author: JUSTICE INGLIS

text:
      In re MARRIAGE OF JOANNA VUCIC, Petitioner-Appellee, and AVDIJA (DON) VUCIC, Respondent-Appellant (Teresa Cwieka, Appellant).
    Second District
    No. 2 — 90—1026
    Opinion filed July 15,1991.

      Charles Locker, of Chicago, for appellants.
    William J. Scott, Jr., of Mirabella & Kincaid, of Wheaton, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Respondents, Avdija (Don) Vucic and Teresa Cwieka, appeal from a final judgment of the circuit court of Du Page County which dissolved the marriage of Don Vucic and Joanna Vucic, petitioner. The judgment distributed the marital property and established an $80,000 trust fund from which child support payments of $500 per month would be made for Mujo Vucic, Don and Joanna’s only child. Five issues are raised on appeal: (1) whether respondent’s appeal was timely; (2) whether Donald Daniel Cwieka (age five), child of Don Vucic and Teresa Cwieka, was a necessary and indispensable party to the suit because he was in title to the Marengo, Illinois, property which was a subject of this suit; (3) whether the $80,000 trust fund in Joanna’s name was a proper vehicle to provide child-support payments in the amount of $500 per month for Mujo Vucic; (4) whether the trial court properly valued the West Chicago property which was a subject of this suit; and (5) whether the trial court properly dismissed Teresa’s motion to modify the judgment so as to provide trust fund monies for Teresa Cwieka and Don Vucic’s two children, Donald Daniel Cwieka (age five) and Sean Brandon Cwieka (age three). For reasons set forth below, we find the appeal timely, but reverse and remand because we find that Donald Daniel Cwieka was a necessary party to the suit, and further conclude that an impartial third party, rather than Joanna, should have been appointed as trustee of the $80,000 trust fund.

Don Vucic and Joanna Vucic were married on December 18, 1976. Mujo Vucic was born in December 1979 and was the only child of the marriage. During their marriage, Don and Joanna acquired joint title to a private residence in West Chicago and an apartment building on North Spaulding in Chicago. Sometime thereafter, they separated and Don fathered two children, Donald Daniel Cwieka and Sean Brandon Cwieka, by Teresa Cwieka. Donald Daniel is now five years old, and Sean is three years old.

In 1987, Don Vucic sold the Chicago apartment building, realizing $108,000 on the sale. Teresa Cwieka forged Joanna’s name on the sale documents, and thereafter the sale proceeds were used as partial payment on the Marengo, Illinois, home which Don and Teresa purchased for $170,000. At the time of trial, title to the Marengo home was held jointly by Teresa Cwieka and her minor son, Donald Daniel Cwieka.

Late in 1988, Don Vucic was arrested for burglary. At the time of the dissolution trial, Vucic was incarcerated for convictions on three counts of burglary in Du Page County. Also at the time of trial, there were outstanding complaints against Vucic in McHenry and De Kalb Counties for other criminal offenses for which he had yet to stand trial. At this time, this court takes judicial notice (People v. Davis (1976), 65 Ill. 2d 157, 161-65) of Don Vucic’s conviction in McHenry County of possession of Federal surplus food commodities, theft, possession of cannabis and cocaine, and possession of a stolen motor vehicle for which he was sentenced to eight years’ imprisonment and fined $8,000. (People v. Vucic (Circuit Court of McHenry County, April 10, 1990), No. 89 — CF—136.) That case is now on appeal before this court. People v. Vucic (2d Dist.), No. 2 — 90—0476.

In February 1989, Joanna filed her petition for dissolution of marriage. At that time, Joanna resided with her son Mujo at the West Chicago home, while Teresa resided with her sons Donald and Sean at the Marengo home. In June 1989, Joanna filed a motion to add Teresa as a third-party defendant and later filed an amended petition for dissolution of the marriage, which claimed the apartment building in Chicago as marital property. Joanna alleged in the amended petition that the apartment building was sold without her knowledge or consent and that the proceeds from its sale were used to purchase the Marengo property. Joanna prayed for a division of the parties’ interest in the Marengo property.

Teresa thereafter secured a buyer for the Marengo property and obtained an order in a separate proceeding from the circuit court of McHenry County for leave to sell the property and deposit half the proceeds for the benefit of her son Donald who, along with Teresa, was on the title to the property. The record, however, is unclear as to what was done, if anything, pursuant to that order.

The trial took place on February 9, 1990. Joanna testified that she was employed by the Village of Carol Stream; that she and her son Mujo were covered by health insurance through that employment; that in 1989 she earned $21,000 while working two jobs; and that her earnings were roughly $15,000 per year. As to the West Chicago property, Joanna testified that she and Don purchased it in 1983 for $150,000. Joanna also testified that an appraiser valued the house at $200,000. Don Vucic testified that in his opinion it was worth $300,000. No appraisal documentation was introduced as to the West Chicago property. A $19,000 mortgage remains outstanding on the property.

Joanna further testified, with supporting documentation, that the United States Internal Revenue Service (IRS) imposed a penalty of $8,451 on Joanna and Don for the 1987 tax year for negligent or intentional disregard of IRS rules and regulations regarding Don’s business deductions. Joanna stated that the IRS penalty was the result of Don’s failure to produce his business records, or even appear, when they were audited by the IRS.

The topic of Teresa’s two children, Donald and Sean, came up twice during the trial. Each time, the trial judge ruled sua sponte that Teresa’s two children were not relevant to this proceeding. The following dialogue took place between the trial judge and Don Vucic during Vucic’s testimony:

“THE COURT: Mr. Vucic, do you understand that there are certain issues before this Court.
There are certain issues which are not relevant.
THE WITNESS: I don’t know.
THE COURT: The only thing which this Court will rule upon are the issues which arise from the marriage between you and Joann [sic].
THE WITNESS: But I want to be fair to her and to—
THE COURT: You can be fair to whomever you wish, the only thing I have to do is be fair to you and Joann [sic] Vucic.
THE WITNESS: Yes, but I can see something—
THE COURT: I understand what you are saying, sir. I understand exactly what you are saying.
But I want you to understand the Court must simply look at the issues between you and Joann [sic] Vucic and any other legal obligations which you may have.”

Following Teresa’s testimony that she and her minor son Donald were joint titleholders to the Marengo property, Donald was never joined as a party to the suit, nor was a guardian ad litem, appointed for him.

On February 26, 1990, the court read its opinion in the case into the record. The court valued the West Chicago property as being worth $200,000 and then awarded the home and its contents to Joanna. The court barred maintenance as to both parties. The court imposed a $131,800 constructive trust on the Marengo property, that amount being the original investment of the sale proceeds from the apartment building plus one-half of the home’s appreciated value. This amount was to be separated from the proceeds of the sale of the Marengo property and placed in escrow. Out of the $131,800 constructive trust, the court established an $80,000 trust for Mujo’s support, a $30,000 fund for Don Vucic’s immediate use and a $20,000 interest-bearing account for Don’s use when he was released from incarceration. The court awarded the $1,800 balance to Joanna.

The terms of the $80,000 trust were set out in the judgment. The trust was to be held for Mujo’s benefit, and in Joanna's name. Joanna would be allowed to withdraw $500 per month for child support, and in addition she could withdraw health expenses, extraordinary health expenses not covered by insurance, the insurance premiums paid by Joanna for Mujo and yet to be determined college expenses. The trust was to terminate when Mujo either reached his majority, graduated from high school, or graduated from college, whichever came last, after which the trust would terminate and all remaining funds paid to Don Vucic. In effect Joanna was appointed trustee of a substantial portion of Don’s share of the marital estate.

Two passages from the court’s oral opinion are relevant here. Neither passage appears in the written judgment filed on April 19, 1990. The trial judge stated:

“The Court realizes it is setting an arbitrary figure [of $500 per month] for child support, however, the Court feels that since [Don Vucic] will be unavailable for some period of time, at least with respect to his present sentence, that that amount is reasonable given the amount of interest which will accrue on the $80,000 which is in the trust and that at a future date [he] may come before the Court, once he is employed, to determine the exact amount of child support which should be paid.”

The trial judge later stated:

“The Court understands that there may, although the Court at this time is not making any such findings, there may be a responsibility on the part of Mr. Vucic for the support of [Donald Daniel Cwieka and Sean Brandon Cwieka] who are the natural children of [Teresa Cwieka].
And the Court would expect that after a finding of paternity and after payments are made out of the trust fund for the minor child, Mujo, there will be sufficient monies available for the care of those children, if indeed, there is a finding of paternity.”

A final judgment was filed on April 19, 1990. On April 10, 1990, the circuit court of McHenry County in a separate proceeding entered an agreed order establishing a father-child relationship between Don Vucic and Teresa’s sons Donald and Sean.

On May 8, 1990, Teresa filed a motion to modify the dissolution judgment. The spirit of Teresa’s motion was a request that her two sons, Donald and Sean, be granted an interest in the $80,000 trust fund, although the motion technically contained no prayer for relief. On August 20, 1990, the trial court granted Joanna’s motion to dismiss Teresa’s motion to modify.

Don Vucic and Teresa Cwieka filed their notice of appeal on September 17, 1990. Thereafter, Joanna moved this court to dismiss the appeal as untimely. On December 11, 1990, this court took Joanna’s motion, and respondents’ response to it, with the case. The dissolution of Don and Joanna’s marriage was uncontested, was not argued on appeal, and is not at issue.

The first issue for our consideration is whether we have proper jurisdiction. Petitioner alleges in her motion before this court that respondents made an untimely appeal. We disagree. Section 2— 1203 of the Code of Civil Procedure states that a post-trial motion must be filed within 30 days after the entry of the judgment in a non-jury case and defines such motions as “a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203.) Here, the final judgment was read into the record on April 9, 1990, at which time the trial judge ordered Joanna’s counsel to “prepare a judgment in conformance with the Court’s ruling.” The written judgment was signed by the judge on April 11, 1990, and filed on April 19, 1990. We note that both parties incorrectly state April 9, 1990, as the date of the final judgment in their briefs. Supreme Court Rule 272 clearly states that “[i]f at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by [her], *** the judgment becomes final only when the signed judgment is filed.” (Emphasis added.) (134 Ill. 2d R. 272; see People v. Fagerholm (1959), 17 Ill. 2d 131, 134-37.) Therefore, the correct date of final judgment here is April 19, 1990, when the written judgment was filed. Teresa’s motion to modify the judgment was filed 19 days later, on May 8, 1990. Therefore, Teresa’s post-trial motion complied with the 30-day filing requirement of section 2 — 1203.

Next, we consider Supreme Court Rule 303(a), which governs filing-time requirements for appeals from final judgments. Supreme Court Rule 303(a)(1) provides in part that the notice of appeal from a final judgment must be filed “within 30 days after the entry of the order disposing of the last pending post-trial motion.” (134 Ill. 2d R. 303(a)(1).) Here, the trial court’s order dismissing Teresa’s post-trial motion to modify the judgment was entered and filed on August 20, 1990. Respondents filed their notice of appeal 28 days later, on September 17, 1990. Therefore, respondents’ notice of appeal was timely filed. Petitioner’s argument that the 30-day clock for filing a notice of appeal started ticking after entry of the April judgment has no merit. We find that we have proper jurisdiction, deny petitioner’s motion and move on to address the four issues raised on appeal.

Respondents argue that the trial court erred in failing to make Donald Cwieka (age five) a party to the suit and appoint a guardian ad litem for him when it was brought out at trial that the child was in title to the Marengo property. We agree.

The law treats children with special care and attention. The child custody sections of the Illinois Marriage and Dissolution of Marriage Act (Act), for example, require that child custody arrangements be based on the “best interests of the child.” (Ill. Rev. Stat. 1989, ch. 40, pars. 601 through 611.) Courts have both the power and the duty to protect minors involved in litigation. (Leonard C. Arnold, Ltd. v. Northern Trust Co. (1987), 116 Ill. 2d 157, 163.) Courts have inherent power to appoint a guardian ad litem for a minor involved in litigation; in fact, the trial court has a duty to ensure adequate representation of the minor’s interest. In re Marriage of Strauss (1989), 183 Ill. App. 3d 424, 427.

It has long been recognized in Illinois that infants cannot waive notice (Bonnell v. Holt (1878), 89 Ill. 71, 77; Chambers v. Jones (1874), 72 Ill. 275, 278-79; Hickenbotham v. Blackledge (1870), 54 Ill. 316, 318) and that infant defendants must be brought into court by service of process or by publication if nonresidents. Campbell v. Campbell (1872), 63 Ill. 502, 503; Hickenbotham, 54 Ill. at 318; Fischer v. Fischer (1870), 54 Ill. 231, 235.

Hickenbotham v. Blackledge (1870), 54 Ill. 316, is particularly illustrative here. Hickenbotham was a partition action of 640 acres of land, of which certain minors were co-owners. No summons was issued or served on the minors, nor were they otherwise brought into court. A guardian ad litem was eventually appointed for the minors after the proceedings had started and prior to trial. The court ordered the sale of the land at the conclusion of the trial. The Illinois Supreme Court reversed, finding that “[i]t was manifest error to decree a partition or sale of lands of persons not parties to the record.” (Hickenbotham, 54 Ill. at 318.) The court found that even though the trial court had properly appointed a guardian ad litem to represent the minors, “[n]ot being parties to the bill, the court had no power to render any decree affecting their interests in this real estate, and in that the decree was erroneous.” Hickenbotham, 54 Ill. at 318.

It is plainly evident that, just as the minors in Hickenbotham were necessary parties and should have been made parties to the suit, Donald Cwieka was a necessary party to this suit. (See Popovich v. Ram Pipe & Supply Co. (1979), 74 Ill. App. 3d 343, 347 (court has a sua sponte duty to join party whose property interest will be affected by the proceedings where such is brought to the court’s attention), rev’d in part on other grounds (1980), 82 Ill. 2d 203; Horn v. Horn (1955), 5 Ill. App. 2d 346, 351-52 (trial court is powerless to enter a decree which affects a property interest of someone not before the court).) The trial court here heard testimony from Teresa that she and her son Donald held joint title to the Marengo property. The trial court erred by not sua sponte joining Donald Cwieka as a necessary party to the suit and appointing a guardian ad litem for him after Teresa testified that he was co-owner of the Marengo property.

Cases cited by petitioner are inapposite to our conclusion. While both Rubin v. Boorstein (1979), 73 Ill. App. 3d 689, and Central National Bank v. Fleetwood Realty Corp. (1982), 110 Ill. App. 3d 169, do correctly state that a necessary party need not be joined if his interests are adequately represented, neither involves protecting the interests of a child necessary as a party to the litigation.

Respondents next argue that the $80,000 trust in Joanna’s name, funded by Don Vucic’s share of the marital estate and from which the $500-per-month child support payments for Mujo would be made, was not proper. Notwithstanding respondents’ inadequate treatment of this issue in their brief, we feel bound in the interest of justice to consider it. We believe that naming Joanna as trustee of a substantial portion of Don Vucic’s share of the marital estate was plain error. The form of the trust was improper.

Section 503(g) of the Act allows the court to establish a trust for minors and states:

“The court if necessary to protect and promote the best interests of the children may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties.” (Ill. Rev. Stat. 1989, ch. 40, par. 503(g).)

The supreme court examined this portion of the Act, finding that the imposition of such a trust is “inappropriate in the absence of evidence showing some need to protect the interests of the children.” (Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 179 (the court examined section 503(d) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(d)), which is now codified as Ill. Rev. Stat. 1989, ch. 40, par. 503(g)).) Courts thereafter established section 503(g) trusts only when “there is evidence showing a need to protect the interests of the children.” (In re Marriage of Harsy (1990), 193 Ill. App. 3d 415, 419. See In re Marriage of Alltop (1990), 203 Ill. App. 3d 606, 618 (trial court has discretion to impose educational trust if court finds that the trust was necessary to protect interests of the children); In re Marriage of Pickholtz (1988), 178 Ill. App. 3d 512, 517 (evidence of inability or unwillingness to pay required before the court may establish a section 503(g) trust).) One court found that the establishment of an education trust fund was warranted based on evidence in the record as to the father’s inability to make timely child support payments and the father’s disdain for education. Harsy, 193 Ill. App. 3d at 419-22.

Respondents’ argument that the trust lacks sufficient guidelines has merit when you consider that the court appointed petitioner as trustee. While this point was not specifically argued by defendants on appeal, it appears to be the foundation of their argument that “in its present form, [the trust] is simply a disaster waiting to happen.” The appointment of a fit and proper person to be trustee is a matter largely within the discretion of the court. (Stone v. Baldwin (1953), 414 Ill. 257, 263; Steger v. Northen (1923), 229 Ill. App. 529, 539.) As a general rule, interested persons should not be appointed trustee of a trust. (Steger, 229 Ill. App. at 540.) The power to appoint trustees is a very broad one, left to the sound discretion of the court, and in the determination of which the court should consider all the circumstances bearing on the matter. 76 Am. Jur. 2d Trusts §120 (1975).

In this particular case, we believe the trial court’s choice of the divorced mother to be trustee for the trust, the corpus of which will be returned to the divorced father upon the trust’s termination, was not proper. Joanna’s interests are naturally divergent from that of her now former husband. To assign Joanna as gatekeeper for the trust fund, the corpus of which is to be returned to Don, is wrong on its face and is an invitation for future disputes. A neutral and impartial third party should have been appointed by the trial court as trustee. We believe the trial court abused its discretion by appointing Joanna as trustee.

In addition, there are no findings in the written judgment of April 19, 1990, as to Don Vucic’s unwillingness or inability to make timely child support payments. Vucic is a convicted burglar and presently incarcerated. The trial court had evidence which may well support a finding that the establishment of a section 503(g) trust was reasonable because of Vucic’s present inability to pay. (Cf. Clemans v. Collins (Alaska 1984), 679 P.2d 1041 (incarcerated father not liable for child support unless it is shown that he has income or assets to make such payments); In re Marriage of Vetternack (Iowa 1983), 334 N.W.2d 761 (incarcerated father’s equity in parties’ residence charged for child support payments he was unable to make during imprisonment); Proctor v. Proctor (Utah App. 1989), 773 P.2d 1389 (unpaid child support reduced from incarcerated father’s equity in marital home).) Upon remand, the trial court should explicitly make findings of Vucic’s inability to pay child support and that a section 503(g) trust fund would be in Mujo’s best interests.

Respondents next argue that the trial court improperly valued the West Chicago property. We agree. The valuation of property is a question of fact, and a trial court’s determination of value will not be reversed unless it is contrary to the manifest weight of the evidence. (In re Marriage of Landfield (1991), 209 Ill. App. 3d 678, 698.) In order to correctly evaluate marital assets, the trial court must have before it competent evidence of value, and its determination of value must be supported by the evidence. In re Marriage of Matters (1985), 133 Ill. App. 3d 168,180.

Respondents correctly note that the general rule in Illinois is that a property owner is competent to render an opinion as to the value of his property. (Hill v. Ben Franklin Savings & Loan Association (1988), 177 Ill. App. 3d 51, 56; American National Bank & Trust Co. v. City of North Chicago (1987), 155 Ill. App. 3d 970, 972; Department of Transportation v. Harper (1978), 64 Ill. App. 3d 732, 735.) While normally applied in a land context rather than a family residence context, property ownership usually indicates knowledge of the original price paid, taxes paid, improvements made and the current state of the property such that the owner probably has a reasonably good idea of the current value. Hill, 177 Ill. App. 3d at 56; American National Bank & Trust, 155 Ill. App. 3d at 973.

However, the rule is not absolute. A property owner may be shown to be incompetent to testify where it is affirmatively shown that special circumstances exist which indicate that he is unfamiliar with facts which give the property value. (Hill, 177 Ill. App. 3d at 56; American National Bank & Trust, 155 Ill. App. 3d at 973; Harper, 64 Ill. App. 3d at 735.) A party opposing the property owner-witness may make this affirmative showing on cross-examination, revealing the absence of probative value in the testimony. (Hill, 177 Ill. App. 3d at 56; American National Bank & Trust, 155 Ill. App. 3d at 973; Harper, 64 Ill. App. 3d at 735.) These rules have been applied by courts in dissolution of marriage cases. One such court applied these rules, finding no error by the trial court in admitting one spouse’s testimony as to the value of certain marital real estate because his testimony was not challenged or impeached upon cross-examination. In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078,1090.

Applying these valuation rules to the instant case, we find Joanna’s testimony that the West Chicago home was worth $200,000 was sufficiently brought into question during her cross-examination so as to require a better basis for valuing the home upon remand. On cross-examination, it was brought out that she did not know how her home compared to others in the neighborhood. The only basis for her valuation opinion was her testimony that an unnamed appraiser walked through the home “a few months ago” and valued it at $200,000. We believe that on remand the trial court should be presented with better evidence, possibly in the form of testimony from a real estate appraiser, upon which to base an opinion as to the value of the West Chicago home.

Respondents finally argue that the trial court improperly dismissed Teresa’s motion to modify the judgment. We disagree. The trial court’s dismissal of Teresa’s motion will not be disturbed by this court in the absence of an abuse of discretion. (In re Marriage of Tatham (1988), 173 Ill. App. 3d 1072, 1093.) Teresa’s motion asked for child support for her two sons and was based on the circuit court of McHenry County’s order of April 10, 1990, finding that Don Vucic was the father of her two children. We note that the McHenry County court order was entered prior to the April 19, 1990, entry of the final judgment in this dissolution proceeding.

Undertaking new family obligations does not lessen the duty of a divorced husband to provide for his family by previous marriage. (In re Marriage of Earhart (1986), 149 Ill. App. 3d 469, 476; see In re Marriage of Tatham (1988), 173 Ill. App. 3d 1072, 1093 (if father’s obligation to support children from a previous marriage is an ethical one, the trial court is not obliged to consider it as a factor in determining child support payments); Roqueplot v. Roqueplot (1980), 88 Ill. App. 3d 59, 63 (divorced husband’s obligations to his first family must be met before his obligations to his second family can or will be considered).) We note that Illinois law provides that prior court-ordered, child-support obligations must be taken into account when child support is determined under the statutory guidelines in the Act. Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(3) (net income of supporting parent is income from all sources minus “(g) Prior obligations of support *** actually paid pursuant to a court order”).

We find no abuse of discretion in the instant case and therefore agree with the trial court’s dismissal of Teresa’s motion. However, in the interest of justice and to guide the trial court upon remand, we are compelled to comment further. While we are mindful of the above decisions in this area, we believe that a trial court should not close its eyes to other children born outside of the marriage in question when it sequesters a large portion of a party’s assets in trust. The existence of other children is relevant if the trial court decides to sequester a portion of Don Vucic’s assets in a section 503(g) trust and establish guidelines for the trust.

For the foregoing reasons, the judgment of the trial court is reversed except as to the dissolution of marriage, and the cause is remanded for a new trial.

Reversed and remanded.

WOODWARD and GEIGER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE REINHARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN CARL McGUIRE, Defendant-Appellant.
    Second District
    No. 2 — 89—0529
    Opinion filed July 15,1991.

      G. Joseph Weller, Paul J. Glaser, and David W. Devinger, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel A. Fish, State’s Attorney, of Dixon, and William H. Hall, of Springfield (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Brian Carl McGuire, defendant, was charged in the circuit court of Lee County by information with the offense of criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 15(c)). Following a negotiated plea of guilty and a stipulation of facts, the circuit court sentenced defendant to a two-year term of court supervision and, among the conditions thereof, ordered defendant to “seek an evaluation as determined by the probation office and follow all recommendations made.”

On January 25, 1989, the State petitioned the court for termination of court supervision because defendant failed to abide by the terms of the supervision specifically, that defendant “failed to follow the recommendations of the Lee County probation department in that he ceased to cooperate with treatment at Sinnissippi Centers, Inc.” (Sinnissippi). Following a hearing on the petition, the court terminated the supervision and sentenced defendant to one year’s imprisonment.

Defendant raises two issues on appeal: (1) whether the trial court’s decision to terminate supervision was against the manifest weight of the evidence; and (2) whether the trial court abused its discretion in sentencing defendant to one year’s imprisonment.

On September 14, 1988, during the negotiated plea of guilty, the State and defendant stipulated to the following as the factual basis for the plea:

“MS. STOCKTON [Assistant State’s Attorney]: Your Honor, if the People of the State of Illinois went to a trial the People would call [L.M.] to the stand and he would testify that on March 15th, 1987, when he was 13 years old, Brian McGuire, the Defendant, placed his penis in [L.M.’s] anus and that the Defendant ejaculated during the anal intercourse. He would further testify that this occurred in the bedroom of the Defendant at 1836 West Third Street in Dixon, Lee County, Illinois.
The People then would call Detective Harry Ulferts from the Dixon Police Department who would testify that on January 21st, 1988, he had conversation with the Defendant, Brian McGuire, at the Dixon Police Department. The Defendant stated during the conversation that he had anal intercourse with [L.M.].”

Pursuant to the terms of the plea agreement, the trial court sentenced defendant to two years’ court supervision and, as a condition, required an evaluation of defendant to be arranged by the probation department.

On April 3, 1989, at a hearing to terminate supervision, the State presented evidence that the defendant had continually denied any involvement in the offense. Because of defendant’s denials, Stuart Nyi, a psychotherapist with Sinnissippi, determined that mental health services would not be beneficial to defendant. The State therefore argued that defendant had failed to cooperate with treatment and did not comply with a condition of the court’s supervision order. The trial court terminated defendant’s supervision and stated, “I’m also going to vacate the plea agreement and the guilty plea because I don’t want any person who is innocent to accept, to say on the one hand that he didn’t do it and then on the other hand that he’s willing to enter a guilty plea.”

On May 2, 1989, the trial court granted defendant’s motion to vacate its order vacating the guilty plea and to reinstate defendant’s guilty plea because the trial court was without authority to vacate the plea.

On May 9, 1989, the trial court held another hearing on the petition to terminate defendant’s supervision. At this hearing, the trial court heard the testimony of Mary Hager, a probation officer with Lee County. Hager testified that on September 16, 1988, she met with defendant to discuss the terms of his supervision. At that time, defendant denied having committed the offense. On January 12, 1989, Hager again met with defendant to discuss counseling at Sinnissippi. At that time, she told defendant that she would “be filing a violation because he did not follow through with the counseling.” Hager also testified that she had not been informed that defendant had successfully completed counseling. The parties then stipulated to the testimony of Stuart Nyi.

After hearing arguments, the trial judge stated the following:

“I think what we need is additional evidence on the part of Mr. Nyi. Subpoena him and bring him in here. Let’s find out whether or not his evaluation was such that the Defendant was in need of treatment and then if that is the case then I think it’s clear that that portion of the order would have been clearly complied with as far as the evaluation is concerned and then take one step further and determine whether or not once the evaluation was completed that the counseling would not have been completed because of the fact that Mr. McGuire did not cooperate.”

On May 24, 1989, over defendant’s objection, the trial court granted the State’s motion to reopen this case to present Nyi’s testimony. Nyi testified that he is a psychotherapist at Sinnissippi and that the Lee County probation department referred defendant to him. After five interviews with defendant, Nyi recommended that mental health treatment would not benefit defendant regarding the sexual offense because defendant denied committing the offense. Therefore, Nyi could not develop a treatment plan. On cross-examination, Nyi admitted that defendant cooperated in completing all paperwork and kept all appointments.

The trial court found that defendant had “totally refused to cooperate with the Sinnissippi Mental Health Center relative to the treatment for the offense” and, therefore, terminated the supervision and sentenced defendant to one year’s imprisonment.

Defendant initially contends that the trial court erred in terminating his court supervision because he complied with all the conditions of supervision. The State contends that defendant’s failure to admit to the offense during counseling effectively frustrated the purpose of the supervision, thus violating a condition of his supervision.

On a State’s motion to terminate supervision, the State has the burden of showing a violation of supervision by a preponderance of the evidence. (ILl. Rev. Stat. 1989, ch. 38, par. 1005 — 6— 4(c); People v. Hoga (1982), 109 Ill. App. 3d 258, 261, 440 N.E.2d 411.) A trial court’s determination to revoke supervision will not be disturbed unless it is against the manifest weight of the evidence. See Hoga, 109 Ill. App. 3d at 262, 440 N.E.2d at 414.

In support of the contention that the trial court erred in finding that he violated supervision, defendant principally relies on this court’s decision in People v. Prusak (1990), 200 Ill. App. 3d 146, 558 N.E.2d 696. In Prusak, the defendant pleaded guilty to one count of aggravated criminal sexual abuse and was sentenced to a three-year term of probation. As a condition of the defendant’s probation, the court ordered that he “shall seek psychiatric evaluation in Sinnissippi Mental Health Center and shall cooperate with any treatment and recommendation made by that agency.” (Prusak, 200 Ill. App. 3d at 147, 558 N.E.2d at 697.) The State filed a petition to revoke the defendant’s probation because he had failed to satisfy a condition of his probation in that Sinnissippi discontinued the defendant from services “due to his lack of cooperation.” (Prusak, 200 Ill. App. 3d at 148, 558 N.E.2d at 697.) The State contended that the defendant did not cooperate because he continually denied any specific memory of the offense. The trial court subsequently revoked the defendant’s probation. Prusak, 200 Ill. App. 3d at 149, 558 N.E.2d at 698.

This court reversed the circuit court’s judgment. We stated that it was clear that the defendant submitted to an evaluation, attended every counseling session and did everything that was required of him in the counseling sessions. The only thing that Prusak did not do was accept responsibility for his sexual misconduct, and that was caused by his mental disabilities including his inability to remember his misconduct. (Prusak, 200 Ill. App. 3d at 149-50, 558 N.E.2d at 698.) We found under the unusual facts present that defendant’s conduct did not violate the condition imposed upon his probation.

We find Prusak substantially limited to its unique facts and not controlling here. In the instant case, defendant entered a negotiated plea of guilty to criminal sexual abuse and stipulated to facts which showed both his commission and admission of the offense. Pursuant to the terms of the negotiated plea, he was placed on court supervision for this offense conditioned, among other things, on his seeking an evaluation and following all recommendations made. It is apparent that defendant failed to follow the recommendation of treatment when he refused to admit his involvement in the offense, an action directly contrary to the stipulation made at his plea of guilty for which the court placed him on supervision. Defendant’s conduct in subsequently denying involvement in the offense frustrated the purpose of his court supervision of developing treatment through counseling.

The court in placing a defendant on court supervision may order reasonable conditions relating to the nature of the offense or the rehabilitation of the defendant. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—3.1(c).) The State has the burden of going forward with the evidence and proving a violation of the condition. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(c).) In the analogous circumstances of a probation violation, it was held in People v. Davis (1984), 123 Ill. App. 3d 349, 462 N.E.2d 824, as follows:

“Thus, although the defendant’s fault is, in most cases, of great importance in determining whether the conditions of probation have been violated, circumstances beyond the defendant’s control may provide an adequate basis for probation revocation where such circumstances frustrate the fundamental purpose or reason for the imposition of a sentence of probation.” 123 Ill. App. 3d at 354, 462 N.E.2d at 828.

See also People v. Allegri (1985), 109 Ill. 2d 309, 314-15, 487 N.E.2d 606.

In this case, defendant’s own conduct in failing to admit his involvement in the offense frustrated the development of a treatment plan which was a condition of his court supervision to which he had specifically agreed as a part of his negotiated plea of guilty. Under these circumstances, the circuit court’s revocation of supervision was not against the manifest weight of the evidence.

The remaining issue raised by defendant is that his one-year jail sentence should be reduced because the statute for this offense authorizes only a sentence of imprisonment of less than one year. The State agrees that the one-year jail sentence imposed is not permitted by statute and requests that this court impose a sentence of 364 days in jail.

Pursuant to our authority under Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)), we reduce defendant’s punishment to 364 days in the Lee County jail. This sentence represents the intent of the circuit judge when he mistakenly imposed the original one-year sentence when he could only sentence defendant to 364 days in jail. On this record, this sentence is appropriate.

Affirmed as modified.

UNVERZAGT and NICKELS, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALPH HROBOWSKI, Defendant-Appellant.
    Second District
    No. 2 — 89—0299
    Opinion filed July 19,1991.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

The defendant, Ralph Hrobowski, was charged by indictment with four counts of first-degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(2)) in connection with the stabbing death of Sharon Myrick. A jury found the defendant guilty of first-degree murder, and the court sentenced defendant to a term of 50 years’ imprisonment. The court then denied defendant’s motion for a new trial, and defendant filed his notice of appeal. We affirm.

On appeal, defendant contends that his conviction of murder should be reversed and the cause remanded for a new trial for the following reasons: (1) defendant was denied the effective assistance of counsel; (2) defendant was denied a fair trial due to various instances of prosecutorial misconduct at trial and during closing argument; and (3) the Illinois second-degree murder statute is unconstitutional.

Prior to trial, defendant alleged that he acted in self-defense against Myrick who, according to defendant, had injected cocaine and heroin, then attacked defendant with a knife, calling him by the name “Red.” In its answer to discovery, the State furnished the defense with a copy of a laboratory report showing cocaine in Myrick’s blood. The State also furnished to defendant a sample of Myrick’s blood for independent analysis. Because the first sample sent by the State was improperly packaged, the blood turned rancid and could not be evaluated. A second sample was delivered and test results for the presence of heroin were negative. Defense counsel informed the State and the court that the blood was tested only for the presence of heroin and that the defense would rely on the State’s test results to prove the presence of cocaine.

Also prior to trial, the State moved to exclude any evidence of drugs in Myrick’s blood. In support of the motion, the State argued that the defense’s expert, Dr. Jawed Fareed, was only a pharmacologist who was incapable of testifying to the behavioral effects of drugs on the victim. Further, the State argued that the test results showing the presence of cocaine could not be admitted as substantive evidence unless the defense subpoenaed the laboratory technicians who performed the test or unless the defense tested the blood itself. The court ruled that the test results could only come in as data that an expert relied upon in formulating his opinion, unless defense counsel presented testimony from a witness who had personally tested the blood for cocaine. Defense counsel expressed his intent to have Dr. Fareed test the blood for the presence of cocaine, and the court allowed counsel to seek a second test. The court then barred defense counsel from referring to any expert testimony regarding the presence of cocaine in the deceased’s blood in his opening statement but allowed counsel to tell the jury that defendant would testify that the victim injected drugs prior to her death, resulting in strange and violent behavior.

Also barred from counsel’s opening statement was any reference to Anthony Allen, a potential defense witness. According to the defense, Allen was twice stabbed by the deceased and was going to be subpoenaed to testify. However, Allen had indicated that he would not honor a subpoena and had threatened defense counsel. Therefore, defense counsel delayed the service of the subpoena until midway through the trial. Because Allen’s appearance as a witness was uncertain, the court barred defense counsel from outlining Alien’s testimony in the opening statement. The case then proceeded to trial.

Dana Myrick, the deceased’s eight-year-old son, testified that the defendant was at his house on September 8, 1988. Earlier in the evening of September 8, defendant stayed home with Dana while his mother and sister, Amber, went to the Park-It-Market to buy wine and beer. When Dana went upstairs to take a shower, defendant came up for soap and a washcloth. Dana noticed defendant’s pinkie finger was bandaged. After his mother returned from the store, Dana worked on a drawing in the kitchen and then went to bed. Dana awoke later when he heard his mother calling him for help. When he ran downstairs, he saw defendant hitting his mother in the chest while she scratched him. Dana ran across the street to Jewel Garth’s house and told Garth to call the police. Dana then stood outside Garth’s house watching his own house. Dana saw the defendant run out of the house with blood on his shirt and pants. Defendant slipped in the parking lot and ran away. Dana described the defendant’s shoes as “violet red.” Later, the police arrived and a crowd gathered outside the house. While Dana’s grandfather was holding him, Dana saw defendant in the crowd and identified him as the man who had hurt his mother. Defendant had slicked his hair back, put on clean clothes and no longer had a goatee beard.

Beverly Garth, Jewel Garth’s 16-year-old daughter, testified that she was with Dana when defendant ran out of the house. According to Garth, defendant was wearing a T-shirt with blood on it and was shaking his hands like he had something on them. Garth recognized defendant because he had been to her house to see a friend who was living with Garth in December 1987. Before Garth saw defendant run out the door, she saw Renee Williams at Myrick’s apartment calling Myrick’s name. Williams ran away just before defendant ran out.

Renee Williams testified that she went to Myrick’s apartment after she heard Myrick saying, “Dana help me; Dana go get help.” Williams was in the basement of her mother’s apartment, which shared a wall with Myrick’s apartment. Williams had gone into the basement to do laundry, but had not started the machines yet. After hearing Myrick scream, Williams ran over to Myrick’s door and called her name twice. When she saw a man coming up from the basement, she ran back to her mother’s house. Williams heard only one voice screaming and calling Dana for help.

Willie Earl Fisher testified that on September 8, 1988, between 10:30 and 11 p.m., defendant came to his house and rang his doorbell. Defendant had blood on his pants and was not wearing a shirt. Defendant told Fisher somebody had broken his nose and he needed to take a shower. When defendant took off his pants a knife fell out of the back pocket. After he washed, defendant asked for clothes to wear. Fisher stated that he thought defendant had a beard when he arrived at his house, but he did not have one when he left. Fisher saw the defendant shower but did not see him shave.

Willie Glover was drinking on the porch at Horace Holliman’s house between 10 and 11 p.m. when defendant walked up and asked for a bandage, saying that he had cut his hand. Glover did not have one, but gave the defendant a cigarette. Defendant then left. About 20 minutes later, Glover heard sirens and someone told him that Myrick had been killed. Glover went over to Myrick’s house, where a crowd had gathered.

News photographer Dennis Lingbeck worked for WTVO channel 17 in Rockford. Around 30 to 45 minutes after arriving at the scene, Lingbeck heard Dana identify the defendant as the man who had hurt his mother. Lingbeck turned his camera on and filmed the defendant as he was arrested. This video tape was played to the jury, with the audio portion of the defendant’s statement omitted, the trial court having earlier ruled that defendant’s statement was recorded without his knowledge. The court allowed Lingbeck to testify to defendant’s statement as he heard it, which was, “I was here earlier but geez.”

Rockford Detective John Vaughn was the second officer to arrive at the scene. Vaughn entered the house through the front door when he saw Myrick at the bottom of the basement stairs. Myrick was dead at that time and had lacerations in the throat and face. Vaughn photographed the scene and was then called outside to photograph a suspect that was in custody, the defendant. Vaughn stated that defendant seemed calm and humorous, not excited. Eighteen items were recovered in the apartment, including defendant’s jean jacket, briefcase with defendant’s diploma from the University of Illinois, a manila folder and a Bible. Myrick’s daughter was discovered sleeping upstairs and was taken out by police.

Officer John Genens made a video tape of the scene which was played to the jury. Genens also photographed the defendant and collected certain items as evidence, including defendant’s shoes, head-hair combings and dried blood from the defendant’s nose, right eye and ears.

Officer Howard Forrester, who interviewed defendant, stated that the dried blood did not correspond to any cuts on the defendant. Defendant did have scrapes on both elbows, scratches on his left hand, left forearm and left cheek, and a cut inside his left ring finger. Defendant also had a sutured cut on his left little finger which appeared healed. Underneath his chin, defendant had several long hairs, and his chin was chafed. According to Forrester, defendant told him that he went to Myrick’s house around 9 or 9:30 p.m. on September 8. They shared a marijuana cigarette and went to the Park-It-Market where they bought two bottles of wine and cigarettes. Defendant stated that Myrick drank all of one and part of the second bottle of wine. Myrick and her daughter then went to the market again while defendant stayed with her son and helped him with his homework. Defendant told Myrick that he was separated from his wife and had no place to stay. Defendant told Forrester that Myrick offered to let him stay at her house, but a black man came to the door, who defendant assumed was Myrick’s boyfriend, so he left. Defendant returned to the Park-It-Market and got into a fight, where he received the above-referenced scratches. A half hour later, defendant returned to the apartment, and Dana accused him of being the man who hurt his mother. Forrester further testified that defendant stated that he did not argue with Myrick and that she was not injured when he left. Defendant said that he was wearing the same clothes as when he left Myrick’s apartment. When Forrester asked defendant why Dana and others said they saw defendant run out of the apartment with blood on him, defendant repeated that it was not him. Defendant stated that he was sober and he appeared calm and cooperative.

Later, Detective Anthony Piccirilli asked defendant to consent to the withdrawal of a blood sample. Defendant initially agreed, but then tore the consent form and jumped up, balling his hands into fists. Forrester and Piccirilli then handcuffed defendant to a chair and placed him into a holding cell. The handcuffs were later removed when defendant appeared calm.

Hyun Jun, the owner of the Park-It-Market, and his niece, Hae Jun, were both working at the market on the evening of September 8. They testified that there were no fights in the store or in the parking lot that night.

Dr. Lawrence Blum, a forensic pathologist, testified that Myrick died as a result of hemorrhagic shock due to the loss of blood caused by incised wounds or cuts of both jugular veins. Dr. Blum further determined that a contributing cause of death was a stab wound to the right lung. Dr. Blum identified 47 separate stab wounds on Myrick’s body but said that some wounds ran together and could not be counted. Dr. Blum also explained that various wounds to Myrick’s arms and hands constituted defensive wounds, which are wounds that would be incurred while a victim was trying to ward off attack. Dr. Blum stated that a person of Myrick’s height and weight probably has 21/2 to 3 liters of blood. When defense counsel asked Dr. Blum if he drained the blood from the body to measure it, Assistant State’s Attorney Joseph McGraw allegedly stated, “the defendant did it.” Defense counsel requested a hearing in chambers, where the trial judge stated for the record that he had not heard the comment. As the State correctly notes, it would also appear that the court reporter failed to hear the comment, because it is not reflected in the transcript. Defense counsel moved for a mistrial based on the comment, arguing that it would prejudice the jury. The trial judge denied the motion, stating that he would not assume that the jury had heard a comment which he had not heard. The court then admonished the jury to disregard any comments from counsel not directed to the witness.

On cross-examination, Dr. Blum also stated that, according to a toxicology report, Myrick had 417 nanograms of cocaine in her blood at the time of death. Myrick also had 2,500 nanograms of benzoylecgonine, which is the chemical cocaine breaks down into in the body. Dr. Blum concluded that Myrick did not die from cocaine overdose and stated that he did not know the relationship between the level of benzoylecgonine and the amount of cocaine that Myrick originally ingested. Dr. Blum could not relate the behavioral effects of cocaine on Myrick, since he was not a psychiatrist. Dr. Blum did find needle tracks on Myrick’s arms and testified that injection is the most potent method of ingesting drugs.

Other forensic experts testified as to the results of blood, shoe and fingerprint examinations performed in the case. Patrick Powers testified that he could not conclude that the shoe impressions on the kitchen floor at the scene came from defendant’s shoes. A hand railing was seized from the apartment because a palm print was found formed in blood. Patricia Powers testified in this regard and concluded that defendant’s left palm print matched the palm print on the bannister, with 17 points of identity. Myrick’s blood was identified on two knives, the railing, and defendant’s shoes, shirt, T-shirt and head-hair combings. Defendant’s blood was not found on these items but was found on the clothing he was wearing when he was arrested. Defendant’s shirt and T-shirt were found, along with a knife, underneath a pine tree a few blocks from Myrick’s apartment.

Defendant testified in his own behalf. Defendant was 35 years old at the time of the incident and had graduated from the University of Illinois with a bachelor’s degree and from Chicago State University with a master’s degree in corrections and criminology. While finishing his master’s degree in 1978, defendant got a job with the Department of Corrections and, after graduation, became a parole agent, until 1985. Defendant was convicted of aggravated battery in August 1988.

On September 8, 1988, defendant picked up a job application, had lunch and then walked around Rockford. Defendant eventually got a ride to 15th and Seminary and started walking to the house of an acquaintance named Larry. As defendant passed Myrick’s house, Myrick came outside. Defendant did not remember her because he had only met her once about one month earlier, when his acquaintance Larry had introduced them. Defendant stopped in at Myrick’s for a while, then went to Larry’s, but Larry was not home. Myrick told defendant that if he had no place to stay he could stay at her house that night. Later, defendant returned to Larry’s, but when he still was not home, defendant returned to Myrick’s. It was about 6:30 or 7 p.m., and Dana and Amber were sitting at the kitchen table. Dana was doing homework. Defendant sat in the living room with Myrick and showed her his diploma. Myrick then started mixing a substance in a wine cap that she said was cocaine. Myrick drew the substance into a syringe and started to inject it into her arm when Dana came into the living room. Myrick turned her back when defendant told her that Dana was coming, and he distracted Dana by asking about a drawing Dana had made. Defendant again returned to Larry’s, but he still was not home. Defendant then sat across the street in front of a drugstore for a while.

When defendant returned to Myrick’s around 8:45 p.m., he asked her if he could take a shower and shave for his interview the next day. Defendant started to shave, but never finished because he went back downstairs to give Dana, who was in the bathtub, some privacy. Defendant and Myrick then went to the store and bought a pint bottle of wine and a pack of cigarettes. Myrick asked defendant to pay for another bottle of wine, which he did because she was putting him up for the night.

When Myrick returned from the store, the children went to bed. At that time, according to defendant, a black man knocked on the door. Defendant then walked to the store, and when he returned, the man was gone. A half hour after his return, Myrick told defendant that she was going to do a speedball, meaning a mixture of heroin and cocaine. Myrick put three packets of drugs into a bottle top and cooked it with a lighter. After she injected herself, Myrick began to hold her heart and breath heavily. Defendant started to leave, but felt responsible for Myrick, so he stayed. Myrick jumped up from the couch abruptly, opened drawers in the kitchen, and then returned to the couch with her hands behind her back. At that point, Myrick started calling defendant “Red,” saying, “Red, I am going to kill you.” Myrick then lunged at defendant and stabbed him on the arm with a knife. When defendant tried to grab Myrick’s hand, he got cut on his two right middle fingers. Defendant got behind Myrick, picked her up and slammed her down on the couch. Myrick was bleeding at that point either from her throat, ear or shoulder. Defendant tried to get out the door, but Myrick chased him with the knife in her hand. Defendant kept picking Myrick up and falling with her to the ground, trying to knock the wind out of her and telling her he was Ralph, not “Red.”

Defendant got the knife away from Myrick and tried to get out the door, but the screen door was locked, and he could not find the latch. Myrick then ran to the kitchen for another knife and attacked him again. Defendant stabbed Myrick on her arm, her neck and her face, stating that he was trying to cut Myrick everywhere that he could where there would not be serious damage. According to defendant, he stabbed Myrick about 25 times. Defendant stated that he could not take it anymore, so he threw his knife down, picked Myrick up and slammed her down as hard as he could. Defendant tried to carry Myrick to the door to get out, but they were both covered in blood. Defendant slammed Myrick against the bannister and yelled to Dana to get help. Defendant hit Myrick with his fists, and they scuffled on the floor. Defendant saw Dana run out the door. While scuffling, both defendant and Myrick then fell over the bannister. Myrick grabbed defendant’s leg and pulled him down the stairs. Defendant grabbed one of the knives lying on the stairs and started slashing at Myrick to get away. Defendant then put the knife in his pocket and ran out the door. Defendant took off his shirt and T-shirt while running and finally ended up at Willie Fisher’s house. According to defendant, he told Fisher that he got into a fight with Myrick and might have hurt her. Defendant then wet a towel and washed. Defendant stayed at Fisher’s for 30 to 45 minutes in a state of shock and then told Fisher he had to return to Myrick’s apartment to see if she was alright. As soon as defendant got there Dana identified him, and he was arrested. Defendant also stated that he spoke to the police because he wanted to be cooperative, but that he did not tell them about his fight with Myrick because, in his experiences as a parole agent, he knew it was better to have an attorney present.

On cross-examination, defendant stated that he asked for an attorney after he signed a Miranda warning form but was not provided one. The police did not tell defendant why he was under arrest. Defendant acknowledged telling the police about the other man who came to Myrick’s apartment, but said he did not tell them that he returned to the apartment or that Myrick attacked him that night, because he wanted counsel present so that none of his statements would be misunderstood. Defendant denied telling Detective Forrester that he had worn the same clothes all night. Rather, defendant had refused to answer that question. Defendant did not tell the police that he was in a fight with a white man at the Park-It-Market that night. Although defendant refused to sign the consent form for the withdrawal of a blood sample, because he believed consent was not required, defendant said that the police tore up the form, not him. Defendant jumped up and balled his hands into fists when Officer Piccirilli slapped him. Defendant also repeated that he, not Myrick, had called to Dana for help. Defendant said that Myrick never called out for help. Defendant stated that he did not know why, but that Renee Williams lied when she said that she heard Myrick call out for help. According to defendant, Willie Glover also lied when he said that defendant asked him for a bandage, although defendant did sustain a stab wound on his arm, cuts on two fingers, a bloody nose and several scratches. Defendant stated that he returned to the apartment not to retrieve his belongings, but to see if Myrick was alright. Defendant did not phone police or an ambulance and said that he was not thinking clearly at that time. Defendant denied laughing or joking with the police when he was arrested and stated that Forrester neither took notes during his interview with defendant nor asked him to make a written statement.

On redirect examination, defendant testified that he did not intend to kill Myrick or cause her great bodily harm. Neither did defendant know that Myrick could die from her wounds. Defendant’s intent was to get out of the apartment and away from Myrick.

After defendant’s testimony, the defense called Anthony Allen. When the bailiff informed the court that Allen was not present, the trial was continued over the weekend. Over the weekend, the record showed that sheriff’s police had attempted to execute an arrest warrant on Allen, but that Allen had eluded police. Defense counsel asked for a continuance to obtain Allen’s presence, a mistrial, or a stipulation as to what his testimony would be. According to defense counsel, Allen was Myrick’s fiance and had been stabbed by Myrick more than once in the past. Defense counsel had an accident report which showed that Myrick had stabbed Allen. Since Allen had been seen in the last 24 hours, counsel argued that he was not unavailable as a witness. In response, the State argued that the failure to produce Allen as a witness would be harmless, since the court records showed that Myrick stabbed Allen in self-defense. The State added that Allen had no intention of cooperating with the defense, or submitting to process. The court concluded that all reasonable steps had been taken to secure Allen as a witness and, questioning the relevance of Allen’s testimony, refused to delay the trial or declare a mistrial. The State then asked defense counsel if he intended to call Dr. Fareed, the pharmacologist. Defense counsel stated that he had no other witnesses. After returning to open court, defense counsel again called Anthony Allen to the stand, but to no avail. After defense counsel again stated that he would not be calling any other witnesses, the court announced that the defense had rested.

The State then proceeded to call five witnesses in rebuttal. Officer Genens stated that he did not tell the defendant how to stand or look when he photographed the defendant. Genens added that the defendant was jovial and carefree at the scene. Before cross-examining Genens, defense counsel stated that he still had a witness that he wanted to call but that the court was forcing him to proceed. Stating that he did not have any questions, defense counsel said the defendant wanted to question the rebuttal witnesses. In chambers, defense counsel notified the court that he would ask questions that the defendant wrote out for him. Officers Vaughn and Barton testified that the door to Myrick’s apartment which faced west was unlocked when they arrived on the scene. Officer Barton stated that he had no trouble opening the door and no one arrived before he did. Officer Forrester testified that he did not fabricate any part of the interview with defendant on September 9. Defendant never demanded an attorney and was told that he was a murder suspect before the interview began. Officer Piccirilli denied that he tore up the consent form for the taking of a blood sample. Once the State rested, defense counsel again called Anthony Allen as a witness, but the bailiff again stated that he had not appeared. The court then closed the proofs.

Defense counsel presented two closing arguments to the jury. First, counsel read the defendant’s written argument. In it, defendant detailed inconsistencies in the State’s witnesses’ testimony. In discussing Dr. Blum’s testimony, counsel informed the jury that Myrick had a .417 level of cocaine in her body when she died, which is 10 times the normal amount. Counsel concluded this portion of closing argument by stating that defendant was not guilty of first-degree murder or second-degree murder, but rather had acted out of self-preservation.

Defense counsel, in his own closing argument, went on to discuss in some detail the facts of the case. Counsel also stated, inter alia, the following:

“Like I said, I have an [sic] disagreement with my client. You know, I will tell you right now I think that he thinks he is not guilty of anything. They think he is guilty of first-degree murder. I think he is guilty of second-degree murder.
* * *
It seems to me when you review this evidence — I know you heard Ralph, and I think he is believable in terms of saying that he thought that he was defending himself. He thinks — I think his testimony was he was acting completely in self-defense. He felt that he had no alternative. He felt that — she had gotten one knife. He had taken away. She had gotten another knife. He thought that he was in mortal danger. I think in reviewing this evidence you could easily decide that he was not in mortal danger.
That’s different than saying that first of all, he was unreasonable in deciding that he was in mortal danger or that he never even thought that he was in real danger. The difference is this: If he thought that he was in real danger and that was a reasonable belief, then he is not guilty of anything and you should find him not guilty.
If he thought that he was in danger but that was not reasonable, that was out of line with the situation as it was occurring, then he is guilty of second-degree murder.
* * *
In this case it seems to me that if they proved murder, what they have proved is second-degree murder, and any other verdict would have to be based solely on anger or a sense of boy, look at all of this blood, some sense of sympathy or anger, and that’s not what the case is supposed to be decided on. It’s supposed to be decided on facts and evidence and where things lie.
If you look at the pictures and try to make sense of how it happened and where it happened, it seems to me that there cannot be a verdict of first-degree murder in this case.”

In rebuttal argument, the State argued that this was not a second-degree murder case and asserted that the jury would have to believe that all of the other witnesses were lying who contradicted the defendant in order to find the defendant guilty of second-degree murder. In this regard, the assistant State’s Attorney stated:

“Somehow for some unknown reason everybody got together in the greatest conspiracy since the Kennedy assignation [sic] and put all of these intricate pieces of evidence together that just fit so well, and those are all lies and the defendant alone is just a poor victim of circumstance who told the truth.”

The State also addressed defendant’s claim that Myrick was the aggressor and had attacked defendant and chased him throughout the apartment. The State argued:

“Don’t forget his conviction, Ladies and Gentlemen, for aggravated battery in determining whether or not you want to believe that Sharon Myrick was some kind of homicidal maniac pursuing him relentlessly from room to room of the house.
I don’t know if you remember it or not, but a few years ago there was a movie out called the ‘Terminator.’ I don’t know if any of you saw it. It starred Arnold Schwarzenegger, and what was interesting about it was he was a robot from the future who came back to the present to kill someone, and he looked human, but in fact he was a robot underneath, and what made him so terrifying was that he was relentless. No human weaponry could stop him, and he pursued his prey no matter what efforts were taken to disable him, he came on and he came on, and there was the terror of that movie.
This guy over here, Mr. College Wrestler, Mr. Six One, 160 pounds wants you to believe that Sharon Myrick was that terminator. There is a terminator all right, and he is sitting right there, and he is wearing a blue suit and a red tie.”

In response to defendant’s argument that a motive for first-degree murder did not exist, the State argued that the jury did not have to find a motive to convict defendant. Stating that there were still questions unanswered in this case, the State argued, “Sharon Myrick is not here to be with you to say [sic] today. That pretty face and neck forever silenced. That mouth shut forever.” The court overruled defendant’s objection that the State was appealing to the jury for sympathy. The State also argued that if the jury was going to believe anything that defendant said, it had to believe it all. An objection was overruled, and the State continued as follows:

“He is a liar through and through. The evidence contradicts him. You don’t have to take my word for it.
You know, I really think that this is a case about three people. It’s about Sharon Myrick, it’s about the defendant, and about Dana. Do you remember Dana? You know, that was a pretty courageous little eight-year-old boy that came into this courtroom and had to testify about something that would be horrible for an adult to recall.
Many of us — most of us probably in our lifetime will probably never encounter anything that even remotely approaches something of that magnitude, and he stood up here like a courageous little boy, and he took the oath to tell the truth, and he answered all the questions I put to him and he answered all the questions Mr. Spiezer put to him for an hour and a half. Did you have a book bag, and on and on about the details of that night, and that little boy was the most candid, forthright person. You could see it in his face. There was not an ounce guile [sic] in his bones. He is just a truth telling little boy.
You know, sometimes out of the mouth of babes the truth comes, and it came. It was undeniable. There is just too many questions, Ladies and Gentlemen. Too, many questions that don’t add up.”

At the close of rebuttal argument, the assistant State’s Attorney-stated:

“You know, the defendant could not give me a straight answer on cross-examination. *** He wouldn’t know the truth if it ran him over. ***
If you believe that he defended himself, give him back his violent [sic] purple shoes and let him tap dance out of the courtroom, and maybe you should give him the knives to take with him in case he has to defend himself again some other day.
Provocation? Nonsense. Self-defense? That’s ridiculous. It’s murder. Call a spade a spade. This is murder. No beating about the bush.”

The jury in this case subsequently returned a verdict finding defendant guilty of first-degree murder. After hearing evidence and arguments in aggravation and mitigation, the court sentenced defendant to a 50-year term of imprisonment. Defendant’s motions for a new trial and to reconsider the sentence were denied.

Defendant’s first contention on appeal is that he was denied the effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s substandard representation so prejudiced the defense as to deny the defendant a fair trial. (People v. Albanese (1984), 104 Ill. 2d 504, 525, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) To show actual prejudice, defendant must establish that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) Scrutiny of trial counsel’s performance must be highly deferential, and there is a strong presumption that counsel’s conduct is within the wide range of reasonable professional assistance. (People v. Johnson (1989), 128 Ill. 2d 253, 266.) Thus, judicial inquiry into the competency of counsel will not generally extend to the exercise of judgment, discretion, trial tactics or strategy, even where appellate counsel or a reviewing court might have handled the matter differently. (People v. Barfield (1989), 187 Ill. App. 3d 190, 197.) Moreover, defendant may not rely on mere conjecture or speculation that the outcome would have been different with representation of a higher caliber. Barfield, 187 Ill. App. 3d at 198.

Specifically, defendant argues that he was denied the effective assistance of trial counsel for the following reasons: (1) counsel failed to obtain the testimony of Anthony Allen, who, according to defendant, would have testified that his nickname was “Red” and that Myrick had stabbed him on two previous occasions; (2) counsel failed to obtain the testimony of Dr. Jawed Fareed, who, according to defendant, would have testified that the amount of cocaine in Myrick’s blood could cause hallucinogenic effects, thus corroborating defendant’s account of Myrick’s behavior; (3) counsel did not personally provide cross-examination of the State’s brief rebuttal testimony, but rather asked questions of the rebuttal witnesses that defendant had submitted; (4) counsel failed to object to allegedly improper and prejudicial comments during closing argument; and (5) counsel presented two, inconsistent closing arguments, conceded defendant’s guilt for second-degree murder, and thus diminished defendant’s credibility.

Claims of ineffective assistance of counsel may be disposed of on the ground that the defendant suffered no prejudice from the claimed errors, without deciding the first prong of Strickland, whether the errors were serious enough to constitute less than reasonably effective assistance. (People v. Johnson, 128 Ill. 2d at 271.) Assuming, without deciding, that the above allegations do in fact support a finding of ineffective assistance of counsel, we do not believe to a reasonable probability that the jury would have found defendant not guilty of the first-degree murder charge if counsel had performed differently. Although defendant argues that he acted purely in self-defense, and that counsel’s actions served to destroy the theory of the case, the facts of this case and defendant’s conduct, both prior to and after his arrest, belie the self-defense argument.

Dr. Lawrence Blum, the forensic pathologist who performed the autopsy on Myrick, testified that Myrick received 47 distinct stab wounds, plus additional wounds which were uncountable because they ran together. Dr. Blum also characterized various wounds to Myrick’s arms and hands as defensive wounds, which would have been incurred while trying to ward off attack. In sharp contrast, defendant’s only injuries consisted of a cut on the arm, cuts on two fingers and the back of his hand, a bloody nose and a facial scratch. Myrick’s eight-year-old son, Dana, testified that he saw defendant hitting his mother and that he saw defendant run out of the house with blood on his shirt and pants. Dana also stated that when defendant returned to the scene, he had slicked his hair back, put on clean clothes and no longer had a goatee beard. Although defendant testified that he called out to Dana for help, Renee Williams testified that she went to Myrick’s apartment after she heard Myrick yelling for Dana to get help. Although defendant testified that he told Willie Fisher that he had fought with Myrick, Fisher testified that defendant told him that somebody had broken his nose and that he needed to take a shower. News photographer Dennis Lingbeck testified that, as defendant was being arrested, he heard defendant say, “I was here earlier but geez.” Rockford Detective John Vaughn, who photographed defendant at the scene, testified that defendant seemed calm and humorous and not excited. Officer Howard Forrester, who interviewed defendant, testified that defendant told him that he did not argue with Myrick and that she was not injured when defendant left. Defendant told Forrester that he was wearing the same clothes as when he left Myrick’s apartment and that the person Dana and other witnesses saw running out of Myrick’s apartment was not him. Although defendant told Officer Forrester that he got into a fight at the Park-It-Market, Hyun Jun, the owner of the Park-It-Market, testified that there were no fights in the store or in the parking lot that night.

The State presented more than enough evidence to prove beyond a reasonable doubt that defendant committed the offense for which he was charged. Thus, even if counsel had performed differently, we are not convinced to a reasonable degree of certainty that the jury would have found otherwise. Moreover, we believe that, on the whole, defense counsel provided zealous and effective representation. At trial, counsel successfully elicited testimony from Dr. Blum indicating that Myrick was a chronic drug user. Regarding the newscast video tape of defendant’s arrest, counsel successfully argued that the audio portion of the tape, containing a statement by defendant that tended to impeach his trial testimony, should not be played to the jury. During cross-examination of defendant, counsel's objection to a line of questioning suggesting that defendant used or handled illegal drugs was sustained. At no time did counsel concede defendant’s guilt of the crime charged, first-degree murder. Rather, throughout the entire proceeding, including closing argument, counsel vigorously tested and challenged the State’s evidence. Accordingly, we conclude that defendant was not prejudiced by trial counsel’s representation, and the defendant’s argument that he was denied the effective assistance of counsel at trial must therefore fail.

Next, defendant argues that he was denied a fair trial due to various instances of prosecutorial misconduct at trial and during closing argument. Although the State correctly points out that defendant failed to object to a number of the allegedly improper comments, such issues may still be considered on appeal where the failure to object is claimed, as it is here, to result from ineffective assistance of counsel. (People v. Emerson (1987), 122 Ill. 2d 411, 434.) We shall therefore examine defendant’s contentions.

Prosecutors are generally allowed great latitude in closing arguments, and improper remarks will not merit reversal unless they result in substantial prejudice to defendant. (People v. Thomas (1990), 200 Ill. App. 3d 268, 275.) Each case must be decided on its own facts (People v. James (1990), 200 Ill. App. 3d 380, 393), and complained-of remarks must be examined in the context of both the State’s and the defense’s arguments (People v. Lewis (1990), 198 Ill. App. 3d 976, 982). The test for determining whether a prosecutor’s remarks in closing argument constitute reversible error is whether those comments were such that, without their having been made, the jury might have reached a different result. (Lewis, 198 ILl. App. 3d at 982.) An instruction that closing arguments are not evidence and that any statement not based on the evidence should be disregarded tends to cure possible prejudice from improper remarks. (Thomas, 200 ILl. App. 3d at 275.) With these principles in mind, we consider defendant’s contentions.

First, defendant contends that the State made an improper remark during cross-examination of forensic pathologist Dr. Lawrence Blum. As noted previously, after defense counsel asked Dr. Blum if he had drained the blood from the victim’s body during the autopsy, the assistant State’s Attorney allegedly interjected, “the defendant did it.” The State correctly notes that the comment is not reflected in the transcript. Defense counsel requested a hearing in chambers, where the trial judge stated that he had not heard the comment. Nevertheless, the court instructed the jury to disregard any comment it might have heard that was not directed toward the witness. Where a timely objection is made to improper argument, the court can usually correct the error by sustaining the objection or instructing the jury to disregard the remark. (People v. Thomas (1990), 200 Ill. App. 3d 268, 275.) Here, defense counsel immediately requested to be heard in chambers. The trial judge stated for the record that he did not hear the complained-of comment and that he would not assume that the jury had heard a comment which he had not heard. Nevertheless, the judge instructed the jury to disregard any remarks it may have heard. It would seem to be pure speculation, at this point, whether the jury actually heard any comment from the State. Thus, we believe that the error, if any, did not rise to the level of reversible error and was in any event cured by the trial court’s timely admonishment to the jury.

Second, defendant contends that the State improperly described defendant as “the Terminator,” thus injecting the image of an infamous killer in an attempt to inflame the jury and appeal to their fear. We agree with the State that, based on the context of the argument, the complained-of remarks were an appropriate discussion of, and focused on, defendant’s theory of self-defense, in that defendant maintained that Myrick pursued him with a knife throughout the apartment. We believe the facts of this case are therefore distinguishable from those in People v. Barnes (1982), 107 Ill. App. 3d 262 (prosecutorial reference to John Wayne Gacy in closing argument deemed improper), and People v. Tiller (1982), 94 Ill. 2d 303 (prosecutorial reference to Nazi holocaust deemed improper). Rather, we conclude that, considering the context of the language used and its relationship to the evidence, defendant’s right to a fair and impartial trial was not affected. People v. Thompkins (1988), 121 Ill. 2d 401, 445.

Third, defendant argues that the State improperly appealed to the jurors’ sympathy when it told the jury to “[ijmagine the terror she felt as she retreated from room to room in her house, and for God only knows why he came at her plunging the knives into her as he went. Sharon Myrick is not here to be with you to say [sic] today. That pretty face and neck forever silenced. That mouth shut forever.” Viewed in the complete context of the State’s argument, we do not believe the above statements were improper. The first statement was a comment on the defendant’s theory that it was Myrick, not defendant, who was the aggressor and pursuer. The second statement was a legitimate, if somewhat obvious, reference to the fact that only defendant, not Myrick, could provide answers to some of the questions regarding exactly what happened on the night of September 8, 1988.

Fourth, defendant argues that the following prosecutorial statement was also improper and prejudicial: “What is his story? Make no mistake about it, Ladies and Gentlemen, it is a story. A story of self-defense, and you know what the title of that story is for this defendant? ‘Dead Women Tell No Tales.’ ” Again, we believe that this type of statement amounts to no more than somewhat obvious commentary on the fact that Myrick was not present to contradict defendant’s theory of self-defense. The State then went on to summarize the evidence in an attempt to demonstrate that Myrick was in fact the victim, not the aggressor. We cannot say that the above comment constitutes reversible error.

Fifth, defendant contends that the State improperly labeled defendant’s self-defense theory as “the greatest conspiracy since the Kennedy assignation [sic].” Once again, however, when the above statement is viewed in its correct context, it is clear that the State was simply attempting to impeach the credibility of defendant’s testimony. A prosecutor may argue that a defendant is lying if there is testimony at trial which contradicts defendant. (People v. Rogers (1988), 172 Ill. App. 3d 471, 478.) Additionally, we note that defendant made the following statement during cross-examination when asked whether, after his arrest, he immediately told the police that he had acted in self-defense: “I was extremely terrified. If Jack Ruby can get into Dallas police department to kill Oswald, what do think [sic\ my chances were in that mob? I was totally and categorically petrified.” Thus, the State’s reference to the Kennedy assassination conspiracy was not totally without explanation.

Sixth, defendant argues that certain comments, referenced earlier in this opinion, regarding the victim’s son, Dana, improperly appealed to the jury’s sympathy and improperly bolstered Dana’s credibility. We disagree. Although an attorney may not interject his personal belief in the veracity of a witness’ testimony, witness credibility is a proper subject of comment in closing argument. (Rogers, 172 Ill. App. 3d at 477.) Comments on the strength of the evidence are also permitted. (People v. Emerson (1987), 122 Ill. 2d 411, 434.) We believe that the complained-of remarks were either fair comments on the evidence or, viewed in context, did not amount to personal opinions regarding the strength of the State’s case, but rather sought to emphasize the favorable impression created by Dana’s demeanor during his testimony. As such, the statements were not improper. Emerson, 122 Ill. 2d at 434-35.

Seventh, defendant contends that the following statements were improper and prejudicial:

“If you believe that he defended himself, give him back his violent [sic] purple shoes and let him tap dance out of the courtroom, and maybe you should give him the knives to take with him in case he has to defend himself again some other day.
Provocation? Nonsense. Self-defense? That’s ridiculous. It’s murder. Call a spade a spade. This is murder. No beating about the bush.”

Defendant maintains that the above statements constitute an improper attempt by the State to inject both fear and racial prejudice into the proceedings. We disagree and conclude that the State’s remarks constitute, in the first instance, a legitimate commentary on the evidence and defendant’s credibility. Thus, the facts of this case are distinguishable from those present in People v. Lyles (1985), 106 Ill. 2d 373, cited by defendant, wherein the court stated that it was not a proper function of the prosecutor to speculate, during the sentencing hearing, as to what might occur if an accused was not sentenced to death. (Lyles, 106 Ill. 2d at 410.) In the second instance, viewed in context, the remarks are clearly aimed at defendant’s credibility and do not constitute racial slurs. Defendant argues that the State is in effect calling defendant, who is black, a “spade.” This accusation wholly misrepresents the reasonable inferences to be drawn from the above statement. It is readily evident that when the State asks the jury to “[c]all a spade a spade,” it is saying, in effect, “call murder ‘murder’. Do not call murder ‘provocation’ or ‘self-defense.’ ” Thus, this case is also factually distinguishable from People v. Sales (1986), 151 Ill. App. 3d 226, cited by defendant, wherein the court determined that the prosecutors’ improper use of race, the victim’s sexual history, and the homosexuality of one of the defendants deprived defendants in that case of a fair trial. Sales, 151 Ill. App. 3d at 233.

We conclude that the complained-of remarks did not operate to deny defendant a fair trial. And while we do not ever condone the use of any derogatory references or improper remarks, we do not find reversible error based upon any of the State’s comments in this case. (Lewis, 198 Ill. App. 3d at 983.) Even if any of the statements of which defendant complains amounted to error, we believe that error was sufficiently inconspicuous and insignificant and could in no way have constituted a material factor in defendant’s conviction, without which the jury might have reached a different result. (Thompkins, 121 Ill. 2d at 445.) Moreover, the jury was admonished that the statements of counsel were not evidence. We conclude, therefore, that the State’s remarks, both individually and cumulatively, did not deny defendant a fair trial.

Defendant’s final argument on appeal is that the Illinois second-degree murder statute (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2) is unconstitutional in that it impermissibly places the burden of proof upon defendant to prove mitigating factors sufficient to reduce first-degree murder to second-degree murder. Defendant recognizes this court’s holding to the contrary in People v. Jerome (1990), 206 Ill. App. 3d 428, and asks that we reconsider our holding in Jerome. The recently enacted second-degree murder statute provides in pertinent part as follows:

“§9 — 2. Second Degree Murder, (a) A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9 — 1 of this Code and either of the following mitigating factors are present:
(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.
* * *
(c) When a defendant is on trial for first degree murder and evidence of either of the mitigating factors defined in subsection (a) of this Section has been presented, the burden of proof is on the defendant to prove either mitigating factor by a preponderance of the evidence before the defendant can be found guilty of second degree murder. However, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder and, when appropriately raised, the absence of circumstances at the time of the killing that would justify or exonerate the killing under the principles stated in Article 7 of this Code.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2.

Specifically, defendant argues that the second-degree murder statute impermissibly requires defendant to prove an affirmative defense or mitigating factors which are inconsistent with, and would negate, an element of the offense of first-degree murder. The defendant in Jerome proposed an identical challenge to the constitutionality of section 9 — 2. In rejecting the defendant’s argument, this court stated as follows:

“There is, however, no inherent inconsistency between the mental states for first- and second-degree murder.
When a defendant is charged with first-degree murder, the State is required to prove death, causation and intent (or knowledge). (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a).) The defendant then has the opportunity to prove provocation or unreasonable belief in justification to reduce the offense to second-degree murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a).) The existence of provocation or an unreasonable belief in justification, however, will not diminish or negate any of the proved elements of first-degree murder. The mitigating factor is a separate issue the existence of which the State is willing to recognize as a circumstance affecting the degree of culpability or the severity of punishment.” Jerome, 206 Ill. App. 3d at 436.

Defendant offers no guidance as to why the reasoning set forth in Jerome is unsound; he simply asks that we reconsider our decision in that case. We decline to do so. Rather, we conclude that the Illinois second-degree murder statute does not violate defendant’s due process rights. Jerome, 206 Ill. App. 3d at 436; see also People v. Buckner (1990), 203 Ill. App. 3d 525, 534 (second-degree murder statute does not violate due process clause of the United States Constitution); see also O’Neill, An Analysis of Illinois’ New Offense of Second Degree Murder, 20 J. Marshall L. Rev. 209 (1986) (it is clearly constitutional to require the defendant to produce sufficient evidence of mitigation to reduce a charge of murder from first degree to second degree).

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

Affirmed.

DUNN and INGLIS, JJ., concur.