text:
      In re MARRIAGE OF LAURENCE A. CEPEK, Petitioner-Appellant, and GERALDINE A. CEPEK, Respondent-Appellee.
    First District (1st Division)
    No. 1—91—1132
    Opinion filed June 22,1992.

      Arvid C. Johnson, of Oak Lawn, for appellant.
    Susan C. Haddad, of Chicago, for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

Petitioner Laurence Cepek appeals from the property distribution and maintenance provisions of a judgment of dissolution entered by the trial court on February 21, 1991. On appeal, petitioner contends that the trial court failed to apportion the marital property justly and erred in its ruling which reserved maintenance for five years for respondent and barred maintenance for him. We affirm the judgment of the trial court.

The parties were married on November 7, 1959, and were living separate and apart commencing sometime in 1987. At the time of the proceedings which were held on February 13, 1991, petitioner was 57 years old and respondent was 56 years old. During the course of their marriage three children were born, all of whom are emancipated. Petitioner was a distribution manager for a food chain corporation. He earned $38,307 net in 1990, plus 401(k) contributions; however, he was offered an early retirement package on January 17, 1991, and given 45 days to consider the terms. Respondent worked as a legal secretary in a small firm and earned $21,548 net in 1990.

Initially, respondent contends that petitioner has presented an incomplete record to this court by failing to file the entire report of proceedings and exhibits introduced at trial. The law is well settled that “ ‘[t]he burden of supplying a record which contains all matter relied on by the trial court rests with the party claiming error. [Citation.] Where the record is incomplete, a reviewing court will indulge every reasonable presumption favorable to the judgment, order, or ruling from which the appeal is taken. Moreover, when the record on appeal is incomplete, it will be presumed that the trial court heard sufficient evidence and argument to support its decision. [Citation.] Any doubt arising from the incompleteness of the record will be resolved against the appellant.’ ” Blakemore v. Panas (1985), 131 Ill. App. 3d 748, 750, 476 N.E.2d 441, quoting Aetna Life Insurance Co. v. Strickland (1975), 33 Ill. App. 3d 52, 56, 337 N.E.2d 285.

Although respondent raises the contention of incompleteness, she does not state which reports and exhibits were deleted from the record on appeal. Nevertheless, we believe that respondent’s contention has no bearing on our decision. The record before us contains the pleadings, pretrial memoranda, stipulation of issues and positions, transcription of the trial, and other documents such as the proposed early retirement agreement offered to the petitioner. Thus, based upon our review, much of the common law record of the trial court proceedings that is necessary for a determination of this appeal has been included in the record on appeal. Moreover, it is presumed that the trial court heard sufficient evidence and argument to support its decision (Nelson v. Nelson (1974), 17 Ill. App. 3d 651, 308 N.E.2d 132), and there has been no showing here by respondent or the petitioner to demonstrate that the record does not support the trial court. Accordingly, absent any contrary indication in the record before us, we are required to find that the present judgment is supported by whatever is contained therein.

Petitioner first contends that the trial court erred in its distribution of marital property since he was essentially unemployed as a result of being forced into early retirement, whereas the respondent continued to work as a legal secretary earning approximately $30,000 annually. Respondent was awarded 60% of the marital assets as follows:

(1) The equity in the marital home (residence valued at $79,000);
(2) Certificates of deposit (listed in petitioner’s name) valued at approximately $7,000; and
(3) A share of petitioner’s 401(k) retirement account in the amount of $82,600 (the account valued at approximately $195,000).

Petitioner was awarded 40% of the marital assets, the balance of his 401(k) account. The parties were awarded the life insurance policies on their own lives in the face value amount of $56,000. In addition, the court ordered that respondent and petitioner were entitled to receive 40% and 60%, respectively, of the gross payments of petitioner’s early retirement in the event he accepted the agreement.

Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) provides in relevant part:

“In a proceeding for dissolution of marriage, *** the court shall assign each spouse’s non-marital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
(5) any obligations and rights arising from a prior marriage of either party;
(6) any antenuptial agreement of the parties;
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(8) the custodial provisions for any children;
(9) whether the apportionment is in lieu of or in addition to maintenance;
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
(11) the tax consequences of the property division upon the respective economic circumstances of the parties.” Ill. Rev. Stat. 1989, ch. 40, par. 503(d).

Subsection (d) mandates that the court divide the marital property in “just proportions,” taking into consideration the enumerated factors, in addition to any other factors that are relevant to a particular case. (Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 429 N.E.2d 465.) Although the IMDMA does not require an equal distribution of marital property, our court has found an approximate equality to be equitable, especially in longer marriages. (See In re Marriage of Randall (1987), 157 Ill. App. 3d 892, 510 N.E.2d 1153; In re Marriage of Smith (1982), 105 Ill. App. 3d 980, 434 N.E.2d 1151; In re Marriage of Reed (1981), 100 Ill. App. 3d 873, 427 N.E.2d 282.) In the instant case, the marital property set apart to each spouse was approximately equal; the petitioner was awarded 40% of the assets and the respondent was awarded 60% of the property.

In reaching its decision, the court considered the long duration of the marriage, the respective employment and employability circumstances of the parties, and their ages, occupations, amount and sources of income and skills. The court determined that respondent earned approximately $30,000 a year and petitioner earned approximately $57,000 annually. The court also considered the reasonable opportunity of each spouse for future acquisition of capital assets and income. In doing so, the court considered the respondent’s lack of skills and experience to find appropriate future employment given her age and station in life versus the petitioner’s high income and probable capabilities for a continued high income in the future. (See In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 411 N.E.2d 238.) Although the respondent was gainfully employed in a small two- or three-lawyer firm while the petitioner was being offered an early retirement package, the record also reflects that the court considered that respondent’s employment prospects and means of caring for herself in the event of an illness or old age were limited, whereas the petitioner’s retirement package included provisions for consulting work, placement services and continued insurance propositions. (See In re Marriage of Pahlke (1987), 154 Ill. App. 3d 256, 507 N.E.2d 71.) The respondent had no dental insurance, disability coverage or pension/profit sharing plans but she was covered by restrictive medical insurance.

In addition, the respondent was solely responsible for payments relative to the purchase, ownership and maintenance of the marital home, and her own liabilities, which amounted to approximately $6,700 in credit card debt, a prior debt owed to her mother for the down payment on the home and attorney fees. Moreover, as noted above, the court ordered that petitioner was entitled to the greater share of the lump sum benefits to be received from the retirement agreement if he elected an early retirement.

Accordingly, we find that the trial court did not abuse its discretion in dividing the marital property in approximately equal portions based upon the length of a 31-year marriage, the differences in the parties’ income, the limited ability of the respondent to acquire future income, the petitioner’s better position to acquire capital assets and income in the future, and the liabilities of the parties. An appellate court will only find an abuse of discretion in apportioning marital property where no reasonable person would have adopted the court’s decision. (In re Marriage of Hanson (1988), 170 Ill. App. 3d 298.) Where the trial court makes an equitable distribution of the marital property (see Ilk. Rev. Stat. 1989, ch. 40, par. 503; In re Marriage of Pahlke, 154 Ill. App. 3d 256), such award will not be disturbed absent an abuse of discretion. See In re Marriage of Los (1985), 136 Ill. App. 3d 26, 482 N.E.2d 1022.

Petitioner also asserts that the trial court erred in its maintenance provisions in the judgment. Section 504 of the IMDMA authorizes the trial court to provide maintenance to either spouse following a dissolution of marriage. Prior to making a determination as to the amount and duration of a maintenance award, under subsection (b) (Ill. Rev. Stat. 1989, ch. 40, par. 504(b)), the court must first decide whether the award is proper pursuant to the considerations listed in subsection (a) (Ill. Rev. Stat. 1989, ch. 40, par. 504(a)), including the inability of the spouse seeking maintenance to provide for his or her own needs.

Although the trial court below did not order a maintenance award to the respondent, it determined that application for an award was proper based upon the existence of certain conditions. The court reserved maintenance for the respondent for five years on the condition that during such period, “if respondent earns less than $25,000 per year and petitioner is earning at least $35,000 per year, respondent may apply for maintenance.” In reserving maintenance, we believe that the trial court considered proper factors, including the respondent’s prospective need for maintenance in the event her hours were cut at work and her salary was substantially reduced while petitioner’s minimum salary remained constant.

Accordingly, we conclude that the trial court did not abuse its discretion in reserving maintenance for respondent for a limited time period in light of her tenuous employment situation, lack of insurance in the event of disability, restrictive medical insurance, and unsuccessful efforts to secure a better paying job. Additionally, we also conclude that the trial court’s bar of maintenance for petitioner is reasonable and appropriate in light of the evidence.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT NILSSON, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—3500
    Opinion filed June 25,1992.
    Michael J. Pelletier and Sally Swiss, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Brian Clauss, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Scott Nilsson, was indicted on charges of robbery, home invasion, residential burglary, and first degree murder. The robbery and home invasion charges were nol-prossed by the State. Following a jury trial in the circuit court of Cook County, defendant was found guilty of residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3) and first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1). He was sentenced to 35 years in the Department of Corrections.

At issue on appeal is (1) whether defense counsel’s trial strategy amounted to a denial of defendant’s sixth amendment right to effective assistance of counsel; (2) whether defendant’s confession was made after an invalid Miranda waiver; and (3) whether the trial court’s response to the jury question during deliberation was improper.

We affirm.

Prior to trial, defendant filed a motion to suppress his confession. He argued that due to his learning disability and communication problems, he was unable to knowingly and voluntarily waive his Miranda rights. The court denied the motion.

Detective Lawrence Thezan testified that his assignment to the homicide investigation of Linda Sanborn took place on November 16, 1987. He was informed by Cindy Ryan, who can neither speak nor hear, that Valerie Feliciano, Scott Nilsson, Anne Sfondilias, and Daniel Lord, might have information about the homicide. With the assistance of Officer David Levin, an interpreter for the hearing impaired, all four were interviewed.

Defendant was interviewed by Officers Levin and Thezan on November 17, 1987. He indicated that he wished to talk and neither showed nor stated any difficulty in understanding the sign language. On cross-examination, Levin admitted that some deaf people may answer that they understand even when they do not.

Patricia Miripol, a clinical psychologist, testified as an expert witness for the defense. Her opinion was that defendant did not understand his Miranda rights because defendant’s abstract verbal ability was deficient. Particularly important was Miripol’s opinion that defendant did not understand that he could be charged with murder even though he was “not the actual doer of the deed.” However, on cross-examination, Miripol found defendant fit to stand trial. He scored high in reference to nonverbal abilities. She further testified that with time and effort, defendant could be taught the meaning of Miranda rights.

Dr. Albert Stipes, a psychiatrist, also gave his opinion on defendant’s comprehension. Essentially, his findings were the same as those of Miripol. In his opinion, defendant had no real understanding of his Miranda rights but was fit to stand trial. Janice Nilsson, defendant’s mother, also testified that her son had a learning disability which interfered with his comprehension and communication skills.

Officer Levin testified that he used sign language to convey the Miranda warnings to defendant. Thereafter, defendant admitted his involvement in the murder of the victim. The officer testified that defendant admitted making plans with Lord to break into the victim’s apartment and steal some things. Defendant told him that he walked in behind Lord. Once inside, they found the victim sleeping and defendant held her down and hog-tied her with a rope that they brought with them. In the meantime, Lord began striking the victim all over her body. He then held a pillow over her face. When she passed out, defendant and Lord began taking things from the apartment. They drove these items over to Sfondilias’ house. She later turned this property over to the police. Sfondilias was defendant’s girl friend at the time of the murder, and his wife at the time of the trial. She testified that the victim’s former roommate was Feliciano, who moved out on November 3, 1987, over a dispute about the rent. On November 7, between 2 and 3 a.m., Sfondilias, Feliciano, Lord, and defendant drove two cars to Sanborn’s apartment. Sfondilias testified that the previous evening this same group had met at Cindy Ryan’s apartment. However, Ryan did not accompany them to the victim’s apartment. That same day, Lord and defendant had gone to Ace Hardware to make a copy of Feliciano’s key to the victim’s apartment.

Sfondilias further testified that defendant and Lord had planned to steal some things from the apartment if Sanborn was not home. She noticed that both men were wearing gloves and that defendant took some rope out of the car and gave it to Lord. They were in the victim’s apartment for approximately two hours before they returned to the cars with various items from the apartment. Defense witness Feliciano testified that they stayed in the apartment three to four hours. Defendant and Lord loaded the personal items into the two cars. Defendant and Sfondilias drove in one car; Lord and Feliciano drove in the other one. They all went to a park where Feliciano told Sfondilias that Lord had killed the victim. Deputy Chief Medical Examiner of Cook County Robert Kirschner testified that the cause of death was asphyxiation due to suffocation.

The State moved for admission of its evidence and rested. Defendant’s motion for a directed verdict was denied.

The defense called three witnesses. Valerie Feliciano testified that she moved out of the apartment after an argument with the victim. She testified that Lord had a key to the apartment and that he admitted to killing the victim. Russell Nilsson, defendant’s father, testified that defendant was deaf from birth and communicates through sign language. The testimony of Janice Nilsson, defendant’s mother, was the same as that of his father. She also stated that defendant had never been convicted of a felony.

Despite defense counsel’s objection, the judge answered a jury question concerning the instructions. Jury deliberations concluded, and defendant was found guilty of residential burglary and first degree murder. The judge denied defendant’s motion for a new trial.

The first issue on appeal is whether defendant was afforded effective assistance of counsel pursuant to the sixth amendment. Defendant argues that the trial strategy set forth by counsel was done without his consent and amounted to no representation. We disagree.

The standard for determining whether there has been ineffective assistance of counsel is essentially a two-pronged inquiry. First the defendant must demonstrate that counsel’s representation fell below what would objectively be considered reasonable. Second, the defendant must demonstrate the reasonable probability that had it not been for counsel’s errors, there would have been a different outcome at the close of the proceedings. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) The Strickland test was adopted by the Illinois Supreme Court in People v. Albanese (1984), 104 Ill. 2d 504.

Here, defendant has failed to show that but for counsel’s actions the trial would have ended differently. The officers who interviewed defendant testified that he was willing to talk to them. One of the officers was proficient in sign language and defendant indicated that he fully understood the officer’s translation of the interview. At trial, there was corroborating testimony concerning defendant’s role in the murder. One of the witnesses took the items brought out of the apartment by Lord and defendant to the police. These items were later identified by the victim’s mother as belonging to the victim. The defendant’s specific description of how the crime unfolded was consistent with the condition in which the body was found and with the coroner’s opinion as to the cause of death. Thus, defendant has not met the burden of the second prong of the Strickland test.

Returning to the first prong of Strickland, defendant must show that counsel’s representation fell below what would be considered reasonable. Reasonable representation means competency, not perfection. (People v. McNutt (1989), 146 Ill. App. 3d 357.) In the instant case, the overwhelming nature of defendant’s guilt left few options for defense counsel in determining a trial strategy. In light of Strickland, this panel has stated the following:

“When evaluating ineffective representation claims, courts ordinarily will not extend their review to areas involving the exercise of judgment, trial tactics or strategy [citation], as even the best attorneys would not necessarily agree on the same strategy for a particular case.” People v. Potthast (1991), 219 Ill. App. 3d 714, 720.

Defense counsel made a decision to proceed with a trial strategy that conceded defendant’s guilt with the hope of gaining jury sympathy and mitigating punishment. Defendant argues that this resulted in his having no defense and, therefore, he contends that he received ineffective assistance of counsel. He finds support in People v. Hattery (1985), 109 Ill. 2d 449, which states the following:

“Where ‘counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.’ ” (People v. Hattery, 109 Ill. 2d at 461, quoting United States v. Cronic (1984), 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047.)

Yet, more recently our supreme court has said that Hattery must be narrowly construed. The rationale behind a narrow interpretation is as follows:

“If we were to accept an automatic ineffectiveness rule, there would be the danger that an unscrupulous defense attorney, especially in a death penalty case, would deliberately concede his client’s guilt in order to lay the groundwork for a later reversal. It is even possible that client and counsel would conspire to this end. For these reasons the rule in Hattery must be narrowly construed.” (People v. Johnson (1989), 128 Ill. 2d 253, 269.)

Finally counsel’s conduct must be considered in its totality in a given case. People v. Ayala (1986), 142 Ill. App. 3d 93.

Here, not only was counsel’s conduct appropriate but it was done with the consent of defendant. Further, defendant’s consent was reiterated when questioned at length by the court. The colloquy went as follows:

“THE COURT: Mr. Nilsson, you understand by your attorney’s opening statement he is conceding to the jury that you have committed the offense of residential burglary. I could sentence you to the Illinois State Penitentiary up to seven years. Do you understand that, sir?
MR. CUOMO: Fifteen, Judge.
THE COURT: Excuse me, four to fifteen years. Do you understand that? I just want to explain it to him. Do you understand that, Mr. Nilsson?
THE INTERPRETER: Yes.
THE COURT: Okay. You understand this is your attorney’s trial strategy at this time. Do you understand that sir?
THE INTERPRETER: Yes.
THE COURT: Do you understand further by him agreeing that you were there at the time of the residential burglary that a murder was committed. He’s basically conceding to the jury that you committed the murder by way of accountability and I could sentence you to life in the penitentiary. Do you understand that, sir?
THE INTERPRETER: Yes.
THE COURT: I believe, Mr. Meyers, that this is your trial strategy. Is that correct?
MR. MEYERS [DEFENSE COUNSEL]: I’m simply stating what the witnesses might testify.
THE COURT: I understand that but pursuant to a case that came down from the Illinois Supreme Court, I must advise your client of this and have him agree to allow you to do it. Do you understand that? Because it’s tantamount to pleading him guilty. Do you understand that?
MR. MEYERS: Yes, your Honor, I understand.
THE COURT: I don’t care if you understand. I want Mr. Nilsson to understand. Do you understand that Mr. Nilsson?
THE INTERPRETER: Yes.
THE COURT: Okay. And you agree to it at this time. Is that correct, sir?
THE INTERPRETER: Yes.”

A recent supreme court case, People v. Ganus, commented on a similar strategy that was done with that defendant’s consent. The relevant commentary is as follows:

“In the instant case, on the other hand, defendant’s counsel’s trial strategy was consented to by defendant. What the instant case presents is a situation where the defendant literally had no defense. Evidence of his guilt was overwhelming. His counsel conceived a compulsion defense, which, though not a legal defense, could or might have persuaded a jury not to convict. Jury nullification is always a possibility. It is not inconceivable that a compulsion defense might have evoked empathy, compassion or understanding and sympathy in the minds of the jurors. It is a truism that if a man is drowning, he will grasp at a straw that comes floating by. A weak or insufficient defense does not indicate ineffectiveness of counsel in a case where a defendant has no defense.” People v. Ganus (1992), 148 Ill. 2d 466, 473-74.

In the case at bar, even assuming possible errors by counsel, there was overwhelming evidence against defendant, including his own confession. Therefore, we find that defense counsel’s overall representation, including his trial strategy, afforded defendant effective assistance of counsel.

Defendant’s second argument on appeal is that his confession should have been suppressed because it was made after an invalid Miranda waiver. He argues that his learning disability made him unable to understand Miranda rights and unable to comprehend the significance of a confession. We disagree.

The determination of the competency of a confession is a task solely for the trial court. (People v. Redd (1990), 135 Ill. 2d 252, 292, citing People v. Carter (1968), 39 Ill. 2d 31, 38.) “Findings by the circuit court on the question of voluntariness of a confession will not be disturbed by a court of review unless they are against the manifest weight of the evidence.” Redd, 135 Ill. 2d at 292-93.

To determine whether a defendant understood and knowingly waived his rights by a preponderance of the evidence, a court must examine the totality of the circumstances. (People v. Gore (1983), 116 Ill. App. 3d 780, 784, citing Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) “Whether a defendant intelligently waived his right to counsel depends, in each case, on the particular facts and circumstances of that case, including the defendant’s background, experience, and conduct.” (People v. Bernasco (1990), 138 Ill. 2d 349, 368.) Further, this panel has specifically stated the following:

“The intelligence of the defendant is not controlling, but is only one factor relevant to a determination of whether the defendant’s statements were voluntary.” People v. Negron (1991), 220 Ill. App. 3d 754, 766.

In applying the above legal principles to the instant case, we find that the trial court’s ruling was not against the manifest weight of the evidence. The record indicates that defendant was interviewed by an officer who was a certified sign language interpreter. Defendant was specifically asked about his understanding of each Miranda right. After each one, he indicated that he understood what had just been signed to him.

The defense presented two experts who testified as to defendant’s communication and comprehension problems. Their opinions were that these problems interfered with his ability to understand his Miranda rights. However, on cross-examination, both experts testified that defendant understood the nature of the proceedings against him. Further, defendant was found fit to stand trial.

Defendant cites People v. Bernasco (1990), 138 Ill. 2d 349, to support his argument that he did not have the intellectual capacity to understand his Miranda rights. However, that case is distinguishable from the case at bar. In Bernasco, the defendant was 17 years old and living at home with his father. In the instant case, defendant was married with a child at the time of trial. Thus, defendant is most similar to the defendant in People v. Long (1991), 217 Ill. App. 3d 940. There, the court also had the benefit of expert testimony. However, as in our case, the trial court found the testimony of the police officer more credible. There is no requirement that a trial court accept defendant’s experts’ conclusions of fact. People v. Phillips (1992), 226 Ill. App. 3d 878, 888.

The trial court heard testimony from the police, defendant’s mother, and two doctors. The court was also free to consider defendant’s independent lifestyle as a married man with a child, and defendant’s prior contact with the criminal justice system. The totality of these circumstances led the trial court to conclude that defendant’s waiver of his Miranda rights was voluntary and knowingly and intelligently made. We find that the court’s ruling is not against the manifest weight of the evidence.

The third issue on appeal is whether the trial court improperly answered a jury question during deliberations which prejudiced defendant.

A recent case quoted the general rule as to clarification of instructions. The rule is as follows:

“ ‘If jurors differ as to the instructions they should come into court and have them repeated, or if they wish more information as to the law they should request it of the court, and it has been held that it is not only the right but the duty of the court to reinstruct on any question of law arising from the facts on which the jury say they are in doubt, and on which they ask further instructions. Where the jury make their difficulties explicit, the judge should clear them away with concrete accuracy; and where the question asked is not clear, it is the duty of the court to seek clarification.’ ” (People v. Shannon (1990), 206 Ill. App. 3d 310, 316-17, quoting People v. Harmon (1968), 104 Ill. App. 2d 294, 301, 244 N.E.2d 358, 361.)

The trial court’s duty of clarification is well-supported in case law. In People v. Brouder, the court stated as follows:

“When a jury manifests confusion or doubt, it is the trial court’s duty to reinstruct on any question of law giving rise to that doubt or confusion. [Citations.] ‘This is true even though the jury was initially given proper instructions.’ ” People v. Brouder (1988), 168 Ill. App. 3d 938, 947, quoting People v. Morris (1980), 81 Ill. App. 3d 288, 290-91.

Considering these legal principles, we now examine the facts relating to this issue. The question submitted by the jury arose from Illinois Pattern Jury Instructions, Criminal, No. 7.02A (2d ed. Supp. 1987), which reads as follows:

“To sustain the charge of first degree murder, the State must prove the following propositions:
First: That the defendant, or one for whose conduct he is legally responsible, performed the acts which caused the death of Linda Sanborn; and
Second: That when the defendant, or one for whose conduct he is legally responsible, did so,
he intended to kill or do great bodily harm to Linda San-born; or he knew that his acts would cause death to Linda San-born;
or
he knew that his acts created a strong probability of death or great bodily harm to Linda Sanborn;
or
he was committing the offense of residential burglary.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

A note sent to the judge during deliberations read:

“To sustain the charge of first degree murder, the State must prove the following proposition: (He was committing the offense of residential burglary) Does the sentence in parenthesis prove that the defendant is guilty of first degree murder standing by itself since a death was involved.”

The judge responded, “YESl” despite defense counsel’s objection.

Defendant cites People v. Prather (1985), 138 Ill. App. 3d 32, which held that an erroneous instruction cannot be cured by following it with a correct instruction. This is because it will be left unclear as to which instruction was relied upon by the jury. However, in our case, there was no question that the jury received proper instructions.

Another case cited by defendant is People v. Kelley (1983), 113 Ill. App. 3d 761, where the trial judge in the instant case made a remark during voir dire concerning that defendant’s guilt. In the instant case, the trial judge was responding to a question of law put forth by the jury during deliberations. People v. Kelley is also not applicable to the instant case.

A recent case resembling the case at bar is People v. Willis (1991), 217 Ill. App. 3d 909. As in our case, defendant Willis argued that the trial court erred in responding to the questions which the jury sent during its deliberations. The court responded as follows:

“It is imperative that a jury instruction not be confusing to the jury. If the correct principles of law have not been understood by the jury, it will be precluded from reaching a well-reasoned conclusion based on the law and evidence.” (People v. Willis, 217 Ill. App. 3d at 921.)

Here, as in Willis, the question itself indicated that the jurors had read the instruction and were simply confused as to one of the elements. In responding to their question, the court was merely performing its duty to assist the jury in understanding the law so they could reach a well-reasoned verdict.

Defendant’s other contention is that the judge’s affirmative underlined response allowed the jury to find defendant guilty without the State having to prove all of the elements of first degree murder. In People v. Willis (1991), 217 Ill. App. 3d 909, the appellate court found that the trial court did not err by merely returning the original instructions to the jury, with the judge having underlined the excerpt that answered their inquiry. The answer to the question in the instant case was also contained within the instructions. Further, the jurors quoted a portion of the instruction in their question. Thus, the judge’s affirmative response was an absolute clarification of a jury instruction and in no way prejudicial to defendant. We therefore find that the trial judge properly responded to the jury’s question of law.

For all of the foregoing reasons, we affirm the decision of the circuit court of Cook County.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


author: JUSTICE McNAMARA

text:
      In re MARRIAGE OF EVA VENDREDI, Petitioner-Appellee, and JACQUES VENDREDI, Respondent-Appellant.
    First District (6th Division)
    No. 1—90—1794
    Opinion filed June 26,1992.

      Schiller, Du Canto & Fleck, Ltd., of Chicago (Sarane C. Siewerth, of counsel), for appellant.
    Sam Panger, Jr., of Katz, Karacic & Helmin, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

On January 21, 1988, Eva Vendredi (Eva) filed a petition for dissolution of her 28-year marriage to Jacques Vendredi (Jacques). On February 24, 1989, the trial judge entered a judgment dissolving the marriage, which incorporated a written property settlement reached by the parties. The agreement equally divided the marital estate, valued at approximately $660,000, and awarded physical custody of the parties’ minor child to Jacques. After a trial on the issues of maintenance and child support, the trial judge entered a supplemental judgment which awarded $3,000 monthly permanent maintenance to petitioner and denied respondent’s claim for child support.

Jacques subsequently filed a petition for rehearing on the maintenance award, which alleged that newly discovered evidence showed that Eva’s income was higher than she represented at trial. On September 12, 1989, the trial court denied Jacques’ request to stay enforcement of the maintenance order until ruling on the petition for rehearing, and on October 16, 1989, the trial court denied his motion for rehearing. On June 1, 1990, after a hearing the trial court ordered Jacques to pay $10,791.30 for a portion of the attorney fees incurred by Eva during the proceedings.

On appeal, Jacques contends that the trial court abused its discretion by: awarding Eva permanent maintenance of $3,000 monthly; denying his claim for child support; requiring him to pay Eva’s attorney fees; denying his petition for rehearing on the issue of maintenance; and refusing to stay the order providing for maintenance pending a ruling on the petition for rehearing.

The following pertinent evidence was adduced at trial: Eva, who was 49 years old, was born in Hungary. Her only formal education was as a seamstress and dressmaker in Europe. She emigrated to the United States in 1959, and married Jacques in 1960. During the parties’ marriage, respondent’s job and army service required them to move to Switzerland, various parts of the United States, Japan, Holland and Mexico. During these years, Eva cared for the home and the children. In 1985 or 1986, Eva, along with two partners, opened a bakery and worked 30 to 60 hours weekly. Jacques was upset about Eva spending less time at home, but denied that he told her to quit. Eva subsequently left the business because Jacques wanted her to take care of the home and the children. Eva worked part time at a fabric store as a salesclerk, but left there because Jacques was upset about the time she spent away from home. Eva then took a job at Mira’s Originals, a Glenview dress shop, where she worked throughout these proceedings.

Jacques, 53 years old, had been employed by Quaker Oats for 121/2 years, and presently served as director of quality assurance and product development for the international division.

Substantial evidence was presented concerning the parties’ annual income and expenses, including the following documents: a joint 1986 tax return; Jacques’ 1987 tax return; and each party’s individual return for 1988. These documents revealed that Jacques’ gross income for 1986, 1987 and 1988 was $114,237, $128,701, and $121,965, respectively. Eva’s 1988 return revealed that her gross income was $18,351. Jacques and Eva each submitted expense affidavits which estimated their monthly expenses at $5,101 and $4,458, respectively, and each party spent considerable time challenging the validity of the other’s claimed expenses. Jacques testified that he calculated his monthly expenses by dividing what he paid in the prior year by 12. Eva testified that some of her calculations were estimates.

Eva testified that her gross salary in 1988 was $8,850. She worked only 25 hours per week, earning $7 per hour, as a salesclerk at Mira’s. She testified that she had tried unsuccessfully to find a job which paid more, or which allowed her to work more hours. Jacques testified that Eva worked 40 to 45 hours per week, but that her employer paid her by check for only 25 hours. At the time of trial, the parties’ children, Pierre and Philippe, were 20 and 14 years old, respectively. A bank account exists for each child’s educational expenses; at the time of trial, Pierre’s account contained $3,200 and Philippe’s account contained $13,000.

Initially, we consider whether the trial judge properly denied respondent’s motion for a rehearing which alleged newly discovered evidence of petitioner’s income. Specifically, the motion alleged that Jacques discovered two witnesses who would testify that Eva expected to earn $10 per hour when she began working at Mira’s Originals; she was paid $400 weekly in cash in addition to her weekly paycheck; other employees of Mira’s were paid in cash; and petitioner worked as a dress designer and supervised 10 employees.

To support the grant of a new trial, the new evidence must: (1) appear to be of such a conclusive character that it will probably change the result; (2) have been discovered since the trial; (3) be such as could not have been discovered before trial in the exercise of due diligence; (4) be material to the issues involved; and (5) not be simply cumulative to evidence presented at the initial trial. (Central Production Credit Association v. Hans (1989), 189 Ill. App. 3d 889, 545 N.E.2d 1063.) Granting a new trial on the basis of newly discovered evidence is not favored (Mixer v. Billingsley (1982), 110 Ill. App. 3d 239, 442 N.E.2d 275), and the movant bears the burden of showing that the above requirements have been met. (Morris v. Doss (1987), 163 Ill. App. 3d 1057, 517 N.E.2d 321.) Whether a new trial is warranted is a matter within the trial court’s sound discretion, and this court will not reverse such decision absent an abuse of that discretion. Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 357 N.E.2d 500.

In denying respondent’s request for rehearing, the trial judge stated that the alleged new evidence was discoverable before trial, and that even if all of respondent’s allegations were true, a new trial would not be warranted. We cannot say that such a determination was an abuse of discretion.

Our review of the record leads us to conclude that Jacques failed to demonstrate due diligence in discovering this evidence. His petition alleges that the two witnesses, Roberta Brzybylski and Illiana Pacowski, would testify to information concerning Eva’s income. Although Jacques claimed he knew of the cash payments as early as 1987, he made negligible efforts during this litigation to discover evidence supporting this allegation. He made no attempt to discover information from co-workers regarding Eva’s income nor did he call Mira Horozswski or any of the employees at trial. Although he knew where Eva worked, he did not attempt to discover the names of her co-workers, either by written interrogatories to Eva or by subpoenas to Mira. Moreover, his allegation in his motion that he had “known” Brzybylski for some time belies his claim that the allegedly new evidence was unavailable earlier. Based upon the above, we do not believe that the information Jacques sought to present in the petition for rehearing was unavailable prior to or at the time of trial. His failure to fully participate in the discovery process does not warrant a new trial here.

We are also unpersuaded by Jacques’ argument that Eva’s failure to comply with his motion to compel production of bank records effectively prevented him from presenting evidence about her income. Supreme Court Rule 219 provides that when a party fails to comply with a document production request, the movant may seek an order compelling compliance. (134 Ill. 2d R. 219.) Jacques failed to compel production of the bank records, and we believe that such failure constitutes a lack of due diligence on his part. We also reject his assertion that his failure to call Mira Horozswski as a witness should be excused. In this regard, Jacques claims that she would have denied paying Eva in cash and pursuing such discovery would have been futile. If Horozswski testified regarding whether cash payments were made, her credibility would have been an issue for the trier of fact. In our view, respondent’s failure to call Horozswski based upon his assumption as to her probable testimony indicates a lack of due diligence in investigating petitioner’s income. Jacques testified that he believed Eva was paid in cash and extensively cross-examined her on her income level. Jacques, however, apparently chose not to present any evidence, other than his own testimony, and he was not entitled to a rehearing.

Even assuming that Jacques acted with due diligence, we do not believe that the alleged evidence, taken as true, would warrant a new hearing. His motion alleged that Eva earned $1,600 more monthly than she reported. With this additional amount, Eva’s income would be approximately $28,000, exclusive of the maintenance. Even with the $3,000 monthly maintenance payments, Eva’s gross annual income equals slightly more than half of Jacques’ annual salary. Given the disparate incomes, we cannot say that the additional evidence would have changed the result. As such, we do not believe that the trial judge abused her discretion in denying respondent’s motion for rehearing.

We note that the above holding moots Jacques’ contention that the trial court improperly refused to stay enforcement of the maintenance order pending resolution of his rehearing motion.

Jacques next contends that the trial court abused its discretion in ordering a permanent, rather than a reviewable, maintenance award. He also maintains that the amount awarded exceeded Eva’s reasonable expenses and his ability to pay.

Section 504 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 504) provides that a court may grant maintenance only if it finds that the spouse seeking maintenance lacks sufficient property, including marital property, to provide for her reasonable needs; is unable to support herself through appropriate employment; or is otherwise without sufficient income. The Act further provides that the maintenance order is to be for an amount and duration as the court deems just, after considering the following additional factors: the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; the standard of living established during the marriage; the duration of the marriage; the age and the physical and emotional condition of the parties; and the ability of the spouse from whom maintenance is sought to meet his or her own needs while meeting those of the spouse seeking maintenance. (Ill. Rev. Stat. 1989, ch. 40, par. 504(b).) Once the court determines that maintenance is appropriate, no one factor is determinative of the amount or duration of the award. In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 543 N.E.2d 119; In re Marriage of Wolf (1989), 180 Ill. App. 3d 998, 536 N.E.2d 792.

An award of maintenance is within the trial court’s sound discretion, and it will not be disturbed by a reviewing court unless there is an abuse of discretion or the determination is against the manifest weight of the evidence. (In re Marriage of Wolf 180 Ill. App. 3d 998, 536 N.E.2d 792.) An abuse of discretion in setting a maintenance award occurs when no reasonable person would take the view of the trial court. In re Marriage of Los (1985), 136 Ill. App. 3d 26, 482 N.E.2d 1022.

The record indicates that the trial judge considered the following factors in making the maintenance award: petitioner’s lack of sufficient property to provide for her reasonable needs; her lack of sufficient income “in light of the limited job skills and education and training that she has currently”; her inability to meet her needs independently in light of her minimal skills, and her “very limited and sporadic” work history; the “very high” standard of living established during the marriage; the length of the marriage (28 years); the limited job opportunities available to her given her age, educational background and work history; the respondent’s financial and employment security, and his ability to meet his own as well as petitioner’s needs; and the tax consequences of a maintenance award.

We believe that the trial court correctly considered the applicable statutory factors and did not abuse her discretion in setting the duration and amount of the maintenance award. Trial courts have wide discretion in determining what needs are reasonable and must decide on a case-by-case basis, considering such factors as the parties’ circumstances, the standard of living established during the marriage, and the duration of the marriage. (In re Marriage of Kristie (1987), 156 Ill. App. 3d 821, 510 N.E.2d 14.) We agree with the trial court’s determination that the parties enjoyed a “very high standard of living.” Indeed, the evidence reflects that the parties travelled extensively and eventually settled in an expensive marital home in an affluent suburb. The trial court specifically found that Eva needs $3,000 monthly, in addition to her own income, to meet her needs. The court also found that after paying his own expenses including maintenance, and adjusting his withholding taxes based upon the deductibility of the maintenance, Jacques had sufficient excess income to meet Eva’s needs. We disagree with Jacques that the trial court improperly evaluated Eva’s expenses and reasonable needs, or failed to consider the income-producing capability of her property.

The record reveals Eva’s limited ability to meet her needs without maintenance. She is 50 years old and has never received any formal education, except as a seamstress. Moreover, the record indicates her sporadic and sparse employment history, and her inability to read or write English well. That petitioner has been employed is not dispositive, especially because she has little prospect of earning a salary commensurate with her needs. (See In re Marriage of Kristie, 156 Ill. App. 3d 821, 510 N.E.2d 14.) Although Eva worked for a short time during the parties’ marriage, she was primarily a traditional housewife. As a result, she entered the work force relatively late in life with limited skills. Eva’s 1988 gross income of $18,351 was comprised of $8,850 in salary, $10,000 in maintenance, and $641 in interest income. By contrast, Jacques earned $111,423 in gross salary during 1988, and more than $8,000 in interest. Even if Eva worked a 40-hour week at $10 per hour, her annual gross income would not exceed $20,000. At this income level, Eva will not likely ever reach the standard of living supported by Jacques’ income during their marriage. Although we recognize that maintenance is designed to allow a dependent spouse to become financially independent, permanent maintenance is appropriate where, as here, the recipient spouse is employable at an income level substantially lower than the previous standard of living. (In re Marriage of Haas (1991), 215 Ill. App. 3d 959, 574 N.E.2d 1376.) Based upon the record, Eva has no prospect of earning a salary commensurate with that of Jacques or one commensurate with her reasonable needs or the parties’ lifestyle during the marriage. The record supports her claim that she is unable to adequately support herself through employment, and that Jacques can meet both their needs.

We find In re Marriage of Kerber (1991), 215 Ill. App. 3d 248, 574 N.E.2d 830, instructive. In Kerber, this court found that the trial court’s reviewable, time-limited maintenance award was an abuse of discretion, characterizing the facts as a “classic case” for a permanent maintenance award. (Kerber, 215 Ill. App. 3d at 253, 574 N.E.2d at 833.) The court emphasized the following facts: duration of the marriage (30 years); wife’s high school education; significant amount of time needed for education or training to allow wife to seek appropriate employment; wife’s poor health; and the division of labor during the marriage which precluded wife from developing marketable skills, while allowing husband to do so. Kerber, 215 Ill. App. 3d at 253, 574 N.E.2d at 833.

Respondent cites In re Marriage of Jones, In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 505 N.E.2d 1294, and In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748, in support of his claim that the permanent maintenance award here was against the manifest weight of the evidence. The facts of these cases, however, are substantially dissimilar and do not support limiting the duration of maintenance in the present case.

In the present case, Eva was employed, and it is undisputed that she sought a higher paying job or one allowing more hours, although unsuccessfully. We cannot say that Eva failed to meet her affirmative obligation to seek gainful employment. Based upon the evidence, we see no likely expectation that Eva could ever generate sufficient income to meet her needs or the lifestyle maintained during the parties’ marriage. We note, however, that if there is a substantial change in either party’s circumstances, such as a decrease in Eva’s expenses or a decrease in Jacques’ income, the maintenance award would be automatically reviewable under section 510(a). (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) Considering all of the factors we have noted, we find no abuse of discretion in the amount and duration of the maintenance award.

We also reject Jacques’ contention that the trial court abused its discretion in denying his claim for child support and educational expense from Eva. In this regard, Jacques maintains that the court ignored Eva’s ability to contribute to the children’s support by either direct payment or setoff against her maintenance award. We note initially that the older son dropped out of school, enlisted in the army, and thereby became emancipated during the post-trial proceedings. As such, only the support and educational expenses of the minor child, Philippe, are at issue. In rejecting respondent’s claim for child support and educational expenses, the trial court wrote that “[Eva] cannot approach the same standard of living for herself, let alone be required to contribute to the educational expenses of the child.”

Although we recognize the obligation of both parents to contribute to their child’s support (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)), the Act requires us to consider the “financial needs and resources” of both the custodial and noncustodial parent. (Ill. Rev. Stat. 1989, ch. 40, pars. 505(aX2), (aX5).) Given the great disparity in the parties’ incomes and future earning capacities, the parties’ standard of living and Eva’s reasonable needs, we conclude that the trial court’s denial of Jacques’ request for child support was a proper exercise of discretion. Indeed, the source of more than one-half of Eva’s income is maintenance. Under these circumstances, we agree with the trial court that it would be illogical and contrary to the Act to obligate Eva to contribute to the support and educational expenses of the minor child. The trial court correctly denied Jacques’ claim for child support and educational expenses.

Finally, we consider Jacques’ contention that the trial court erred in requiring him to pay $10,791.30 or 30% of Eva’s attorney fees.

The payment of attorney fees is the primary obligation of the party on whose behalf the services were rendered. (In re Marriage of Meyer (1986), 140 Ill. App. 3d 1031, 489 N.E.2d 906.) However, pursuant to section 508 of the Act, the trial court may order either spouse to pay a reasonable amount for his own or his spouse’s “necessarily incurred” attorney fees. (Ill. Rev. Stat. 1989, ch. 40, par. 508.) The award of attorney fees is within the sound discretion of the trial court, and we -will not disturb such decision absent an abuse of discretion. (In re Marriage of Jones, 187 Ill. App. 3d 209, 543 N.E.2d 119.) The party seeking fees must show an inability to pay and an ability of the other spouse to pay. (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 483 N.E.2d 1229.) The amount of attorney fees awarded depends upon whether the work was reasonably required and necessary for the proper performance of legal services given the circumstances of the case. In making such determination, the court may consider the following factors: the novelty, importance and difficulty of the questions raised; the attorney’s degree of responsibility; the time and labor required; the skill and standing of the attorneys; the benefits resulting to the client; the usual and customary charge in the community; and the financial position of the parties. (In re Marriage of Hirsch (1985), 135 Ill. App. 3d 945, 482 N.E.2d 625.) No party should be required to pay more than the reasonable value of the legal services rendered simply because he has the ability to do so. In re Marriage of Angiuli (1985), 134 Ill. App. 3d 417, 480 N.E.2d 513.

Jacques contends that the attorney fees claimed on Eva’s behalf were unreasonable and that the rates charged were improper because the issues were not novel or complex.

Although the parties reached an agreement as to the division of marital property, this was accomplished only after the prerequisite evaluation of property values and employee benefit plans, such as employee stock options and profit sharing. Further, the marital assets were sizable and indicate a more complex case. Moreover, the matter involved a long marriage and contested issues of maintenance, child support, and the value of the marital home. We, therefore, are unable to conclude, as Jacques suggests, that the fees were unreasonable or unnecessary.

We believe that the evidence sufficiently showed Jacques’ ability to pay the fees, and Eva’s inability to do so without depleting her capital assets, which Illinois law clearly does not require. (See In re Marriage of Landfield (1991), 209 Ill. App. 3d 678, 567 N.E.2d 1061; Head v. Head (1988), 168 Ill. App. 3d 697, 523 N.E.2d 17.) Moreover, Jacques is clearly in a superior position to acquire additional income and capital assets. (In re Marriage of Girrulat (1991), 219 Ill. App. 3d 164, 578 N.E.2d 1380; In re Marriage of Orlando (1991), 218 Ill. App. 3d 312, 577 N.E.2d 1334.) Considering the above factors, we find no abuse in the award of attorney fees.

For the herein stated reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

LaPORTA and RAKOWSKI, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD SEVIER et al., Defendants-Appellants.
    First District (6th Division)
    No. 1—86—3109
    Opinion filed June 26,1992.

      Rita A. Fry, Public Defender, of Chicago (Evelyn G. Baniewicz, Assistant Public Defender, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Barbara Jones, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

This appeal arises from three consolidated cases. Following a joint jury trial, defendants Edward Sevier and Sylterrell Brown were each found guilty of murder and attempted armed robbery. Sevier was sentenced to concurrent terms of 30 years’ imprisonment for murder and 15 years for attempted armed robbery. Brown was sentenced to concurrent terms of 35 years for murder, 25 years for attempted armed robbery, and 15 years for armed violence. (Codefendant Keith Bond was convicted of murder and attempted armed robbery in the same joint jury trial; however, we address the issues raised in Bond’s appeal in a separate opinion filed on this date, People v. Bond (1992), 230 Ill. App. 3d 1086.)

On appeal, defendants contend that the following matters constitute reversible error: (1) the admission of codefendant Bond’s unredacted statements through the testimony of the State’s witnesses denied defendants their sixth amendment right to confront witnesses against them; (2) the court erred in denying defendants’ motions for mistrial and severance based upon the confrontation clause and prejudice resulting from the antagonistic defense advanced by Bond; (3) the court should have granted defendants’ motions to quash arrest and suppress evidence; (4) absence of probable cause to arrest defendants; (5) the court erred in denying Brown’s motion to suppress statements; (6) the State exercised its peremptory challenges in a racially discriminatory manner; (7) Sevier’s convictions for murder and attempted armed robbery are inconsistent with the jury’s verdict of not guilty on the offense of armed violence; (8) whether Brown’s conviction for armed violence must be vacated because it constitutes an impermissible double enhancement of the underlying offense of attempted armed robbery; (9) defendants were not proved guilty of attempted armed robbery; and (10) the sentences imposed were excessive.

In the early morning hours of December 24, 1984, William Young, age 56, received a gunshot wound to his head at 71st Street and Ridgeland Avenue in Chicago. A small, single-shot pistol was found underneath the deceased’s body. The deceased died as a result of the injuries sustained from the gunshot wound on January 3,1985.

On that morning, Ronald Boston was operating a newsstand at the comer. At 6 a.m., Boston sold a newspaper to a man who began walking westbound on 71st Street. Moments later, two men approached the newsstand and bought a newspaper. The men then continued walking west on 71st in the same direction that the first man had walked. Approximately 10 to 15 seconds later Boston heard the report of two gunshots. Boston left the newsstand and saw a man lying in the street whom he recognized as the man to whom he had just sold a newspaper. Boston did not see who fired the shots. Boston viewed a lineup in February 1985, but was unable to identify any of the defendants. Boston stated that he saw only two men approach the newsstand and that he did not see a third man on the street.

MOTION TO QUASH ARREST AND SUPPRESS EVIDENCE

The defendants filed pretrial motions to quash arrest and suppress evidence. Sevier, age 17 at the time of the offense, testified that on February 18, 1985, he was living with his mother, stepfather, and two brothers. That evening the police knocked at his apartment door. Sevier attempted to open the door; however, the police kicked it open. Sevier’s mother was directly behind him. Two police officers, together with Adolph Powell, entered the apartment and asked his name. After Sevier responded, Powell said “that’s him.” The detectives indicated that they wanted to take him to the police station to question him about a robbery. Sevier stated that he did not want to go to the police station and that they could question him at home. The police told Sevier to get dressed, handcuffed him, and took him to the police station. The police did not indicate to Sevier whether they had a warrant for his arrest, nor did they produce a search warrant. Sevier stated that neither his mother nor brother opened the door to allow the police inside the apartment.

Brown, age 16 at the time of the murder, testified that on the morning of February 19, 1985, he was lying in bed in the home he shared with his mother and stepfather. According to Brown, the police “busted through my room, grabbed me up out of the bed and told me I was under arrest.” The police asked Brown to get dressed and handcuffed him. Brown was then taken to the police station.

Chicago police officer A1 Grefsheim testified on behalf of the State that on February 18, 1985, at approximately 9:55 p.m., he proceeded to Sevier’s apartment accompanied by another detective and Powell. Powell had been picked up by the police earlier that evening because he fit the description of one of the suspects sought in connection with this murder. Grefsheim brought Powell for the purpose of identifying an individual whom he referred to as “Pookie.” According to Powell, Pookie had told him that he, together with Bond and Brown, approached the deceased after he bought a paper at the newsstand. After the deceased made a movement toward his waist, one of them shot him.

Upon arriving at Sevier’s apartment, Grefsheim observed two men and a woman outside the door. After he knocked on the door, the individuals asked Grefsheim what he wanted, to which he replied that he was looking for Edward Sevier. The man knocked on the door and entered the apartment. A woman, later identified as Pookie’s mother, came to the door. She indicated that Pookie was home and invited the detectives into the apartment. When the detectives entered the apartment, they did not have their guns drawn. Powell identified Sevier as the person he knew as Pookie. Grefsheim told Sevier to get dressed and took him to the police station for questioning in the robbery-murder investigation.

Under cross-examination, Grefsheim stated that he did not attempt to obtain a search warrant or an arrest warrant for Sevier. Grefsheim did not kick open the door or handcuff Sevier. Neither Sevier nor his mother objected to accompanying Grefsheim to the police station.

Officer Brian Regan corroborated Grefsheim’s account of the events and stated that they never kicked or forced open the door to either Sevier’s or Brown’s apartment. During cross-examination, Regan stated that they did not try to obtain an arrest warrant for Brown because they were in the course of conducting their investigation.

Sevier’s stepfather, Reginald Collier, testified that he did not give the police officers permission to enter his apartment and arrest Sevier, nor did he extend permission for them to conduct a search of the apartment. Collier specifically asked the officers whether they had a warrant, but the officers replied that they did not need one. Under cross-examination, Collier stated that neither he nor Sevier’s mother answered the door, and that he did not know whether Sevier’s brother opened the door for the police.

Gayle Matthews, Sevier’s mother, testified that on the evening of Sevier’s arrest, she was at home with Collier. Shortly before 10 p.m., she looked up and saw two plainclothes police detectives enter the apartment. The police asked Sevier his name and then directed him to get dressed. After Sevier finished dressing, the police handcuffed him. Matthews did not give the police permission to enter her apartment or arrest Sevier.

Dorothy Adams, Brown’s mother, testified that at approximately 8 a.m. on February 19, 1985, she was in bed when she heard a knock on her apartment door. Adams went to the door and saw two men. The men did not identify themselves as police officers. The men asked whether Brown was at home. After Adams responded affirmatively, the men entered the apartment. They then entered Brown’s bedroom and pulled him out of bed. After Brown was dressed, the police handcuffed him. When Adams began crying, the police showed her some identification and told her they were taking Brown to the police station. The police did not show Adams a warrant for the arrest of her son or a search warrant for her house. Adams did not at anytime extend permission for the officers to enter her apartment.

Under cross-examination, Adams stated that Brown had been the victim of a shooting two weeks prior to his arrest. Adams denied asking the police whether they were investigating that shooting incident. Adams’ husband testified similarly concerning the circumstances of Brown’s arrest.

In rebuttal, Officer Markham testified that he accompanied Grefsheim and Powell when they went to Sevier’s apartment. Markham testified that Sevier’s mother opened the apartment door and invited the officers inside the apartment. Sevier was not handcuffed and went voluntarily with the police. Officer Steve Glyn testified that Brown’s mother admitted them into the apartment and asked whether they wanted to speak with him about his shooting.

At the conclusion of the hearing, the trial court denied defendants’ motion to quash arrest and suppress evidence.

THE TRIAL

Glyn testified that he advised Sevier of his. Miranda rights. Sevier gave Glyn an oral statement stating that he was with two men named “Keith” and “Terrell” on 71st Street, and they discussed robbing an old man. As the three men approached the deceased and attempted to rob him, the deceased reached inside his coat. Sevier and Bond fled the scene while Brown, who carried a gun, continued to speak with the deceased. Sevier heard several shots. The three defendants then ran to Brown’s house. Sevier agreed to help the police locate the other defendants’ residences, as he only knew them by their first names.

Glyn testified that he advised Bond of his constitutional rights. Bond informed Glyn that he was on 71st Street with Sevier, whom he knew by the nickname of “Pookie” when they met Brown. Sevier and Brown began discussing the robbery of an old man. They saw the deceased walk away from a newsstand. Glyn testified further that Bond told him Brown began following the deceased, while Bond and Sevier crossed the street towards him. The three men approached the deceased, who went inside his coat as if he had something. As they started to run, Bond heard several shots. They ran back to Brown’s house, where they met after fleeing the scene. Glyn also testified that Bond informed him Brown carried the gun and was the shooter.

In Brown’s initial statement to Glyn, he denied any involvement in the shooting of the deceased. In a subsequent statement, Brown stated that Sevier and Bond came to his house and that they wanted to go out and make some money by robbing people. Brown stated that Sevier was armed with a handgun. The three men began walking behind the deceased, and Brown acted as lookout by walking in the street. Sevier and Bond approached the deceased, who turned around and pushed them off. After the deceased appeared to pull something from his waistband, all three defendants fled. In a third statement given to the assistant State’s Attorney, Brown admitted firing once at the deceased, but also stated that he heard two more gunshots.

None of the defendants were identified by Ronald Boston or James Reed, a witness who arrived on the scene shortly after the shooting. The murder weapon was never recovered.

At the close of the State’s case in chief, the trial court denied each defendant’s motion for a directed verdict. Sevier also made a motion for a mistrial based upon the admission of the oral and written statements of the other codefendants which implicated him in the offense. Alternatively, Sevier contended that a separate trier of fact should have been impaneled to hear his cause. Brown made a similar motion for a mistrial, maintaining that the statements admitted by the State were not of an interlocking nature. The court denied Sevier’s and Brown’s motions for a mistrial.

Sevier testified that on the evening of December 23, 1984, he was at Brown’s house with Bond and three other boys, and that they were smoking marijuana and shooting dice. After the dice game ended, Sevier, Brown and Bond decided to buy some marijuana from a neighborhood gang drug house called the “Yellow Building” located at 70th and East End. Thereafter, they walked over to a newsstand, where Brown brought a newspaper. Sevier, Bond and Brown approached the deceased, who pulled out a gun. As they began running, Adolph Powell emerged from an alley and fired two shots at the deceased.

Sevier had known Powell, who was the leader of the Black Gangster Disciples street gang, for approximately eight years. Following the shooting, Sevier did not see Powell until early February 1985. Sevier recanted the statements he gave the police following the murder in which he named Brown as the shooter. He stated that he did not tell the truth because Powell threatened to harm him and his family. Under cross-examination, Sevier admitted that he did not see Powell shoot at anybody and that he had not told the assistant State’s Attorney that Powell was responsible for the murder of the deceased.

Brown testified that as he approached the deceased, he couldn’t focus or see a gun, yet he was aware that the deceased directed a gun toward them. After Brown, Sevier and Bond began running along the railroad tracks, Brown heard a gunshot and saw Powell coming out of the alley. Subsequently, Brown heard two more gunshots. Brown denied owning a gun or carrying one on the morning of the murder.

Brown next saw Powell on February 14, 1985, at his home. Powell asked Brown if he or one of the codefendants shot the deceased. Powell then aimed a pistol toward his head. When Brown attempted to move the gun, Powell shot him in the hand. Like Sevier, Brown denied the veracity of the statements given to the State’s Attorney following his arrest.

Both Brown and Sevier testified that the police threatened and coerced them into giving statements. Specifically, Sevier testified that the police threatened to break his nose and inflict other physical harm if he did not provide a statement. Brown testified that the police continually struck him during the time he was in custody by grabbing his neck, banging his head against the wall, and pressing on the area of his hand where he had received stitches from the gunshot wound.

During rebuttal, Officers Regan, Glyn and Markham denied threatening or physically harming any of the codefendants during the time they were in custody.

The jury found all defendants guilty of murder and attempted armed robbery. In addition, Brown was found guilty of armed violence.

On appeal, defendants first contend that the admission of Bond’s unredacted statements through the testimony of the State’s witnesses denied Brown and Sevier their sixth amendment right to confront witnesses against them.

Prior to trial, the judge denied Brown’s motion for severance. At that time, Brown argued that this cause required severance because it presented confrontation clause issues pursuant to Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. In Bruton, the Supreme Court held that a defendant is deprived of his rights under the confrontation clause of the sixth amendment when his codefendant’s incriminating confession is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant. This so called “Bruton” conflict may be resolved by granting a severance before trial, or by redacting the codefendant’s statements which are published to the jury to omit any reference to the defendant. People v. Lincoln (1987), 157 Ill. App. 3d 700, 510 N.E.2d 1026.

More recently, in Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714, the Supreme Court held that where a nontestifying codefendant’s confession facially incriminating the defendant is not directly admissible against the defendant, the confrontation clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant’s own confession is admitted against him. As succinctly expressed by the Cruz court:

“A codefendant’s confession will be relatively harmless if the incriminating story it tells is different from that which the defendant himself is alleged to have told, but enormously damaging if it confirms, in all essential respects, the defendant’s alleged confession. It might be otherwise if the defendant were standing by his confession, in which case it could be said that the codefendant’s confession does no more than support the defendant’s very own case. But in the real world of criminal litigation, the defendant is seeking to avoid his confession — on the ground that it was not actually reported, or that it was not really true when made.” (Emphasis in original.) Cruz v. New York (1987), 481 U.S. 186, 192, 95 L. Ed. 2d 162, 171, 107 S. Ct. 1714,1718-19.

In the present case, Sevier and Brown both recanted the statements which implicated Brown as the shooter, and instead stated that Powell was responsible for the murder of the deceased. Sevier testified that the reason he initially named Brown as the shooter was because he had an established friendship with Bond, and that they agreed to name Brown as the shooter. Also, Powell had threatened to harm Sevier and his family if he did not confess that Brown was the shooter. A codefendant’s statement must be considered presumptively unreliable when it interlocks with the defendant’s own statement, which he seeks to deny the truth of at their joint trial. People v. Lincoln, 157 Ill. App. 3d 700, 510 N.E.2d 1026.

We first note that prior to trial, Bond filed a motion to suppress statements, in which he contended that he was forced by the detectives into signing the statements presently at issue. Glyn testified that Bond told him that he met Brown and that Sevier and Brown started discussing the robbery. In his second statement, Bond told the police that Brown had a gun, that Brown told Bond that that he fired two shots at the deceased, and that Brown thought he had hit him. Bond’s written confession was also given to the jury for its examination.

In total, there were 11 statements made by Bond, Sevier and Brown in connection with this murder following their arrests. The judge periodically admonished the jury throughout the trial that “the statements that the witness has testified to of any one defendant can only be considered as far as that defendant is concerned.” Under certain circumstances, it is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge’s instructions to disregard such information. However, there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.

The State relies upon Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056, which holds that the confrontation clause is not violated by introduction against a defendant of an unavailable codefendant’s confession with guarantees of trustworthiness equivalent to those of evidence falling within traditional hearsay exceptions. The State argues that the confession of all three codefendants interlock except for certain irrelevant and trivial details, and that Bond’s confession was voluntary. The State further urges that other independent evidence corroborates Bond’s statement, such as the other defendants’ confessions, Boston’s testimony, and that the deceased was found with a small pistol underneath his body. As such, Bond’s confession meets the Lee requirements for admission.

We are unpersuaded by the State’s position that all three defendants’ statements interlock, and that independent evidence exists that provides a sufficient “indicia of reliability” for the admission of Bond’s statement. Disparities existed among the statements with respect to who was carrying a gun and the number of shots fired. In addition, there were no eyewitnesses who positively identified either Brown or Sevier, nor was a gun recovered or any other physical evidence connecting any of the defendants to the deceased. Boston was unable to pick any of the defendants at a lineup.

Accordingly, we find that the effect of the admission of Bond’s statements through the State’s witnesses, as well as through his written statements, was so devastating to Brown’s and Sevier’s defense that it effectively deprived them of their constitutional right to a fair trial. Bond’s statements, especially from Brown’s perspective, were extremely prejudicial. Brown and Sevier were never afforded the opportunity to challenge the credibility of Bond’s statements and subject them to cross-examination. In contrast to situations where accomplices do take the stand and the jury is instructed to weigh their testimony carefully, given the recognized motivation to shift blame to others, the reliability of evidence taken when alleged accomplices do not testify and cannot be tested by cross-examination violates the principles established by the sixth amendment through the confrontation clause. (Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.) We therefore reverse defendants’ convictions and remand for a new trial, separate from Bond.

Defendants next assert that, in addition to the confrontation clause issue discussed above, the trial court erred in denying defendants’ motions for mistrial and severance based upon the antagonistic defense advanced by Bond. We find, however, that this issue is subsumed within our conclusion that both defendants’ rights pursuant to the confrontation clause were indeed violated. Our remand for a new trial separate and apart from Bond will effectively cure any antagonistic defense issues.

Although we have remanded this cause, defendants raise several other issues which we must address at this time. Issues on which we do not comment are unlikely to recur at the new trial.

Defendants contend that the trial court erred in denying the motions to quash arrest and suppress evidence where the State failed to prove either valid consent to enter Brown’s or Sevier’s home, or that exigent circumstances existed to justify its warrantless entry into defendants’ homes. Defendants cite Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, for the proposition that the police may not, absent exigent circumstances, enter a “suspect’s home” to arrest the suspect without a warrant for the suspect’s arrest and reason to believe the suspect is within. Defendants further argue that the State cannot establish attenuation between the unlawful detention and defendants’ incriminating statements.

It is well established that voluntary consent to entry will justify a warrantless at-home arrest even in the absence of exigent circumstances. (People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677; People v. Bean (1981), 84 Ill. 2d 64, 417 N.E.2d 608.) Moreover, such consent need not be given by the defendant; it may instead be obtained from a third party. (People v. Bean, 84 Ill. 2d 64, 417 N.E.2d 608; see also United States v. Matlock (1974), 415 U.S. 164, 39 L. Ed. 2d 242, 94 S. Ct. 988; People v. Heflin (1978), 71 Ill. 2d 525, 376 N.E.2d 1367.) The State has the burden of proving that the consent given was truly voluntary, and the voluntariness of that consent is a question of fact to be determined from consideration of the totality of circumstances in a particular case. People v. White, 117 Ill. 2d 194, 512 N.E.2d 677; Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041.

In the present case, the trial judge heard Sevier’s testimony that the police kicked the door open and Brown’s account that the police “busted through my door, grabbed me up out of the bed and told me I was under arrest.” Similarly, Sevier’s mother and stepfather and Brown’s mother also testified concerning the circumstances of the arrest which we have previously set forth at length. Conversely, Grefsheim testified for the State that Sevier’s mother invited the police officers into the apartment. In rebuttal, Glyn testified that Brown’s mother admitted them into the apartment and asked whether they wanted to speak with him about the gunshot wound to Brown’s hand which he had recently sustained.

In ruling on a motion to quash arrest and suppress evidence, the trial court must determine the credibility of the witnesses and the weight to be given their testimony. (People v. Chambers (1990), 200 Ill. App. 3d 538, 558 N.E.2d 274.) The decision of a trial court on a motion to quash and suppress will not be disturbed by a reviewing court unless that finding is determined to be clearly erroneous. (People v. Foskey (1990), 136 Ill. 2d 66, 554 N.E.2d 192.) Upon close scrutiny of the record, we find that sufficient evidence exists to demonstrate that defendants’ mothers voluntarily consented to the police entry. Consequently, defendants’ contention that the State did not establish attenuation fails in light of our holding that defendants were not illegally arrested.

Defendants also maintain that the State failed to prove that the police officers had probable cause to arrest defendants. Defendants contend that the State made no effort to show that Powell, who was previously considered as a suspect in the murder of the deceased, was credible or that his information was reliable. Further, Powell’s statement that “Pookie” had told him that he and two others approached the deceased after he had bought a newspaper from the newsstand operated by Boston is uncorroborated by other evidence. Finally, defendants argue that although the judge found that “the police did not have sufficient evidence to obtain a warrant,” the trial court nonetheless denied the motion to quash arrest.

Probable cause for purposes of arrest is judged by whether the facts and circumstances known to the police would cause a person of reasonable caution to believe that the person arrested committed the offense in question. (People v. Chambers (1990), 200 Ill. App. 3d 538, 558 N.E.2d 274.) The reasonableness of police officers’ conduct in making an arrest without a warrant must be judged on the basis of their responsibility to prevent crime and to catch criminals, and to act quickly in appraising data, and that conduct is to be judged by practical considerations of everyday life. (People v. Chambers, 200 Ill. App. 3d 538, 558 N.E.2d 274, citing People v. Stachelek (1986), 145 Ill. App. 3d 391, 495 N.E.2d 984.) Although mere suspicion is insufficient to establish probable cause for an arrest, probable cause may be founded upon evidence which would not be admissible at trial and which need not be sufficient to establish guilt beyond a reasonable doubt. (People v. Jones (1990), 196 Ill. App. 3d 937, 554 N.E.2d 516.) A reviewing court will not disturb a trial court’s ruling on a motion to quash an arrest for lack of probable cause unless it is manifestly erroneous. People v. Jones, 196 Ill. App. 3d 937, 554 N.E.2d 516; People v. Stachelek, 145 Ill. App. 3d 391, 495 N.E.2d 984.

In the present case, the facts and circumstances known by Grefsheim at the time he arrested Sevier are determinative of whether probable cause existed. After Powell informed him that “Pookie” and two others were involved in the murder, Grefsheim drove to Sevier’s apartment, where he was arrested. Thereafter, Sevier named Brown and Bond in connection with the murder. Sevier’s implication that Brown was the shooter in the murder of the deceased can rightfully be considered as a statement against penal interest. Our supreme court has concluded that such statements, by their very nature, may possess inherent indicia of reliability. (People v. James (1987), 118 Ill. 2d 214, 514 N.E.2d 998.) Boston’s testimony that the deceased was the man to whom he had recently sold a newspaper also provides support for Powell’s account that Sevier was in fact involved in the murder. Accordingly, we find that probable cause existed to support defendants’ arrest.

Brown alone contends that the trial court erred in denying his motion to suppress statements made subsequent to his arrest, contending that those statements were not voluntary. Brown contends that his age, injured physical condition, isolation from his family in conjunction with the officers’ threats and the coercive atmosphere of the police station caused him to render the statements against his will. Brown further argues that since he was 17 years old at the time of arrest, a juvenile officer should have been contacted during the time Brown was taken into custody prior to the time he signed the handwritten statement.

Whether a statement is voluntarily given depends on the totality of the circumstances. (People v. Sledge (1989), 183 Ill. App. 3d 1035, 539 N.E.2d 1312, citing People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228.) The test is whether it has been made freely, voluntarily, and without compulsion or inducement of any sort or whether the defendant’s will was overcome at the time he confessed. (People v. Martin, 102 Ill. 2d 412, 466 N.E.2d 228.) The finding of the trial court on the voluntariness of a confession will not be disturbed unless it is against the manifest weight of the evidence. People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353.

In the present case, Grefsheim testified that Brown was advised of his constitutional rights and that he was never physically or verbally abused or threatened. Grefsheim stated that he did not abuse Brown’s injured hand. Brown did not request an attorney, nor did he indicate that he wished to remain silent or ask to speak with his mother. Markham and Glyn corroborated the testimony of Grefsheim. Also, Detectives Regan and Patrick Garrity testified that Brown was advised of his constitutional rights, and that he was never struck or threatened. Prior to the time that Brown gave a statement to the assistant State’s Attorney, he had again been advised of his constitutional rights. That statement was reduced to writing, and Brown initialed each page.

Applying the “totality of the circumstances” test to the present case, we find sufficient evidence to support the trial court’s finding that Brown’s statement was indeed voluntary. Therefore, we will not disturb that finding upon review.

Brown’s claim that his parents should have been notified and that he should have been taken to a juvenile officer “without unnecessary delay” pursuant to the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 703 — 2) fares no better. In People v. Visnack (1985), 135 Ill. App. 3d 113, 481 N.E.2d 744, the 17-year-old defendant was arrested and charged with murder. This court held that the police were not statutorily required to notify defendant’s parents as he was not arrested pursuant to a petition in juvenile court; instead, he was simply arrested for murder and thus subject to the jurisdiction of the criminal courts. In the instant case, wherein defendant was also taken into custody because of his suspected involvement in the murder of the deceased and not because of a juvenile court violation, there was no need to contact the juvenile authorities.

We move now to Sevier’s contention that his conviction for murder and attempted armed robbery must be vacated because they are legally inconsistent with the jury’s verdict of not guilty on the offense of armed violence. As support for his position, defendant cites People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233, in which the defendant was acquitted of murder, but found guilty of armed violence based on the felony of murder. Our supreme court reversed defendant’s conviction without remanding for a new trial, holding that to retry defendant on a charge of armed violence would unconstitutionally cause defendant to relitigate essential elements of murder of which he previously had been acquitted.

We find, however, that we need not reverse on this issue because the present case is factually distinguishable from Frias. In this case, defendant was found guilty of murder and armed robbery, which is the reverse of the findings in Frias. In People v. Barnard (1984), 104 Ill. 2d 218, 470 N.E.2d 1005, our supreme court held that verdicts of guilty of murder and not guilty of armed violence based on murder were not legally inconsistent. The finding of not guilty of armed violence based on murder is not a finding that the defendant did not commit murder; rather, it may be construed as an expression of lenity, which, of course, does not render the verdicts legally inconsistent. People v. Barnard, 104 Ill. 2d 218, 470 N.E.2d 1005.

Brown next posits that his conviction for armed violence must be vacated because it constitutes an impermissible double enhancement of the underlying offense of attempted armed robbery. However, in view of our remand to the trial court, we need not reach the merits of this issue for it will be considered again at Brown’s new trial.

We next address whether defendants were not proved guilty of armed robbery because the State produced no evidence other than defendants’ statements as corroboration for that offense. Defendants correctly cite People v. Lambert (1984), 104 Ill. 2d 375, 472 N.E.2d 427, as support for their position that the corpus delicti of an offense cannot be proved by the defendant’s confession alone; there must be either some independent evidence or corroborating evidence outside of the confession which tends to establish that a crime occurred.

Upon our review of the record, we find that such corroborating evidence exists. The deceased’s widow, L.A. Young, testified that the deceased carried his wallet on a regular basis, and that every time he came to her house, he had his wallet in his back pocket. Additionally, Boston testified that at approximately 6 a.m., a man bought a newspaper from him and began walking in a westerly direction on 71st St. Shortly thereafter, two men approached the newsstand, bought a newspaper, and continued walking in the same direction that the first man had travelled. Seconds later, Boston heard the sound of gunshots emanating from the direction the first man had walked. Boston recognized the deceased as the first man who had approached the newsstand to whom he had sold a newspaper. We find that this independent evidence provides sufficient corroboration for defendants’ statements in which they said they approached the deceased with the intent to commit a robbery.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and remanded for a new trial in accordance with our directions.

Reversed and remanded with directions.

LaPORTA and RAKOWSKI, JJ., concur.