author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES WILLIAMS, Defendant-Appellant.
    First District (2nd Division)
    No. 1-86-1521
    Opinion filed June 30, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Millicent Willis and Z. Peter Tokatlian, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and David L. Studenroth, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, James Williams, was found guilty by a jury of intentional murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(a)(1)), for the shooting death of Frank Rhodes and was sentenced to 35 years’ imprisonment.

On October 31, 1984, at 9:30 p.m., Frank Rhodes was standing with five or six other persons, including his friends Duane Gratton, Wayne Mitchell and William Purchase, at 72nd and Eggleston in Chicago. They were attempting to start Purchase’s car, which was parked facing east on 72nd Street next to Hamilton Park. The area was illuminated by a streetlight across the street.

While Rhodes and the others were working on the car, a man, later identified as the defendant, walked by on the sidewalk adjacent to the park heading east on 72nd Street. A person standing near Rhodes, identified only as “Ya Ya,” said to the man, “What’s happening, man?” After the man did not respond, Ya Ya asked, “Man, is you Folks or what?” “Folks” is the term used to describe street gangs affiliated with the Disciples; Rhodes and his friends, other than Purchase, were members of the Gangster Disciple street gang. The man turned around and said “I ain’t no Folks. I ain’t no sissy. All is well.” The term “all is well” meant that he was a member of the “People.” “People” is used to describe the rival group of gangs affiliated with the Stones: El Rukn, Black Stone or Cobra Stone street gangs. The man also wore his hat turned backwards and tilted toward the left, which also represented the Stones.

The man then pulled a gun from his jacket pocket and fired one shot, which hit Rhodes in the head, killing him. Those standing with Rhodes ran when the shot was fired; and the man fired two shots at them. He then walked up to Rhodes, who was lying on the ground, and it appeared to witnesses that he was going to shoot Rhodes again. At that moment two men came out of a courtyard building, and the man ran into Hamilton Park.

At approximately 9:45 p.m., Officers Terrance Pickens and Brian Daley of the Chicago police department received a radio call regarding the shooting. They arrived on the scene approximately 15 to 20 minutes later and interviewed Mitchell, Gratton and Purchase, who described the assailant as wearing a black cloth or leather jacket, black or navy blue pinstripe pants, white gym shoes and a dark-colored cap.

About one hour later, while the officers were interviewing the witnesses in their squad car, the defendant was seen walking through the park. Gratton first identified him as the assailant, and the others agreed. The officers arrested him; and the clothes he was wearing fit the general description given to the police, except that he was not wearing a hat and his jacket, although black, was not leather.

Later that evening, Detective David Golubiak requested that evidence technicians perform a gunshot-residue test on the defendant’s hands. The test was performed between midnight and 1 a.m., approximately three hours after the shooting. The test did not disclose any residue on his hands. It was stipulated that the evidence technician would testify that during the course of taking the gunshot-residue test the defendant replied in response to the technician’s question that he had washed his hands at about 10 p.m. that evening.

Jean Goliak, an employee of the Chicago Police Department Crime Laboratory with special training in gunshot-residue analysis, testified that hand-washing could destroy any gunshot-residue on the hands.

Other factors which affect detection of residue include weather conditions, passage of time and whether the gun was fired indoors or outdoors. Golubiak, who was not an expert in the field of gunshot-residue, testified that he was told by technicians at a police crime laboratory class that the residue is very sensitive and could be destroyed when a person puts his hands in his pockets.

Golubiak also testified that the defendant was placed in a lineup at Area 3 Headquarters and viewed by six witnesses. Five of them were on the scene at the time of the shooting; the sixth was walking through the park when the assailant was fleeing the scene. Gratton identified the defendant as the assailant, as did Mitchell, who had known the defendant from the neighborhood for the previous V-k years. Purchase identified the defendant by his clothes and voice; he had not seen the assailant’s face. Neither Ray Peoples nor the witness walking through the park could make an identification. Another witness, Evon McCoy, could not identify the defendant and stated that he had not seen the assailant.

Mitchell and Gratton testified at trial and identified the defendant. Purchase identified the defendant as the man he saw wearing the same clothes as the assailant. At the time of trial Gratton had criminal charges pending against him for unlawful use of a weapon, strong-arm robbery and two counts of aggravated assault. He denied that any promises had been made in regard to those cases in exchange for his testimony.

After his arrest the defendant gave an oral and two written statements. Although the record is not completely clear, it shows that he did tell the police and assistant State’s Attorneys that he had shot Rhodes. These statements have been used in a puzzling fashion. The State successfully resisted the defendant’s pretrial motion to suppress them but did not refer to them in the opening statement. (No issue is made here of the ruling denying the motion to suppress.) But the defendant’s attorney did and told the jury that the defendant was coerced into making a signed statement “implicating himself in this crime.” The State did not introduce the statements in its case in chief. It did, however, bring out, through the testimony of Officer Golubiak, that the defendant was given Miranda warnings, that he said he was willing to make a statement and admitted that he was a member of the Cobra Stone gang and affiliated with the Peoples gang. The defendant’s attorney then brought out that the defendant had made oral statements.

Despite the fact that the State did not offer or introduce the statements, the defense brought out, through direct examination of Lisa Washington, the defendant’s girlfriend with whom he had a child, that the defendant said “he did it” to the police officers but only after they said they were going to arrest her and take her baby from her.

The defendant testified that he told the officers and an assistant State’s Attorney he knew nothing about the killing, but later led them to an area to look for a pistol. (No pistol was found.) We interpret his testimony to mean that he told them where to go and that he did so because of his fear for his life and that of his baby. Later he put in writing what the police officers wanted. He told them “how it was happening.” His attorney asked, “When you signed this statement saying that you shot him, that wasn’t true, was it?” The defendant answered that it was not true. On cross-examination he said that in his statement he said he “fired the gun.” He said that because he was told to say it.

In rebuttal, the State called two assistant State’s Attorneys and Officers Golubiak and Vallandingham, all of whom testified that the defendant was not threatened or coerced in any way into making the statements. The State offered the two statements into evidence; they were admitted after the defendant’s attorney said he had no objection.

During closing argument, the defendant’s attorney told the jury, “You have the statements and I hope you read them very carefully.” He argued that there were inconsistencies between what the defendant said in his statement and the testimony of the eyewitness. Later he said that the defendant wrote “out this confession.”

The record reflects that the court sent back with the jury, the “various exhibits which [had] been admitted into evidence.” We surmise that the statements were included. Neither the defendant nor the State has made those statements part of the record on appeal. Despite their absence, it is apparent that the jury heard evidence that the defendant had confessed to shooting Rhodes and that he had confessed voluntarily.

The defense was an alibi. The defendant testified that he had been a member of the Cobra Stone street gang for seven years and that at the time of the shooting he was at Lisa Washington’s house. When he arrived there at about 6 p.m., her grandmother, brothers and sisters and two girlfriends were present. Lisa arrived home at about 7 p.m. The defendant left to go to the liquor store and returned to Lisa’s home. He stayed there until 10 p.m., after the time of the shooting. He and Lisa had an argument and he went to the park to cool off. After he had been there for some time, he realized that he had left his keys at Lisa’s home and returned to get them. However, she refused to return the keys, and the defendant left to go home. He walked through the park heading toward the flashing red lights and was arrested.

He denied telling the evidence technician who performed the gun residue test that he had washed his hands. He said that after the lineup he overheard officers telling the witnesses to identify him as the man who shot Rhodes. The only other witness for the defendant was Lisa Washington, who testified that she was questioned for about 13 hours by the police. During that time she and the defendant were brought together, and in his presence, one officer ordered her arrested and the baby taken from her. At that time the defendant said that he “did it.” None of the other persons named by the defendant as having been present in Lisa Washington’s home was called.

The defendant first contends that the evidence failed to establish his guilt beyond a reasonable doubt. A reviewing court will not set aside a jury’s verdict unless an examination of the evidence demonstrates that it is so improbable, unsatisfactory or inconclusive as to raise a reasonable doubt of guilt. (People v. Ellis (1978), 74 Ill. 2d 489, 384 N.E.2d 331.) The defendant contends that there was a reasonable doubt created by the fact that when arrested he was not wearing a cap nor a black leather jacket, contrary to the description of the assailant given to the police; no weapon was recovered from him; and the residue tests performed on his hands were negative.

The sufficiency, weight and credibility of the eyewitness testimony is for the jury to determine. Positive identification by a single witness is sufficient to sustain a conviction, even though that testimony is contradicted by the defendant, provided the evidence establishes that the witness is credible and viewed the defendant under circumstances that would permit a positive identification to be made. (People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631.) An identification is considered reliable where a witness had an adequate opportunity to view the assailant, showed an adequate degree of attention, described the assailant with a reasonable degree of accuracy, displayed a sufficient amount of certainty in identifying the accused and made the identification within a reasonable period of time following the event. People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317; People v. Wheatley (1989), 183 Ill. 2d 590.

Three eyewitnesses testified. Although Purchase did not see the assailant’s face and could testify only that the clothes worn by the defendant at the time of his arrest were those of the assailant, the other two -witnesses made clear and unequivocal identifications of the defendant himself. A doubtful, vague or uncertain identification will not support a conviction (Slim, 127 Ill. 2d at 307), but the two witnesses here made positive identifications shortly after the shooting and did not waver. Mitchell and Gratton had adequate time to view the defendant and under such circumstances that would permit an adequate identification. Mitchell, in fact, had seen the defendant in the area on prior occasions over a period of V-lz years. Minor discrepancies in their description of the clothing are not sufficient to impeach the jury’s verdict. Slim, 127 Ill. 2d at 309; People v. Jefferson (1989), 183 Ill. App. 3d 497.

That the defendant was arrested without the gun in his possession is not surprising since there was a sufficient passage of time between the shooting and the arrest to allow him to dispose of the weapon. There are also plausible explanations for the negative gun-residue test: the defendant washed his hands or too much time had passed for the test to be probative. The jury is not required to search out a series of potential explanations compatible with innocence and elevate them to the status of reasonable doubt. People v. Benedik (1974), 56 Ill. 2d 306, 307 N.E.2d 382.

In his argument on the sufficiency of the evidence, the defendant makes no mention of his statements admitting that he had shot Rhodes. We judge that the identification by the witnesses and the written admissions by the defendant that he shot the victim were more than sufficient to establish his guilt beyond a reasonable doubt.

The defendant next contends that the State’s closing argument denied him a fair trial in that the prosecutor improperly commented on the defendant’s failure to call alibi witnesses. He preserved this error by a motion in limine, which was denied. The cases, except one, cited by the defendant in his opening and supplemental briefs preceded People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247, in which the supreme court resolved conflicting authority in this State on the question of whether it is improper for the prosecutor to comment on the defendant’s failure to support his alibi by presenting the alleged alibi witnesses. In Kubat, the supreme court held “that where a defendant injects into the case the name of an alibi witness and then fails to call the witness, the prosecutor may legitimately comment on the lack of such evidence although it may not be relief upon as proof of the charge.” (94 Ill. 2d at 498.) We believe that the remarks of the prosecutor here meet the standards of Kubat.

In his reply brief the defendant has cited People v. Moya (1988), 175 Ill. App. 3d 22, 529 N.E.2d 657. There the prosecutor said that the defendant’s mother, a purported alibi witness, “wouldn’t get on the stand and lie for him.” The appellate court held, without mentioning Kubat, that the remark was improper because the prosecutor made the comment “well aware of the fact that defendant had been precluded from introducing information as to his mother’s whereabouts and that defendant had no means of rebutting this comment within the evidence previously adduced at trial.” (175 Ill. App. 3d at 24.) We do not believe that case is pertinent here.

The defendant refers to a number of other arguments to which no objection was made but which the defendant contends constituted plain error. In the first of those arguments, the prosecutor was discussing the burden of proof:

“The standard of proof in this case is beyond a reasonable doubt, and the State has met it. Each of the propositions we are required to prove beyond a reasonable doubt. Beyond a reasonable doubt. The same burden of proof that is used every day in every courtroom in every city and state and federal court in this country. Certainly not an impossible burden, but one that we had accepted and embraced and one that we had met.”

We agree with the State’s argument that these comments fall within the argument permitted in People v. Bryant (1983), 94 Ill. 2d 514, 523, 447 N.E.2d 301, where the court found no error in the prosecutor’s comments that the State’s burden was “not unreasonable” and “met each and every day in courts.” We do not agree with the defendant’s argument that the comments were like those condemned in People v. Starks (1983), 116 Ill. App. 3d 384, 395, 451 N.E.2d 1298, wherein the prosecutor asserted that the burden was the same as in “any type of case” and that “we don’t have a burden.”

In the second argument, the defendant contends, the prosecution attempted “to place the weight of his office behind the charges” by referring to the testimony of two assistant State’s Attorneys who explained the process for approval of felony charges; and in the third, the prosecutor implied that the defense attorney was trying to deceive the jury. We do not so construe the prosecutor’s rebuttal arguments; and both were proper responses which were invited by the defendant’s argument. People v. Wilson (1980), 87 Ill. App. 3d 693, 409 N.E.2d 344.

There are two other arguments of the prosecution which were, however, improper. As previously noted, one of the witnesses, Duane Gratton, had charges pending against him at the time of trial and testified that no agreements had been made with him. During the argument the defendant’s attorney said this:

“They bring in Gratton. We know he is on trial now for pistol toting and God knows what else. That is a reason to say anything that you feel will help you. Make no mistake about it, it’s no accident that his case hasn’t been resolved yet. It was pending until he cooperated in this case. I don’t know what the deal is with him. But we know that he still has a case pending and that is a motive to lie. That is a reason to overly cooperate, and that’s what happened in this case.”

To that argument, the prosecutor said this:

“Well, ladies and gentlemen, Mr. Gratton testified there was no deal, and I’ll tell you there was no deal. The first time I talked to Duane Gratton was Friday of last week. The first time I found out he had a ease pending anywhere in this system was Friday of last week. I’m the person who talked to Duane Gratton. *** There is no deal with Mr. Gratton. His statements to police occurred before his pending case occurred. They gave statements to the police. The police officers wrote reports.” (Emphasis added.)

The remarks of the prosecutor which amounted to his testimony that there was no deal and thus a corroboration of Gratton were improper. See People v. Ford (1980), 83 Ill. App. 3d 57, 403 N.E.2d 512.

In another part of the argument the prosecutor said this:

“It is true that the defendant does not have to prove anything. But when the defendant offers his own testimony or attempts to prove something, his evidence and his testimony is [sic] to be judged by the same standards of reasonableness and credibility as the State’s evidence. When he attempts to prove something, it has to be corroborated. All you have is the statement, T was there ’til ten after 10:00.’ Yet Lisa Washington and all these other people aren’t here. They never said he was there until ten after 10:00.” (Emphasis added.)

The statement that when the defendant attempts to prove something, it has to be corroborated, was a misstatement of the law. But we do not judge that these two improper arguments, to which no objection was made, amount to plain error because they did not, in view of the evidence, substantially prejudice the defendant nor affect the verdict. People v. Hine (1980), 88 Ill. App. 3d 671, 410 N.E.2d 1017.

The defendant’s last contention is that this court should remand the case for a new sentencing hearing because, he claims, the court accepted a misstatement of the evidence made by the assistant State’s Attorney when considering the defendant’s sentence, or, alternatively, that we should reduce the sentence because the trial court allegedly failed to consider that the defendant is a good prospect for early rehabilitation and had no juvenile record or felony convictions.

The prosecutor mistakenly told the judge that Rhodes had no “involvement in a gang.” The judge, in his summation, said that the defendant’s action “led to the death of an innocent individual.” We do not construe the judge’s remarks to be an acceptance of a misstatement of fact. Indeed, he also said that there was a “strong indication regarding gang relationships.” These are accurate observations of the record. The deceased was an “innocent” person in the eyes of the law when he was killed without any provocation, even if he had been a member of a gang. The rest of the remarks of the judge disclosed that he considered all of the appropriate factors before sentencing the defendant. Therefore, we will not substitute our judgment for his.

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

Judgment affirmed.

BILANDIC, P.J., and HARTMAN, J., concur.

       Justice Egan participated in the decision of this case prior to his assignment to the sixth division.


source: Caselaw Access Project

author: PRESIDING JUSTICE BILANDIC

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT THOMAS, Defendant-Appellant.
    First District (2nd Division)
    No. 1-87-1327
    Opinion filed June 30, 1989.

      Paul B. Biebel, Jr., Public Defender, of Chicago (Stephanie L. Ellbogen, Assistant Public Defender, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James Fitzgerald, and Judith M. Pietrucha, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

After a jury trial, defendant, Vincent Thomas, was convicted of murder for shooting and killing James Jones, and of armed violence for shooting Eric Archie. He was sentenced to consecutive terms of 28 years for murder and 10 years for armed violence in the Pontiac Correctional Center.

The State presented evidence as follows: Eric Archie testified that on April 10, 1986, the evening before the incident, he was at a grocery store with James Jones. Around 10:30 p.m., defendant walked into the store and spoke with Jones. They began to fight and defendant hit Jones in the face. Archie broke up the fight. He and Jones then left the store.

When defendant left the store, he proceeded to fight with Jones in front of the store. Archie broke up that fight.

Archie and Jones walked down the block. Defendant and Jones began to fight for a third time. Archie grabbed Jones and pulled him off defendant. Defendant got into a car and drove away.

Around 8 a.m. the following morning, Archie and Jones were standing in front of Jones’ car at 101st and Princeton Streets when a car pulled up in front of Jones’ car. Defendant got out on the passenger side. Jones asked defendant if he came back to finish the fight. Defendant replied: “No, I come [sic] to kill you.” Jones stepped back. Defendant pulled a gun from his waist and walked toward Archie.

Defendant asked Archie where the “stuff” was. Archie replied that he did not know what defendant was talking about. Defendant swung his gun at Archie’s head. The gun fired and struck Archie in the foot. Jones and Archie started to run in opposite directions.

Archie looked back and saw defendant at the entrance to an alley. Archie went to a neighbor’s house to ask her to call his father. He heard two more shots being fired.

Felbert Morris testified that he drove the car used in the incident. At 8 a.m., Morris picked up defendant. Defendant asked Morris directions as they drove which did not lead to the store Morris was going to. Defendant told Morris to-pull over by two men. Morris did not recognize either man.

Defendant got out of the car, said, “What are you going to do now?” and walked up to the two men. Defendant took a swing at the taller of the two men. A shot was fired and Morris saw a gun in defendant’s hand. Morris did not know defendant had a gun. He did not give defendant the gun.

The two men ran and defendant shot twice at the shorter man, who was running toward an alley. Defendant was 30 to 35 feet away from the victim when he fired the two shots.

Chicago police officer Lawrence Wronka testified that he was on duty on April 11, 1986. At 8:35 a.m., he received a call. When he arrived at 315 West 101st Street, he saw a crowd in an alley where a man was lying facedown in a pool of blood. He searched the area for weapons but did not find any.

Dr. Shaku Teas, of the Cook County medical examiner’s office, testified that Jones died of a gunshot wound to the back.

Defendant testified that while he was in Morris’ car, Morris pointed out the men that jumped defendant the night before. Defendant asked Morris to pull over so he could ask them why they had jumped him the night before. Morris warned defendant that Archie had had a gun the night before, but defendant said that he was not worried. Morris then told defendant to take a gun which Morris had under the driver’s seat. Defendant took the gun.

Defendant walked up to Archie and Jones. Archie pulled something from his back pocket and swung at defendant. Defendant fell against the car and his gun went off. The gun was pointing down and defendant did not think the bullet hit anybody.

Defendant heard more shots coming from Jones’ direction. Defendant turned and began shooting back. Defendant was not aiming, he “was just shooting.” He only shot at Jones twice. He fired at Jones because he feared for his own personal safety and thought that Jones was trying to kill him.

Defendant got back in the car with Morris. Morris told him to throw the gun out the car window. Defendant got out of the car in front of his brother’s house, but did not go in. He walked around for approximately 29 hours.

On re-cross-examination, he stated that during the period he walked around, he talked to his wife and unsuccessfully tried to talk to his lawyer about some personal business around 4 p.m. on the day of the incident.

Defendant was sentenced to concurrent terms of 28 years for murder and 10 years for armed violence. This appeal followed.

I

The principal assignment of error is that the defendant was denied a fair trial because the jury instructions misstated the law regarding burden of proof. We agree.

After this case was tried, the Illinois Supreme court decided People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, and held that when Illinois Pattern Jury Instructions, Criminal, Nos. 7.02 (murder), 7.04 (voluntary manslaughter — provocation) and 7.06 (voluntary manslaughter-belief of justification) (2d ed. 1981) (IPI) are given together, they misstate the State’s burden of proof. Those three IPI instructions were given in this case.

The supreme court held that the improper instructions constitute grave error and require reversal of the defendants’ convictions even though the defendants failed to object to the instructions; to present instructions which correctly stated the law; to raise the issues in a post-trial motion; or to dispute their correctness on appeal. Reddick, 123 Ill. 2d at 198.

Reddick is fully retroactive to this case. In People v. Brooks (1988), 175 Ill. App. 3d 136, 529 N.E.2d 732, appeal denied (1989), 124 Ill. 2d 557, and in People v. Shields (1989), 181 Ill. App. 3d 260, 536 N.E.2d 999, this division held that this error is “incontestably of constitutional dimension, and a ruling regarding that right must be applied retroactively.” (Brooks, 175 Ill. App. 3d at 142.) We adhere to the views we expressed in Brooks and Shields.

In arguing that the instruction constituted harmless error, the State cited People v. Skipper (1988), 177 Ill. App. 3d 684, 532 N.E.2d 44, and People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531, appeal denied (1988), 121 Ill. 2d 574. In Skipper and Carter, the defendants did not present enough evidence to justify instructions on voluntary manslaughter. (Carter, 177 Ill. App. 3d at 598-600; Skipper, 177 Ill. App. 3d at 689-90.) However, here, defendant testified that he heard shots coming from Jones’ direction. This was enough evidence to allow the jury to consider the voluntary manslaughter instructions. (See People v. Dortch (1974), 20 Ill. App. 3d 911, 314 N.E.2d 324, appeal denied (1974), 56 Ill. 2d 588; People v. Baggett (1983), 115 Ill. App. 3d 924, 450 N.E.2d 913, cert. denied (1984), 465 U.S. 1032, 79 L. Ed. 2d 698, 104 S. Ct. 1298.) Obviously, the State agrees that the defense in the case at bar presented sufficient evidence because the voluntary manslaughter instructions were tendered by the State. Therefore, this cause is reversed and remanded for a new trial.

II

We will discuss other assignments of error, because the questions may recur in another trial. Defendant initially contends that the prosecutor’s comments during closing arguments deprived him of a fair trial.

Reversible error exists where there are reasonable grounds for believing the jury was prejudiced by improper remarks. (People v. Allen (1959), 17 Ill. 2d 55, 160 N.E.2d 818.) Where, as here, numerous comments are made, it is unnecessary to assess the effect of each isolated comment. (People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629, cert. denied (1982), 459 U.S. 830, 74 L. Ed. 2d 68, 103 S. Ct. 68.) Improper remarks do not constitute reversible error unless they result in substantial prejudice to the accused. People v. Tiller (1982), 94 Ill. 2d 303, 321, 447 N.E.2d 174, cert. denied (1983), 461 U.S. 944, 77 L. Ed. 2d 1302,103 S. Ct. 2121.

During both opening and rebuttal closing arguments, the jury heard two different prosecutors comment on defendant’s phone call to his attorney on the day of the incident. During closing argument, the prosecutor also commented on recent teen suicides. The defendant objected. The court said that the prosecutor “should not ask the jurors to put themselves in the place of anybody on either side, but he may certainly comment on the fearless enforcement of the law and the evil alleged in this charge.” In closing, the prosecutor also inferred defendant was lying and the judge knew defendant was lying and could not do anything about it.

When all of the allegedly improper remarks are read together, they cannot be said to have constituted a material factor in defendant’s conviction or to have substantially prejudiced defendant’s right to a fair trial.

Ill

Defendant also argues that the trial court erred in refusing to submit instructions on the offense of involuntary murder to the jury. During the instructions conference, defense counsel requested an instruction on involuntary manslaughter for the shooting of Jones. The trial judge refused.

It is reversible error for the trial court not to give a manslaughter instruction in a murder trial if there is evidence which would permit a jury finding of guilty of manslaughter rather than murder. See People v. Canada (1962), 26 Ill. 2d 491,187 N.E.2d 243.

Even though defendant tendered the jury instruction and the trial court refused to submit it, this issue has not been included in defendant’s written post-trial motion. This failure constitutes a waiver of the issue and it cannot be urged as a ground for reversal on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) This alleged error does not rise to the level of plain error. People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.

Recklessness is an indispensable element of involuntary manslaughter (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3(a); People v. Frank (1981), 98 Ill. App. 3d 388, 397, 424 N.E.2d 799, appeal denied (1981), 85 Ill. 2d 579, cert. denied (1982), 456 U.S. 927, 72 L. Ed. 2d 442, 102 S. Ct. 1973.) The record is devoid of any reckless conduct by defendant. All of his acts indicate an intentional action without which Jones would not have died. Defendant never denied an intention to kill Jones.

Defendant is entitled to an instruction upon “very slight evidence.” (People v. Baggett (1983), 115 Ill. App. 3d 924, 931, 450 N.E.2d 913, appeal denied (1983), 96 Ill. 2d 542, cert. denied (1984), 465 U.S. 1032, 79 L. Ed. 2d 698, 104 S. Ct. 1298.) Since there was no credible evidence in the record which would have reduced defendant’s crime to involuntary manslaughter, the trial court did not err in refusing to give defendant’s tendered instruction. People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696.

IV

Defendant next argues that the trial court impermissibly hastened the jury’s verdict.

The jury began their deliberation at 3:17 p.m. on March 19, 1987. Around 7:30 p.m., the court received two notes from the jury. They read: “Can we still order dinner?” and “[W]e can not reach a decision on Jones but have reached a decision on Archie.” The jury was brought back into the courtroom. Defendant was found guilty of aggravated battery and armed violence. The trial court accepted the verdicts, told the jury to keep deliberating, and gave a Prim instruction. (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2371.) The trial court told the jury that it was too late to order dinner. If they were unable to reach a verdict, the judge said that he would arrange for them to spend the night and possibly get dinner. At 8:05 p.m., the jury returned a verdict of murder for the shooting of Jones.

In determining whether the judge’s comments coerced a jury into hastening a verdict, the totality of the circumstances must be examined — whether the language used actually coerced or interfered with the deliberations of the jury and prejudiced the defendant. (Prim, 53 Ill. 2d 62.) A verdict hastened by the action of a judge, however worthy the motive, cannot be the result of the deliberation guaranteed by the law. People v. Golub (1929), 333 Ill. 554, 561, 165 N.E.196.

Informing a jury that they will be sequestered after a certain time cannot necessarily be considered coercive. (People v. Baggett (1983), 115 Ill. App. 3d 924, 450 N.E.2d 913, appeal denied (1983), 96 Ill. 2d 542, cert. denied (1984), 465 U.S. 1032, 79 L. Ed. 2d 698, 104 S. Ct. 1298.) Notably brief deliberations, however, invite an inference that the court’s remarks were the primary factor in the procurement of the verdict. People v. Branch (1984), 123 Ill. App. 3d 245, 462 N.E.2d 868, appeal denied (1984), 101 Ill. 2d 568.

Defendant has waived this issue by failing to object at trial or raise this issue in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) This alleged error does not rise to the level of plain error. People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.

Additionally, the cases cited by defendant are readily distinguishable from this case. People v. Branch (1984), 123 Ill. App. 3d 245, 462 N.E.2d 868, appeal denied (1984), 101 Ill. 2d 568, was a deadlock situation. The trial court singled out, in the presence of the entire jury, the one juror who refused to vote guilty because he did not want anyone to go to jail. The judge then gave an incomplete deadlock instruction. The appellate court found these to be so prejudicial as to require reversal. (Branch, 123 Ill. App. 3d at 250-54.) The appellate court focused on the comments to the deadlocked jury. It noted that while the length of subsequent deliberations, by itself, is not conclusive, the “somewhat unique” facts of that case warranted reversal. Branch, 123 Ill. App. 3d at 250-51, 252.

People v. Friedman (1986), 144 Ill. App. 3d 895, 494 N.E.2d 706, was not a deadlock situation. The trial court briefly mentioned sequestration after orally clarifying an instruction at the jury’s request. The appellate court, while citing Branch, merely looked at the time element and ignored its own mention of the general rule that informing a jury of sequestration cannot be considered coercive. (Friedman, 144 Ill. App. 3d at 903.) Arguably the clarification could have merely served to affirm the jury’s verdict, which would explain the short subsequent deliberation. Thus, Friedman totally ignored its reasoning and should be considered an anomaly. Additionally, Friedman was also reversed because of improper jury instructions.

Here, the court’s comment was not meant to coerce a verdict or interfere in deliberations. If the jury was coerced or so hungry or tired as defendant suggests, why did it take them 35 minutes to return a verdict when they could have done it in a few minutes? Since the Prim instruction was given, 35 minutes is a sufficient time for the jury to reevaluate their views without being influenced by the court’s comments about dinner or sequestration.

V

At the sentencing hearing, Jones’ father testified about the impact that his son’s death had on himself, his wife and three daughters. Defendant contends that this violated Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529.

Defendant waived this issue by failing to object to the testimony at trial or to raise it in a post-trial motion. The admissibility of victim impact evidence in noncapital cases is governed by statute. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 4—1(a)(6), 1406.) Thus, it appears that defendant is attacking the constitutionality of these provisions. Where issues collateral to the validity of the statute under which defendant was charged are involved, failure to object at trial waives those issues even though they arise out of constitutional violations. People v. Graves (1974), 23 Ill. App. 3d 762, 320 N.E.2d 95.

Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, by its own terms is limited to capital cases. The statutory scheme which allows for victim impact evidence in noncapital cases is not subject to challenge under Booth’s eighth amendment analysis. People v. Turner (1989), 128 Ill. 2d 540.

Accordingly, the judgment of the circuit court of Cook County is reversed and this cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

SCARIANO and DiVITO, JJ., concur.


author: JUSTICE HARTMAN

text:
    TDE LTD. et al., Plaintiffs-Appellees, v. ALAN ISRAEL et al., Defendants-Appellants (Focus Real Estate Equities Corporation et al., Defendants).
    First District (2nd Division)
    No. 1-88-3780
    Opinion filed June 30, 1989.

      Margolin, Seitlin, Aronson & Blecher, of Chicago (Robert Blecher, of counsel), for appellants.

      Altheimer & Gray, of Chicago (Roger B. Harris, Robert I. Berger, and Mark T. Hechinger, of counsel), for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

This interlocutory appeal (107 Ill. 2d R. 307(aXl)) arises from a circuit court order denying defendants’ motion to dismiss plaintiffs’ lawsuit or, alternatively, to stay litigation proceedings, and to compel arbitration. We are asked to determine whether the court entered its order in error and whether defendants are entitled to compel arbitration.

After filing their mechanic’s lien on September 13, 1988, for labor and materials they claim to have furnished defendants, on September 27, 1988, plaintiffs TDE Ltd. and Arthur Swanson & Associates, Ltd., doing business as CD Group (collectively CD Group), filed a verified complaint to foreclose their mechanic’s lien and “for other relief.” The complaint alleged in its first count that CD Group acts as a general contractor in the construction of office and other buildings; defendant La Salle National Bank, as trustee for trust number 110740 (Trust), holds legal title to certain real estate and improvements located at 3210 Dundee Road in Northbrook, Illinois (Property); and defendant Dundee-Landwehr Limited Partnership, comprised of defendant Alan Israel and defendants Focus Real Estate Equities Corporation and Pilgrim Investment Group (collectively Owners), owned the beneficial interest in the Property. CD Group additionally asserted that it entered into a written agreement (Agreement) with the Trust on December 17, 1987, whereby CD Group promised to “perform *** labor and furnish *** materials at the Property for the construction of a two-story office building with an underground parking garage for the sum of $5,640,000.” Subsequent change orders elevated the cost of performance to $5,686,296.

Pursuant to the Agreement, CD Group performed labor and furnished materials required of it. On July 12, 1988, CD Group submitted to the Trust a “fourth draw payment” for $866,298 which the Trust “failed and refused to pay”; the Trust similarly forwarded no payment to CD Group for its “fifth draw payment” of $568,739, tendered August 24, 1988. CD Group also alleged that the Trust holds additional sums of $196,666 as “retainage under the five draw requests” and $461,998 for labor and materials furnished after submission of the fifth draw request. The total outstanding balance owed by the Trust as of September 12, 1988, equalled $2,093,703. Counts II and III of the verified complaint sought damages for breach of contract and quantum meruit.

CD Group moved for appointment of a receiver for the Property on October 11, 1988, declaring that CD Group and subcontractors participating in the project removed their personnel and equipment from the Property after the Owners failed to honor CD Group’s requests for payment, and alleging that the unfinished structure was exposed to deterioration by the elements or destruction by municipal authorities as an attractive nuisance.

The Owners responded to the motion on October 27, 1988, objecting to CD Group’s demand for establishment of an expedited trial schedule and waiver of CD Group’s obligation to post a bond. The Owners did not object to appointment of a receiver, provided that corporations furnishing the Owners with a construction loan, defendants Focus Real Estate Finance Company and National Canada Corporation (collectively Lenders), agreed to fund continued construction at the Property. The Owners specifically declared that their consent to appointment of a receiver was not meant to be construed as a waiver of any other rights they may have with respect to the receiver’s appointment. The circuit court appointed a receiver on November 4, 1988.

On November 3, 1988, the Owners responded to CD Group’s complaint with their motion for dismissal or stay. Citing specific provisions of the Agreement, the Owners asserted that filing the complaint without first submitting the matter to arbitration clearly violated the Agreement and requested that the court compel arbitration. On November 2,1988, the Trust answered CD Group’s complaint.

CD Group filed a response on November 15, 1988, to which the Owners replied on November 28,1988.

By order entered November 29, 1988, the circuit court denied the Owners’ motion.

On December 28, 1988, the Owners filed a notice of interlocutory appeal (107 Ill. 2d R. 307(a)(1)), seeking to compel arbitration and to stay all judicial proceedings pending the outcome of the arbitration.

I

A

The Owners insist the circuit court erred in denying their motion where the claims articulated in CD Group’s complaint fell squarely within the arbitration provision in the Agreement, which states in part:

“7.9.1 All claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to, the Contract Documents or breach thereof *** shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise * * * ff

Parties who execute a contract containing a valid arbitration clause are irrevocably committed to arbitrate all disputes clearly arising under the agreement. (Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr (1988), 124 Ill. 2d 435, 445, 530 N.E.2d 439; First Condominium Development Co. v. Apex Construction & Engineering Corp. (1984), 126 Ill. App. 3d 843, 846, 467 N.E.2d 932.) If the subject litigation apparently falls outside the ambit of the arbitration provision, the court may dispose of the question in favor of the opposing party, because no agreement to arbitrate exists. (Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr, 124 Ill. 2d at 445.) If, however, the subject clause is broadly phrased and its scope unclear, the court must direct the initial question of arbitrability to the arbitrator, subject to judicial review. Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr, 124 Ill. 2d at 447-48; Roosevelt University v. Mayfair Construction Co. (1975), 28 Ill. App. 3d 1045, 1051, 331 N.E.2d 835.

In the case sub judice, CD Group filed its complaint to recover payments allegedly due under the express terms of the Agreement, a scenario plainly anticipated by the comprehensive phrasing of the arbitration clause or at the very least, raising a reasonable doubt of arbitrability, which would also require submission of the issue to the arbitrator. Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr, 124 Ill. 2d at 447; Diersen v. Joe Keim Builders, Inc. (1987), 153 Ill. App. 3d 373, 376, 505 N.E.2d 1325.

CD Group responds that no dispute exists between itself and the Owners and argues that, under the terms of the construction loan agreement executed by the Owners and the Lenders, the Owners receive all money necessary to pay CD Group from the Lenders. The Lenders remitted to the Owners funds sufficient to satisfy the first three draw requests from CD Group, but then refused to provide adequate amounts to meet the fourth and fifth draw requests and all subsequent demands for money. Citing pleadings purportedly filed in a separate action between the Owners and the Lenders, but, as will be later noted are dehors the record, CD Group urges that the Owners admitted both their indebtedness to CD Group under the contract terms and that, but for the Lenders’ refusal to supply funds under the construction loan agreement, those sums would be paid. CD Group therefore concludes that no controversy or dispute exists between it and the Owners, removing their complaint from the authority of the arbitration clause. See Ill. Rev. Stat. 1987, ch. 10, par. 101.

Some decisions support the proposition that arbitration presumes an identifiable conflict between the parties (Sebree v. Board of Education (1912), 254 Ill. 438, 446, 98 N.E. 931; Norton v. Gale (1880), 95 Ill. 533, 542-43); nevertheless, these cases express common law principles prevailing prior to the adoption in Illinois of the Uniform Arbitration Act (Act) (see J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 667, 456 N.E.2d 889; Ill. Rev. Stat. 1987, ch. 10, par. 101 et seq.), which defines the contours of the instant appeal. The Act explicitly directs the circuit court to determine “summarily” the question of arbitrability (Ill. Rev. Stat. 1987, ch. 10, par. 102(a)), and bars the court from refusing arbitration “on the ground that the claim in issue lacks merit or bona tides or because any fault or grounds for the claim sought to be arbitrated have not been shown.” (Ill. Rev. Stat. 1987, ch. 10, par. 102(e).) The sole issue at preliminary hearings to compel or stay arbitration is whether there is an agreement to arbitrate: if so, the court should order arbitration; if not, arbitration should be refused. (Geldermann, Inc. v. Mullins (1988), 171 Ill. App. 3d 255, 258, 524 N.E.2d 1212; School District No. 46 v. Del Bianco (1966), 68 Ill. App. 2d 145, 156, 215 N.E.2d 25.) Any venture by the circuit court into the merits of the claim underlying the dispute is improper. Geldermann, Inc. v. Mullins, 171 Ill. App. 3d at 258; Bunge Corp. v. Williams (1977), 45 Ill. App. 3d 359, 363, 359 N.E.2d 844.

The Owners correctly observe that the documents filed in the Owners-Lenders dispute are not in the record on appeal and therefore lie beyond the purview of this court. (Okumura v. Niesei Bow lium, Inc. (1976), 43 Ill. App. 3d 753, 755, 357 N.E.2d 187.) CD Group maintains that its attorney read aloud to the court portions of the Owners’ complaint against the Lenders, in which the Owners demanded certain sums of money from the Lenders for their alleged breach of the construction loan agreement; nevertheless, counsel never tendered these documents to the court, nor did he ever articulate any allegations in which the Owners admitted they owed these same funds to CD Group. Additionally, the mere recitation of line items in the Owners’ draw requests submitted to the Lenders reflecting amounts allegedly owed to CD Group does not negate the possibility of a dispute between the parties at bar.

CD Group’s attorney further insisted that the Owners conceded, in the complaint against the Lenders, a debt to CD Group for the amounts of the fourth and fifth draw requests. Neither the alleged admissions nor the remaining contents of the pleadings, however, were read into the transcript. Absent inclusion in the record of the documents themselves, or at least a full disclosure of the statements contained therein, this court cannot render a decision which takes these pleadings into account. See Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 645, 432 N.E.2d 1267.

No evidence of record indicates a lack of contention between the parties. The Owners’ motion was the only document filed in response to CD Group’s complaint; the Owners did not answer the complaint, and they have yet to exhaust discovery available to them. Moreover, the Owners insisted in their reply to CD Group’s response to their motion that “[w]hile [the Owners] do not dispute that [CD Group] may be entitled to some relief in this case, [the Owners] have never admitted, and do not admit, that [CD Group is] entitled to the relief prayed for in [its] complaint.”

Cases cited by CD Group to restrict application of the instant arbitration clause do not persuade. In Geldermann, Inc. v. Mullins, 171 Ill. App. 3d 255, and Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr, 124 Ill. 2d 435, the arbitration provisions construed were, by their terms, much narrower in scope than the passage at issue here. In Diersen v. Joe Keim Builders, Inc., 153 Ill. App. 3d at 376, furthermore, the court interpreted a broadly phrased, “generic” arbitration provision, similar to the one at bar, and ruled that the circuit court properly stayed judicial proceedings and compelled arbitration of an alleged breach of a construction contract.

B

CD Group next insists the circuit court correctly denied the motion to dismiss because the Owners neglected to file with CD Group, the architect and the proper arbitration authority a formal demand for arbitration as required by the Agreement. Section 7.9.2 of the Agreement states:

“Notice of the demand for arbitration shall be filed in writing with the other party to the Owner-Contractor Agreement and with the American Arbitration Association, and a copy shall be filed with the Architect ***.”

The Act, however, requires only the following proof to compel arbitration: (a) an agreement between the parties to arbitrate; and (b) refusal by the opposing party to comply with that agreement. The court then “shall order the parties to proceed with arbitration.” Ill. Rev. Stat. 1987, ch. 10, par. 102(a).

In this case, the parties’ consent to arbitration has already been established. The fact CD Group filed the complaint and resisted subsequent attempts to compel arbitration sufficiently demonstrates CD Group’s refusal to honor the Agreement’s terms.

Furthermore, a demand for arbitration merely provides notice of the nature of the dispute and allows parties to comply with their arbitration agreement before the commencement of litigation. (See Associated Milk Dealers, Inc. v. Milk Drivers Union Local 753 (7th Cir. 1970), 422 F.2d 546, 554.) As initiators of the present litigation, CD Group “noticed” itself of the nature of its own claims. Filing the complaint illustrated that CD Group has already decided to forego arbitration in favor of judicial proceedings.

Other notice provisions allegedly breached by the Owners are inapplicable to the case at bar. Section 7.9.4(i) of the Agreement, for instance, requires:

“Promptly upon the filing of the arbitration each party shall be required to set forth in writing and to serve upon each other party a detailed statement of its contentions of fact and law.”

When “the filing of the arbitration” occurs is unclear; the sentence as a whole, read in the context of the entire section, governs the parties’ conduct once the court orders arbitration to begin. Section 7.9.4(ii) makes the arbitration proceeding subject to provisions of the Illinois Code of Civil Procedure and the Illinois Supreme Court Rules governing discovery; section 7.9.4(iii) prescribes swift initiation of arbitration once ordered', and section 7.9.4(iv) states “[tjhese *** rules shall be implemented and applied by the arbitrator.”

The Owners’ failure to issue a formal demand for arbitration did not wrongfully deny CD Group severability of issues. The Owners’ motion made plain their desire to compel arbitration, yet CD Group advances no explanation as to why it could not, at that time, articulate an argument in the alternative, requesting severability of issues. The mere fact this appeal reflects only a fraction of the multiparty claims spawned by the construction project does not necessarily militate against severance of issues raised below. (J & K Cement Construction, Inc. v. Montalbano Builders, Inc., 119 Ill. App. 3d at 679.) The circuit court therefore erred in refusing to stay judicial proceedings initiated by CD Group and to compel arbitration.

II

The Owners assert that they have not waived their right to activate the Agreement’s arbitration mechanism by responding to and participating in hearings conducted pursuant to CD Group’s motion to appoint a receiver. Already noted above is the Owner’s declaration that no waiver of any other rights aside from the appointment of a receiver was intended. CD Group does not respond to this contention in its brief. Nevertheless, we elect to consider this point on its merits. See Marcus v. Green (1973), 13 Ill. App. 3d 699, 710, 300 N.E.2d 512.

Waiver of a contractual right to arbitration occurs when a party’s conduct is so inconsistent with the arbitration clause as to demonstrate abandonment of that right (Kostakos v. KSN Joint Venture No. 1 (1986), 142 Ill. App. 3d 533, 536, 491 N.E.2d 1322; Atlas v. 7101 Partnership (1982), 109 Ill. App. 3d 236, 240, 440 N.E.2d 381; Brennan v. Kenwick (1981), 97 Ill. App. 3d 1040, 1042, 425 N.E.2d 439), i.e., when the party admits an arbitration agreement exists yet submits to a court for decision issues arbitrable under the contract terms. (Brennan v. Kenwick, 97 Ill. App. 3d at 1042.) Illinois courts do not favor waiver of the right to arbitrate. Kostakos v. KSN Joint Venture No. 1,142 Ill. App. 3d at 536.

Here, the Owners’ sole and immediate response to CD Group’s complaint was their motion to stay and to compel arbitration, and their reply to CD Group’s response. The motion was grounded only in the theory that CD Group’s claim properly belonged before an arbitrator; the Owners asserted no affirmative defenses nor did they request that the court rule on any substantive questions. Moreover, the Owners reacted with sufficient speed to CD Group’s assertion of a breach of contract that no legitimate argument of prejudice to CD Group can be made. See Kostakos v. KSN Joint Venture No. 1, 142 Ill. App. 3d at 537.

The Owners’ reaction to CD Group’s complaint seeking appointment of a receiver was limited to responsive pleadings and court appearances to protect their rights in litigation being pursued by CD Group and present their position to the court. Significantly, among the reasons given by CD Group for the appointment of a receiver was the potential involvement by local authorities to abate what they might consider a public nuisance in the form of an abandoned, incomplete building. This issue transcended the individual rights of the parties and became, in part, a matter of public interest to which the Owners were obligated to respond as lying beyond the parameters of arbitration exclusivity. (See, e.g., Applied Digital Technology, Inc. v. Continental Casualty Co. (7th Cir. 1978), 576 F.2d 116, 117. See also Edward Electric Co. v. Automation, Inc. (1987), 164 Ill. App. 3d 547, 554-55, 518 N.E.2d 172.) Neither party contends that the arbitrator was empowered to appoint a receiver for the property pending arbitration. This issue was solely within the circuit court’s authority; it was not interrelated or intertwined with the issues subject to arbitration, and was severable under section 2(d) of the Act. (Ill. Rev. Stat. 1987, ch. 10, par. 102(d).) This reaffirms our conclusion that no waiver occurred.

Ill

The Owners urge that the presence of subcontractors’ claims in the instant litigation should not preclude enforcement of the agreement to arbitrate under section 7.9.1 of the Agreement. CD Group does not respond to this argument in its brief; nevertheless, we will dispose of it here. See Marcus v. Green, 13 Ill. App. 3d at 710.

Section 2(a) of the Act enumerates the bare events which trigger the parties’ obligation to arbitrate, namely, an agreement to arbitrate and a refusal by the party opposing arbitration to do so. (Ill. Rev. Stat. 1987, ch. 10, par. 102(a).) As demonstrated above, these factors are present in the case at bar.

Nowhere in the Agreement, moreover, do the parties condition arbitration with consideration of “judicial economy,” one of the grounds upon which CD Group apparently opposed arbitration below. The Agreement states simply and directly that “all claims, disputes and other matters” engendered by the Agreement or a breach thereof must be submitted to the arbitrator. Furthermore, this court has already rejected “judicial economy” as a bar to enforcing a valid arbitration agreement. (See, e.g., J & K Cement Construction, Inc. v. Montalbano Builders, Inc., 119 Ill. App. 3d at 676; Kostakos v. KSN Joint Venture No. 1, 142 Ill. App. 3d at 538.) The parties, therefore, must adhere to the terms of the Agreement and submit their dispute to arbitration.

For the reasons stated herein, we reverse with directions to submit the matters at issue for arbitration and to stay further litigation except such matters involving the receivership as may arise.

Judgment reversed and remanded with directions.

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

       hereinafter, motion to stay. CD Group accurately contends that the Act does not permit dismissal of judicial proceedings improperly brought before the circuit court but rather prescribes a stay of those proceedings “if an order for arbitration or an application therefor has been made.” ( Ill. Rev. Stat. 1987, ch. 10, par. 102(d).) The Owners agree, since they request, in their briefs and notice of appeal, only a stay of judicial proceedings and an order compelling arbitration.

      CD Group named the Trust and the Owners as defendants in all pleadings filed in the instant case; however, CD Group sought judgment against the Trust in its complaint and then, in all subsequent pleadings, identified the Owners as the breaching party.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BYRON HANNA, Defendant-Appellant.
    First District (5th Division)
    No. 1-86-0139
    Opinion filed June 30, 1989.

      Steven Clark and Paul Alexander Rogers, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Thomas V. Gainer, Jr., Rimas F. Cernius, and Nancy Black, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant, Byron Hanna, was convicted of attempt (armed robbery) and murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4, 9 — 1(a)(3)) in the shooting death of James Wiley. Defendant was sentenced to concurrent prison terms of 55 years for murder and 15 years for attempt. Defendant contends his convictions should be reversed and the cause retried for the following reasons: the trial judge erroneously rejected defendant’s pretrial waiver of a jury for the sentencing phase of trial and permitted the State to question the venire regarding the death penalty; the State made improper comments in rebuttal argument concerning inadmissable evidence; and presentation of testimony of the victim’s nine-year-old daughter and mother was irrelevant and was designed only to arouse the jury’s sympathy. Alternatively, defendant argues his sentence for murder should be reduced.

We affirm defendant’s convictions. However, we conclude the extended prison sentence imposed for murder was an abuse of discretion and, therefore, remand that portion of the judgment with directions.

The record establishes that in the afternoon of August 1, 1983, defendant attempted to rob James Wiley at gunpoint while inside a currency exchange at 69th and Halsted Streets in Chicago. Eyewitnesses established that defendant had been inside the currency exchange and had observed Wiley cash his Veteran’s Administration education check at a teller window. The defendant approached Wiley as Wiley was exiting the currency exchange. A struggle ensued. At least four gunshots were fired. Both Wiley and the defendant were struck by bullets. Wiley died shortly thereafter.

Other facts pertinent to issues raised on appeal are summarized within the context of our discussion of those issues.

I

Because defendant was charged with a capital crime, the State filed a pretrial motion to examine the venire regarding imposition of the death penalty pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. In response, defendant sought to waive his right to have a jury consider sentencing, if convicted, during that phase of trial. The trial judge refused to accept the waiver. In questioning the venire, eight prospective jurors were excused based on their attitudes about the death penalty.

Trial proceeded before the jury. After defendant was found guilty, he was permitted to waive the jury for sentencing purposes.

Defendant now contends that in refusing to accept the pretrial waiver of a sentencing jury, the trial judge deprived defendant of a fair trial by an impartial jury in violation of Federal and State constitutions. Defendant relies principally on People ex rel. Daley v. Hett (1986), 113 Ill. 2d 75, 495 N.E.2d 513.

Hett involved consolidated cases in which the supreme court considered whether trial judges could properly accept defendants’ pretrial waivers of sentencing juries in capital cases and, if so, had discretion to preclude the State from death-qualifying prospective jurors. (Hett, 113 Ill. 2d at 77, 495 N.E.2d at 514.) To answer that question, the supreme court examined the capital sentencing statute permitting waiver of juries for the sentencing phase of trial in capital cases. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(d).) The court observed that the language of the statute neither limited defendants’ rights to waive sentencing juries nor designated when the waiver could be exercised and, therefore, held the acceptance of waivers in each case was within the courts’ discretionary power. (Hett, 113 Ill. 2d at 81-82, 495 N.E.2d at 516.) Further, the supreme court reasoned that because the trial judges had statutory authority to accept the waivers, the State’s right to question prospective jurors regarding the death penalty pursuant to Witherspoon was inapplicable. Hett, 113 Ill. 2d at 82, 495 N.E.2d at 516.

The supreme court has directed that its decision in Hett is not to be retroactively applied “insofar as it can be read to prohibit death-penalty questioning subsequent to acceptance of a pretrial waiver of the sentencing jury.” (People v. Erickson (1987), 117 Ill. 2d 271, 291-92, 513 N.E.2d 367, 375.) In Erickson, the trial judge accepted defendant’s sentencing jury waiver after defendant had been convicted before a jury in the guilt phase of his capital trial. Defendant’s pretrial waiver had been refused and the State had been permitted to question the venire pursuant to Witherspoon.

On appeal before the supreme court, defendant relied on Hett and raised the next logical question: whether the trial court was required to accept the pretrial waiver. (Erickson, 117 Ill. 2d at 287, 513 N.E.2d at 374.) The supreme court concluded that, where the trial court ascertains the waiver is voluntary and knowing, it must be accepted. (Erickson, 117 Ill. 2d at 287, 513 N.E.2d at 374.) Left unanswered was whether the exercise of a valid waiver should prohibit the State from questioning prospective jurors pursuant to Witherspoon. (Erickson, 117 Ill. 2d at 288, 513 N.E.2d at 374.) The court declined to address the issue reasoning that “even if Hett were read to prohibit death-penalty questioning of prospective jurors where the sentencing jury is waived prior to trial, it would not apply retroactively to defendant’s case.” (Erickson, 117 Ill. 2d at 288, 513 N.E.2d at 374.) Defendant was therefore not entitled to a new trial either because his pretrial sentencing jury waiver was refused or because the State was allowed to query prospective jurors concerning the death penalty. Erickson, 117 Ill. 2d at 291-92, 513 N.E.2d at 375-76.

In dicta, the court noted that even if Hett applied, defendant would not necessarily be entitled to a new trial. The court observed, “[i]t is well established that a jury questioned regarding imposition of the death penalty is presumed to be a fair jury on the issue of guilt or innocence.” (Erickson, 117 Ill. 2d at 292, 513 N.E.2d at 375-76.) Thus, unless defendant could overcome the presumption, by demonstrating the State’s questioning of the venire produced an unfair jury, defendant would fare no better under a retroactive application of Hett even where Hett might be read to prohibit death-penalty questioning subsequent to acceptance of defendant’s pretrial waiver. Erickson, 117 Ill. 2d at 292, 513 N.E.2d at 375-76.

In People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183, the supreme court reaffirmed its decision regarding retroactive application of Hett in a case having pertinent facts similar to Erickson. As in Erickson, defendant’s pretrial waiver of a sentencing jury in his capital case was denied, the State was permitted to question the venire pursuant to Witherspoon, defendant was subsequently convicted by a jury, and defendant then was allowed to waive the jury for sentencing purposes. The court restated its holding in Erickson, noting the opinion in Hett was filed on June 30, 1986. Defendant’s trial in the case before the court had commenced on September 10, 1984, 21 months before Hett was decided and, therefore, defendant was not entitled to a new trial. Shum, 117 Ill. 2d at 338, 512 N.E.2d at 1189-90.

Defendant Hanna’s trial in the case at bar commenced on October 28, 1985. Defendant tendered his sentencing jury waiver in response to the State’s motion to question the venire pursuant to Witherspoon on that date. Because the decision in Hett was filed eight months after commencement of defendant’s trial, in accordance with the holdings in Erickson and Shum, we therefore determine Hett can have no application here. Moreover, we must presume that, although questioned regarding imposition of the death penalty, the jury was fair. As we determine defendant has made no showing to rebut that presumption, our conclusion would not differ even if Hett was applied retroactively.

II

During its case in chief, the State sought to have Chicago police officer Annise Fuller testify as to the content of two statements made by Wiley to her after being summoned to the scene of the crime. Specifically, the statements were, “He [the defendant] tried to take my money” and “[T]ake care of my kids.”

Following a hearing outside of the jury’s presence, the trial court ruled both statements were inadmissible as evidence either as dying declarations or excited utterances. However, the court permitted Fuller to testify as to whether or not Wiley had said anything. The trial court cautioned Fuller not to reveal the content of the statements.

Fuller proceeded to testify that upon entering the currency exchange, she observed Wiley and the defendant lying on the floor. Fuller stated that when she assisted Wiley up off of the floor, he said something to her. Fuller acknowledged that immediately thereafter she said something to her partner, Nathaniel Patterson, who then placed defendant under arrest. Fuller testified she helped Wiley walk over to a bench. Fuller stated that, at the bench, Wiley again made a statement to her. Fuller stated she then went outside to Wiley’s car, where Wiley’s children were waiting, and tended to them.

During rebuttal argument at the close of trial, the State made the following references to Fuller’s testimony:

“[Assistant State’s Attorney]: I am going to discuss the other witnesses for a second. We produced 14 witnesses on the stand. Let’s discuss for a minute Number 15, [who] didn’t quite take the stand. But you ladies and gentlemen are entitled to take your common sense back to the jury room to interpret the evidence.
The 15th witness that you didn’t actually hear from, but you can consider, is James Wiley.
Now here is what we know. James Wiley cashed his check. He went to the door, he got held up, he struggled, he got shot. But we know that he spoke before he died.
[Defendant’s Counsel]: Objection, Judge.
THE COURT: Objection overruled.
Counsel may argue reasonable inferences to be drawn from the testimony which is before the Jury.
[Assistant State’s Attorney]: The first time that he spoke, Officer Fuller was attending him. He spoke to Officer Fuller. He said something and the next thing that happened was Officer Fuller said to her partner, Officer Patterson, ‘Place that man under arrest.’
I leave it to the 12 of you. I think you know what he said.
[Defendant’s Counsel]: Objection, Judge.
THE COURT: Objection overruled. Counsel may proceed.
* * *
[Assistant State’s Attorney]: I want you to remember at that point, Officer Fuller *** [had] seen the Defendant there on the floor and she [had] seen the victim, Byron Hanna [sic], and she *** carriefd] James Wiley over to the benchf.] *** [H]e [was] speaking slowly and hauntingly and gasping for breath and he [said] something else to her. *** The last thing that he ever said.
What’s the next thing that Officer Fuller did? She went outside to the kids in the car.
* * *
What did James Wiley talk about just before he died? What did he say to her?
Again, I’ll leave it to you, ladies and gentlemen.”

Defendant now contends the State’s remarks above were improper and in direct violation of the trial court’s ruling prohibiting testimony as to the content of the statements. Defendant argues People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773, is closely on point.

Connors similarly involved comments made by the State with reference to activity immediately following an individual’s statement, the content of which was precluded. During trial in Connors, the State questioned police officer Hofmann about a conversation he had with Willie Williams, who, along with the defendant, had been arrested for armed robbery. Without addressing its content, Hoffman confirmed that he had spoken with Williams. Based on his answer, the State then asked Hofmann where, if anywhere, his partner had gone. In that manner, the State established that the police went to a particular apartment and recovered a coat taken in the robbery and a gun.

In its closing argument, the State commented:
“ ‘Officer Hoffman went on to state that he then asked that individual he was talking to, Willie Williams, where the coat [sic] that George Connors was carrying, and Officer Hofmann stated that he responded to that question.
Immediately after responding to that question the Officer went to Apartment 207.
Ladies and gentlemen, there are rules of evidence which prohibit us from introducing certain evidence.
[Defendant’s Counsel]: Objection.
THE COURT: Objection overruled. You may proceed.
[Assistant State’s Attorney]: We can only get in legitimate testimony. It is for you people to draw the proper conclusion that may be drawn.’ ” Connors, 82 Ill. App. 3d at 316-17, 402 N.E.2d at 777.

On appeal, the State argued that although its remark in reference to rules precluding introduction of certain evidence was “questionable,” reversal was unwarranted in view of overwhelming evidence against defendant. The State cited People v. Bracy (1973), 14 Ill. App. 3d 495, 302 N.E.2d 747. The appellate court agreed with that general proposition of law, but distinguished the case before it from Braey.

First, the appellate court noted the trial judge had overruled defendant’s counsel’s objection and had thereby judicially validated the State’s suggestions to the jury. More importantly, in Braey, the State’s comments were made during rebuttal, in direct response to defense counsel’s closing argument. Last, evidence referred to in Braey did not concern speculation of the content of an individual’s statements. Connors, 82 Ill. App. 3d at 321, 402 N.E.2d at 779.

We have carefully studied the decision in Connors. We note that in Connors, the State’s comments regarding Williams’ statement informed the jury, as a matter of fact, that the State had positive evidence but was precluded from presenting it to the jury. In the instant case, the State’s comments might be characterized as more subtle. Rather than indicating that the State knew, but could not legally present, the content of Wiley’s statements, the State encouraged the jury to draw their own inescapable conclusions. We therefore do not agree that Connors is necessarily dispositive under the facts presented here.

We are mindful of the latitude permitted in closing argument and are well aware of the extent of permissible inference which may be drawn from evidence. Nevertheless, we believe the State’s remarks at trial went beyond the scope of proper comment. The State’s remarks amounted to an invitation to the jury to conclusively determine, as proved by conduct immediately following, the content of statements which the State had been prohibited from presenting. In effect, what the State was precluded from presenting directly through Fuller’s testimony at trial, it sought to accomplish indirectly through suggestion during rebuttal argument. It is precisely that aspect of the State’s comments which we find disturbing.

Almost equally troublesome, however, is ascertaining why the State is compelled to engage in such tactics in cases such as this where overwhelming evidence of the defendant’s guilt exists. In so doing, the State risks wasting judicial resources and squandering public finances in an otherwise avoidable second trial, where the occasioned delay may jeopardize presentation of the parties’ proof.

However, although we consider the State’s comments in rebuttal improper, we decline to disturb defendant’s conviction because, after reviewing the record, we conclude the verdict would not have been different had the comments not been made. See People v. Spann (1981), 97 Ill. App. 3d 670, 422 N.E.2d 1051.

This was not a close case. No less than three of the tellers working in the currency exchange on August 1, 1983, witnessed defendant’s attempt to rob Wiley. All three testified to the ensuing struggle. One of the tellers, Cherry Parker, stated she had observed defendant prior to the incident. He was unkempt, had a brown paper bag with him, and appeared to be loitering inside the currency exchange until Wiley had cashed his check. Wiley had nothing in his hands. Clarissa Brown, who had waited on Wiley, witnessed defendant approach Wiley from behind, as he attempted to exit the currency exchange, and place his left arm around Wiley’s neck. Parker stated defendant had the paper bag in his right hand and was holding it to Wiley’s side. As Wiley struggled to get free, a gun fired. Parker saw defendant holding the gun. The struggle continued as the two men fell to the floor. More gunshots followed.

We find it unnecessary to further summarize the testimony here. We are satisfied after reviewing the entirety of the record that reversal in the instant case would serve no purpose.

Ill

At trial, Wiley’s nine-year-old daughter, Danielle, was allowed to testify for the State over defendant’s counsel’s objection that her testimony was intended only to evoke the jury’s sympathy. The trial judge permitted Danielle to testify after the State explained her testimony was important to establish what Wiley was wearing, what he had in his pockets, and what, if anything, he was carrying when he entered the currency exchange. The apparent purpose of that testimony was to show Wiley was not carrying, nor had concealed on his person, a gun.

The trial judge also permitted Wiley’s mother to testify for the State over a similar defense objection. Wiley’s mother stated Wiley’s Veteran’s Administration education check was delivered to her home and that Wiley picked up the check on August 1, 1983, and left for the currency exchange with his children. She stated Wiley was wearing a jogging suit.

On appeal, defendant contends the trial court erred in permitting the testimony of Danielle and Wiley’s mother. At least, defendant argues, the trial court should have precluded portions of that testimony. Specifically, defendant points to Danielle’s testimony regarding a family trip to the zoo on August 1, 1983, and Wiley’s mother’s testimony regarding how many children she had, the address where Wiley grew up, and whether Wiley attended college.

We do not agree allowance of the testimony of Danielle and of Wiley’s mother provides a basis to disturb defendant’s convictions. First, we find sound basis in the record for the admission, generally, of Danielle’s and Wiley’s mother’s testimony. That evidence was important to establish Wiley’s reason for being in the currency exchange on August 1, 1983, and to show that he did not have a gun with him. Moreover, even assuming we agreed that certain aspects of Danielle’s and Wiley’s mother’s testimony was of questionable relevance, reversal would not be warranted because, as we have previously stated, the evidence of defendant’s guilt in this case was overwhelming. See People v. Jones (1982), 108 Ill. App. 3d 880, 884, 439 N.E.2d 1011, 1015.

IV

At the sentencing hearing following defendant’s conviction, the trial judge considered that defendant acknowledged he intended only to rob the victim, not to kill him. Nevertheless, the trial judge determined that an extended term of imprisonment was warranted. Without otherwise enumerating the basis for the length of sentence, the trial judge imposed a prison term of 55 years for murder.

Defendant argues that an extended sentence is not supported by the facts of the case and constituted an abuse of discretion. We must agree.

Under section 5 — 8—2 of the Unified Code of Corrections, a sentence for murder cannot exceed the maximum term of 40 years’ imprisonment, as set out in section 5 — 8—1, unless aggravating factors, as set out in section 5 — 5—3.2(b), are found to be present by the trial judge. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 8—2(a)(1), 1005— 8 — 1(a)(1), 1005 — 5—3.2(b)(2).) Where specific aggravating factors are found, the term may be extended to 80 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—2(a)(1).) Relevant here, an extended prison term would have been justified where the offense was “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(b)(2).

In the instant case, the trial judge stated he considered the requisite aggravating factors in imposing the extended sentence. However, he did not state what those specific considerations were. Without benefit of enumeration in the record of those considerations, we have difficulty understanding why the trial judge determined an extended prison term was warranted under the circumstances of Wiley’s murder.

The record does not reveal more than that defendant intended to rob Wiley in the currency exchange and utilized a loaded gun to effectuate that purpose. That Wiley was shot and died as a direct result of his refusal to submit to defendant constitutes a murder for which defendant deserves incarceration. However, beyond those facts, Wiley’s murder, although indeed tragic, was unaccompanied by any circumstances which would justify an extended sentence under section 5 — 5—3.2(b)(2).

We therefore vacate defendant’s sentence for murder and remand the cause to the circuit court with directions to conduct a hearing to determine an appropriate non-extended-term sentence for defendant’s murder conviction.

Affirmed in part; vacated in part and remanded with directions.

MURRAY, P.J., and COCCIA, J., concur.