author: JUSTICE SCARIANO

text:
    CONRAD S. BERKIN et al., Plaintiffs-Appellants, v. ORLAND PARK PLAZA BANK, Defendant-Appellee.
    First District (2nd Division)
    No. 1—88—2685
    Opinion filed December 5, 1989.

      Carl L. Klein, of Chicago, for appellants.
    Mary Ellen Rosemeyer and Steven D. Rakich, both of Kreisman & Rakich, of Chicago, for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiffs appeal from a December 18, 1987, order granting defendant’s section 2—611 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2—611) against the plaintiffs and their attorneys and from a September 15, 1988, order dismissing the attorneys and assessing $4,533.60 in attorney fees and costs solely against plaintiffs. Plaintiffs complain that the section 2—611 motion was not timely filed, and even if it were, the sanction award was improperly assessed against them and included improperly assessed fees.

On December 10, 1984, plaintiffs, by their attorneys, Carl L. Klein and John B. Petrulis, filed' suit against Orland Park Plaza Bank (Bank) and other defendants who are not parties to this appeal. Among the 10 named plaintiffs were George E. Burzloff and Eileen Burzloff, who, unbeknown to the Bank, had been dead for over a year at the time of filing. On November 8, 1985, the Bank filed a motion to dismiss the complaint pursuant to section 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—615) for failure to state a cause of action. On June 16, 1986, plaintiffs filed an amended complaint, and on September 26, 1986, a second amended complaint, to each of which the Bank responded with motions brought under section 2—615. All three complaints named the Burzloffs as plaintiffs, and paragraph 1 in each stated: “That plaintiffs and the defendants are located in the County of Cook and State of Illinois.” On January 8, 1987, the circuit court granted the plaintiffs’ motion to voluntarily dismiss the Bank as a party defendant.

On February 6, 1987, within 30 days after its dismissal from the action, the Bank filed a motion for sanctions under amended section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611), effective November 25, 1986, which provides:

“§2—611. Signing of Pleadings, Motions and Other Papers; Sanctions. Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. *** The signature of an attorney *** constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion, or other paper is signed in violation of this Section, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee. *** All proceedings under this Section shall be within, and part of the civil action in which the pleading, motion or other paper referred to herein has been filed, and no violation or alleged violation of this Section shall give rise to a separate cause of action, or another cause of action within the civil action in question, by, on behalf of or against any party to the civil action in question, and by, on behalf of or against any attorney *** involved in the civil action in question.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 2—611.)

In its motion the Bank complained that plaintiffs and their attorneys willfully filed successive meritless complaints and that the plaintiffs’ voluntary dismissal of the action as to the Bank “evidences subjective bad faith and harassment.” On May 21, 1987, the plaintiffs filed their response to the motion for sanctions in which they set forth three reasons for dismissing the Bank; namely, that (a) one defendant had removed himself from the jurisdiction, (b) another defendant had died and (c) “¡plaintiffs George Burzloff and Eileen Burzloff who had extensive knowledge of the happenings herein have also died and their testimony was not perpetuated.” Prompted to investigate, the Bank discovered that George Burzloff had died on November 26, 1982, and Eileen Burzloff had died on May 23, 1983, well before the filing of the original complaint. In its reply filed on June 2, 1987, more than 30 days after its dismissal, the Bank apprised the court of this new information, presenting it as an additional basis for section 2—611 sanctions.

At a hearing held on December 18, 1987, the circuit court ruled that although plaintiffs’ failure to state a cause of action could not be the basis for section 2—611 sanctions, the untrue statements contained in the plaintiffs’ complaint relating to the presence of the Burzloffs in Cook County constituted a blatant violation of the statute. Accordingly, the court sustained the Bank’s motion under both the former and amended versions of section 2—611 against the plaintiffs and their attorneys, Messrs. Klein and Petrulis. Contrary to this ruling, however, the court later awarded the Bank fees and costs associated not only with investigating the deaths and prosecuting the section 2—611 motion, but also with preparing the motions to dismiss on the ground of insufficiency of the complaint to state a claim.

On September 15, 1988, upon denying plaintiffs’ motion to reconsider, the court assessed sanctions in the amount of $4,533.60 against “all plaintiffs,” but dismissed attorney Klein on the basis of the holding in Prevendar v. Thonn (1988), 166 Ill. App. 3d 30, 518 N.E.2d 1374, that amended section 2—611 may not be applied retroactively against attorneys, although the court’s dismissal of attorney Petrulis from the motion for sanctions was on the basis of its finding that he had not participated in the drafting of the offending complaints.

Since the court had previously granted plaintiffs’ motion to substitute the Burzloffs with Eileen Burzloff’s heir, Alan H. Sibigtroth, as party plaintiff, in the court’s first order the term “all plaintiffs” included the deceased Burzloffs, whereas in the second order it included Eileen Burzloff’s successor.

Former section 2—611 (Ill. Rev. Stat. 1985, ch. 110, par. 2—611) provided as follows:

“§2—611. Untrue statements. Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.” (Emphasis added.)

Although plaintiffs do not raise the point on appeal, some confusion exists and therefore clarification is needed regarding which version of section 2—611 applies to the present case. Relatively recent Illinois authority holds that the operative event activating the statute is the conduct giving rise to possible liability. (Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 836, 525 N.E.2d 995, 999.) Here the conduct, namely the filing of the complaint, first amended complaint and second amended complaint, all occurred prior to November 25, 1986, which was the effective date of the new statute. Therefore, even though defendant filed its motion for sanctions under the amended section 2—611, the statute that was in effect when the three underlying pleadings were filed applies in this case. The two statutes differ materially in their application to attorneys. Former section 2—611, the applicable statute here, permits the court to sanction parties only (Ill. Rev. Stat. 1985, ch. 110, par. 2—611), whereas the amended section permits the court to sanction the parties, their attorneys or both (Ill. Rev. Stat. 1987, ch. 110, par. 2—611).

Plaintiffs assert error on three major grounds. They argue first that, because the Bank’s allegation of untrue pleadings arising from the death of the Burzloffs was not timely filed, the circuit court had no jurisdiction to impose sanctions on that basis. Plaintiffs rely on Szymkowski v. Szymkowski (1982), 104 Ill. App. 3d 630, 432 N.E.2d 1209, in which the court held that the 30-day limit for filing a petition for sanctions under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 41), the forerunner of section 2—611, should be strictly construed, the statute being penal in nature. (See also In re Estate of Wernick (1989), 127 Ill. 2d 61, 535 N.E.2d 876.) In Szymkowski, the complaining parties filed their petition for sanctions more than 30 days after the circuit court entered its final judgment. In the present case the Bank filed its motion for sanctions within 30 days after dismissal.

Plaintiffs argue, however, that because the Bank first asked for sanctions based on the death of the Burzloffs more than 30'days after final judgment in its reply to plaintiffs’ response to its motion, the allegation was not timely made. We hold, though, that elemental fairness requires that because the plaintiffs first divulged the fact of the deaths in their response, the Bank should be able to raise the new and additional grounds for sanctions in its reply. Ordinarily, we would be disinclined to recognize a de facto amendment to a motion, but the disingenuous manner in which the fact of the Burzloffs’ death was communicated to the court and to the parties moves us to view the Bank’s position sympathetically. Plaintiffs’ response to the Bank’s motion for sanctions stated merely that plaintiffs chose voluntarily to dismiss the Bank, because, among other things, the Burzloffs had died “and their testimony was not perpetuated.” Without giving the dates of death, plaintiffs’ statement misleadingly implies that the Burzloffs died sometime during the pendency of the litigation, thereby preventing their testifying in the case, hence the necessity to dismiss the action as to the Bank. Only after the Bank had investigated plaintiffs’ “reasons” did the full facts for the dismissal come to light.

Second, plaintiffs contend that the circuit court should not have awarded the Bank any of the fees and costs associated with preparing the section 2 — 615 motions to dismiss or with prosecuting the related motion for sanctions. In its order of September 15, 1988, the court specifically stated that the decision in La Salle National Bank v. Kissane (1987), 163 Ill. App. 3d 534, 516 N.E.2d 790, precluded any award of fees to the Bank based solely on insufficient pleadings. In construing former section 2—611, the court in that case held that legally insufficient, conclusory pleadings are not ipso facto untrue or made without reasonable cause unless they also contain untrue statements. (163 Ill. App. 3d at 542-43, 516 N.E.2d 795.) Nevertheless, the circuit court here awarded the Bank $4,533.60, a sum which included fees and costs attributable directly to prosecuting motions to dismiss under section 2—615.

The decision to award sanctions under section 2—611 of the Code of Civil Procedure lies within the sound discretion of the circuit court and should not be disturbed absent a clear abuse of that discretion. (Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595.) Illinois courts interpreting former section 2—611 hold that the complaining party may seek only those costs and fees which have a direct connection to the sanctionable pleadings or statements. (E.g., Mari v. Westinghouse Broadcasting Corp. (1989), 179 Ill. App. 3d 321, 322, 534 N.E.2d 526, 527; Brandel Realty Co. v. Olson (1987), 159 Ill. App. 3d 230, 235-36, 512 N.E.2d 85, 88-89.) Thus, we conclude that under former section 2—611, the circuit court does not have discretion to exact a penalty incommensurate with the time, effort and expense incurred by the aggrieved party as a consequence of the untrue pleadings.

However, relying on Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11, 466 N.E.2d 945, defendant insists that plaintiffs’ counsel should be liable as well for the entire cost of defending the multiple pleadings, urging that without the testimony of the Burzloffs, there would have been insufficient evidence against the Bank to justify filing a lawsuit against it in the first place. But the Dayan decision is an exception to the general rule. In that case, the plaintiff sued McDonald’s Corporation to enjoin the termination of his restaurant franchise. In both his original and amended pleadings, Dayan maintained that he had fully complied with McDonald’s standards of quality, service and cleanliness, a statement which became central to the issue of McDonald’s bad faith in the lengthy litigation which ensued. Later the circuit court determined that the statement was utterly false and made without reasonable cause and, pursuant to section 2 — 611, awarded McDonald’s nearly $2 million, representing the entire cost of its defense. The appellate court sustained the award, stating: “The isolated focus on each reimbursable component urged by plaintiff is not necessary where the false allegations made without reasonable cause are the cornerstone of the entire baseless lawsuit.” 126 Ill. App. 3d at 23, 466 N.E.2d at 954.

In the present case none of the three complaints placed the Burzloffs on any different footing than the other individual plaintiffs, nor did the three counts against the Bank in referring to “plaintiffs” relate solely to the Burzloffs. This leads us easily to conclude that the naming of two deceased plaintiffs hardly formed the “cornerstone of the entire baseless lawsuit,” for with or without the Burzloffs, the Bank would have spent the same amount of time and effort litigating the motions to dismiss.

A review of the Bank’s attorney’s amended fee affidavits filed January 21, 1988, and May 24, 1988, reveals that at least some fees and costs were directly associated with investigating the deaths of the Burzloffs. Although these fees and costs constitute only a fractional portion of the entire award, given that the statute allows reimbursement of those fees actually incurred, they were properly awarded to the Bank. Moreover, the circuit court may also assess fees and costs for work attributable to prosecuting a section 2—611 motion. Dayan v. McDonald’s Corp., 126 Ill. App. 3d at 26-28, 466 N.E.2d at 956.

Plaintiffs’ final contention is that the circuit court erred in assessing the section 2—611 penalty against “all plaintiffs.” This issue embraces two questions: first, whether the circuit court acted improperly by failing to ascertain the culpability of each individual plaintiff, and, second, whether the circuit court erroneously assessed the penalty against the two deceased plaintiffs and later against their substitute. Underlying both subdivisions of this issue is the propriety of sanctioning the parties in the first place, where, clearly, counsel only was responsible for the offending pleadings.

During the December 18, 1987, hearing on sanctions, attorney Klein stated that before filing the suit he had contacted and spoken to all of the plaintiffs except the Burzloffs, and that he had relied on the assurances of his referring attorney that the Burzloffs had a viable cause of action. Earlier in the same proceeding, Klein acknowledged that the Burzloffs were his “clients” at the time of filing. He also stated that he had discovered that an estate had been opened for Mrs. Burzloff in Will County; but, at no point did he mention when he had made the latter discovery.

Plaintiffs’ brief relates that Klein attempted to locate the Burzloffs at an old address in the year the lawsuit was first filed, and when the search proved fruitless, he checked with the probate division of the circuit court of Cook County for any estates or wills filed in their names, again with negative results. Also according to the brief, at this point Klein assumed without further inquiry that the Burzloffs were alive “based on the presumption that people are alive until proven dead.” The record reflects that upon conducting its own search, the defendant Bank promptly discovered death certificates for Eileen Burzloff in Will County and for George Burzloff in Cook County.

As noted above, the circuit court, constrained by the decision in Prevendar v. Thonn (166 Ill. App. 3d 30, 518 N.E.2d 1374), to exclude plaintiffs’ counsel from its final order on sanctions, restricted the award of sanctions to “all plaintiffs.” In Prevendar, the second district held that amended section 2—611 does not apply retroactively against attorneys, although its application to parties is unaffected. (166 Ill. App. 3d at 38-40, 518 N.E.2d at 1381.) At the time of the order, the court in the case at bar was apparently unaware of Ignarski v. Heublein (171 Ill. App. 3d 830, 525 N.E.2d 995), a first district decision handed down three months earlier, which also held that the amendments in the current version of section 2—611 are not to be applied retroactively. See also Mucklow v. John Marshall Law School (1988), 176 Ill. App. 886, 531 N.E.2d 941.

Even if the circuit court were correct in applying the amended statute, which, as we have noted previously, gives the court discretion to impose sanctions on the attorney, his client or both, sanctioning the plaintiffs would have been improper. The choice between sanctioning an attorney and his client should not be arbitrary or based on expedience alone. The case at bar is unlike Washington v. Allstate Insurance Co. (1988), 175 Ill. App. 3d 574, 581, 529 N.E.2d 1086, 1090, in which the court upheld an award of sanctions pursuant to the amended statute against the plaintiffs only, noting that “this was the type of case in which an attorney must rely almost exclusively on his client for the facts.” In the instant case, if counsel had made even the most minimal effort to communicate with his clients, he would have discovered that they were deceased. The trial court properly concluded, therefore, that no attempt was made on his part to do so, for the task, especially for a lawyer, would have been exceedingly simple to accomplish. In any event, since there were no clients upon whom counsel could rely “for the facts,” it would be a monstrous travesty of justice to visit sanctions on them, their estate or their successor. The Bank does not dispute that the remaining eight plaintiffs had no connection or communication with the Burzloffs apart from being victims of the same allegedly fraudulent scheme at different times and places. Indeed, at a hearing on May 24, 1988, the Bank’s attorney herself observed that forcing the plaintiffs to bear the burden for the improper conduct of counsel would produce an “unfair result.”

Penal in nature, former section 2—611 must be strictly construed and requires proof of two elements: (1) that the pleadings contain untrue statements and (2) that the statements were made without reasonable cause. (St. Paul Federal Savings & Loan Association v. Avant (1985), 135 Ill. App. 3d 568, 481 N.E.2d 1050.) The burden of proving these two elements rests with the party seeking relief. (Precision Components, Inc. v. Kapco Communications (1985), 131 Ill. App. 3d 555, 475 N.E.2d 1071.) In Precision Components, the reviewing court reversed an award of sanctions on the ground that the complaining party failed to show that instead of suing the corporation, the plaintiff sued the defendant individually without reasonable cause. Similarly, in Peoples Gas Light & Coke Co. v. Black Steer Provision Co. (1985), 131 Ill. App. 3d 387, 475 N.E.2d 1012, the reviewing court reversed an award because the complainant produced no evidence indicating that plaintiff’s belief that defendant was a delinquent customer of record and therefore a proper party was unreasonable.

In the present case, the record is devoid of any proof that any of the other plaintiffs either knew or should have known that the Burzloffs were deceased at the time the lawsuit was initiated. That variously 9 or 10 unrelated individuals were joined as parties cannot ipso facto make them liable for the conduct of an attorney acting on his own. And it is also clear that neither the Burzloffs nor their estate nor their successor who was named plaintiff in their stead had any complicity in the filing of the offending pleadings.

In this connection, plaintiffs claim the circuit court deprived them of procedural due process when it failed to hold a hearing to determine the culpability of each individual plaintiff. Given the lack of evidence in the record that any of the plaintiffs actually caused the sanctionable conduct, it would appear that to levy any penalty against them would be manifestly unfair. The United States Supreme Court' has repeatedly held that a State may not deprive a person of his property without first satisfying the notice and hearing requirements of the due process guarantees of the fourteenth amendment. (E.g., Fuentes v. Shevin (1972), 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (statute providing ex parte proceeding to obtain writ for prejudgment replevin unconstitutional); Bell v. Burson (1971), 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (statute prescribing summary deprivation of driver’s license unconstitutional).) In Illinois, the necessity of holding a hearing on the merits of a section 2—611 petition depends on the circumstances of the individual case. (Launius v. Najman (1984), 129 Ill. App. 3d 498, 472 N.E.2d 170.) If the court can determine fairly whether the statute has been violated from an examination of the pleadings, trial evidence or other matters appearing in the record, then a hearing is not necessary. (St. Paul Federal Savings & Loan Association v. Avant, 135 Ill. App. 3d 568, 481 N.E.2d 1050; see also Lepucki v. Van Wormer (7th Cir. 1985), 765 F.2d 86, 88 (although Rule 11 proceedings must comport with due process, “[t]he particular format to be followed should depend on the circumstances of the situation and the severity of the sanction under consideration”), cert, denied (1985), 474 U.S. 827, 88 L. Ed. 2d 71, 106 S. Ct. 86.) In the present case, it is plain that neither the pleadings nor any of the other matters appearing in the record justified a finding of sanctions against the plaintiffs. On the contrary, the facts in the record lead ineluctably to the opposite conclusion — that the responsibility for the untrue pleadings rests solely with plaintiffs' counsel. Accordingly, there was no need for the trial court to hold any hearing regarding the imposition of sanctions other than the one it actually conducted.

Therefore, since former section 2 — 611 had no application to attorneys, and since the plaintiffs herein were totally without culpability, we reverse the order of the circuit court.

Order reversed.

BILANDIC, P.J., and DiVITO, J., concur.

       Although the new section 2—611 no longer explicitly prescribes a 30-day limit, the second district recently held that the 30-day limit in section 2—1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1203) applies to section 2—611 motions. (Herman v. Fitzgerald (1989), 178 Ill. App. 3d 865, 533 N.E.2d 1144.) We agree. Therefore, the time for filing is identical for all versions of the statute.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VITO SPIEZIO, Defendant-Appellant.
    First District (3rd Division)
    No. 1—86—0862
    Opinion filed December 6, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Alison Norwood, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Judy L. Groeneveld, and Andrea K. Muchin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a jury trial, defendant, Vito Spiezio, was convicted of attempted murder and aggravated assault. Defendant was sentenced to concurrent terms of 12 years for attempted murder and 364 days for aggravated assault. On appeal, defendant argues that (1) his convictions for attempted murder and aggravated assault are legally inconsistent; (2) he was not proven guilty of attempted murder beyond a reasonable doubt; (3) the trial court erred in submitting Illinois Pattern Jury Instructions, Criminal, No. 6.06 (2d ed. 1981) (hereinafter IPI Criminal 2d) on the issue of the impossibility of committing the offense of attempted murder to the jury; (4) he was denied his right to a fair trial when the assistant State’s Attorney told the jury that the State’s police officer and State’s Attorney witnesses were more credible due to their sworn oaths to State office; (5) the trial court erred in submitting the Prim instruction to the jury; and (6) the trial court erred in sentencing defendant based on a biased presentence report. We affirm.

Defendant was initially charged with armed robbery and home invasion. The attempted murder and aggravated assault charges arose out of defendant’s arrest on the initial charges. Defendant was tried on all of the charges, and the jury found him not guilty of armed robbery and home invasion and guilty of attempted murder and aggravated assault. Since this appeal concerns only defendant’s convictions for attempted murder and aggravated assault, we will only discuss the relevant portions of trial testimony.

On July 23, 1984, at approximately 1:45 a.m., off-duty Chicago police officers Thomas Coughlin, Alfred Thome, Thomas Pack and Gerald Murray went to the Captain’s Quarters bar located at 3900 South Western Avenue. All four officers were assigned to the investigation of an armed robbery and home invasion which occurred two days earlier. The officers were aware of the victim’s description of the offender and that there was an outstanding warrant for defendant’s arrest for the offense.

At approximately 2 a.m., defendant and his girl friend entered the bar. Officer Coughlin observed defendant’s girl friend look in his direction, speak to defendant and then walk with defendant towards the door. Officer Coughlin alerted his fellow officers, and they followed defendant out of the bar. Coughlin yelled to defendant and identified himself as a police officer. Defendant pulled a gun from his waistband, pointed it at Coughlin’s head and stated, “[F]uck you coppers.” Coughlin testified that he was four to five feet away from defendant when he made the statement. Officer Thome was following directly behind Coughlin. Coughlin jumped on defendant, and they fell to the street and began to roll around and struggle for possession of the gun. Coughlin testified that defendant rolled on top of him, pointed the gun at him again and Officer Thome joined the struggle for the gun. Coughlin and Thome banged defendant’s hand on the ground until he let go of the gun. Officer Pack retrieved the weapon, while defendant and Coughlin continued to struggle. Officer Pack retrieved the weapon, while defendant and Coughlin continued to struggle. Officer Pack retrieved handcuffs from his car, and the three officers handcuffed defendant. Officer Coughlin examined the gun and determined that it was in working order. The gun contained seven rounds of bullets in the clip and one in the chamber. Coughlin also testified that the gun’s safety device was turned on. Coughlin’s testimony was corroborated by Officers Thome and Pack. Officer Thome also testified that defendant pointed the gun at him as he struggled to help Coughlin remove the gun from his possession.

Defendant testified on his own behalf and denied that he had a gun in his possession, or that he pulled a gun on the police and yelled “[F]uck you coppers.” Defendant further testified that as he held his girl friend’s hand and opened the door to the bar with his other hand, someone called him from inside the bar. He stated that as he turned around, he was jerked from behind and hit in the face. Defendant testified that when he regained consciousness, he was lying facedown in the middle of 39th Street surrounded by police officers.

Assistant State’s Attorney DeOca testified for the State in rebuttal and stated that following the incident, she gave defendant his Miranda warnings and questioned him about the events of that morning. She further testified that defendant told her that he tossed away his gun while lying on the ground outside of the bar.

During the jury instruction conference, the assistant State’s Attorney submitted IPI Criminal 2d No. 6.06 on misapprehension of the circumstances. The court gave the instruction over defendant’s objection. After a lunch break, the jury retired to deliberate. At 7:39 p.m. that evening, the jurors sent the judge a note which stated that they were unable to reach a unanimous decision. Defendant made a motion for a mistrial. The court denied the motion and gave the jury the Prim deadlock instruction. Also, during deliberations several jurors sent out notes asking how long they should stay and requesting that messages be sent to their families and friends. The court, with the consent of defense counsel and the assistant State’s Attorney, responded that the jurors should stay as long as they needed. After the jury returned its verdict, defendant made a motion for a mistrial on the basis that the court’s failure to respond to the jurors’ individual requests for calls to their families coerced the verdict. The court denied defendant’s motion.

At the sentencing hearing, the court considered the presentence investigation report prepared by probation Officer Shapiro. Defense counsel made a motion to strike the entire social summary portion of the report. The court struck and allowed amendment of portions of the report, but denied defendant’s motion to strike the entire social summary. The court sentenced defendant to concurrent terms of 12 years for the attempted murder of Officer Coughlin and 364 days for the aggravated assault of Officer Thome. This appeal followed.

Defendant first argues that his convictions for the attempted murder of Officer Coughlin and the aggravated assault of Officer Thome are legally inconsistent. It is his position that his conviction for attempted murder should be vacated and the cause remanded for a new trial. We disagree.

Multiple convictions and concurrent sentences for different offenses arising from multiple acts which are incidental to or motivated by the same criminal objective are permissible. (People v. King (1977), 66 Ill. 2d 551, 565, 363 N.E.2d 838, 844.) Further, where a claim of inconsistent guilty verdicts involves multiple acts or victims, the question is whether the trier of fact could rationally find separable acts accompanied by mental states to support all of the verdicts as legally consistent. (People v. Spears (1986), 112 Ill. 2d 396, 405, 493 N.E.2d 1030, 1034.) A legally inconsistent verdict has been defined as follows:

“Verdicts of guilty of crime A but not guilty of crime B, where both crimes arise out of the same set of facts, are legally inconsistent when they necessarily involve the conclusion that the same essential element or elements of each crime were found both to exist and not to exist.” People v. Frias (1983), 99 Ill. 2d 193,198, 457 N.E.2d 1233, 1235.

In the present case, defendant was found guilty of the attempted murder of Officer Coughlin. The jury’s verdict is supported by evidence that defendant pulled a fully loaded automatic weapon from his waistband, pointed it from a distance of four to five feet in the direction of Coughlin’s head and yelled “[F]uck you coppers.” Defendant was also found guilty of the aggravated assault of Officer Thome. The jury’s verdict on that charge is supported by evidence that Thome was following behind Coughlin when defendant initially pulled the gun and that defendant pointed the gun at Thome after he came to Coughlin’s aid in the struggle to remove the gun from defendant’s possession.

Defendant’s convictions and concurrent sentence for attempted murder and aggravated assault are permissible because both crimes arose from multiple acts which were motivated by the same criminal objective to evade arrest. Further, the verdicts are not legally inconsistent because each crime involved separate acts and victims. The jury could rationally find that defendant intended to kill Officer Coughlin when he pointed the loaded gun at his head. It could also find that Officer Thome, who was walking immediately behind Coughlin, could reasonably believe that he was in danger of becoming the victim of a battery if defendant fired the gun. It was also reasonable for the jury to conclude that Thome was in reasonable apprehension of receiving a battery when defendant pointed the loaded gun at him as they struggled for possession of the weapon. Ill. Rev. Stat. 1985, ch. 38, par. 12—2(a)(2).

These verdicts are consistent because they are based on the jury’s findings of distinctly different elements. Given the dissimilar elements of the two sets of charges, i.e., the attempted murder and aggravated assault, the verdicts can reasonably be construed as a finding by the jury that the State proved beyond a reasonable doubt the attempted murder of Officer Coughlin, but not the attempted murder of Officer Thome, where there was evidence of separate acts, each capable of supporting a different offense. (People v. Cobbins (1987), 162 Ill. App. 3d 1010, 1025, 516 N.E.2d 382, 393.) Moreover, the verdicts may reflect the jury’s belief that conviction of less than all of the charges would sufficiently punish defendant. (See People v. Buford (1982), 110 Ill. App. 3d 46, 56, 441 N.E.2d 1235, 1242.) We therefore conclude that defendant’s convictions for the attempted murder of Officer Coughlin and the aggravated assault of Officer Thome are not legally inconsistent.

Defendant next argues that he was not proven guilty of attempted murder beyond a reasonable doubt. We disagree.

To sustain a conviction for attempted murder, it must be shown that the accused acted with the specific intent to kill. People v. Anderson (1982), 108 Ill. App. 3d 563, 566, 439 N.E.2d 65, 68.

In the present case, the evidence adduced at trial revealed that on the morning in question, Officer Coughlin called to defendant as he exited the Captain’s Quarters bar and announced that he was a police officer. Defendant responded by pulling a loaded automatic weapon from his waistband, pointing it at Officer Coughlin’s head from a distance of four to five feet and yelling “[F]uck you coppers.” Coughlin jumped on defendant. After a struggle, and with the assistance of Officer Thome, the gun was removed from defendant’s possession. Defendant argues that this evidence did not prove that he attempted to kill Coughlin. Defendant posits that the only reasonable inference that could be drawn from the evidence is that his conduct recklessly created a possibility of death which is not sufficient to sustain a conviction for attempted murder. Defendant cites People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888, in support of his proposition.

Defendant’s reliance on Trinkle is misplaced. Trinkle, unlike the present case, involved a situation where both the indictment and the jury instructions provided that the defendant could be found guilty of attempted murder without proof of intent to kill. Here, the indictment and the court’s instructions to the jury both indicated that intent to kill was a necessary element of the offense of attempted murder. Further, defendant does not assert and we do not find that either the attempted murder indictment or jury instructions in the present case were erroneous.

Therefore, defendant’s argument must fail because the jury could only have found him guilty of attempted murder based on intent to kill since that was the only offense with which he was charged. Further, there was sufficient circumstantial evidence of intent to kill to support the jury’s verdict where defendant pointed a loaded gun at the police officer from close range, while yelling “[F]uck you coppers.” We therefore conclude that defendant was proven guilty of attempted murder beyond a reasonable doubt.

Defendant next argues that the trial court erred in submitting IPI Criminal 2d No. 6.06 on the issue of the impossibility of committing the offense of attempted murder. We disagree.

Section 8 — 4(b) of the Criminal Code of 1961 provides:

“It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.” (Ill. Rev. Stat. 1985, ch. 38, par. 8—4(b).)

Illinois Pattern Jury Instruction Criminal 2d No. 6.06 mirrors the statute and provides:

“It is not a defense to the charge of attempt that, because of a misapprehension of the circumstances, it would have been impossible to commit the offense attempted.”

The instruction is followed by a committee note which states: “Give this instruction only when there is evidence of impossibility.” IPI Criminal 2d No. 6.06, Committee Note, at 52.

The evidence adduced at trial indicated that the weapon which defendant pointed at the police officers was a loaded automatic with the safety device in the “on” position. Since defendant denied that he possessed the gun, there was no direct testimony on the issue of whether or not defendant knew that the safety device was activated. However, the assistant State’s Attorney argued at the jury instruction conference that the instruction was appropriate because the safety probably precluded the gun from being fired. Defendant objected to submission of the instruction and argues on appeal that the intent question was improperly complicated by the instruction.

We find the court’s submission of IPI Criminal 2d No. 6.06 to the jury to be appropriate under the circumstances. Since it is reasonable to conclude that the safety device could have prevented the gun from firing, it would appear from the evidence adduced at trial that although defendant’s words and actions were circumstantial evidence of his intent to kill Officer Coughlin and assault Officer Thome with a dangerous weapon, he would probably have been unable to actually fire the weapon. However, since impossibility is not a defense to the crime of attempted murder, it was appropriate for the court to instruct the jury on the issue since the jury could properly consider that defendant believed he had the means to carry out his intended crime. (People v. Hicks (1987), 162 Ill. App. 3d 707, 714, 516 N.E.2d 807, 812.) We therefore conclude that the trial court did not err in submitting IPI Criminal 2d No. 6.06 to the jury.

Defendant next argues that he was denied his right to a fair trial when the assistant State’s Attorney improperly told the jury in closing argument that the police officers and State’s Attorneys were more credible witnesses due to their sworn oaths to State office. We disagree.

It is well settled that great latitude is afforded a prosecutor during closing, argument and the propriety of the prosecution’s remarks is generally left to the discretion of the trial court, which determination shall be followed absent a showing of abuse of discretion. (People v. Morrison (1985), 137 Ill. App. 3d 171, 184, 484 N.E.2d 329, 339-40.) The prosecutor is entitled to comment on the evidence, draw inferences therefrom, and comment on the accused’s credibility. (People v. Carter (1989), 177 Ill. App. 3d 593, 601, 532 N.E.2d 531, 536.) Further, improper prosecutorial arguments generally do not constitute reversible error unless they result in substantial prejudice to the accused. (People v. Shum (1987), 117 Ill. 2d 317, 347, 512 N.E.2d 1183, 1193.) Although it is generally improper to vouch for the credibility of a witness or to express a personal opinion on a case, remarks are to be viewed in context, and a defendant cannot complain of prosecutorial remarks which are provoked or invited by his counsel’s arguments. People v. Cobbins (1987), 162 Ill. App. 3d 1010, 1023, 516 N.E.2d 382, 392; People v. Emerson (1987), 122 Ill. 2d 411, 434, 522 N.E.2d 1109, 1118.

In the present case, defendant argues that the prosecutor’s rebuttal argument contained numerous improper comments which suggested that the jury should believe that the State’s Attorneys and police officers who testified were more credible than defendant because of their sworn oaths of office. From our reading of the record, we find the prosecutor’s argument to contain proper comments on the evidence. In addition, the prosecutor’s comments on the credibility of the police officer and State’s Attorney witnesses was in direct response to defense counsel’s argument.

In closing, defense counsel implied that the assistant State’s Attorney who testified at trial regarding defendant’s post-arrest statement was not a competent lawyer because he did not take complete notes regarding the surrounding circumstances. Also, defense counsel stated that the police officers were lying about the events which occurred on the morning of defendant’s arrest. Under these circumstances, we find the prosecutor’s response that it was ridiculous to believe that the assistant State’s Attorneys and police officers were lying and involved in an attempt to frame defendant was not improper given defendant’s theory of the case and defense counsel’s argument that the police officers were attempting to frame defendant because his brother was involved in a civil suit with another police officer. We therefore conclude that the prosecutor’s comments did not prejudice defendant or deprive him of his right to a fair trial.

Defendant next argues that the trial court erred in submitting the Prim instruction to the jury. It is his position that the supplemental instruction coerced the jury’s verdict. We disagree.

It is primarily the function of the trial court to determine, on the basis of such factors as the length of time already spent in deliberation and the complexity of the issues before the jury, when the giving of the supplemental Prim instruction is appropriate. (People v. Cowan (1985), 105 Ill. 2d 324, 328, 473 N.E.2d 1307, 1309; People v. Prim (1972), 53 Ill. 2d 62, 76, 289 N.E.2d 601, 609-10.) In reviewing the propriety of the trial court’s supplemental instruction, the test is whether the language used actually interfered with or coerced the verdict to the prejudice of the defendant. People v. Craddock (1987), 163 Ill. App. 3d 1039, 1045, 516 N.E.2d 1357, 1362.

Here, defendant does not contest the propriety of the Prim instruction. The instruction given in the present case precisely paralleled the instruction given in the Prim case. However, defendant argues that because the instruction was not necessary, the trial court abused its discretion when it tendered the instruction. In the present case, the jury heard two days of testimony. After a lunch break on the second day, the jury retired to deliberate. In response to a note from the jury inquiring how long they should deliberate, the court with the consent of defense counsel and the State’s Attorney responded “as long as you need.” Twice during deliberations, individual jurors gave the bailiff messages to transmit to their families and friends. At approximately 7:39 p.m. that evening, the jurors sent the judge a note which stated that they were unable to reach a unanimous decision. The court inquired into the numerical division of the jury and the number of votes taken to reach their decision. When the foreman responded that there had been some change in the vote, the court gave the jury the Prim supplemental instruction. At approximately 11:30 p.m., the jury returned verdicts of not guilty of home invasion and armed robbery and guilty of the attempted murder of Officer Coughlin and the aggravated assault of Officer Thome.

Defendant contends that when following lengthy deliberation and notes to family with response, the judge forced the jury to deliberate even though they were deadlocked, the jurors signed verdict forms of guilty just so that they could go home. Defendant’s assertions are unsupported by the record. The trial court’s Prim instruction was proper, and his language and questions to the jury were non-coercive in nature. Under these circumstances, we find no abuse of discretion in the trial court’s decision to give the supplemental Prim instruction where the jury had been deliberating for over six hours and their numerical division indicated that they were close to reaching a verdict.

Finally, defendant argues that the trial court erred in sentencing him on the basis of a biased presentence report. We disagree.

At sentencing, the trial court should consider all available and pertinent information concerning the person and the crime to enable him to impose an appropriate sentence. (People v. Crews (1967), 38 Ill. 2d 331, 337, 231 N.E.2d 451, 454.) However, in considering a presentence report, the court must exercise care to insure the accuracy of information considered and to shield itself from the potentially prejudicial effect of improper materials. (People v. Peacock (1982), 109 Ill. App. 3d 684, 685-86, 440 N.E.2d 1260, 1262.) Where a trial court considers incompetent and prejudicial evidence in sentencing, it abuses its discretion, and the sentence based on such evidence will be vacated. People v. Laramore (1987), 163 Ill. App. 3d 783, 793, 516 N.E.2d 401, 407; People v. Kirk (1978), 62 Ill. App. 3d 49, 54, 378 N.E.2d 795, 799.

Here, defendant objected to numerous entries and statements in the presentence report. The court reviewed each entry and amended or deleted the objectionable material from the presentence report. During the sentencing hearing, the court specifically stated that the trial testimony would speak for itself and that any information in the presentence report which the State could not support with witness testimony would be stricken from the report. The record clearly indicates that the trial court exercised great care to insure the accuracy of the information considered and to shield itself from the potentially prejudicial effect of any improper evidence. Any alleged error or defect in the report was cured by deletion and amendment. We therefore find that the trial court did not rely on incompetent or prejudicial information in sentencing defendant.

For all of the foregoing reasons the judgment and sentence of the circuit court is affirmed.

Affirmed.

WHITE and CERDA, JJ., concur.


author: PRESIDING JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARILYN ZILIO, Defendant-Appellee.
    First District (3rd Division)
    No. 1—87—1889
    Opinion filed December 6, 1989.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Susan J. Crane, Assistant State’s Attorneys, of counsel), for the People.
    No brief filed for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

The State appeals from an order of the circuit court of Cook County, which rescinded the projected summary suspension of defendant’s driving privileges. This order was based on the court’s determination that the sworn report, filed by the arresting officer, was constitutionally deficient in that it did not contain the factual basis for the officer’s probable cause determination. In this appeal, the State contests the propriety of that ruling.

The record shows that about 1:30 a.m. on March 22, 1987, defendant was arrested in Dolton, Illinois, and cited for two violations of the Illinois Vehicle Code (Code); i.e., driving under the influence of alcohol

and operating a motor vehicle with an alcohol concentration of 0.20. (Ill. Rev. Stat. 1987, ch. 95½, pars. 11—501(a)(2), (a)(1).) Following that, and in compliance with the implied-consent provisions of the Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1), the arresting officer filled out a “Law Enforcement Sworn Report” advising defendant that, 46 days hence, her driving privileges would be suspended for a minimum of three months because her alcohol-concentration level tested above 0.10. This report also reflected the date and time that test was given, but did not include the place of the test nor the reasonable grounds which led him to believe that defendant had violated section 11—501 of the Code. The officer concluded his report with his signature certifying that the statements set forth in his report were true and correct. He also completed a “Warning to Motorist” form in which he certified that he gave defendant the statutorily required implied-consent warnings. (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1(c).) Confirmation of the three months’ suspension was subsequently sent to defendant, and she was advised that it would take effect at midnight on May 7, 1987.

Prior to that date, defendant filed a petition requesting that the projected suspension of her driving privileges be rescinded. In her petition defendant alleged that she was not properly arrested for the offense of driving under the influence, that the arresting officer did not have reasonable grounds to believe that she was driving while under the influence of alcohol, and that the officer failed to properly warn her in accordance with section 11 — 501.1 of the Code. Defendant also disputed the accuracy of the results of the alcohol-concentration test.

On May 5, 1987, a hearing was conducted on defendant’s petition. At that time defense counsel filed a motion to dismiss the summary suspension of defendant’s driving privileges because the notice served on defendant on March 27, 1987, did not state where the test was given or set forth the grounds which led the officer to believe that she had violated section 11—501 of the Code. The State moved to amend the report to indicate the place of the test, but the court would not allow it. Then, after further colloquy and argument, the court sustained defendant’s motion to dismiss. In doing so, the court found the officer’s report fatally defective because it did not reflect the factual basis for the officer’s belief that defendant had violated section 11— 501 of the Code, which the court deemed was minimally required under due process to support the summary suspension of defendant’s driving privileges. In this appeal, the State challenges the propriety of that ruling.

Under current law a statutory summary suspension of driving privileges automatically takes place after the completion of a series of ministerial procedures. (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1; People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.) Upon notice of the suspension, the motorist may request a hearing in the court of venue setting forth the grounds on which she seeks rescission. (Ill. Rev. Stat. 1987, ch. 95½, par. 2—118.1(b).) This hearing is to proceed as other civil proceedings and is limited to the issues of whether the motorist was placed under arrest for driving under the influence of alcohol or drugs; whether the arresting officer had reasonable grounds to believe that the person was driving in that condition; whether the person was properly advised of the consequences of refusing or failing the test requested by the officer; and whether the person, after being properly instructed by the officer, submitted to a test which disclosed an alcohol concentration of 0.10 or more. (Ill. Rev. Stat. 1987, ch. 95½, par. 2—118.1(b).) Under the ruling entered by the supreme court in People v. Badoud (1988), 122 Ill. 2d 50, 521 N.E.2d 884, it is now clear that this limited scope of review does not preclude the trial court from considering deficiencies in the officer’s sworn report at the hearing; however, we do not believe that the conclusion drawn from the review in this case supports the trial court’s order of rescission.

In Illinois v. Batchelder (1983), 463 U.S. 1112, 77 L. Ed. 2d 1267, 103 S. Ct. 3513, the United States Supreme Court considered a challenge to the Illinois implied-consent statute in effect at that time which provided a motorist with a right to a hearing before he was deprived of his license. (Ill. Rev. Stat. 1981, ch. 95½, par. 11—501.1.) Under that scheme, the Batchelder Court determined that arresting officers who were enforcing the State’s implied-consent statute were not constitutionally required to specify the evidentiary matters which provided them with reasonable cause to believe that the person was driving under the influence. In the case at bar, the court felt that Batchelder was not controlling since the current statute does not provide for a presuspension hearing and that minimum due process requires that the officer set forth the basis for his probable cause determination in his sworn report.

It is well settled that a license to drive, once issued, is a property interest which may not be suspended or revoked without due process of law. (Bell v. Burson (1971), 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586.) However, the decisions of the Supreme Court in Dixon v. Love (1977), 431 U.S. 105, 52 L. Ed. 2d 172, 97 S. Ct. 1723, and Mackey v. Montrym (1979), 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612, clearly established that due process does not require a prior evidentiary hearing in every instance where the government seeks to deprive a person of his driving privileges. (People v. Esposito (1988), 121 Ill. 2d 491, 521 N.E.2d 873; see also People v. Gerke (1988), 123 Ill. 2d 85, 525 N.E.2d 68.) These cases underscore the public policy considerations at work in the implied-consent statutes, and hold that due process is satisfied by the availability of a pre- or post-suspension hearing, and will not be defeated by technical deficiencies. In Badoud, for example, the supreme court commented that the statutory summary suspension provision should be liberally construed to accomplish the legislature’s obvious purpose of fostering highway safety, and in keeping with that objective determined that defendant could insist upon having an unsworn report corrected, but that the statutory scheme would not permit him to escape responsibility for drunk driving by pointing to a technical deficiency in the completion of the officer’s report. Badoud, 122 Ill. 2d at 60.

Under the prior codification of this statute, reviewing courts determined that the purpose of the officer’s statement was to inform the appropriate circuit court that an arrest for an included violation had taken place so that the clerk could notify the driver of his right to an implied-consent hearing. (See, e.g., People v. Frye (1983), 113 Ill. App. 3d 853, 447 N.E.2d 1065.) It was also determined that the statute did not require the arresting officer to set forth in his sworn statement the factual basis or evidence from which he concluded that defendant was driving under the influence of alcohol. (People v. Babych (1983), 112 Ill. App. 3d 704, 445 N.E.2d 921; People v. Mourillon (1984), 124 Ill. App. 3d 218, 463 N.E.2d 1337.) The question of whether the arresting officer had reasonable grounds for his action would be determined at the hearing. People v. Frye (1983), 113 Ill. App. 3d 853, 447 N.E.2d 1065; People v. Babych (1983), 112 Ill. App. 3d 704, 445 N.E.2d 921.

We observe that the present statute, insofar as it directs the officer to submit a “sworn report” without requiring that he set forth the underlying factors upon which his probable cause determination was made (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1(d)) has remained unchanged in the subsequent amendments to the Code. From this we conclude that the legislature did not intend to negate the prior rulings of the reviewing courts cited above which determined that due process did not require that a detailed explanation of facts be set forth in the sworn report. (See People v. Badoud, 122 Ill. 2d 50, 521 N.E.2d 884.) Moreover, we bear in mind that the implied-consent hearing is a civil proceeding (People v. Gerke, 123 Ill. 2d 85, 525 N.E.2d 68), and that the liberal amendment policy in effect in such proceedings should be available in the implied-consent setting. People v. Gaddi (1986), 145 Ill. App. 3d 227, 494 N.E.2d 696.

In sum, we find no per se due process violation in the failure of the officer to include the factual basis for his probable cause determination on the sworn report, however desirable that might be (People v. Gaddi, 145 Ill. App. 3d 227, 494 N.E.2d 696), and that this omission will not support the rescission order entered by the court. In passing, we further observe that the suspension was set to take effect on a date subsequent to the hearing date, and in that respect, comported with .the due process ruling of Batchelder.

The order of the circuit court of Cook County is therefore reversed, and the cause remanded for further proceedings consistent with this order.

Reversed and remanded.

WHITE and CERDA, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES ROSE, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—2645
    Opinion filed December 6, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Paula Carstensen, and Catherine A. Bernard, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, James Rose, was convicted of voluntary manslaughter (Ill. Rev. Stat. 1985, ch. 38, par. 9—2) and sentenced to 12½ years’ imprisonment in the Illinois Department of Corrections. Defendant appeals, contending that the trial court (1) erred in denying his motions to quash his arrest and to suppress evidence, (2) abused its discretion by discharging one of the jurors, and (3) considered improper factors in sentencing him. We affirm.

At the hearing on the motions to quash the arrest and suppress evidence, Detective George Carey testified that on July 23, 1986, at about 3 a.m., he and his partner, Detective Al Grefsheim, were assigned to investigate a homicide at an apartment building located at 5641 South Michigan Avenue in Chicago. The victim, Earl Grigsby, had been stabbed. Prior to arriving at the scene, beat officers had informed the detectives that there were two offenders involved and that one of them was Keith Allen. Carey obtained the address for Allen from the police arrest files. Upon arriving at that address, which was down the street from the crime scene, the detectives found it to be a vacant lot. The detectives then proceeded to 5641 South Michigan, where they interviewed witnesses concerning the homicide.

Carey interviewed Sharon Collins, who stated that the stabbing was the result of an altercation which had occurred on the weekend prior to July 23. On that weekend, there had been a fight in front of the building between a man named Tyrone Russell and a man known only as James. The victim attempted to break up the fight. After Russell knocked out James, the victim gave shelter to Russell in his apartment. Later, James came upstairs and knocked on the door of the victim’s apartment in search of Russell. The victim told James that he did not know where Russell was, and James said that if he ever found Russell, he would kill him.

Carey further testified that Sharon told him that on the evening of the 23rd, she was with Janice Collins and Denise Dunmore in the victim’s apartment. The victim had gone out to the store. When she heard the downstairs doorbell continuously ringing, she walked out onto the balcony of the apartment, and a woman across the street yelled to her that someone had just stabbed one of their (Collins’) boyfriends. Sharon ran out of the apartment and opened the vestibule door. The victim was standing there with blood on him, stating that James had done it. She let the victim inside, and he walked upstairs to the apartment, where he subsequently collapsed on the bedroom floor. Sharon then went across the street, in search of the woman who had yelled to her. The woman told her that two men were fighting the victim, and she gave Sharon a description of one of the men. Based on the woman’s description, Sharon recognized one of the men involved to be Keith Allen. Information gathered from Janice Collins and Denise Dunmore corroborated that of Sharon.

Carey also interviewed Edward Green, the janitor of the building across the street. According to Green he had witnessed the fight at the building on the preceding weekend. One of the men in the weekend fight was involved in the stabbing. Green advised the detectives to speak with Denise Johnson, because she had been closer to the crime scene than he was and she would be better able to tell them about the stabbing.

The detectives then proceeded to the home of Tyrone Russell, whose address they had obtained from Collins. Russell informed them that he had been involved in the fight with James over the weekend. After the fight, Russell was in the victim’s apartment when James came looking for him. Russell heard James say that if he ever found Russell, he would kill him. Russell stated that he did not know who James was, what his last name was, or where he lived, but that the detectives should know because they had recently arrested James’ brother, Tyrone Sims, for murder.

Grefsheim had handled the Sims case, and he knew that Sims lived with his mother. The detectives proceeded to the Sims address, where they met with Sims’ mother. When asked whether Tyrone had a brother named James, the mother responded that he did, that his last name was Rose, and that he lived in an apartment on the third floor of the building. By this time, it was about 5:15 a.m.

The detectives went to the third floor of the building, knocked on the door, and Portes Harris, who appeared to have been awakened by the knock, answered. The detectives identified themselves, told Harris that they were looking for James Rose, and asked Harris whether Rose lived there. Harris responded in the affirmative, said that he was Rose’s uncle, then stood back and told the detectives to come inside. The officers followed Harris down a hallway to a bedroom, Harris opened the door, and defendant was found sleeping there. The detectives did not have a warrant.

The detectives awakened defendant and informed him that they believed that he had been involved in the stabbing of Earl Grigsby. Defendant denied any involvement. Carey told defendant to come with them, and the detectives returned, with defendant, to the crime scene. Upon their arrival, Sharon Collins, Janice Collins, and Denise Dunmore started yelling that defendant was the James who had been in the fight over the weekend. The detectives took defendant out of the car, to make certain that the ladies’ identifications were correct. Defendant was then placed under arrest, handcuffed, placed in the car and given his Miranda warnings.

At about 6 a.m., defendant was transported to the police department and placed in an interview room. Defendant was again given Miranda warnings. Defendant admitted that he had stabbed the victim, described the knife that he had used, and told the detectives that he thought that the knife could be found in the apartment, under his mattress.

Carey, Grefsheim and a third police officer, Swistowicz, returned to defendant’s apartment. Harris again answered the door. The detectives told Harris that they were looking for defendant’s knife and that defendant had told them that the knife was under his mattress. When they asked if they could come in and get it, Harris said “yes.” The officers went into defendant’s bedroom and looked under the mattress for the knife, however, it was not there. Camella, defendant’s girlfriend, was in the room at the time. She told the detectives that she did not know where the knife was, but that they could look around. Officer Swistowicz found the knife in the kitchen, on top of a radiator. Camella identified the knife as being that of defendant.

The detectives returned to the police station, and at about 3 p.m., Carey, along with assistant State’s Attorney Kevin Horan, interviewed defendant. Defendant was again given his Miranda warnings, and he subsequently gave a court-reported statement confessing to the stabbing.

Detective John Markham testified that at about 8 p.m., on that same evening, he conducted a lineup which was viewed by Denise Johnson and Edward Green, occurrence witnesses. There were five people in the lineup, including defendant. The witnesses identified defendant as the offender.

Portes Harris testified in rebuttal. He stated that he lived at 125 East 57th Street, with defendant, his (defendant’s) mother and his siblings. According to Harris, on the morning of the 23rd, there were four or five officers at the door. When he answered the door the officers asked for James Rose. Harris did not know whether James was at home, and he told the detectives that he would go to his room to check. Before Harris could get to defendant’s bedroom, the officers were coming in the door. The detectives did not say that they wanted to arrest defendant; they said that they wanted to talk to him. Harris stated that he did not give the officers permission to come inside.

Later, at about 4 or 5 p.m., two or three officers returned to the apartment. They knocked on the door, Harris again answered, and the officers told him that they wanted to search defendant’s room for a knife. Harris stated that he did not give the officers permission to search the apartment, and he did not know whether they had found anything as a result of their search.

On cross-examination, Harris stated that he had been with defendant’s mother for eight years. He stated that he did not tell the police that he was defendant’s uncle, but rather that he was his stepfather. According to Harris, Tyrone Sims was defendant’s cousin, not his brother. He also testified that the police were polite each time they had come to the apartment and that they did not have their guns drawn. Further, Harris stated that had the detectives asked for permission to enter the apartment, he would have granted it.

At the close of the evidence, the trial court asked to hear argument concerning consent or exigent circumstances to enter the apartment to make a warrantless arrest. The court also heard argument concerning consent to enter the apartment to search for the knife. Based on the evidence and the arguments of the parties, the court stated that it found that there was probable cause to arrest and that there had been consent to enter the apartment to search for the knife. The court denied defendant’s motions to quash his arrest and to suppress the evidence.

At trial, Sharon Collins testified that she had seen defendant earlier in the day on July 23. Defendant stated to her that he wanted to fight the victim “heads up.” Her testimony concerning the later events essentially corroborated the testimony of Carey.

Denise Johnson and Edward Green both saw the stabbing from across the street. They each testified that when the victim arrived at the vestibule of his apartment building, defendant accompanied him inside. Allen remained outside. Defendant and the victim had a fight, and after a few minutes, defendant came out and walked away. Allen ran.

Defendant asserted a defense of self-defense, and he testified in his own behalf. He stated that he was not certain whether it had been Russell or the victim who had knocked him down in the weekend fight. However, he did recall that the victim had grabbed and pushed him prior to him getting hit. Defendant stated that in spite of the incident, he did not harbor a grudge against either Russell or the victim.

Early in the day, on July 23, defendant saw the victim point him out to some people and he overheard him to say that defendant was the “punk” whom Russell had knocked out. Defendant admitted that he was upset over the comment.

According to defendant, on the morning of the stabbing, he entered the vestibule with the victim. The two were talking, and an argument ensued over who had hit defendant in the earlier fight. The victim put down his bags and grabbed defendant’s arm. Defendant hit the victim, and the victim hit him back. Defendant, in an effort to protect himself, took out his knife and started swinging it at the victim. After he had stabbed the victim, he left the apartment, went home, thought about it, and then returned to the area. When the police arrived at the scene, defendant again left and went home.

Defendant’s first contention on appeal is that the trial court erred in denying his motions to quash the arrest and to suppress the evidence. Defendant maintains that the State failed to prove either that the police had probable cause to arrest him, or that the warrantless entry into his home was justified. We disagree.

We first address defendant’s argument that there was not probable cause to arrest him. Probable cause exists when the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution to believe that an offense has been committed and that the person arrested has committed the offense. (People v. Creach (1980), 79 Ill. 2d 96, 101, 402 N.E.2d 228, cert, denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564; People v. Robinson (1976), 62 Ill. 2d 273, 342 N.E.2d 356.) The trial court’s determination that there was probable cause to arrest may be grounded on evidence which would not be admissible at trial, and it need not be sufficient to establish guilt beyond a reasonable doubt. (People v. Lee (1986), 151 Ill. App. 3d 510, 518, 502 N.E.2d 399.) In evaluating the existence of probable cause, courts are required to consider “probabilities and are not disposed to be unduly technical.” People v. Clay (1973), 55 Ill. 2d 501, 504-05, 304 N.E.2d 280.

The State maintains that the police had probable cause to arrest defendant because of certain facts known to them at the time of the warrantless arrest. Our review of the record reveals that when the police went to defendant’s home they knew the following facts: that a man named James was involved in the weekend fight with Russell and the victim; one of the men in the fight was the same man involved in the stabbing of victim; Keith Allen was with James on the evening of the stabbing; prior to his death, the victim repeatedly stated that James had done it; according to Russell, James was the brother of Tyrone Sims, who had recently been imprisoned for murder; Grefsheim had been involved in the Sims case and knew the address of Sims; and, according to Sims’ mother, Sims had a brother named James, whose last name was Rose, and he lived in the apartment on the third floor of the building.

Defendant argues that the police were led to him by two particularly weak links. First, he argues that Russell’s source of information about James’ identity was unknown. We understand defendant’s argument to raise an issue of the reliability of Russell’s information. Defendant’s argument must fail. Russell was an ordinary citizen, not a paid informant, and the police were justified in relying upon the information gained from him. (See People v. Bean (1981), 84 Ill. 2d 64, 68, 417 N.E.2d 608, cert, denied (1981), 454 U.S. 821, 70 L. Ed. 2d 93, 102 S. Ct. 106.) Second, defendant argues that the fact that he had a different last name, and lived in a different apartment than Sims, should have caused the detectives to hesitate and to consider whether the James identified by Russell was, in fact, Sims’ brother, James. We reject defendant’s argument. We do not think it to be unusual that siblings have different last names. Therefore, we find that the detectives’ belief that defendant and Sims were brothers was not unreasonable, especially in light of the fact that it was Sims’ mother who identified him as such. Based on this evidence, we conclude that the trial court’s finding of probable cause was not manifestly erroneous. Clay, 55 Ill. 2d at 505.

Having determined that the arrest was properly supported by probable cause, we next evaluate defendant’s argument that the warrantless entry into defendant’s apartment was not justified. Defendant argues that there was neither consent nor exigent circumstances to justify the entry. Thus, he urges, in light of Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, his warrant-less arrest and any evidence which flowed from it were inadmissible, as “fruits of the poisonous tree.” The State, contrarily, argues that the entry was consensual and that even if it had not been, there were exigent circumstances which justified it. It is well settled in Illinois that the police cannot enter a person’s apartment to effect a warrant-less arrest based on probable cause alone. (People v. Columbo (1983), 118 Ill. App. 3d 882, 928, 455 N.E.2d 733, cert, denied (1984), 467 U.S. 1208, 81 L. Ed. 2d 351, 104 S. Ct. 2394.) There must either be factors of exigency which warrant prompt police action (People v. Abney (1980), 81 Ill. 2d 159, 168, 407 N.E.2d 543), or a showing of consent to enter (Bean, 84 Ill. 2d at 69).

Where a warrantless arrest is made, the standard for valid consent to enter a dwelling, which has been applied by the Supreme Court, is whether the consent was voluntarily given. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041.) Voluntariness of consent is determined by the totality of the circumstances. (People v. Turner (1986), 143 Ill. App. 3d 417, 424, 493 N.E.2d 38; People v. Salgado (1980), 83 Ill. App. 3d 653, 404 N.E.2d 432.) The requisite consent need not be given by the defendant; it may be obtained from a third party. (United States v. Matlock (1974), 415 U.S. 164, 39 L. Ed. 2d 242, 94 S. Ct. 988; Bean, 84 Ill. 2d at 64.) The authority which justifies third-party consent rests on the mutual use of the property by persons generally having joint access or control for most purposes. People v. Stacey (1974), 58 Ill. 2d 83, 317 N.E.2d 24.

Defendant argues that the State failed to prove that consent to enter his home was given, and even if there was consent, there was no proof that it was given voluntarily. The State bears the burden of proving that consent was voluntarily given. (People v. Williams (1985), 130 Ill. App. 3d 758, 474 N.E.2d 1330.) It must be proved by clear and positive testimony, and it must be established that there was no duress or coercion, actual or implied. (Williams, 130 Ill. App. 3d at 762.) It is within the province of the trial court to determine the credibility of witnesses and to resolve any conflicts in the evidence. People v. Clark (1982), 92 Ill. 2d 96, 99, 440 N.E.2d 869.

The issue of consent was examined in People v. Dunagan (1983), 118 Ill. App. 3d 474, 455 N.E.2d 542. In Dunagan the evidence showed that when the police officers knocked, someone, most likely the defendant, inquired who it was. (Dunagan, 118 Ill. App. 3d at 477.) The door was opened when the officers responded “[P]olice.” (Dunagan, 118 Ill. App. 3d at 477.) In deciding that the entry was nonconsensual, the court found that there was no evidence that anyone had invited the officers inside, but rather that they had simply entered when the door was opened. (Dunagan, 118 Ill. App. 3d at 477.) The case at bar differs from Dunagan. Here, there was clear and unequivocal testimony that the detectives entered the apartment at Harris’ invitation. The trial court found that detective’s testimony to be more credible than Harris’, and we cannot conclude otherwise.

Defendant urges, relying on Williams (130 Ill. App. 3d 758, 474 N.E.2d 1330), that the case should be remanded for a hearing on the question of the voluntariness of consent. We find Williams to be distinguishable and, thus, we see no reason which would justify a remand. In Williams, at the defendant’s hearing on his motion to suppress, the police officer testified that he had presented the defendant’s co-tenant with a consent to search form, which he signed in his presence. (130 Ill. App. 3d at 760.) The police officers went to the defendant’s home, knocked, and defendant’s sister opened the door. The officers introduced themselves, and the sister “allowed” them to come into the apartment. (Williams, 130 Ill. App. 3d at 760.) The trial court found that defendant’s co-tenant had executed a consent to search form and that there was probable cause to arrest the defendant. On appeal, the defendant did not argue that consent was not given, but rather that the State failed to prove that it had been given voluntarily. (Williams, 130 Ill. App. 3d at 761.) The appellate court held that the officer’s statement did not sufficiently establish a voluntary consent and that the trial court had not specifically addressed the issue of voluntariness. (Williams, 130 Ill. App. 3d at 762.) Therefore, the court remanded the case to the trial court for a hearing on the issue of voluntariness. (Williams, 130 Ill. App. 3d at 762.) In the case at bar, the trial court heard the testimony of Carey and, if believed, it was sufficient to establish the voluntariness of Harris’ consent. The court also heard testimony from Harris that the entry of the detectives was done in a peaceful manner. Furthermore, the record is void of any evidence that either defendant or Harris refused entry to the officers or that they were otherwise uncooperative. (See Turner, 143 Ill. App. 3d at 424; People v. Rimmer (1985), 132 Ill. App. 3d 107, 476 N.E.2d 1278.) Despite the fact that the trial court here did not expressly state that it found Harris’ consent to have been voluntary, we believe that there was sufficient evidence presented that it could have so found.

Defendant, in his brief, states that it is not clear that Harris had the authority to consent to the officers’ entry into the apartment, and much less to their entry into defendant’s bedroom. In Illinois, in cases in which it is established that defendant resides with his parents or close relatives, and the parents or relatives consent to a search of defendant’s bedroom, it is presumed that there is a common authority over the premises sufficient to authorize the consent to search. (People v. Howard (1984), 121 Ill. App. 3d 938, 946, 460 N.E.2d 432.) This presumption may be overcome by evidence indicating that defendant had exclusive possession over the bedroom. (Howard, 121 Ill. App. 3d at 947.) Since the fourth amendment protects persons as well as objects, it would seem that the standard for consent to search must be the same as the standard for consent to entry into the defendant’s home by the police to arrest him. People v. Montgomery (1980), 84 Ill. App. 3d 695, 701-02, 405 N.E.2d 1275.

Defendant cites to People v. Bochniak (1981), 93 Ill. App. 3d 575, 417 N.E.2d 722, cert, denied (1982), 455 U.S. 938, 71 L. Ed. 2d 648, 102 S. Ct. 1427, a case concerning authority of a third person to consent to a search of a defendant’s home. In Bochniak, the defendant rented a garage from his mother. (93 Ill. App. 3d at 576.) The garage was located on the mother’s property, and she had a key to it; however, she never used the garage. (Bochniak, 93 Ill. App. 3d at 576.) The court there held that the defendant had exclusive authority over the garage, and the fact that the mother owned the garage and had a key to it did not mean that she had actual authority to consent to a search of the garage. Bochniak, 93 Ill. App. 3d at 576-77.

Unlike Bochniak, we believe that the evidence showed that Harris had mutual use of the apartment. Defendant, in presenting his case, offered testimony that at the time of defendant’s arrest, Harris lived at 125 East 57th Street with defendant, his mother, and his siblings, and that he was defendant’s stepfather. In its closing argument, the State asserted that Harris, as a co-occupant of the home could give valid consent. There was neither testimony nor argument in rebuttal. We find nothing in the record to indicate that Harris was only a casual visitor with limited access to the premises or that defendant had exclusive control over either the apartment or his bedroom. In fact, Harris testified that he had gone to bed there on the evening preceding the arrest, and in the morning, when the police arrived, he was only partially dressed. (Cf. People v. Brown (1987), 162 Ill. App. 3d 528, 515 N.E.2d 1285, cert, denied (1988), 488 U.S. 841, 102 L. Ed. 2d 86, 109 S. Ct. 112 (police could assume that teenager exiting the residence in her bedclothes had the authority to permit them to enter).) We conclude that Harris had authority to consent to the detectives’ entry into the apartment.

Defendant next argues that the entry cannot be justified by the existence of exigent circumstances, and further, that the State has waived this theory by not arguing it below. We disagree. Generally, the waiver rule is applicable to the State only when the prosecution is appealing the trial court’s decision to grant a defendant’s motion to suppress. (See, e.g., People v. Holloway (1981), 86 Ill. 2d 78, 426 N.E.2d 871; but see People v. Chianakas (1983), 114 Ill. App. 3d 496, 501-02, 448 N.E.2d 620.) In such cases, the State is precluded from arguing a new theory on appeal because it acquiesced in an inconsistent theory below. (People v. McAdrian (1972), 52 Ill. 2d 250, 254, 287 N.E.2d 688.) However, it would be unfair to hold that the State, as the prevailing party in a motion to suppress, has waived any reason it might have argued in support of the court’s ruling. (People v. Keller (1982), 93 Ill. 2d 432, 437, 444 N.E.2d 118.) However, fixrther resolution of this issue is not required since we have decided that the entry was consensual.

Defendant’s second contention on appeal is that the trial court abused its discretion in discharging a juror who arrived late on the second day of trial. A review of the record reveals that at the close of trial on the first day, the court informed the jury to be present the following day at 11 a.m. and that they would be supplied a phone number for the court in the event of an emergency. On the second day of trial, after the case was called, the court stated, for the record, that it was past 11:30 a.m. and that one juror, in spite of instructions to be there by 11 a.m., had not yet arrived and trial was about to begin. At that point, the tardy juror arrived. The court, in rejecting the juror’s excuse that he was delayed by traffic, stated that it had no tolerance for irresponsibility and disrespect. After a hearing concerning the juror’s reason for being late, and over defendant’s objection, the trial court discharged the juror and replaced him with an alternate. There is no indication in the record that the juror attempted to contact the court to advise it that he would be delayed. Defendant argues that the discharge was an abuse of discretion and that reversal is required. We disagree. The discharge of a juror and the impaneling of an alternate is an act of discretion by the trial judge, and absent a clear showing of prejudice, reversal is not required. (Snyder v. Poplett (1981), 98 Ill. App. 3d 359, 365, 424 N.E.2d 396; People v. Thomas (1979), 71 Ill. App. 3d 838, 841, 390 N.E.2d 414.) As the State correctly argues, the defendant’s right to a fair and impartial jury does not mean that he has a right to have a particular juror included on the panel. (People v. Nicholson (1978), 61 Ill. App. 3d 621, 627, 377 N.E.2d 1063.) It is the burden of the party asserting error to show how he was prejudiced by the court’s decision, and absent such a showing, a court of review will not assume prejudice. People v. Lyden (1981), 97 Ill. App. 3d 540, 542, 423 N.E.2d 262.

In his brief, defendant essentially recites portions of the voir dire examination of the discharged juror, and the court’s hearing and reprimand of him. However, this does not show how he was prejudiced. Additionally, defendant points to the fact that the trial court affirmed, rather than swore in the juror. The record reveals that the court, in consideration of the fact that the juror had changed his name from a Christian to a Muslim name, had the juror affirmed. While it might have been preferable for the court to have inquired of the juror his preference for affirmation as opposed to being sworn, this does not translate into prejudice to defendant. Moreover, defendant fully participated in the voir dire examination of the alternates, and the alternate who replaced the excused juror was not objected to by him. We presume that the alternate who was impaneled was capable of being a fair and impartial trier of fact. (People v. Campbell (1984) , 126 Ill. App. 3d 1028, 1040, 467 N.E.2d 1112, cert, denied (1985) , 471 U.S. 1136, 86 L. Ed. 2d 695, 105 S. Ct. 2677.) Here, even were we to conclude that the court abused its discretion, and we do not, defendant has failed to demonstrate how he was prejudiced by the discharge of this particular juror.

Defendant’s third and final contention on appeal is that the trial court considered improper factors in rejecting probation and imposing a sentence of 121/2 years. Thus, defendant maintains, the sentence must be reduced or, in the alternative, the case should be remanded for resentencing. Initially we note that the trial court is in the best position to fashion and to impose an appropriate sentence, and this court will afford its determination great deference. (People v. La Pointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344.) While reviewing courts are vested with the power to reduce sentences imposed by the trial court (107 Ill. 2d R. 615(b)(4)), it is well settled that absent an abuse of discretion, the sentence imposed by the trial court will stand. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Younger (1986), 112 Ill. 2d 422, 494 N.E.2d 145.) Voluntary manslaughter is a Class 1 felony which is punishable by a determinate sentence of not less than 4 and not more than 15 years’ imprisonment. (Ill. Rev. Stat. 1985, ch. 38, pars. 9—2(c), 1005—8—1(a)(4).) Thus, defendant’s sentence was within the statutory parameters.

Defendant first argues that in light of the conflicting evidence surrounding the stabbing, defendant’s background, and facts known about the victim’s size and recent battery conviction, the court should have seriously considered probation as a sentencing alternative. There is no absolute right to probation. The trial court has discretion to either grant or deny probation and, absent an abuse of that discretion, its refusal will not be disturbed. (People v. Ruskey (1986), 149 Ill. App. 3d 482, 494, 501 N.E.2d 146.) At the sentencing hearing, in aggravation, the State presented the presentence investigation, which indicated that defendant had a juvenile criminal record for theft, robbery, and battery, and asked the court to consider the facts which led up to the stabbing. In mitigation, defendant’s attorney stated that defendant thought he had to protect himself and asked the court to notice that only one stab wound had been inflicted. Further, defense counsel pointed out to the court that defendant’s juvenile offenses had occurred in 1981 and that he had no adult convictions. With the exception of a request to visit with his mother, defendant made no comment. Prior to pronouncing sentence, the court stated that the application for probation would not be seriously considered; “it was so unfitting the crime.” It appears from the record that the trial court believed that probation would “deprecate the seriousness of the offender’s conduct.” The record supports the court’s opinion.

Defendant’s argument that the trial court considered an element inherent in the offense to enhance the sentence must also fail. Defendant asserts that, in deciding the sentence, the trial court considered, as a factor in aggravation, that the killing was committed without legal justification. Thus, he argues, since the absence of legal justification is an element of the offense of voluntary manslaughter, it was improper for the court to consider it as a factor. To the extent that an aggravating factor is inherent in the offense, it may not be used to enhance the sentence. (People v. Craddock (1987), 163 Ill. App. 3d 1039, 1048, 516 N.E.2d 1357.) A person commits voluntary manslaughter when he intentionally or knowingly kills an individual and at the time of the killing he believes that the circumstances, if they existed, would justify the killing, but his belief is unreasonable. (Ill. Rev. Stat. 1985, ch. 38, par. 9—2(a)(2).) The trial court here stated that it accepted the jury’s verdict of manslaughter, and commented that the offense came close to murder. The court also stated that defendant had “just plain killed, without legal justification at all, the victim.” In pronouncing sentence, the court stated that the record should show that based on the evidence, the presentence report, the mandatory factors set forth in the statute concerning aggravation and mitigation, and considering the victim-impact statement, the sentence would be 121/2 years’ imprisonment.

Defendant’s reliance on People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138, is misplaced. In Saldivar, the trial court, at the defendant’s sentencing hearing, stated that the primary statutory factor in aggravation was “the terrible harm that was caused to the victim and that the victim was dead.” The judge there further emphasized that the defendant’s conduct had caused the victim’s death. (Saldivar, 113 Ill. 2d at 264.) The supreme court found that the sentencing judge had improperly relied upon the aggravating factor, that the defendant’s conduct caused serious harm to the victim, to impose a sentence more severe than would have been imposed if the impermissible factor had not been considered. (Saldivar, 113 Ill. 2d at 271.) Following the reasoning in People v. Andrews (1982), 105 Ill. App. 3d 1109, 435 N.E.2d 706, and in People v. Hughes (1982), 109 Ill. App. 3d 352, 440 N.E.2d 432, the court held that in sentencing a defendant on a conviction for voluntary manslaughter, it is permissible for the trial court, in applying the statutory aggravating factor that the defendant’s conduct caused serious harm to the victim, to consider the force employed and the physical manner in which the victim’s death was brought about. (Saldivar, 113 Ill. 2d at 271.) However, the court may not consider the end result of the defendant’s conduct, i.e., the death of the victim. Saldivar, 113 Ill. 2d at 273-74.

Here, the trial court expressly stated that its sentencing decision was based, among other things, on the statutory factors in aggravation and mitigation; it did not state that its decision was based on the fact that the killing was without justification. We believe that the court’s comments on the gravity of defendant’s conduct were permissible, and we reject defendant’s representation that the comment was considered as a factor in aggravation.

Finally, defendant argues that the tenor of the court’s comments, that defendant was “laying in wait to avenge his punch in the nose,” shows that in the court’s view the offense was in fact murder, and thus defendant was sentenced for murder and not voluntary manslaughter. Defendant's argument is not persuasive. We do not interpret the court’s remarks as indicating that it believed that defendant was guilty of murder. The court expressly stated that the offense came close to being murder. The court’s remarks show only that it believed defendant’s conduct to be so serious as to border on the more serious offense, and nothing more. The sentence was clearly and properly based on the jury’s verdict of voluntary manslaughter. We find no abuse of discretion.

For the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.

RIZZI and WHITE, JJ., concur.