s order. People v. Denson (1985), 139 Ill. App. 3d 914, cert. denied, (1986), 479 U.S. 837, 93 L. Ed. 2d 80, 107 S. Ct. 137.

The evidence presented at trial is set forth in detail in our opinion deciding defendant’s direct appeal (People v. Denson (1985), 139 Ill. App. 3d 914) and need only briefly be summarized here. Defendant testified that he and Angela Gardner had begun dating in the summer of 1983. Their relationship broke off as a result of defendant’s involvement with another woman, Sharon Daniels, with whom defendant had a child. After their relationship ended under these circumstances, Gardner began spreading rumors that defendant had raped her and had stolen $2 from her. Gardner was connected in some way to the Vice Lords street gang and, in fact, had a gang insignia tattooed on her arm. Defendant testified that on several occasions prior to the shootings he had been accosted by groups of young men who threatened reprisals against him based on Gardner’s allegations. Four or five days before the shooting, when defendant approached Gardner to talk about the situation, she told him “Now you [sic] going to get yours.”

In the early evening of November 1, 1983, defendant and his friends Bernard Jedkins and Sam Jenkins were together at defendant’s house. Jedkins told defendant that Gardner had arranged to have defendant beaten up and that the assailants were waiting for him. Defendant indicated that he was going to ask Gardner what was going on. They left defendant’s house on foot, but returned for defendant’s car, and as they were driving off, defendant saw Gardner and Coleman coming out of Ricky Allen’s house. Defendant told Jedkins and Jenkins that he wanted to “find out what is happening now.” Jedkins and Jenkins warned defendant that there were more people waiting for him at Allen’s house.

They drove farther, and defendant parked the car, again indicating that he was going to confront Gardner. Defendant asked Jenkins and Jedkins if they would back him up if a fight occurred, but they responded that they would not. Defendant took a gun from a tool box in his car and they began walking. When he saw Gardner and Coleman, defendant walked toward them holding his gun for protection. Jedkins and Jenkins stayed behind. Defendant saw a group of five to seven young men about three houses behind Gardner and Coleman. The group included some gang members who had previously threatened revenge against defendant for raping Gardner and stealing $2 from her. When defendant was a few feet from Gardner and Coleman, Coleman said, “What is this between you and my woman?” Defendant was then struck in the mouth by some object, and his head snapped back. Defendant then shot Coleman. Gardner bent down, which scared defendant. He then shot Gardner. Defendant testified, “I was already nervous about the people down the street and I just jumped and the gun went off again.” Coleman had started to run and defendant panicked and ran.

Bernard Jedkins and Sam Jenkins testified for the State. They had been at defendant’s house and had discussed defendant’s situation with Gardner, including their belief that Gardner had enlisted some boys to beat defendant up. Jedkins and Jenkins both testified that during the course of the evening defendant had threatened, in essence, to beat up Gardner and had also stated that he was going to shoot Gardner in the head and was also going to shoot whoever was with her. Jenkins testified that when defendant exited his car immediately prior to the shootings, defendant said he was “going to get this bitch.” Defendant jogged or ran toward Gardner and Coleman and pulled out a gun when he was about 10 to 20 feet from them. Defendant fired at Gardner and Coleman. Coleman began running and defendant ran after him. Nobody else was in the area around Coleman and Gardner when defendant approached and shot them.

Later that evening defendant contacted the Waukegan police department and voluntarily accompanied Waukegan police officers to the police station where he was interviewed by Detective Howard Pratt that same evening and by Detective Ralph Henriquez the next morning. Detective Pratt testified that defendant told him he shot Coleman at which time he panicked and shot Gardner. Defendant also told Pratt he did not know why he shot them. Detective Henriquez testified that defendant told him that he pulled his gun out “because he was very angry at Angie and wasn’t thinking right.”'

Based upon the evidence presented at trial, the jury found defendant guilty of murder in the killings of Coleman and Gardner, and as noted above, we affirmed the conviction. Thereafter, on December 13, 1989, defendant filed his petition for relief under the Post-Conviction Hearing Act, contending that his right to due process was violated by the use of jury instructions which had subsequently been held invalid in People v. Reddick (1988), 123 Ill. 2d 184. Defendant further contended that he was deprived of the right to effective assistance of counsel at trial because of, inter alia, trial counsel’s failure to present certain evidence bearing on defendant’s state of mind at the time of the shootings. The circuit court denied the petition, and this appeal followed.

Defendant first contends that the circuit court erred in denying his request for post-conviction relief based on the use of jury instructions similar to instructions later found to be defective by the Illinois Supreme Court in People v. Reddick (1988), 123 Ill. 2d 184. The circuit court based its ruling on People v. Flowers (1990), 138 Ill. 2d 218, in which our supreme court held that its decision in Reddick is not to be applied retroactively to a case under consideration in a post-conviction proceeding. Defendant maintains that irrespective of the retroactivity of Reddick he is entitled to relief pursuant to Federal due process and retroactivity principles articulated by the United States Court of Appeals for the Seventh Circuit in its recent decisions in Falconer v. Lane (7th Cir. 1990), 905 F.2d 1129, and Taylor v. Gilmore (7th Cir. 1992), 954 F.2d 441, rev’d (1993), 508 U.S___ 124 L. Ed. 2d 306, 113 S. Ct. 2112.

After the parties submitted their briefs in this appeal, the United States Supreme Court granted certiorari in Taylor (Gilmore v. Taylor (1992), 506 U.S. 814, 121 L. Ed. 2d 22, 113 S. Ct. 52) and reversed the Court of Appeals’ decision. (Gilmore v. Taylor (1993), 508 U.S___ 124 L. Ed. 2d 306, 113 S. Ct. 2112.) We also note that in People v. Qualls (1992), 233 Ill. App. 3d 394, a case decided after the briefs were filed in the case at bar, but prior to the Supreme Court’s reversal of Taylor, we refused to follow Taylor, finding it in conflict with our supreme court’s decision in Flowers. As discussed below, in view of the Supreme Court’s reversal of the principal case defendant relies upon, defendant’s argument finds no support in either Federal or State authority. Accordingly, we affirm the circuit court’s denial of post-conviction relief requested on the basis of improper instructions.

In People v. Reddick (1988), 123 Ill. 2d 184, our supreme court held that the pattern jury instructions on the burden of proof for murder and voluntary manslaughter (Illinois Pattern Jury Instructions, Criminal, Nos. 7.02, 7.04, 7.06 (2d ed. 1981)), read together, were erroneous because they improperly placed on the State the burden of proving the mitigating factors which reduce the offense to voluntary manslaughter, “a burden the State, in seeking a murder conviction, would have no reason to fulfill.” (People v. Johnson (1991), 146 Ill. 2d 109, 140.) According to the court in Reddick, such instructions assured that the jury could not convict the defendant of voluntary manslaughter since “even if a mitigating mental state is proved, it will have been proved by the defendant, not the People.” Reddick, 123 Ill. 2d at 194-95.

In People v. Flowers (1990), 138 Ill. 2d 218, the court held that Reddick should not apply retroactively to a case under consideration in a post-conviction proceeding. To reach this conclusion, the court utilized the analysis developed by the United States Supreme Court in Teague v. Lane (1989), 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060, which addressed the question of retroactivity in the analogous context of Federal habeas corpus proceedings. Under Teague, “decisions establishing new constitutional rules of criminal procedure are not to be applied retroactively to cases pending on collateral review unless the new rule either (1) places certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe, or (2) requires the observance of those procedures that are implicit in the concept of ordered liberty.” (Flowers, 138 Ill. 2d at 237, citing Teague, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073.) A case announces a new rule “when it breaks new ground or imposes a new obligation on the States or the Federal Government. [Citations.] To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” (Emphasis in original.) Teague, 489 U.S. at 301, 103 L. Ed. 2d at 349,109 S. Ct. at 1070.

Our supreme court determined that Reddick announced a new rule within the meaning of Teague:

“Though Reddick was doctrinally consistent with existing laws regarding affirmative defenses and burdens of proof, it was the first time this court applied these legal principles to the specific situation of the murder and voluntary manslaughter instructions. In applying these principles, not only did the court determine that the instructions were erroneous, it also ruled that, as written, they implicated constitutional rights. This conclusion did not necessarily flow from the statutory analysis. [Citation.] Also, this ‘result was not dictated by precedent existing at the time.’ ” (Emphasis in original.) (Flowers, 138 Ill. 2d at 240, quoting Teague, 489 U.S. at 301, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070.)

The Flowers court further concluded that neither of the exceptions set forth in Teague permitting retroactive application of new constitutional rules of criminal procedure applied. 138 Ill. 2d at 241-42.

Defendant seeks to avoid the effect of the holding in Flowers by relying on Federal court decisions involving constitutional challenges to the same jury instructions. Implicit in defendant’s reasoning is the premise that Reddick was decided on State law grounds, and the retroactivity analysis in Flowers is correspondingly limited to nonconstitutional challenges to the murder and manslaughter instructions.

In Falconer v. Lane (7th Cir. 1990), 905 F.2d 1129, the United States Court of Appeals for the Seventh Circuit found these instructions to be defective, not because of improper allocation of the burden of proof, but on the separate basis that the instructions failed to apprise the jury that proof of the mitigating mental states precluded a murder conviction. (Falconer, 905 F.2d at 1136 (“No matter how clearly either the State or the defense proved the existence of the mitigating ‘manslaughter defenses,’ the jury could nevertheless return a murder verdict in line with the murder instruction as given”).) Moreover, the court noted that because the murder instruction, which makes no reference to the “manslaughter defenses,” appeared before the voluntary manslaughter instructions “[jjurors are *** encouraged by the structure of the instructions to answer [the murder instruction’s] requirements first and then move on only if those requirements cannot be met.” (905 F.2d at 1136.) The court emphasized the constitutional nature of the defect:

“[The instructions] specifically directed the jury that it could return a verdict of murder if the State negated the self-defense theory without making any reference to evidence regarding provocation or unreasonable belief of justification. Explicit misdirection on this scale violates the constitutional guarantee of due process and demands a new trial or re-sentencing.” 905 F.2d at 1137.

In Taylor v. Gilmore (7th Cir. 1992), 954 F.2d 441, rev’d (1993), 508 U.S___ 124 L. Ed. 2d 306, 113 S. Ct. 2112, the Seventh Circuit held that Falconer did not announce a new rule and could therefore be applied retroactively. The defendant in Taylor argued that both Reddick and Falconer should be applied retroactively in the context of Federal habeas corpus proceedings. The court found the retroactivity of Reddick to be irrelevant, however, based on the observation that Reddick was “grounded solely on Illinois criminal law, and we are foreclosed from granting habeas relief because a state court committed an error of state law.” (954 F.2d at 448.) However, the court agreed with the defendant that Falconer could be applied retroactively. Applying the Teague test, the court identified two United States Supreme Court decisions which, in the court’s view, compelled or dictated the result in Falconer.

First the court stated that Falconer was properly viewed as an application of the holding in Boyde v. California (1990), 494 U.S. 370, 380, 108 L. Ed. 2d 316, 328-29, 110 S. Ct. 1190, 1196, that in cases challenging the sufficiency of ambiguous jury instructions the court must ask whether there is a reasonable likelihood that the jury has applied the challenged instruction in an invalid manner. (Taylor, 954 F.2d at 452-53.) Although this principle had not previously been applied to the murder and manslaughter instructions at issue, the court observed that the application of the general principle to particular instructions was a “quintessentially factual determination.” (954 F.2d at 453.) Thus, the court concluded, “[t]o assert that Falconer was new, because it was the first case to assert that a particular set of instructions was ambiguous and susceptible to different interpretations, would obliterate the distinction between rules and their applications, and thereby contravene the principles of Teague.” 954 F.2d at 453.

The court also found precedent for Falconer in Connecticut v. Johnson (1983), 460 U.S. 73, 74 L. Ed. 2d 823, 103 S. Ct. 969, which, according to the court, condemned instructions that lead the jury to ignore exculpatory evidence in finding the defendant guilty of murder beyond a reasonable doubt. (Taylor, 954 F.2d at 453, citing Johnson, 460 U.S. at 84-85, 74 L. Ed. 2d at 832-33, 103 S. Ct. at 976.) Observing that the states of mind which support a manslaughter conviction are exculpatory with respect to the charge of murder, the court concluded that the instructions at issue “clearly contravene the principle advanced in Johnson.” (954 F.2d at 453.) Accordingly, based upon the precedential force of Boyde and Johnson, the court found that Falconer did not announce a “new rule” and it could therefore be applied retroactively.

In Gilmore v. Taylor (1993), 508 U.S___ 124 L. Ed. 2d 306, 113 S. Ct. 2112, the Court reversed the Seventh Circuit’s decision. The Court found that neither Boyde nor Johnson dictated the result in Falconer. Boyde was inapposite, in the Court’s view, because it was a capital case “with respect to which *** the Eighth Amendment requires a greater degree of accuracy and fact finding than would be true in a non-capital case.” (508 U.S. at_, 124 L. Ed. 2d at 318, 113 S. Ct. at 2117.) The Court observed, “[ojutside of the capital context, we have never said that the possibility of a jury misapplying state law gives rise to federal constitutional error.” 508 U.S. at_, 124 L. Ed. 2d at 318, 113 S. Ct. at 2117.

Similarly, the Court disagreed with the Seventh Circuit’s interpretation of Johnson. Johnson elaborated on Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450, which invalidated instructions that created an erroneous presumption on the element of intent. According to the Court:

“Sandstrom is a lineal descendant of [In re] Winship [(1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068]; it simply held that an instruction which creates a presumption of fact violates due process if it relieves the State of its burden of proving all of the elements of the offense charged beyond a reasonable doubt. The Court of Appeals read the Johnson plurality’s discussion of Sandstrom as establishing the ‘due process principle’ that instructions are unconstitutional if they lead ‘the jury to ignore exculpatory evidence in finding the defendant guilty of murder beyond a reasonable doubt.’ [Citation] (emphasis added). But neither Sandstrom nor Johnson can be stretched that far beyond Winship. The most that can be said of the instructions given at respondent’s trial is that they created a risk that the jury would fail to consider evidence that related to an affirmative defense, with respect to which Winship’s due process guarantee does not apply.” Gilmore, 508 U.S. at_, 124 L. Ed. 2d at 318-19, 113 S. Ct. at 2118.

The Court therefore held that Falconer constituted a new rule which would not be applied retroactively. (508 U.S. at_, 124 L. Ed. 2d at 319-20, 113 S. Ct. at 2119.) Since our supreme court and the United States Supreme Court have, respectively, found that State and Federal decisions invalidating the jury instructions challenged by defendant do not apply retroactively, the court below did not err in denying post-conviction relief requested by defendant on the basis of defects in the instructions.

Defendant next contends that he was entitled to post-conviction relief on the basis that he received ineffective assistance of counsel at trial. Defendant bases his claim of ineffective assistance of counsel on the failure of trial counsel to present evidence bearing on his state of mind at the time of the shootings. Specifically, defendant maintains that his attorney should have presented the expert testimony of Dr. Ronald Baron, a psychiatrist who examined defendant prior to trial, regarding defendant’s state of mind. Defendant also maintains that his attorney should have presented evidence of an incident occurring a few years prior, to the shootings during which defendant was attacked and seriously injured. According to defendant this evidence explains his concern about being attacked by Gardner and Coleman.

The standard for showing a want of effective assistance of counsel stated in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and adopted by our supreme court in People v. Albanese (1984), 104 Ill. 2d 504, 525-27, is that the defendant must establish that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, were it not for counsel’s deficient representation, the outcome of the proceedings would have been different. (People v. Hernandez (1993), 246 Ill. App. 3d 243, 252, 615 N.E.2d 843, 849.) When considering a claim of ineffective assistance of counsel, we entertain a strong presumption that defendant’s counsel acted within a wide range of reasonable, competent assistance. (People v. Johnson (1989), 128 Ill. 2d 253, 266; Hernandez, 246 Ill. App. 3d at 252, 615 N.E.2d at 849.) A defendant cannot generally make out a claim for ineffective assistance of counsel based on his counsel’s trial strategy. People v. Shum (1987), 117 Ill. 2d 317, 370; Hernandez, 246 Ill. App. 3d at 252, 615 N.E.2d at 849.

We first consider defendant’s argument regarding the failure to utilize Dr. Baron as an expert witness. The record indicates that Dr. Baron conducted a psychiatric interview of defendant prior to trial. A report (which is in the form of a letter dated February 13, 1984, to defendant’s attorney) based on the examination was submitted to the trial court in connection with sentencing proceedings. In his letter, Dr. Baron related defendant’s account of the circumstances surrounding the shootings, including defendant’s statement that “[h]e feared some kind of assault” at the time of the incident. Dr. Baron observed that “Mr. Denson told his story in a coherent and believable manner.” Based on this letter, defendant contends that Dr. Baron should have been called to testify on his behalf. We do not believe that such testimony would be admissible. The letter reveals no basis on which Dr. Baron could have testified about defendant’s state of mind other than to express his view that the defendant’s own statements during the psychiatric interview were truthful. Initially we observe that while Dr. Baron’s letter indicates that he found defendant’s account of the incident to be believable, nothing suggests that he formed a psychiatric opinion regarding defendant’s truthfulness during the interview. In context, it appears Dr. Baron’s statement that he found defendant believable merely prefaces other observations in the letter, which was apparently written with sentencing issues in mind.

We recently addressed the admissibility of a psychiatrist’s opinion as to the truthfulness of a criminal defendant’s exculpatory statements made during a psychiatric examination in People v. Pertz (1993), 242 Ill. App. 3d 864, which, coincidentally, involved testimony by Dr. Baron. In Pertz, the defendant, who was accused of murdering his wife by striking her with a baseball bat, testified that during heated arguments with his wife he sometimes experienced blackout-like episodes that he referred to as “whiteouts” because of a visual symptom he experienced during the episodes. The defendant testified that on the evening of his wife’s death they were arguing, and the defendant grabbed his wife’s sleeve and threw her backwards, at which point he suffered a whiteout. He testified that when he recovered from the whiteout his wife appeared lifeless, and panicking and fearing arrest, the defendant struck her with a baseball bat to make her death look like an accident. Dr. Baron conducted several interviews of the defendant and administered various tests, based on which Dr. Baron testified that the defendant suffered from mild hypoglycemia and a mild to moderate organic personality disorder with temporal lobe epilepsy. On appeal following his conviction, the defendant contended that the trial court erred in barring Dr. Baron’s opinion regarding whether the defendant had responded honestly to questions posed by Dr. Baron during the psychiatric interviews. We found no error, observing as follows:

“The outcome of defendant’s trial rested, in large part, on whether the jury believed defendant’s version of the sequence of events on the night of the offense. The question of defendant’s credibility was a concept within the common and ordinary understanding of the jury. If an expert’s opinion does not present a concept beyond such understanding, the expert’s testimony regarding a witness’ credibility is properly excluded. [Citation.]
A good portion of the interviews conducted by Dr. Baron pertained to the offense itself and to defendant’s account of his alleged physical conditions which existed on the night of the offense. The doctor’s opinion as to defendant’s honesty during the interviews would have had a direct bearing on these aspects of the interviews. His opinion would have been an expression of his belief in defendant’s testimony, would have lent his professional credibility to defendant’s self-serving declarations, and would have conferred upon them a legitimacy which could have unfairly affected the credibility of the case.” 242 Ill. App. 3d at 900.

We also found no error in the trial court’s refusal to permit Dr. Baron to testify as to the defendant’s intent on the night of the offense:

“The jury heard Dr. Baron testify as to tests he conducted, the results of those tests, and his opinions concerning defendant’s personality. Additionally, the doctor read to the jury the various traits characteristic of one having organic personality disorder and also testified as to the dosages of the medications defendant told the doctor he took on the date of the offense. The jury also heard the doctor express his opinion, based upon a reasonable degree of medical and psychiatric certainty, that defendant was suffering from organic personality disorder with temporal lobe epilepsy on the night of his wife’s death. It was permissible for Dr. Baron to give this opinion, but it was not permissible for him to express his opinion as to defendant’s state of mind on the night of the incident.
Dr. Baron was not with defendant nor did he observe defendant on the night of his wife’s death. Thus it would have been impossible for him to opine with a reasonable degree of medical and psychiatric certainty whether defendant had intended his act of hitting her in the head with a baseball bat. The doctor’s testimony as to defendant’s mental state was meant to show that defendant lacked the intent and that he acted recklessly. However, recklessness is not a state of mind which requires expert testimony. Whether defendant appreciated the risk involved when he killed his wife or whether he panicked were questions for the jury and not issues for testimony by an expert psychiatrist.
The question of defendant’s state of mind at the time of the crime was a question of fact to be determined by the jury [citation], which was charged with taking this evidence along with all the other evidence presented to determine whether defendant had the intent to kill his wife. Allowing Dr. Baron to testify as to defendant’s intent would have usurped the province of the jury.” 242 Ill. App. 3d at 902-03.

We employed similar reasoning in our decision in People v. Ambro (1987), 153 Ill. App. 3d 1, overruled in part on other grounds in People v. Chevalier (1989), 131 Ill. 2d 66. In Ambro the defendant stabbed his wife to death after she revealed her marital infidelity, and he was convicted of murder. The defendant testified that he had no conscious knowledge of stabbing his wife and had no intent to do so. On appeal the defendant argued that the trial court erred in excluding testimony by a psychiatrist who examined the defendant after his arrest as to the defendant’s mental state at the time he killed his wife. In affirming the trial court, we relied in part on People v. Aliwoli (1976), 42 Ill. App. 3d 1014, where the court addressed the propriety of allowing psychiatric evidence regarding the defendant’s intent in an attempted murder prosecution. We noted the Aliwoli court’s statement that “ ‘the testimony of the psychiatrist would not only usurp the province of the jury, but it would probably not have persuaded them in resolving such issue of fact.’ ” (Ambro, 153 Ill. App. 3d at 8, quoting Aliwoli, 42 Ill. App. 3d at 1021.) We also rejected the argument that the psychiatrist’s testimony was admissible under the principle that an expert’s opinion may reach an ultimate issue of fact. We stated:

“That proposition is correct in cases where the expert testifies to facts requiring scientific knowledge not within the common knowledge of the jury. [Citations.] On the other hand, expert opinions may not be admitted on matters of common knowledge unless the subject is difficult to comprehend and explain. [Citation.] From the facts, as previously discussed, we conclude that the jury could have arrived at its decision based on its knowledge without the help of expert testimony.” Ambro, 153 Ill. App. 3d at 8.

See also People v. Elder (1991), 219 Ill. App. 3d 223.

Defendant relies on People v. Free (1983), 94 Ill. 2d 378, in support of his argument that Dr. Baron’s testimony would have been admissible. That case is readily distinguishable. Free involved testimony by an expert with credentials as a psychologist and a psychopharmacologist regarding whether the defendant was able to act intentionally while under the influence of alcohol and PCP. The expert in Free did not opine on either the actual content of the defendant’s thoughts or perceptions or the defendant’s truthfulness in relating his mental state. The expert’s testimony related to the pharmacological effect of certain substances on the defendant’s mental processes, clearly a proper subject for expert testimony.

Applying these principles, we conclude that the testimony by Dr. Baron that defendant contends should have been presented would have been inadmissible. Defendant’s claim of ineffective assistance of counsel cannot be sustained on the basis of counsel’s failure to offer inadmissible evidence.

Defendant also argues that trial counsel’s performance was deficient because he failed to present evidence that defendant had himself been the victim of a serious violent attack a few years earlier. While the State contends, inter alia, that such evidence would have been inadmissible, we believe that regardless of its admissibility the decision not to present such evidence was well within the realm of sound trial strategy.

Defendant maintains that this evidence would have explained why he was apprehensive of further violence and would have bolstered his testimony that he feared an attack by Gardner and Coleman. Viewed with the benefit of hindsight it is theoretically possible that the evidence might have influenced the jury’s choice between murder and manslaughter. However, at trial defendant relied in part on a theory of self-defense, and it is readily apparent that evidence of the earlier incident could have seriously undermined this theory by suggesting to the jury that defendant’s perceptions of the events preceding the shootings were distorted. The evidence would tend to portray defendant as unreasonably fearful and would thereby detract from his claim of self-defense. Given these considerations, the question of whether to offer such evidence was one of trial strategy, and the failure to do so does not establish ineffective assistance of counsel.

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

Affirmed.

BOWMAN and COLWELL, JJ., concur.


author: JUSTICE HOFFMAN

text:
      In re ESTATE OF GEORGE HERMAN NELSON, a Disabled Person (American National Bank and Trust Company, Guardian of the Estate of George Herman Nelson, Petitioner-Appellee, v. Robert Nelson, Guardian of the Person of George Herman Nelson, Respondent-Appellant).
    First District (4th Division)
    No. 1 — 92—1443
    Opinion filed July 22, 1993.

      Paul E. Peldyak, of Chicago (Robert Nelson, of counsel), for appellant.
    Johnson & Bell, Ltd., of Chicago (Leo G. Aubel, of counsel), for appellee.
   JUSTICE HOFFMAN

delivered the opinion of the court:

In 1956, George Herman Nelson (George) was declared incompetent to manage his estate and person. Petitioner, the American National Bank & Trust Company (Bank), was appointed the guardian of his estate, and respondent, Robert Nelson (Nelson), George’s brother, was appointed the guardian of his person. Both guardians served in their respective capacities continuously until George’s death on September 14,1992.

As a military veteran, George received monthly benefits from the United States Department of Veterans Affairs (VA). After his adjudication, George’s VA benefits were paid to the Bank as the guardian of his estate. In April 1991, a field examiner for the VA contacted the Bank regarding George’s living conditions. Subsequently, the field examiner sent the Bank a copy of his field examination report which stated that George’s living conditions were unacceptable, his personal hygiene was poor, and his clothing was worn. The report also noted that George was receiving $396 per month in social security benefits.

On August 8, 1991, the Bank filed a petition in the probate division of the circuit court of Cook County setting forth the findings of the VA field examiner and requesting the appointment of a guardian ad litem for the purpose of investigating George’s living conditions, making a report with respect thereto, and obtaining a detailed accounting from Nelson of all receipts and expenditures made on George’s behalf for the period from March 1, 1989, through June 30, 1991. On August 8, 1991, the circuit court, acting upon the Bank’s petition, appointed a guardian ad litem, for the limited purposes set forth in the petition.

Pursuant to his appointment, the guardian ad litem, interviewed George at his residence and inspected his living conditions. Additionally, he examined the current accounts of his estate and interviewed Nelson.

Based upon his investigation, the guardian ad litem, filed a report with the court describing George’s living conditions as dirty, disorganized, and littered. The report related that George was overweight, unshaven, unbathed, and dressed in worn clothing. The recommendations contained in the report suggested, inter alia, that George be removed from his apartment and placed in a structured environment, that more sums be paid from his estate for his care, and that Nelson remain as guardian of the person with the possibility of appointing a co-guardian.

Subsequently, the guardian ad litem filed a supplemental report outlining the scope of his continued investigations. That report related great efforts on the part of George’s family to improve his living conditions. It was noted that on a visit to George’s residence, the guardian ad litem found the apartment remodeled and painted and George appeared in better physical condition. Based upon the improvements in George’s physical condition and surroundings, the guardian ad litem recommended that he be allowed to remain in his apartment and that Nelson continue as his guardian. With his supplemental report, the guardian ad litem filed a petition for fees and requested to be discharged.

Nelson objected to the fee petition arguing that fees should not be awarded because the court did not have the authority to appoint the guardian ad litem in the first instance or, alternatively, if fees were to be awarded that they be assessed against the Bank and not against the estate.

After a hearing on the fee petition, the circuit court approved the fees requested and continued the matter for a determination of who would be responsible for their payment. The court subsequently ordered that the fees of the guardian ad litem would be paid from the assets of the estate.

Nelson now appeals from the orders of the circuit court awarding fees to the guardian ad litem and ordering that those fees be paid from George’s estate. In urging reversal, Nelson argues that the circuit court did not have subject matter jurisdiction to appoint a guardian ad litem under the circumstances of this case. The Bank has responded to Nelson's jurisdictional objection to the orders of the circuit court and has moved to dismiss this appeal as untimely. For the reasons which follow, we affirm the orders of the circuit court.

Before addressing the issues raised by Nelson, we will consider the Bank’s argument that this appeal is untimely and should be dismissed.

The Bank argues that the essence of this appeal is an attack upon the order of August 8, 1991, which appointed the guardian ad litem. Relying upon Supreme Court Rule 304(b)(l), which provides for the appeal of any “judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party” (134 Ill. 2d R. 304(b)(l)), the Bank contends that the order appointing the guardian ad litem finally determined the right or status of a party. Because Nelson failed to appeal within 30 days of its entry, the Bank concludes that this court does not have jurisdiction to entertain the instant appeal. In support of its argument, the Bank relies on In re Kerwood (1976), 44 Ill. App. 3d 1040, 359 N.E.2d 183, where the court considered an appeal from an order appointing a guardian for three minors and giving him the right to consent to their adoption. However, the facts in Kerwood are readily distinguishable from this case and the Bank’s reliance thereon is misplaced.

Not every order entered in an estate proceeding must be immediately appealed; only those orders that finally determine the right or status of a party may be appealed under Rule 304(b)(l). (In re Estate of Devey (1993), 239 Ill. App. 3d 630, 607 N.E.2d 685.) An order does not finally determine the right or status of a party when it contemplates future action. Kelleher v. Hood (1992), 238 Ill. App. 3d 842, 605 N.E.2d 1018.

In this case, unlike Kerwood, the guardian was appointed for the limited purpose of investigating George’s living conditions and was required to submit a report. The order appointing the guardian ad litem did not finally determine the right or status of any party and contemplated future action. As a result, the order was not appealable under Rule 304(b)(1) and Nelson’s failure to appeal from that order does not bar his attack on the order at this time.

For his part, Nelson argues that absent subject matter jurisdiction to appoint a guardian ad litem in the first instance, the circuit court lacked the requisite jurisdiction to award the fees of the guardian ad litem to be paid from the estate. The premise of Nelson’s argument is that because the court’s jurisdiction over the person and property of a disabled adult is wholly statutory in origin, the powers of the court in exercising that jurisdiction are limited to those granted by statute. Nelson contends that because the Probate Act of 1975 only provides for the appointment of a guardian ad litem for a disabled adult upon the filing of a petition to adjudge the person disabled, to defend the interests of the disabled person in a legal proceeding, or upon the filing of a petition to terminate the adjudication of disability, revoke letters of guardianship, or modify the duties of a guardian (Ill. Rev. Stat. 1991, ch. 110½, pars. 11a — 10(a), 11a — 18(c), 11a — 20(b)), the court here lacked the statutory power (jurisdiction) to appoint a guardian ad litem for a purpose other than that which is authorized by statute. Nelson concludes that absent the power (jurisdiction) to appoint the guardian ad litem in the first instance, the court also lacked the power to award the guardian ad litem’s fees to be paid from the assets of the estate.

Subject matter jurisdiction is the power of the court to hear the type of case that is before it (In re Estate of Zoglauer (1992), 229 Ill. App. 3d 394, 593 N.E.2d 93), and the power to grant the particular relief requested (People ex rel. Illinois Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill. App. 3d 517, 461 N.E.2d 505). As Nelson correctly argues, the court’s jurisdiction over the persons and property of disabled adults is wholly a creature of statute. At common law, control over a disabled adult’s person and property was vested in the sovereign as parens patriae, a power to which the State succeeded. (In re Estate of Piech (1969), 117 Ill. App. 2d 403, 254 N.E.2d 565; In re Guardianship of Smythe (1965), 65 Ill. App. 2d 431, 213 N.E.2d 609.) By statute, the State’s power in this regard is now exercised by the courts. Ill. Rev. Stat. 1991, ch. 110½, par. 11a — 1 et seq.

Clearly, the court had subject matter jurisdiction to adjudicate George an incompetent (now a disabled person) and to appoint a guardian for his person; that power was granted to the court by statute. (Ill. Rev. Stat. 1955, ch. 3, par. 265(c) (now Ill. Rev. Stat. 1991, ch. 110½, par. 11a — 3).) When he was adjudicated incompetent in 1956, George became a ward of the court entitled to its protection. (Proehl v. Leadley (1967), 86 Ill. App. 2d 472, 230 N.E.2d 516.) The jurisdiction of the court over its ward was not divested with the appointment of a guardian of his person. (Hoit v. Snodgrass (1925), 315 Ill. 548, 146 N.E. 562; see also In re Estate of Peterson (1982), 103 Ill. App. 3d 481, 431 N.E.2d 748.) The very nature of this type of proceeding requires the court to retain jurisdiction to supervise the guardians appointed for a ward. The jurisdiction of the court continues until the adjudication of the ward’s disability is terminated or the ward dies. Guardians only act as the hand of the court and are at all times subject to its direction in the manner in which they provide for the care and support of the disabled person. (Peterson, 103 Ill. App. 3d at 485-86.) The very statute which outlines the duties of a guardian for the person of a disabled adult verifies this proposition by providing that the guardian is to act “[t]o the extent ordered by the court and under the direction of the court.” (Ill. Rev. Stat. 1991, ch. 110½, par. 11a — 17(a).) The court is under a duty to judicially interfere if the guardian is about to do anything that would cause harm or threaten harm to the ward. See In re Estate of D.W. (1985), 134 Ill. App. 3d 788, 481 N.E.2d 355.

As Nelson argues, article XXIII of the Probate Act of 1975 (Act) provides a comprehensive scheme for the removal of a guardian. (Ill. Rev. Stat. 1991, ch. 110½, par. 23 — 1 et seq.) The court is empowered by statute to remove a guardian even on its own motion but that power is not unrestricted. Removal may only be ordered for the reasons stated in section 23 — 2, and if removal is sought, the procedure to be followed is set forth in section 23 — 3. (Ill. Rev. Stat. 1991, ch. 110½, pars. 23 — 2, 23 — 3.) However, we find nothing in the Act which requires a court to commence a removal proceeding before it orders an investigation into the well-being of its ward.

When a court is presented with hearsay information indicating that its ward might be neglected, we think the prudent course is the one that was followed by the judge in this case: investigate first. If the information is verified, the court can then order the issuance of a citation directing the guardian to show cause why he should not be removed.

The real issue in this case surrounds the appointment of a guardian ad litem as the means by which the court undertook to investigate the information contained in the Bank’s original petition. Nelson equates the provisions of the Probate Act of 1975, which authorizes the appointment of a guardian ad litem in three specific circumstances, with a limitation upon the court’s power to appoint a guardian ad litem. We disagree. We find no language in the Act that evinces any intention on the part of the legislature to make the appointment provisions cited by Nelson exclusive. (See In re Estate of Barth (1989), 181 Ill. App. 3d 279, 536 N.E.2d 973.) When, as in this case, a court is charged with a duty to protect the interests of its ward, we believe that by implication it has such powers, although not expressly given by the statute vesting the court with jurisdiction over the ward, as are necessary to properly discharge that duty, including the appointment of a guardian ad litem to investigate unverified charges of neglect.

Having found that the court had the power to appoint a guardian ad litem, it follows that it also had the power to award the fees for his services. Section 27 — 4 of the Probate Act of 1975 provides that a guardian ad litem is entitled to reasonable compensation as fixed by the court to be paid in the due course of administration. (Ill. Rev. Stat. 1991, ch. 110½, par. 27 — 4.) We find no error in the order awarding fees to the guardian ad litem in this case or in the order directing that those fees be paid from the assets of the estate.

Affirmed.

JOHNSON and CAHILL, JJ., concur.