author: JUSTICE GEIGER

text:
    MELVIN R. SALKELD, JR., Plaintiff-Appellant, v. V.R. BUSINESS BROKERS, INC., et al., Defendants-Appellees.
    Second District
    No. 2—91—0474
    Opinion filed July 21, 1992.

      Alfred Y. Kirkland, Jr., and Marios N. Karayannis, both of Brady, McQueen, Martin, Collins & Jensen, of Elgin, for appellant.
    Robert L. Caplan, of Clarendon Hills, for appellees The Buffer Zone, Inc., Innovative Concepts, and Joseph P.S. Licari.
    Arthur R. Ehrlich and Gerald A. Goldman, both of Goldman & Marcus, of Chicago, for other appellees.
   JUSTICE GEIGER

delivered the opinion of the court:

This is a second appeal in a case where the plaintiff, Melvin R. Salkeld, Jr., has alleged common-law fraud and violations of the Franchise Disclosure Act of 1987 (the Franchise Act) (Ill. Rev. Stat. 1991, ch. 1211/2, par. 1701 et seq.) and the Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (Ill. Rev. Stat. 1991, ch. 1211/2, par. 261 et seq.). The cause relates to the plaintiff’s “sublicensing agreement” to sell a product called “Cocktails Naturally.”

Salkeld v. V.R. Business Brokers (1989), 192 Ill. App. 3d 663) (Salkeld I), our prior decision in this case, includes a thorough recounting of the facts. Here we include only those facts essential to an understanding of the issues now before us. The facts are as follows. The plaintiff paid $25,000 under a “sublicensing agreement” made with the defendant Innovative Concepts, a division of the defendant The Buffer Zone, Inc. Of that amount, $7,500 would be paid to the sales broker, the defendant Bantam Investment Group. The plaintiff was, then, to be provided a sales territory and Innovative Concepts’ advice and guidance to operate a business to distribute and sell “Cocktails Naturally.” After several months of financially unsuccessful operation of his “Cocktails Naturally” business, the plaintiff brought this suit.

In the first trial, at the close of the plaintiff’s evidence, the defendants moved for a directed verdict. The court entered directed verdicts in favor of the defendants on the common-law fraud counts. It also found in favor of the defendants on the remaining claims.

In the first appeal, we affirmed the lower court in part. On the Franchise Act claim, however, we reversed and remanded as to all the defendants except American Triad Corporation. We ordered that, on remand, the trial court should proceed with consideration of those claims as though it had originally denied the defendants’ motion for a directed finding. (Salkeld I, 192 Ill. App. 3d at 678.) On the fraud claims, we reversed and remanded for further proceedings as to the defendants The Buffer Zone, Inc., Innovative Concepts, and Joseph P.S. Licari.

On remand, the trial court began by considering only the plaintiff’s count I, the Franchise Act claims. After completion of the second defense witness’ testimony, the court “dismissed,” sua sponte, the defendants V.R. Business Brokers, Inc. (V.R.), and Robert Contaldo. At the close of the trial, the court entered judgment against the plaintiff as to each remaining defendant.

The court stated the following reasons for its judgment that the Franchise Act did not apply: (1) the defendants had no control over the product selling price; (2) there were no special pricing or discount plans; (3) there was no mandate for the plaintiff to use available merchandising devices or sales or display equipment; (4) there was no mandate for the plaintiff to use the suggested sales technique; (5) there was no mandate that the plaintiff participate in referenced advertising; and (6) the defendants had no power of direction over the operating control of the plaintiff’s business. The court also mentioned that, according to the defendants’ materials, it was recommended that the plaintiff not follow the suggested sales technique, but, rather, make the sales approach more personal.

After entering judgment for the defendants and against the plaintiff on the Franchise Act claims, the court granted the plaintiff a voluntary nonsuit as to the remainder of the complaint. The plaintiff brought this appeal.

The first argument which we address on appeal is the plaintiff’s objection to the trial court’s “dismissal” of the defendant V.R. In the proceedings on remand, the second defense witness was Brad Bueerman, chief operating officer of V.R. At the conclusion of Bueerman’s testimony, which covered V.R.’s business relations with its franchisee’s local offices through which the agreement at issue in this case was brokered to the plaintiff, th'e trial court sua sponte found inadequate evidence to “bring in” V.R. It “disposed of” that defendant, as well as the defendant Robert Contaldo. There was no contemporaneous argument on the matter. The plaintiff subsequently objected to V.R.’s dismissal when he moved for a mistrial as to V.R.

On appeal, the plaintiff argues that the court’s “dismissal” of V.R. was error. He emphasizes that V.R. publishes and distributes materials for its franchisees’ sale of franchises. It was one of those V.R. forms that was a binding document in this case; on it the contracting broker signed as “V.R. Business Brokers.” According to the plaintiff, in these circumstances V.R. cannot deny liability under the Franchise Act. In the trial court, the plaintiff’s argument against the court’s sua sponte “dismissal” of V.R. emphasized that the “dismissal” order came before the plaintiff had an opportunity to present rebuttal evidence and closing argument. On appeal, none of the defendants has addressed this issue.

The Code of Civil Procedure clearly provides authority for a trial court, in the proper case, to grant an individual defendant’s motion for judgment at the close of the plaintiff’s case. (Ill. Rev. Stat. 1991, ch. 110, par. 2—1110.) It also clearly provides for a court, in the proper case, to grant a motion or to reserve a ruling to direct a jury verdict at the close of the evidence. (Ill. Rev. Stat. 1991, ch. 110, par. 2—1202(a).) On the other hand, we are aware of no authority for the trial court to “dismiss” sua sponte a defendant or to grant a defendant judgment in the midst of the defense presentation of evidence. Further, we note that a trial court’s authority to act sua sponte is limited by the restriction that it may do so only in order to do justice between the parties. See Welch v. Ro-Mark, Inc. (1979), 79 Ill. App. 3d 652, 656.

In Salkeld I, after we examined the evidence surrounding the plaintiff’s Franchise Act claims, we reversed the trial court’s judgment for the defendants which was granted at the end of the plaintiff’s case. Our remand for retrial of the Franchise Act claims included a remand as to V.R. Given our mandate for retrial, which the trial court was obligated to follow (Bradley v. Howard Hembrough Volkswagon, Inc. (1980), 89 Ill. App. 3d 121, 124), we do not find that the court here was doing justice between the parties when it “dismissed” V.R. from the proceedings.

The defendants have not noted, and we do not find, anything in the evidence or law applicable to this case to support the trial court’s “dismissal.” The plaintiff presented sufficient evidence to be entitled to a full trial as to V.R. (See Salkeld I, 192 Ill. App. 3d at 678.) That entitlement included a possible rebuttal and the right of closing argument. (See 134 Ill. 2d R. 233; Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716, 721; National Bank v. Olson (1986), 143 Ill. App. 3d 965, 969.) We reverse the trial court’s determination on this matter.

The plaintiff’s primary argument is that we should reverse the trial court’s judgment that the Franchise Act does not apply to this case. He first argues that, under Salkeld I, the Franchise Act applies as a matter of law. The defendants argue that the Salkeld I decision did not direct the trial court to find that the Franchise Act applies to this case. They also argue that the court’s decision that the Act did not apply was not against the manifest weight of the evidence.

In Salkeld I, we concluded that the plaintiff had presented a prima facie case for damages under the Franchise Act. (Salkeld, 192 Ill. App. 3d at 673.) In our analysis preceding that final conclusion, we considered the several statutory requirements for a “franchise.” We found that each of the statutory requirements for a “franchise” was “satisfied” by the materials in evidence. 192 Ill. App. 3d at 670-71.

Most significantly for this second appeal, we first examined the statutory requirement that a “franchise” include a “marketing plan or system.” In that regard, we considered the sales manual provided to the plaintiff, with its detailing of product information and sales strategies; a document given to the plaintiff that described a “sub-licensee program” as a program in which the company is “with [the plaintiff] every step of the way”; the company’s promise of support in marketing, training, advertising, and promotion; and defense testimony that the “system” referred to in the parties’ agreement referred to the “Cocktails Naturally” method of mixing and pouring drinks. (192 Ill. App. 3d at 670-71.) We found that the company’s representations to the plaintiff “amply satisfy the statutory requirement of the existence of a marketing plan or system [as required for a ‘franchise’ under the Franchise Act].” 192 Ill. App. 3d at 671.

On appellate court reversal and remand, a trial court is bound by the appellate court’s determination of all questions decided and may act only in conformance with the appellate court’s judgment. (Bradley v. Howard Hembrough Volkswagon, Inc. (1980), 89 Ill. App. 3d 121, 124.) Further, under the “law of the case” doctrine, on a second review, we are bound by the views of law announced in our prior opinion, unless the facts presented require a different interpretation. Bradley, 89 Ill. App. 3d at 124.

The Salkeld I decision clearly found that the sales materials presented in connection with the sublicensing agreement in this case sufficiently satisfied the statutory requirement for a marketing plan or system. With that finding, we did not conclude that the Franchise Act applied as a matter of law. We did, however, find as a matter of law that, in the absence of any facts requiring a different interpretation, for example, facts found to negate the applicability of any of the materials we considered, the Act’s requirement of a marketing plan or system was satisfied.

On appeal, we give deference to a trial court’s findings of fact. (Woodall v. Booras (1989), 182 Ill. App. 3d 1096, 1100.) It is clear from the trial court’s findings in this case, however, that, in reaching its judgment on remand, the court did not weigh the relevant facts and exercise its discretion. The court’s judgment here did not incorporate any fact that negated or disabled the evidence upon which Salkeld I relied; rather, the court made a new legal finding that is not entitled to our deference (see Woodall, 182 Ill. App. 3d at 1100). None of the factors underlying the trial court’s judgment on remand is a basis for the rejection of any material supporting our prior judgment.

We reverse the trial court’s decision that the Franchise Act does not apply. In doing so, we acknowledge that the defendants correctly note that we can sustain the decision of the trial court based on any grounds found in the record. (B.C. v. J.C. Penney Co. (1990), 205 Ill. App. 3d 5, 15.) Nevertheless, we find nothing of record allowing us to affirm the court’s decision here. It must be reversed and the cause remanded for the court to properly weigh the evidence on the factual questions it did not reach: for example, whether any of the materials we considered are incompetent evidence or whether the statutory notice requirement was satisfied here.

We note that, through their counsel Goldman and Marcus, the defendants have argued that, even if a “franchise” exists, none of the Bantam Group defendants should be liable. However, they have offered no authority for their argument, and we find it is waived. 134 Ill. 2d Rules 341(e)(7), (f); see Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 647.

Based on the foregoing, the decision of the circuit court of Kane County is reversed. Because the trial court did not assess the facts at issue here, for example, the timeliness of notice and the proper form of any damages, rather than enter judgment as the plaintiff prays (see 134 Ill. 2d R. 366), we remand the cause for the court’s further consideration consistent with our decision here.

Reversed and remanded.

UNVERZAGT and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DOYLE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOB ALLAN, Defendant-Appellant.
    Second District
    No. 2—90—1098
    Opinion filed July 2, 1992.

      Patrick A. Tuite, of Law Offices of Patrick A. Tuite, Ltd., and Brent D. Stratton, of Tuite, Mejia & Giacchetti, P.C., both of Chicago, for appellant.
    Thomas F. Baker, State’s Attorney, of Woodstock (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Bob Allan, was indicted in the circuit court of McHenry County for one count of reckless homicide (111. Rev. Stat. 1989, ch. 38, par. 9 — 3(a)). Following a jury trial, defendant was found guilty and sentenced to a two-year term of imprisonment.

On appeal, defendant raises the following issues: (1) whether the jury was incorrectly instructed in such a manner that it was required to find that he acted recklessly if it found his blood-alcohol content to be .10% or more; (2) whether he was denied a fair trial when the prosecutor failed to complete impeachment by introducing a prior inconsistent statement that a defense witness denied making; and (3) whether the trial court abused its discretion in considering the death of the victim as an aggravating factor in sentencing.

The following facts are relevant to our disposition of the issues raised on appeal. On June 29, 1988, at about 10:50 p.m., Jamie Dass, the deceased, was driving his vehicle westbound on Illinois Route 120 in McHenry, Illinois. Defendant was driving alone eastbound on Route 120 approaching McHenry. Witnesses established that defendant’s vehicle entered Dass’ lane of travel for approximately 60 feet and travelled straight before essentially striking Dass’ vehicle head on.

Route 120 is a four-lane roadway at the point of the collision, with two lanes running east and two lanes running west. There is also a concrete median separating the two east and westbound lanes which is one to two inches high. There is a solid yellow line that runs on each side of the median, a white, dotted line separating each of the east and westbound lanes, and a white, solid line running along the outer edge of the outside east and westbound lanes. The shoulders are paved.

At the point where Route 120 enters McHenry from the west, it is a two-lane highway with the lanes separated by a double yellow line. The road widens from two lanes to four lanes at Dot Street. Prior to the road becoming four lanes, there is a sign for eastbound traffic which states “[d]o not drive on the shoulder.” There is no sign notifying eastbound motorists that the road widens from two lanes to four lanes, while there is a sign indicating to westbound traffic that the road narrows from four lanes to two lanes.

There are mercury vapor streetlights on the north side of Route 120 which illuminate all four lanes of the road. There is a Kinder Care facility on the south side of Route 120 which one of the police officers testified was lighted on the evening of the accident. Its floodlights light up its parking lot. There is a farm field to the south of this stretch of Route 120, and there are no lights to the south until Kinder Care. One of the police officers who was at the accident scene testified that he could see approximately one-half mile west of the accident scene.

Defendant testified that he was employed as a research and development engineer at the time of the accident. He had flown from Minnesota to the area for the purpose of working on a project for one of his employer’s customers. On the day of the accident, he awoke with four or less hours of sleep. He flew to O’Hare Airport and rented a car. He drove directly to the customer’s facility in Northbrook, arriving at about 9 a.m. He worked at that location until between 5 and 5:30 p.m.

During the day, defendant made plans with Ron Nordin, the customer account manager, to go to Nordin’s office located at his home near Hebron. The purpose of the meeting was to discuss work-related events for the following day.

Defendant had never been to Nordin’s residence before and received instructions on how to get there. He was able to locate Nor-din’s home, arriving at between 7 and 7:30 p.m. Defendant did not eat at Nordin’s but had lunch earlier. Defendant testified that he brought two six-packs of beer and consumed about four beers while there, the last one being just before he left. Nordin, his wife, and another employee also consumed some beer. Defendant denied consuming “hard liquor” at Nordin’s.

He departed Nordin’s at approximately 10:30 p.m. intending to find a motel close to Northbrook. Nordin gave him oral instructions on how to get back to Northbrook. Defendant believed he was not under the influence of alcohol at the time he received the instructions and that he had sufficient control of his faculties to drive a motor vehicle. As he proceeded east on Route 120, he came to an intersection with a green traffic light. There was a 45-mile-per-hour speed limit sign and a sign stating to not drive on the shoulder. Defendant was looking for signs indicating that he was on Route 120.

After he passed through the intersection and a curve, he noticed that all of the lighting was on his left. At that point, the westbound traffic appeared to be passing by him farther to the left than it had prior to his going through the intersection and curve. He became confused and thought that he was too far to his right on a two-lane road. He drove into the lane immediately to his left. He then proceeded eastbound in that lane of traffic for a very short time. He believed he was still on a two-lane highway at that time. He did not know at the time of the accident that the concrete median divided the two east and two westbound lanes.

After proceeding in that lane for a very short time, he recognized oncoming traffic that he believed was in his lane. He slammed on his brakes in an effort to avoid an accident and had a head-on collision. His only reason for going into the other lane was confusion. There was no sign indicating that the road had become four lanes.

Defendant testified that he was not feeling any effects of the four beers at that time. He did not believe his consumption of the beer in any way impaired his driving ability that evening. Defendant described the lighting conditions as very dark. The lighting was primarily to the north, and he did not notice any lights in the Kinder Care parking lot at that time.

Defendant was transported to a hospital where he received treatment from a plastic surgeon for the laceration on his face. He received injections of a pain-deadening substance in his nasal area. At that time, he was interviewed by a police officer. According to defendant, he was able to identify for the officer the day of the week, the date, what road he was on, and which direction he was travelling. He told the officer he was on a two-lane highway at the time of the accident. He also told the officer he had a few beers.

On cross-examination, defendant admitted that he had traveled that same portion of Route 120 through McHenry earlier that day when he drove to Nordin’s. It was daylight when he did so. He did not remember the roadway having four lanes or being divided by a concrete median. As he was traveling east into McHenry later that evening, he did not notice the lanes or pavement being wider, nor did he notice a concrete median. He also did not see any lines to his right on the pavement. He admitted that there was a solid yellow line on his side of the median and that he intentionally drove across the median into the other lane. He believed the median was part of the shoulder of the road.

On redirect examination, defendant testified that people had told him earlier that day that the roads in that area twisted and curved and split and that he should be careful because it was confusing. That thought was on his mind as he drove eastbound and observed the oncoming traffic and lights to his left.

Ron Nordin testified on behalf of defendant that he knew defendant as a co-worker but was not a personal or social friend of defendant. According to Nordin, defendant arrived at his house at about 6:15 or 6:30 p.m. and left sometime after 10 p.m. Beer was consumed that evening, but he could not say how many beers defendant had. Nordin did not have an opinion as to whether defendant was under the influence of alcohol when he left his home the night of the accident. Defendant did appear to have control of his faculties and did not appear to be staggering or unable to keep his balance. Nordin had no fear that defendant was unable to drive.

On cross-examination of Nordin, the following colloquy occurred:

“[Mr. Browder:] Q. And isn’t it also correct that that evening you yourself had consumed brandy?
A. No.
Q. You never consumed any brandy that evening?
A. No.
Q. Do you remember speaking with an attorney from our office, Michelle Wiejacka, in June of ’89 about this event?
A. Yes.
Q. Do you remember telling her what happened that evening?
A. Yes. Not everything, that’s two years ago or a year ago.
Q. Okay.
So if you were to have told her that you were drinking brandy on that day, you might have forgotten since then?
A. I don’t think I would have forgotten then, no.
Q. So it is your testimony that you did not consume any brandy that evening?
A. Not that I can recall, no.
Q. When you say ‘not that I can recall,’ then it is possible that you did?
A. I don’t think so, no.
Q. So it is your testimony that, no, you did not consume any brady [sic]?
A. Yes.”

On redirect examination, Nordin testified that defendant did not exhibit any outward signs of intoxication nor did he ever tell defendant that defendant had had enough or to not have any more beer. On re-redirect, he added that he did not know if the beer defendant consumed affected defendant’s ability to carry on a conversation, but that defendant was responsive to questions and spoke cogently throughout the evening.

Dr. George Gallant, the emergency room physician who treated defendant, testified that he noted the odor of alcohol on defendant’s breath in the emergency room. Officer Thomas Beyer of the McHenry police department testified that he first spoke with defendant at 1:44 a.m. on June 30, 1988, in the emergency room. Defendant told him he was driving on a two-lane highway at the time of the accident. Officer Beyer observed that defendant’s breath had a strong odor of alcohol, that defendant’s eyes were bloodshot and a little glassy, and that defendant’s speech was slurred. Based on his experience of observing hundreds of intoxicated people, Officer Beyer opined that defendant was under the influence of alcohol.

At about 2:35 a.m., Officer Beyer asked defendant to submit to a blood test, and defendant said he would. Carl Fletcher, a medical technologist, testified that he drew the blood pursuant to the officer’s request. He had previously drawn blood from defendant at between 11:45 p.m. and midnight for medical purposes. The results of the analysis from the first blood sample indicated a blood serum alcohol level of .183%.

Mr. Joseph Principe, a forensic scientist with the Northern Illinois Police Crime Laboratory, testified that he performed two analyses on the blood sample taken from defendant pursuant to Officer Beyer’s request. The results were .108 and .107% blood alcohol. The third digit is customarily dropped resulting in an alcohol content reading of .10% for the entire sample.

Mr. Michael Caplis, director of an analytical research laboratory, testified that the difference between a blood serum alcohol content and a whole blood-alcohol content is that the blood serum level would be falsely elevated. The serum ratio to whole blood is 1.18 to 1. Applying that ratio, a .183% serum blood alcohol would compute to approximately a .15% whole blood alcohol. Mr. Caplis opined that a blood alcohol of .10% would indicate that a person weighing 170 pounds and being normal and healthy would have the equivalent of four 12-ounce beers present in his system. That same person with a .15% blood alcohol would have the equivalent of between five and six 12-ounce beers in his system. Caplis further opined that, based on the blood alcohol of .10% at 2:35 a.m. and the blood alcohol of .15% at 11:40 p.m., defendant’s blood alcohol would have been more than .10% at 10:55 p.m. On cross-examination, Caplis conceded that if you applied a 1.3 to 1 ratio, a .183% blood serum alcohol would compute to .128% whole blood alcohol. On redirect examination, Caplis stated that even if he used the lower figure of .128%, he would still opine that the blood-alcohol level would be over .10% at 10:55 p.m.

The jury received the following instructions relevant to this appeal:

“If you find that at the time the defendant drove a vehicle that the amount of alcohol concentration in the defendant’s blood or breath was .10 per cent or more, you may infer that the defendant was under the influence of alcohol. You never are required to make this inference. It is for the jury to determine whether the inference should be drawn. You should consider all of the evidence in determining whether the defendant was under the influence of alcohol.” (People’s Instruction No. 11.)
“Being under the influence of alcohol at the time of the alleged violation shall be considered prima facie evidence of a reckless act.” (People’s Instruction No. 12.)
“A person is under the influence of alcohol when, as a result of drinking any amount of alcohol, his mental or physical faculties are so impaired as to reduce his ability to think and act with ordinary care.” (People’s Instruction No. 13.)
“Prima facie evidence is evidence which is sufficient to authorize a finding on a matter in issue unless contradicted or explained.” (Court’s Instruction No. 1.)
“A person acts recklessly when he consciously disregards and [sic] unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” (People’s Instruction No. 8.)

Defendant was found guilty of reckless homicide. At the sentencing hearing, the trial judge stated:

“In reviewing the statutes, the aspects of aggravation and mitigation, there is no question that Mr. Allan, in terms of his past history, essentially has none outside of traffic offenses.
Looking at the statute also, as it talks about aggravation, it addresses itself to the aspect of causing bodily harm, and there is no question there was great bodily harm caused here, i.e., the death of a young man.
And the State advances the position of the sentencing must be a deterent [sic].
I, too, went to a wake many years ago for a young man who was killed in a diving accident where he broke his neck and he died. I knew the family well, and tried to understand the ways of life. It was very difficult.”

The trial court sentenced defendant to two years’ imprisonment.

Defendant’s first contention is that the jury was instructed in such a manner that it was required to find, absent evidence to the contrary, that he acted recklessly if it found his blood-alcohol content to be .10% or more, and that such instruction denied him his right to be proved guilty beyond a reasonable doubt of the offense of reckless homicide. He further maintains that a finding of .10% blood alcohol cannot properly be the basis of a finding of recklessness because a person cannot consciously disregard his blood-alcohol content without knowing what that content is at the time he drives an automobile. It is apparent from a close reading of defendant’s appellate briefs that he has focused on the issue of whether it was proper for the jury to base a finding of recklessness on its preliminary finding, alone, that his blood-alcohol content was .10% or more. This issue may be addressed by examining the instructions in this case to determine what the jury was actually instructed to do concerning its finding of .10% blood alcohol. We need not address the content of the jury instructions except as they relate to the finding of blood-alcohol content and what the jury was allowed to further find based on the .10% blood-alcohol finding.

While section 9 — 3(c)(1) states that “a person shall be considered to be under the influence of alcohol” if the alcohol concentration in his or her blood is .10% or more (Ill. Rev. Stat. 1989, ch. 38, par. 9— 3(c)(1)), the jury in this case was instructed that it “may” infer defendant to be under the influence if it found defendant’s blood-alcohol concentration to be .10% or more but that it was not required to make such inference. The jury was also instructed that it should consider “all of the evidence” in determining whether defendant was under the influence of alcohol. The jury was not instructed that, if it found defendant’s blood alcohol to be .10%, such a finding alone should or could lead to a finding of recklessness.

The purpose of jury instructions is to guide the jury in deliberating and to assist it in reaching a proper verdict through the application of legal principles as applied to the evidence and the law. (People v. Hester (1989), 131 Ill. 2d 91, 98.) Instructions should be considered in their entirety rather than in isolation. Hester, 131 Ill. 2d at 98.

Although an accused may be convicted of a criminal offense only by proof beyond a reasonable doubt, the State may rely on presumptions or inferences. (Hester, 131 Ill. 2d at 98.) Inferences and presumptions play a vital role in the expeditious resolution of factual issues, with the value of the presumption or inference resting on the strength of the connection between the elemental or ultimate fact presumed or inferred and the basic or evidentiary fact. (Hester, 131 Ill. 2d at 98.) The use of a presumption or inference must not invade the province of the fact finder to determine ultimate or elemental facts beyond a reasonable doubt. Hester, 131 Ill. 2d at 98-99.

There are essentially two types of presumptions: mandatory and permissive. (Hester, 131 Ill. 2d at 99.) A mandatory presumption requires the trier of fact to find the elemental or ultimate fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts. Hester, 131 Ill. 2d at 99.

On the other hand, a permissive presumption allows the fact finder to either accept or reject the suggested presumption. (Hester, 131 Ill. 2d at 99.) It places no burden on the defendant and affects the application of the beyond a reasonable doubt test only if, under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference. (Hester, 131 Ill. 2d at 99-100.) Hence, the validity of a permissive presumption is tested by whether there is a rational connection between the facts proved and the facts presumed, and the ultimate fact must be more likely than not to follow from the basic fact. (Hester, 131 Ill. 2d at 100.) If there is no corroborating evidence to support the inference, however, the connection between the proved fact and the presumed elemental fact must still be proved beyond a reasonable doubt. Hester, 131 Ill. 2d at 100.

To determine whether a presumption contained in a jury instruction is mandatory or permissive, a court must look at the words of the instruction. (Hester, 131 Ill. 2d at 100.) Whether a defendant has been accorded his constitutional rights depends on how a reasonable juror could have interpreted the instruction. Hester, 131 Ill. 2d at 100.

In the present case, the jury was instructed that it “may infer” defendant was under the influence if it found that his blood-alcohol concentration was at least .10%. It was further instructed that it was not required to make such an inference and that it should consider all of the evidence in determining whether defendant was under the influence of alcohol. Because the presumption was not binding and a reasonable juror could only interpret the instruction as allowing him or her to either accept or reject the presumption, it was permissive. See Hester, 131 Ill. 2d at 100-01.

Additionally, there was independent evidence of defendant’s being under the influence, such as Officer Beyer’s testimony that he had a strong odor of alcohol on his breath, bloodshot and glassy eyes, and slurred speech. Dr. Gallant also testified that defendant had an odor of alcohol on his breath, and Officer Beyer opined that defendant was under the influence of alcohol. Thus, the presumption was not the sole source of the finding that defendant was under the influence of alcohol. (See Hester, 131 Ill. 2d at 101.) Defendant was not denied due process by the instruction allowing the jury to infer his being under the influence based on a finding that defendant had a blood-alcohol content of .10%. See Hester, 131 Ill. 2d at 102.

If the jurors reached a conclusion that defendant was under the influence of alcohol, which conclusion may or may not have been connected to a finding of blood-alcohol content, no further reason existed for their consideration of blood-alcohol content in proceeding to a determination of recklessness. In light of the instructions, a finding of blood-alcohol content of .10%, if any, was relevant only to the initial question of whether defendant was under the influence of alcohol. Thus, contrary to defendant’s assertions, the jury was not permitted to make any determination of recklessness based upon defendant’s conscious disregard of his blood-alcohol content; rather, the instructions provided only that a finding of recklessness could be predicated upon a preliminary determination that defendant was under the influence of alcohol when he drove his vehicle. Accordingly, we hold the jury was not instructed regarding defendant’s blood-alcohol content so as to have denied defendant his right to be proved guilty beyond a reasonable doubt of acting recklessly.

Defendant’s second appellate contention is that he was denied a fair trial when the prosecutor asked a defense witness whether he had consumed brandy the evening of the accident but never introduced any contrary evidence in response to the witness’ denial. The State essentially concedes that it was improper for the prosecutor to have failed to introduce evidence contrary to the witness’ denial but maintains that such error was harmless.

Notwithstanding the State’s concession of error, we are compelled to emphasize the impropriety of a prosecutor asking a witness questions for purposes of impeachment unless the prosecutor is prepared to offer proof of the impeaching information. (See People v. Olinger (1986), 112 Ill. 2d 324, 341.) A witness’ denial of a prior inconsistent statement makes it incumbent upon the cross-examiner to offer evidence of the prior inconsistent statement. People v. Moore (1973), 54 Ill. 2d 33, 37-38.

Even though the failure to follow through with proof of a prior inconsistent statement is error, such error is not necessarily reversible. (People v. Wilson (1985), 138 Ill. App. 3d 513, 525; People v. Tate (1984), 122 Ill. App. 3d 660, 666.) Where there is other positive evidence of defendant’s guilt, failure to complete the impeachment of a witness with evidence of the denied prior inconsistent statement may be harmless error. Wilson, 138 Ill. App. 3d at 525; Tate, 122 Ill. App. 3d at 666; People v. Reed (1981), 92 Ill. App. 3d 1115, 1119-20.

Under the facts of this case, the prosecutor’s failure to complete his impeachment of the defense witness, Ron Nordin, regarding whether he told an assistant prosecutor that he had consumed brandy on the evening of the accident does not rise to the level of prejudicial error. First of all, there was adequate evidence to support a finding of guilt in this case. There was evidence that defendant was under the influence at the time he drove his automobile, that he drove his automobile after having had only four hours sleep the evening before, and that he crossed a solid yellow line and a raised concrete median to enter into the deceased’s lane of travel. This evidence was sufficient for the jury to have found defendant guilty of reckless homicide, notwithstanding any error in the impeachment of Nordin.

Defendant’s reliance on People v. Rivera (1986), 145 Ill. App. 3d 609, and People v. Orr (1977), 45 Ill. App. 3d 660, is misplaced. In Rivera, the court held that the failure to prove the inconsistent statement referred to in the cross-examination of a key defense witness whose credibility was the foundation of the defense case was reversible error. (Rivera, 145 Ill. App. 3d at 621-22.) Additionally, in Rivera, the prosecutor emphasized the purported impeachment during closing argument. (Rivera, 145 Ill. App. 3d at 621.) In this case, however, Nordin did not constitute a key defense witness. His testimony as to whether defendant was under the influence of alcohol was equivocal at best. For example, he testified that defendant had consumed some amount of beer at his home prior to the accident. Furthermore, while Nordin testified that defendant appeared to have control of his faculties and was not staggering, and that he did not fear defendant was unable to drive, he also testified that he had no opinion as to whether defendant was under the influence of alcohol. Nordin’s testimony, unlike the witness in Rivera, cannot be characterized as the lynchpin of defendant’s case. Additionally, in this case, unlike Rivera, the prosecutor made no mention in argument of the purported impeachment of Nordin or the prior inconsistent statement.

People v. Orr is likewise distinguishable from this case. In Orr, the alleged inconsistent statement was the only potential evidence of motive offered by the prosecution, and thus the court held the failure to produce the statement to be reversible error. (Orr, 45 Ill. App. 3d at 666-67.) As discussed earlier, there was sufficient evidence in this case to support the jury’s verdict.

We turn then to the final contention of defendant that the trial court abused its discretion by considering the death of the victim as an aggravating factor in sentencing defendant. The State responds that the sentence was proper as the trial court placed insignificant weight on the improper aggravating factor. The State further argues that defendant’s sentence was proper in light of his record of prior driving convictions.

All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship; therefore, a reasoned judgment as to the proper penalty to be imposed must be based upon the particular circumstances of each case. (People v. Saldivar (1986), 113 Ill. 2d 256, 268.) Such a judgment depends on, among other things, the nature and extent of each element of the offense as committed by the defendant. (Saldivar, 113 Ill. 2d at 268-69.) Furthermore, sound public policy demands that a defendant’s sentence vary in accordance with the particular circumstances of the offense committed. It is permissible, therefore, for the trial court to consider the nature and extent of the force employed and the physical manner in which the victim’s death was caused. (Saldivar, 113 Ill. 2d at 271-72.) The commission of any offense, regardless of whether the definition of the offense itself involves harm, can have varying degrees of harm or threatened harm. (Saldivar, 113 Ill. 2d at 269.) Because this varying quantum of harm may constitute an aggravating factor, the severity of a sentence depends upon the degree of harm, even in cases where serious bodily harm is arguably implicit in the offense. Saldivar, 113 Ill. 2d at 269.

Nevertheless, even though a court may properly consider the degree of harm inflicted by a defendant in fashioning a sentence for an offense wherein serious bodily harm is implied, it may not focus on the end result of the harm, the death of the victim, if such death is implicit in the offense. (People v. Martin (1988), 119 Ill. 2d 453, 459-60; Saldivar, 113 Ill. 2d at 271-72; People v. Mott (1990), 204 Ill. App. 3d 573, 577; see also People v. Conover (1981), 84 Ill. 2d 400, 404.) In referring to the statutory aggravating factor of bodily harm, the trial court stated that “there is no question there was great bodily harm caused here, i.e., the death of a young man.” It is evident from the statement that the court focused upon the death of the victim in aggravation. Such a fact cannot be considered as an aggravating factor as death is implicit in the offense of reckless homicide.

The court further commented, however, that “the State advances the position of the sentencing must be a deterent [¡sic].” The court went on to briefly discuss its difficulty in understanding the unexpected death of a young man. This passing reference to the need to deter is difficult to interpret as reflecting the court’s reliance on deterrence as a significant factor in sentencing defendant. Even were we to interpret it as such, it still appears as though the court placed more emphasis on the death of the victim in aggravation. Based on the trial court’s improper consideration of the death of the victim as an aggravating factor, we conclude that a new sentencing hearing is required.

For the foregoing reasons, we affirm the judgment of the circuit court of McHenry County finding defendant guilty of reckless homicide and reverse the sentence and remand for a new sentencing hearing.

Affirmed in part; reversed and remanded in part.

NICKELS and UNVERZAGT, JJ., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SERVANDO GARCIA, Defendant-Appellant.
    Second District
    No. 2—89—0915
    Opinion filed July 21, 1992.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, and Michael J. Pelletier and Anne E. Meyer, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Servando Garcia, was convicted of murder (111. Rev. Stat. 1991, ch. 38, par. 9 — 1) and was sentenced to a 45-year term of imprisonment. On appeal, defendant contends that he is entitled to a new trial for the following reasons: (1) the prosecutor made misstatements during closing argument about the law of accountability; (2) the prosecutor made improper remarks during trial and closing argument in which he vouched for the credibility of the State’s key witness; (3) the trial judge failed to admonish most of the jurors that they were not to discuss the case with one another prior to their deliberations; (4) the trial judge failed to admonish the jurors that they were not to form an opinion regarding the defendant’s guilt or innocence prior to the conclusion of the trial; (5) the trial judge failed to make an adequate inquiry after discovering that several jurors had discussed the case with one another during the trial; and (6) defendant received ineffective assistance of counsel. Defendant also contends that his sentence was excessive when compared with the sentences imposed upon the other two alleged perpetrators.

The State’s primary witness, Artemio Garcilazo, testified as follows. On the morning of January 7, 1989, he saw defendant and a man named Pedro Reyes standing by the railroad tracks near an abandoned building formerly used as a switch house by a railroad. The three men went inside the switch house and saw Juan Hernandez and Teodoro Ovideo inside. The victim, Robert Snow, arrived at the switch house a little later, after which Hernandez and Ovideo left.

Garcilazo, Reyes, Snow, and defendant began to share some vodka and beer. An argument ensued between defendant and Snow. Garcilazo did not understand what Snow and defendant were saying because they were arguing in English. Defendant and Snow then began to fight. Garcilazo did not see who struck the first blow, although he did see defendant hit Snow in the chest two or three times. Defendant then told Garcilazo that it was his turn, and Garcilazo hit Snow in the chest a few times. Reyes did likewise after defendant stated that it was his turn.

Defendant then attempted to strangle Snow with a cord. He also attempted to put Snow’s face into some burning coals that were inside the switch house. Snow was able to prevent him from doing so, however.

Snow then got up. Defendant pushed him into an electric motor that was inside the switch house. Snow fell backwards and hit his head against a wall. When he got up, defendant hit him in the head with a board. Snow fell to the ground and did not get up again.

Defendant then asked Garcilazo for a knife. Garcilazo said that he did not have a knife but did have a screwdriver. Defendant told Garcilazo to give him the screwdriver, and Garcilazo complied. Defendant then stabbed Snow in the chest two or three times with the screwdriver. He then gave the screwdriver to Reyes and told him to stab Snow. Reyes did so several times. Garcilazo then left the switch house. Garcilazo testified that, at the time of the above events, defendant and he were both “halfway” drunk.

Garcilazo was arrested for murder on January 11, 1989. On the day of his arrest, he spoke to two Aurora police officers. At first he told the officers that he was at work at the time of the killing. The officers told him that they would check his story. Garcilazo then told the officers that he had gotten into a fight with Snow because Snow had broken a bottle of vodka, and Garcilazo had contributed some of the money that had been used to purchase the vodka. Garcilazo hit Snow, and Snow fell to the ground. Defendant then grabbed a screwdriver from one of Garcilazo’s pockets and began stabbing Snow. Garcilazo went outside to urinate. When he returned inside the switch house, Snow was bleeding. Garcilazo also told the officers that he got blood on his clothing by falling on Snow.

Garcilazo also testified that he spoke to Gary Johnson, the Kane County State’s Attorney, on April 17, 1989, and that the version of the killing that he gave to Johnson differed from his trial testimony in several respects. Garcilazo told Johnson that the argument between defendant and Snow started over a broken bottle of vodka. Garcilazo also told Johnson that defendant had put Snow’s face into a coal fire and had briefly held it in the fire.

As a result of the above meeting, Garcilazo entered into a plea agreement with the State. Under the terms of this agreement, Garcilazo would plead guilty to second-degree murder and receive a four-year sentence if he testified truthfully against defendant and Reyes. If Garcilazo lied during his testimony, the sentence would be 20 years.

Garcilazo admitted during his testimony that he had been convicted of attempted burglary and arrested for felony theft. He further admitted that he had given a false name to law enforcement officials when arrested on the latter charge so that he would be released on bond and would not have problems relating to his probation. Garcilazo acknowledged that he had lied in the past in order to stay out of prison, including his conversations with the police on January 11, 1989, about the instant case. Garcilazo stated that his trial testimony was true, however.

Dr. Larry Blum, a forensic pathologist, testified that he conducted an autopsy upon Robert Snow’s corpse. The cause of Snow’s death was internal hemorrhaging from multiple stab wounds to Snow’s heart and lungs, with blunt trauma to Snow’s head as a contributing factor. Dr. Blum did not see any evidence of attempted ligature strangulation or any evidence that Snow had suffered bums to his face or head. Snow’s blood-alcohol content was 0.404%, an extremely high level.

Acting pursuant to search warrants, the Aurora police found clothing with bloodstains in the residences of defendant, Garcilazo and Reyes. A pair of sweat pants found in defendant’s apartment contained bloodstains whose composition was consistent with Snow’s blood. The same was trae of pants found at the residences of Garcilazo and Reyes.

Victor Ovideo, a neighbor who lived in the same apartment building as defendant, testified as follows. Defendant went to the Ovideo apartment on the afternoon of January 7, 1989. Defendant’s clothes were spotted, and it appeared that he had been beaten. Defendant seemed to be intoxicated at the time. He told Ovideo that he had been involved in a fight and had been defending Ovideo’s brother. Ovideo’s wife, Guadalupe, was in another room at the time, but she testified that she overheard defendant saying that he had been in a fight. Victor Ovideo stated during his testimony that he saw his brother, Teodoro, on January 9, 1989, and Teodoro had a black eye. Victor Ovideo’s sister was married to Pedro Reyes’ son.

Defendant testified as follows. He spent most of the evening of January 6, 1989, at the abandoned switch house in Aurora where he was drinking with a man named Juan Hernandez. Defendant’s wife did not want him to return home because he had been drinking, so he spent the night at a shelter for homeless people in Aurora. He woke up at about 7 o’clock in the morning on January 7 and still felt drunk.

Defendant then went to the switch house, where he saw Juan Hernandez. The two began drinking beer and vodka. Reyes, Garcilazo, and Snow went into the switch house later that morning. Hernandez left the switch house in order to try to sell a tape recorder. Hernandez told defendant to wait for him.

After Hernandez left, a fight broke out. Defendant was lying down on the ground at the time and remained there. He believed that the fight was started because Snow had broken a bottle of vodka. Garcilazo and Reyes were hitting Snow and Garcilazo was stomping on him. Garcilazo also had a screwdriver in his hand and was stabbing Snow in the chest with it.

At one point, Garcilazo hit Snow and knocked him over on top of defendant. Defendant hit Snow with an open hand in order to push him away. In so doing, he did not intend to assist Garcilazo or Reyes; he merely intended to push Snow off him. As a result, defendant ended up with a good deal of blood on his person and clothing. After defendant pushed Snow away, Snow remained on the ground, and Garcilazo and Reyes continued hitting him. Defendant got up and stood in the doorway. Reyes then touched Snow and stated that he was not dead yet. Garcilazo handed Reyes the screwdriver and told Reyes to hit Snow in the heart. Reyes took the screwdriver and stabbed Snow several times in the area of his heart.

Defendant did not try to stop Reyes and Garcilazo because he was afraid of them, and he did not have much strength because he was drunk. After Reyes stabbed Snow in the heart, defendant left the switch house. He saw Juan Hernandez, Teodoro Ovideo, and another man standing by the railroad tracks. After a few minutes, defendant and Hernandez went to a bar. Garcilazo and Reyes followed them. Defendant left after a short time and went to Victor Ovideo’s apartment. He denied telling Ovideo that he had been in a fight. He stated instead that he told Ovideo that he had just seen two men kill a white man. Defendant did not go to the police because he feared reprisals from Reyes and Garcilazo.

The two Aurora police officers who interrogated defendant early in the morning on January 11, 1989, testified that he was generally cooperative in responding to their questions. They testified that defendant originally told them that he did not know why the fight started and that Snow was alive though unconscious when defendant left the switch house to find Hernandez. Defendant also originally told them that Reyes and Garcilazo left the switch house 10 or 15 minutes later and told the others that Snow was dead. After the officers asked about the blood found on defendant’s clothing, defendant stated that he had seen Garcilazo and Reyes stab Snow with a screwdriver after Snow had been knocked unconscious. Defendant also told them that the fight had started because Snow had refused to contribute any money toward the purchase of beer. The version of events which defendant gave to the officers was generally consistent with his trial testimony in other respects.

The judge who presided over the remainder of the trial was ill on the day that jury selection was conducted, and the parties agreed that a different judge could preside over the jury selection. That judge admonished the initial panel of four jurors that they should not discuss the case with anyone including the other jurors. He repeated this admonition to the other jurors but did not tell them that it applied to discussions with one another. He also failed to admonish the jurors that they were not to form any opinion as to defendant’s guilt or innocence until the trial was over.

After all the evidence was presented, but before closing arguments, the State’s Attorney received a phone call from two women who had overheard three jurors discussing the case at a restaurant near the courthouse that morning. The State’s Attorney reported the matter to the trial judge, who met with the women and counsel for both sides in chambers.

One of the women, Charlene Chatham, a Florida attorney, stated that she was eating with a friend named Carol Wather that morning at a restaurant near the courthouse. Three men who were wearing juror identification tags on the front of their shirts came into the restaurant and sat near Chatham and Wather. Chatham said that she heard one of the jurors say that the prosecutor had blown a first-degree murder conviction. The men were also saying that the public defender was doing some aggressive things. Chatham decided that she should contact someone because she felt the jurors’ conversation was improper. She stated that Wather had heard more of the conversation than she had.

The trial judge conducted an in camera interview with Carol Wather. Wather stated that, after the three men sat down, she heard one of them mention a Spanish name. She then heard one of them mention first-degree murder. She told Chatham that the men were talking about a murder trial. Chatham then stated that they were jurors. Wather told Chatham that she did not think the conversation that the men were engaged in was appropriate.

Wather told the trial judge that there was a good deal of conversation among the men about how Johnson was angry and Johnson had blown the case. Wather did not know if Johnson was the prosecuting attorney or the defense attorney. She stated that two of the men seemed to have their minds made up about the verdict while one seemed open-minded. She was not sure whether the two men were planning to vote guilty or not guilty. The trial judge informed counsel that, according to Wather, two of the jurors had picked sides and that they were inclined favorably toward the defense.

Between the interviews with Chatham and Wather, the trial judge stated that he would advise the jurors that some of them had been overheard discussing the case and ask if they were still able to listen to closing arguments with an open mind. If any indicated that they were unable to do so, a mistrial would be declared. After listening to Wather, the trial judge stated that he would question only the three jurors who had engaged in the conversation at the restaurant. Defense counsel objected on the basis that such a procedure might cause these jurors to feel that they were being scrutinized and cause them to vote guilty. She suggested that the trial judge stay with the procedure he had previously intended to employ. The trial judge agreed to do so.

The trial judge then admonished the jurors. He mentioned that several had been overheard discussing the case. He stated that the jurors should not form or express any opinion about the case until they begin their deliberations and, until that point, should not discuss the case with anyone, including one another. The trial judge also stated that the jurors should listen to the closing arguments and the instructions. He asked if any of the jurors would be unable to listen to the arguments or to otherwise discharge their duties as jurors and asked them to raise their hands if they were. No one raised his or her hand.

The jury found defendant guilty. The trial judge subsequently denied defendant’s post-trial motion. At defendant’s sentencing hearing, Valerie Gerhardt, the director of PADS, an organization which provides shelter to the needy, testified that she had known defendant for about three years. She stated that defendant was quiet, well-mannered, patient, and cooperative. Defendant often volunteered to help others at the shelter and always conducted himself in accordance with its rules.

Helen Flores, defendant’s stepdaughter from his first marriage, testified that defendant and her mother were happily married for about seven years, until her mother died as a result of an illness. She stated that defendant cared for her mother during this illness and described defendant as a kind, compassionate man. Flores testified that she and her mother’s other children maintained contact with defendant after their mother’s death because of their affection for him. She further testified that defendant began to drink more frequently after her mother’s death and continued to do so after meeting his present wife.

The trial judge, relying largely upon the brutal nature of the killing, imposed a 45-year sentence. Later, in separate proceedings, Pedro Reyes entered a plea of guilty to first-degree murder, and Artemio Garcilazo pleaded guilty to second-degree murder. Pursuant to separate plea agreements, Reyes received a 25-year sentence, and Garcilazo was sentenced to a four-year term of imprisonment.

Defendant’s initial contention on appeal is that he should receive a new trial because of alleged misstatements by the prosecutor during closing argument about the law of accountability and its applicability. Prosecutors are generally given a great degree of latitude in closing arguments, and improper remarks will not result in reversal unless they cause substantial prejudice to the defendant, considering the context of the language employed, its relationship to the evidence, and its effect upon the defendant’s right to a fair trial. (People v. Thompkins (1988), 121 Ill. 2d 401, 445.) Stated another way, improper remarks will not justify a reversal unless they were a material factor in defendant’s conviction without which the jury might have reached a different result. (Thompkins, 121 Ill. 2d at 445; People v. Lyles (1985), 106 Ill. 2d 373, 391.) Furthermore, an instruction that closing arguments are not evidence and that any statement during arguments that is not based on the evidence should be disregarded tends to cure any prejudice from improper remarks. People v. Hrobowski (1991), 216 Ill. App. 3d 711, 727; People v. Thomas (1990), 200 Ill. App. 3d 268, 275.

Under the portion of the accountability statute at issue here, a party can be held legally accountable for the conduct of another only if “before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1991, ch. 38, par. 5—2(c).) It is not enough to show that the defendant’s conduct facilitated the commission of the offense; the prosecution must also show that the defendant acted with the intent to facilitate the commission of the offense. People v. Lashmett (1984), 126 Ill. App. 3d 340, 347.

Bearing the above principles in mind, we will examine the comments challenged by defendant. The first comment is as follows:

“And what we do know in this case is that the Defendant by his own admission did absolutely nothing to help the victim, Bobby Snow. So that leads you to the almost, almost anyhow, inalterable conclusion, inescapable conclusion that he had to have done something simply by being there because —

Defendant’s attorney then objected on the basis that the prosecutor was misstating the law of accountability. The trial judge overruled the objection.

The prosecutor then continued, stating as follows:

“Let me repeat myself. You must come to the inescapable or at least almost inescapable conclusion that because the Defendant by his own admission did not help Bobby Snow, he must have done something to help in his demise. Nobody could just sit there. Nobody could just lay there as the Defendant stated.”

Shortly before making the above comments, the prosecutor made mention of the brutal nature of the killing and the fact that it took place in a small room.

The above-quoted remarks contain no misstatements of the law of accountability. We do not interpret the comments as indicating that defendant’s mere presence at the scene of the offense would render him accountable for the crime, which would have been a misstatement of the law. (See People v. Evans (1981), 87 Ill. 2d 77, 83.) Instead, the prosecutor was arguing that defendant’s version of events was not credible because it was contrary to human experience that a person in a small room observing a brutal beating would merely lay there and do nothing. In closing argument, the prosecutor is entitled to comment upon the evidence and to draw any legitimate inferences from it. (People v. Nevitt (1990), 135 Ill. 2d 423, 451.) This is all the prosecutor was doing with respect to the above comments. We therefore find that they were proper.

Much later during his closing argument, the prosecutor quoted the accountability instruction that the trial court later gave to the jury. That instruction states:

“A person is legally accountable for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of an offense.
The word ‘conduct’ includes any criminal act done in furtherance of the planned and intended act.”

The prosecutor then stated as follows:

“Read that instruction over, ladies and gentleman of the jury. Read that instruction over because that instruction fits this case even if you were to believe the Defendant’s own theory of the case.
According to the law, if you believe the Defendant’s own theory of the case, he is guilty because he’s legally responsible because he aided and abetted according to the accountability theory.”

Defendant’s attorney objected and contended that the above statement was inaccurate because defendant testified that he did not intend to help Garcilazo and Reyes. The trial judge then admonished the jurors that the attorneys would sometimes disagree about the content of the testimony, and it was up to the jurors to determine what the facts were and apply the law to them. The prosecutor later stated as follows:

“Did he do anything to help the victim? No. Was he in the room during the entire time *** during the murder of the victim? Yes, he was. Did he try to do anything to stop those other two from killing the victim? No, he didn’t. Did he hit the victim? According to the statement that he made to the police, he might have hit the victim. According to what he said today, he hit the victim. And when he hit the victim, ladies and gentlemen of the jury, I submit to you he became accountable even-even if you believe everything that he told you and reject everything that the State’s witnesses have told you.”

Defendant’s attorney objected on the basis that the prosecutor had left out the element of intent to promote the offense and join in with the others. The trial judge sustained this objection. The prosecutor then said:

“Read the accountability instruction. With that instruction in mind, under the Defendant’s theory, he is guilty on the theory of accountability by that instruction.”

We agree with defendant that the prosecutor’s statements that defendant was guilty under an accountability theory even if his testimony was true were inaccurate. Defendant testified that he did push or hit the victim but only did so because Snow was on top of him. According to defendant’s testimony, he was not trying to assist Reyes and Garcilazo; he was only attempting to push Snow off him. If defendant’s testimony was true, he was not guilty under an accountability theory because he lacked the intent to promote or facilitate the commission of the offense.

We do not believe, however, that a new trial is warranted because of the improper remarks. First of all, with respect to the lengthiest and most emphatic of these remarks, the trial judge sustained a defense objection. Sustaining a defense objection to improper remarks during argument tends to cure any possible resulting prejudice. {Peo pie v. Hrobowski (1991), 216 Ill. App. 3d 711, 727.) While there were other similar misstatements which were not cured by the sustaining of a defense objection, there were other factors to limit the prejudice from these remarks.

The trial judge gave the jury an accountability instruction which accurately stated the applicable law, and the prosecutor read the same instruction to the jury and encouraged the jurors to read it. Thus, the jurors were made aware of the proper legal principles to be applied. The trial judge also instructed the jurors that opening and closing arguments are not evidence and that any comment during arguments that is not based upon the evidence should be disregarded. This instruction tends to cure any prejudice from misstatements about the evidence during arguments. (Hrobowski, 216 Ill. App. 3d at 727.) Therefore, the trial court also made the jurors aware that the prosecutor’s improper remarks should be disregarded if the defendant’s own testimony would not have rendered him guilty under an accountability theory. Finally, during her closing argument, defendant’s attorney summarized defendant’s testimony and argued that, if the jury believed it, the jury could not find him guilty under an accountability theory because defendant lacked the requisite intent. These factors, taken together, were sufficient to cure any prejudice from the improper remarks.

Defendant also argued that the prosecutor improperly vouched for Garcilazo’s testimony by bringing out, while Garcilazo testified, the fact that his plea agreement required Garcilazo to present truthful testimony or face a 20-year sentence instead of a four-year sentence. For the same reason, defendant argues that it was improper for the prosecutor to state several times during voir dire that the State would call a witness who had participated in the crime and had entered into a plea agreement which required him to testify truthfully.

Defendant raised no objection at trial or in his post-trial motion regarding the above matters. Ordinarily, this would result in a waiver of the issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) Defendant, however, contends that this issue should be reviewed under the plain-error exception to the waiver rule (134 Ill. 2d R. 615(a)). Under the plain-error doctrine, alleged trial errors which were otherwise waived will be reviewed if the evidence was closely balanced or the alleged error was so serious that it deprived the defendant of a fair trial. People v. Priola (1990), 203 Ill. App. 3d 401, 417.

We agree with defendant that the evidence was closely balanced. The only two witnesses who saw the killing, defendant and Garcilazo, gave conflicting versions of what happened. Although at trial the State placed great weight on the amount of Snow’s blood found on defendant’s pants, defendant’s explanation as to how this occurred was plausible. The State also placed great emphasis on the Ovídeos’ testimony that defendant admitted on the afternoon of January 7, 1989, that he had been in a fight earlier that day. Defendant denied saying this, however, and the Ovídeos, as relatives by marriage of Pedro Reyes, may have had some incentive to testify against defendant. Thus, the State’s case hinged largely on Garcilazo’s testimony, and there was reason to question his credibility in light of his prior felony conviction, his admitted prior lying in order to stay out of jail, and the conflicting versions of the killing that he gave to the police, the State’s Attorney, and at trial. For these reasons, we conclude that the trial evidence was closely balanced, and we will apply the plain-error doctrine.

It is improper for a prosecutor to vouch for the credibility of a witness. (People v. Emerson (1987), 122 Ill. 2d 411, 434.) This is primarily because allowing such a practice would give the State an unfair advantage by allowing it to place the integrity of the State’s Attorney’s office behind the credibility of its witnesses. People v. Valdery (1978), 65 Ill. App. 3d 375, 378.

There are no reported Illinois cases concerning whether a prosecutor has improperly vouched for the credibility of a witness by causing to be revealed the fact that a plea agreement requires the witness to provide truthful testimony. The United States Court of Appeals for the Seventh Circuit has concluded that this does not constitute improper vouching for the credibility of a witness unless the prosecution suggests that it possesses information that the jury does not have with regard to the veracity of the witness. (United States v. Mealy (7th Cir. 1988), 851 F.2d 890, 900; United States v. Craig (7th Cir. 1978), 573 F.2d 513, 519.) The court stated in Craig that allowing all evidence concerning the terms of a plea agreement to be presented aids the jury in its task of evaluating the credibility of witnesses. Craig, 573 F.2d at 519.

We agree with the seventh circuit’s conclusion. A prosecutor who causes the promise of a witness to provide truthful testimony pursuant to a plea agreement to be revealed has only revealed that the witness agreed to tell the truth; the prosecutor has not expressed a personal opinion as to whether the witness has actually complied with the agreement by telling the truth. Therefore, we conclude that bringing forth such an agreement does not constitute improper vouching for the credibility of the witness.

Defendant further contends, however, that, while questioning Garcilazo, the prosecutor suggested that he had information that the jury lacked that Garcilazo was telling the truth. Defendant complains of the following exchange between the prosecutor and Garcilazo:

“Q. Did I tell you prior to your testifying today what would happen if I caught you lying?
A. Yes.
* * *
Q. [To translator] What — ask him if he recalls what I told him would happen to our agreement if I caught him lying today.
MR. GARCILAZO: Yes.
Q. What did I tell you would happen?
A. That if I lied, you would give me 20 years.”

Defendant argues that the above passage insinuated that the State’s Attorney knew the true version of the killing and that Garcilazo had testified to that version. We disagree. The above passage states only that, under the agreement, Garcilazo would receive a 20-year sentence if the State’s Attorney caught him lying. It provides no indication that the State’s Attorney had information unknown to the jurors indicating that Garcilazo had been truthful. We therefore reject defendant’s contention.

Defendant also contends that he was denied his sixth amendment right to an impartial jury because: (1) the trial judge only admonished four of the jurors not to discuss the case with one another until their deliberations began; (2) the trial judge did not admonish the jurors to refrain from forming opinions until their deliberations commenced; and (3) the trial judge failed to make adequate inquiries of the jurors after discovering that three jurors had discussed the case with one another and two of them seemed to have made up their minds. Once again, defendant raised no objection to these matters at trial. However, in light of our prior finding that the evidence was closely balanced, we will review this issue under the plain-error doctrine.

In support of the above contention, defendant relies largely upon two Federal cases, Winebrenner v. United States (8th Cir. 1945), 147 F.2d 322, and United States v. Williams (8th Cir. 1980), 635 F.2d 744. In Winebrenner, the trial judge admonished the jurors during the first day of a seven-week trial that, while they were not allowed to discuss the case with others, they could discuss it among themselves. Defense counsel objected to this admonishment. The next day, the trial judge told the jurors that they could discuss the case with one another as long as they did not formulate fixed opinions about the defendant’s guilt. (Winebrenner, 147 F.2d at 326-27.) In reversing the defendant’s conviction and ordering a new trial, the court noted that the defendant had a right to be heard by an impartial jury and stated that a danger existed that some of the jurors would have closed minds by the time defendant’s evidence was presented. 147 F.2d at 328-29.

The case at bar is distinguishable from Winebrenner, in which the trial judge informed the jurors that they could discuss the case with one another prior to deliberations. The instant case, by contrast, involves a failure to admonish adequately rather than an erroneous admonition. In two prior Illinois cases involving contentions that alleged failures to admonish jurors adequately about certain matters deprived the defendants of trials before fair and impartial juries, the courts concluded that a showing of actual prejudice was required in order to justify a new trial. (People v. Bean (1990), 137 Ill. 2d 65, 113; People v. Diaz (1988), 169 Ill. App. 3d 66, 69.) In Diaz, defendant alleged a failure of the trial court to admonish the jurors not to discuss the case with anyone and to avoid exposure to media reports. (Diaz, 169 Ill. App. 3d at 69.) The defendant in Bean argued that the trial court had erred by failing to admonish the jurors to avoid media reports about the case at the end of one of the days of a lengthy trial during which the jury did receive this admonition a number of times. Bean, 137 Ill. 2d at 113.

In cases from other jurisdictions involving a failure to admonish jurors to avoid discussing the case among themselves or with others, courts have generally likewise required a showing of prejudice. (See, e.g., United States v. Carter (10th Cir. 1970), 430 F.2d 1278, 1279; People v. Campbell (1976), 63 Cal. App. 3d 599, 609, 133 Cal. Rptr. 815, 820; People v. McIntosh (1967), 6 Mich. App. 62, 70-71, 148 N.W.2d 220, 223.) The only contrary case we have found is United States v. Williams (8th Cir. 1980), 635 F.2d 744, cited by defendant. In Williams, the case was submitted to the jury following a one-day trial. The trial court failed to admonish the jurors to avoid discussing the case with anyone and to avoid exposure to media reports about the case. The court reversed defendant’s conviction and ordered a new trial, concluding that no showing of prejudice was necessary. 635 F.2d at 746.

The courts in Bean and Diaz rejected the above holding from Williams. (Bean, 137 Ill. 2d at 114; Diaz, 169 Ill. App. 3d at 69.) In light of these authorities, we conclude that a new trial is warranted only if defendant establishes that actual prejudice resulted from the trial court’s failure to admonish the jurors properly.

The record, of course, reveals that several jurors did engage in a discussion about the case prior to their deliberations and that two seemed to have made up their minds about the case. According to Carol Wather, the other juror seemed open-minded. Wather did not know whether the two jurors had decided to vote guilty or not guilty, but she did state that the men kept saying that Johnson had blown the case. The prosecutor’s name was Gary Johnson. Furthermore, the other witness who overheard the conversation, Charlene Chatham, overheard one of the men saying that the prosecutor had blown a first-degree murder conviction. Thus, the evidence tends to show that the men were going to vote not guilty. Defendant is therefore unable to establish any prejudice from the trial court’s failure to admonish the jurors adequately to avoid discussing the case with one another and to avoid reaching any opinion as to defendant’s guilt or innocence prior to deliberations.

Defendant further argues that the trial court’s inquiry of the jurors concerning the alleged conversation and its possible prejudicial effect was inadequate. In People v. Miller (1983), 120 Ill. App. 3d 495, a newspaper article about the case was found in the possession of one of the jurors. The trial court, at the request of defense counsel, conducted no inquiry into the matter at the time. Defense counsel never raised the issue again. On appeal, this court agreed to review the issue under the plain-error doctrine, but rejected the contention on the basis that a defendant “may not ask the court to proceed in a given manner and then assign as error in a court of review the ruling or action which he procured.” Miller, 120 Ill. App. 3d at 501.

In the case at bar, when the trial judge suggested questioning the three jurors who had engaged in the conversation, defendant’s attorney asked him to refrain from doing this and instead requested the procedure that the trial court subsequently undertook. Although, as in Miller, we are reviewing this issue under the plain-error doctrine, we conclude that defendant cannot challenge the trial court’s inquiry when he requested this type of inquiry.

Defendant argues that this result is unfair because the trial court erroneously informed counsel, after interviewing Carol Wather, that Wather had stated that the jurors were inclined to vote for acquittal when Wather stated that she did not know how the two jurors who had made up their minds were inclined to vote. Since, as we have indicated, Wather stated that the jurors were saying that Johnson had blown the case, it would appear that they were, in fact, inclined to vote for an acquittal.

Defendant next contends that his trial attorney provided ineffective assistance of counsel in several respects. The first of these, according to defendant, occurred when the prosecutor filed a motion in limine requesting that the defense be barred from inquiring about the fact that he had previously represented Artemio Garcilazo at a bond hearing on a theft charge. The prosecutor advised the court that he had just realized that Garcilazo had previously been a client.

In order to establish a claim for the ineffective assistance of counsel, the defendant must show that his or her attorney’s performance “fell below an objective standard of reasonableness” (Strickland v. Washington (1984), 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064) and a reasonable probability exists that the result would have been different were it not for the attorney’s errors (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068). A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” (466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) It is not sufficient to show that a strategic decision of counsel may have been erroneous or unsuccessful. (People v. Kubat (1983), 94 Ill. 2d 437, 486.) An ineffective assistance claim may be resolved solely on the basis that the defendant suffered no prejudice as a result of counsel’s alleged errors. People v. Johnson (1989), 128 Ill. 2d 253, 271.

With regard to his initial ineffective assistance contention, defendant points out that a sister jurisdiction has determined that, if the prosecuting attorney previously represented a State witness who participated in the offense, that relationship is relevant for impeachment purposes. (Walker v. State (Ind. App. 1980), 401 N.E.2d 795, 796.) Even if we assume that this information was relevant for the purpose of impeaching Garcilazo, we do not believe that defense counsel’s failure to challenge the motion in limine constituted ineffective assistance. There were far more significant factors reflecting adversely upon Garcilazo’s credibility including his prior conviction for attempted burglary, his use of a false name when arrested for theft, and the conflicting versions of the killing that he gave to the police, the State’s Attorney, and at trial. It would have been reasonable for defense counsel to decide that presenting the jury with information about Johnson’s prior representation of Garcilazo would have drawn the jury’s attention away from the above factors and toward a much less significant one. Further, it is highly unlikely that presenting this information would have changed the result at trial. We therefore reject this ineffective assistance claim.

Defendant also contends that his attorney’s failure to object to the trial court’s failure to admonish the jurors to avoid discussing the case with one another and to refrain from reaching an opinion concerning his guilt or innocence prior to deliberations constituted ineffective assistance, as did counsel’s request that the trial court limit its inquiry into the jurors’ improper conversation. We have already concluded that defendant did not establish prejudice from the former of these alleged errors; therefore, this claim must be rejected. With respect to the latter claim, counsel had information that the jurors were inclined to vote for acquittal. From a strategic viewpoint, it makes sense that counsel would have sought to limit the inquiry into the improper conversation because it would have appeared that a mistrial would benefit the prosecution. Counsel’s actions in this regard did not constitute ineffective assistance.

Defendant also contends that his attorney’s failure to object to the prosecutor’s comments and questions which brought out the fact that Garcilazo’s plea agreement required him to provide truthful testimony. Because we have concluded that it was proper to bring this fact to the jury’s attention, defendant was not prejudiced by this alleged error. We reject each of defendant’s claims of ineffective assistance of counsel.

According to defendant, even if no single error in this case justifies reversal of his conviction and a new trial, the cumulative effect of the errors does. (See, e.g., People v. Escobar (1979), 77 Ill. App. 3d 169, 177.) According to our prior analysis, the only errors in this case were the prosecutor’s misstatements during closing argument and the trial judge’s failure to admonish jurors in certain respects. We concluded, however, that any potential prejudice from the former problem was cured by certain instructions which were given to the jury and as a result of other factors. We also concluded that defendant made no showing of prejudice as a result of the latter problem and that the evidence tends to show that the two jurors who expressed opinions about the case prior to deliberations were favorably inclined toward defense. In light of the above, defendant was not prejudiced by the cumulative effect of these errors, and his argument must be rejected.

Defendant’s final contention is that his 45-year sentence was disproportionate when compared to the 25-year sentenced imposed upon Pedro Reyes and the four-year sentence imposed upon Garcilazo. A trial court’s sentencing decisions are entitled to great deference and weight. (People v. Streit (1991), 142 Ill. 2d 13, 18.) A sentence will be altered upon review only if the trial court abused its discretion in imposing it. Streit, 142 Ill. 2d at 19.

Reyes and Garcilazo both entered pleas of guilty in exchange for the sentences that were imposed. A sentence entered after a guilty plea does not provide a valid basis of comparison to a sentence imposed after a trial. (People v. Katsigiannis (1988), 171 Ill. App. 3d 1090, 1103; People v. Centanni (1987), 164 Ill. App. 3d 480, 494; People v. Abrego (1986), 142 Ill. App. 3d 973, 985.) The trial court may properly grant leniency to a defendant who, through his plea, has ensured prompt application of correctional measures to him or her, acknowledged his or her guilt, demonstrated a willingness to accept responsibility for his or her conduct, and cooperated in the successful prosecution of others. People v. Milton (1989), 182 Ill. App. 3d 1082, 1095.

In Milton, the defendant received the maximum sentence of 30 years for armed robbery following his trial while a similarly situated codefendant who pleaded guilty received a sentence of 8x/2 years. This court held that, under the circumstances of that case, the 21x/2-year disparity was too great, and we reduced the sentence to 12 years. (Milton, 182 Ill. App. 3d at 1095-96.) Among those circumstances were defendant’s youthful age of 20, his lack of a prior record, the fact that the victim was not injured, and the trial court’s reliance upon dubious factors. 182 Ill. App. 3d at 1095-96.

In light of the above, the imposition of a maximum sentence in Milton appears to have been excessive regardless of any comparison with the codefendant’s sentence. The same is not true in the case at bar in light of the exceedingly brutal nature of the murder of Robert Snow. We do not believe that Milton modifies the general rule that a sentence imposed after a guilty plea does not form a valid basis of comparison with respect to a sentence imposed after a trial. We adhere to that rule and conclude that the 45-year sentence imposed by the trial court was not an abuse of discretion.

For these reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

INGLIS, P.J., and BOWMAN, J., concur.