author: Mr. JUSTICE RECHENMACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harry Ramey, Defendant-Appellant.
    (No. 73-66;
    Second District
    September 27, 1974.

      Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz and Edward N. Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

The defendant was indicted for the offense of armed robbery. He was convicted of the lesser included offense of theft of property having a value of less than $150. Inasmuch as the defendant had incurred a previous conviction for theft he was sentenced under section 16 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 16 — 1) to serve not less than 1 year nor more than 5 years in the penitentiary.

The defendant appeals from this conviction and from the sentence thereunder on four grounds; (1) that the jury should not have been instructed on a lesser included offense which he was not charged with in the indictment and which was not part of the same chain of circumstances as the greater offense, (2) that the defendant’s conviction for theft under $150 should not have been enhanced from a misdemeanor to a felony, (3) that his defense was prejudiced by improper remarks in the closing arguments of the prosecutor and, (4) that his sentence is improper under the Unified Code of Corrections.

A brief review of the facts is necessary before discussing the points raised on appeal.

The defendant testified that he met Gerald Hartman, the complaining witness, for the first time around 11:30 P.M. November 14, 1971. After some initial conversation they drove in Hartman’s automobile to Hartman’s house, where they drank beer and engaged in homosexual activities. They then left the house and drove back into town where defendant, Ramey, picked up a couple of his friends to accompany them. They then drove to a tavern at the intersection of Green Bay Road and Grand Avenue, known as the Dew Drop Inn. Hartman entered alone to buy some beer and snacks. After returning to the car and some further driving, Hartman stopped the car on a poorly lit part of the road so they could drink some beer. At this point the stories of the complaining witness, Hartman, and the defendant sharply differ. Hartman testified that after he stopped the car and turned off the lights the defendant, who was sitting in the front seat, pulled a knife on him and demanded his money. Hartman said that the defendant then opened tire console of Hartman’s car and removed about $65 which was in his check book. When Hartman attempted to reclaim the money the defendant struck him, causing him to bleed. Hartman admitted in cross-examination that when defendant struck him it was after Hartman had remarked on their having gone to bed together earlier in the evening. He also admitted that after the incident in which the money was stolen from him the four men drove around together for awhile, during which time they stopped for gasoline and also at a couple of other places along the way. Hartman at no time attempted to escape from the car nor did he attempt to hail a squad car which was passing by.

The defendant told a very different story. He said that when Hartman stopped the first time and went into the Dew Drop Inn to buy the beer and potato chips, the defendant, during Hartman’s brief absence, broke open the console, found a bank book or check book there with about $65 in it and extracted the money, then closed the console. Defendant also said no threats were made to Hartman and the implication from defendant’s testimony is that on his return to the car Hartman was not immediately aware that the money had been stolen from the console. The defendant denied ever threatening Hartman with a knife or even having a knife and said he struck Hartman with his fist because Hartman made further advances to him and reminded him that they had engaged in homosexual relations earlier in the evening. In any event, after the incident in which the defendant allegedly struck Hartman, they both agree that Hartman, after some further driving around, returned the defendant and his two companions to a location in town where they left the car. Hartman then went to the police station and filed a complaint, which is the basis of the indictment.

On this testimony, the jury found the defendant guilty of theft but not of armed robbery. The defendant contends that since the crime of which he was convicted occurred outside of the Dew Drop Inn at Green Bay Road and Grand Avenue, whereas the testimony of Hartman placed the armed robbery specified in the indictment at Green Bay Road and Sunset, about an hour later, the theft could not- be included as a lesser offense of the armed robbery but was a separate and distinct offense not included within the place and circumstances of the crime the defendant is charged with. For this reason the defendant argues it was not proper to convict him of the theft under the indictment charging him with armed robbery. The court rejected this argument on the basis of the opinion in People v. Tolentino (1966), 68 Ill.App.2d 480, which the court felt to be controlling. In Tolentino the defendant was charged with armed robbery when he was apprehended, with a companion, standing over the prostrate and bleeding body of one of the victims and searching his clothing. The defendant in that case was not convicted of armed robbery but only of theft from the person. The defendant contended he could not properly be convicted of a crime he was not charged with but the court held that the crime of theft from the person was a lesser included offense within the charge of armed robbery even though the charge was in a single count, and the conviction was affirmed.

The defendant here attempts to distinguish between the case before us and Tolentino on the ground that in Tolentino there was no question of a separate time and place as between the armed robbery and the theft — it was all one single set of circumstances — whereas he argues in this case the only evidence as to the time and place of the crime of which the defendant was actually convicted, was entirely at variance with the time and place of the crime with which the defendant was charged in the indictment and which the complaining witness testified to. We do not agree that the Tolentino case was necessarily based on a single occurrence at one certain time, constituting a single set of circumstances. The victims in the Tolentino case may have been beaten and left unconscious and bleeding by unknown persons prior to the time when the defendant discovered and stole money from their persons, which would constitute a separate and distinct set of circumstances. In any event, however, since the defendant in the case before us supplied the facts of the crime of which he was convicted by his own testimony and the testimony of his friend and companion and obviously did so for tire purpose of avoiding tire greater offense of armed robbery with which he was charged, he cannot be heard to complain about the variance. The variance was created by his own testimony and this contained an admission of the crime of which he was convicted. The Tolentino case established that there can be a conviction for a lesser included offense on an indictment charging only the greater offense. We agree with defendant’s contention that the State must prove its case by its own evidence and not by the evidence of the defendant. However, whether the crime in this case occurred at exactly the time and place testified to by Hartman or at the time and place testified to by the defendant, the defendant cannot complain, so long as it is established that the crime of which he was convicted occurred on the day specified in the indictment and that it was an offense properly considered as a lesser included offense in the crime of armed robbery which he was actually charged with. See also People v. Howell (1973), 11 Ill.App.3d 391; and People v. Havener (1973), 13 Ill.App.3d 312.

The same considerations apply to the contention of the defendant that the trial judge erred in the language of his instruction to the jury (Instruction #9), wherein he instructed the jury: “The defendant is charged with the crime of armed robbery and theft of property having a value of less than $150.” Actually, tire indictment charged the defendant only with armed robbery and the proper instruction would have been (IPI — 2.01): “The defendant is charged with the crime of armed robbery, which includes the crime of theft of property under $150.” The defendant argues that since the instruction actually given may have misled the jury into believing that the defendant was charged with theft as well as armed robbery when he was actually only charged with armed robbery and that the instruction as given, “gave the theft charge more credence than it actually deserved,” the defendant was thereby prejudiced. This is a strange argument from the defendant for it was the defendant’s own story to which the jury was giving credence in convicting him of the crime of theft of property under $150. Defendant can hardly be heard to complain that the jury believed his own testimony and that they should not have done so. If the jury had not believed the defendant’s story then they would no doubt have accepted the complaining witness’ version of the matter, in which case the defendant would have been found guilty of armed robbery. The defendant deliberately gave the jury a lesser alternative and he cannot complain that they accepted it.

The defendant also complains about a remark made by the assistant State’s Attorney at closing argument that “the defense strategy from the start was to cop-out on a lesser included offense of theft under $150.” The defendant in his brief asserts, “The prosecutor’s remark left a strong implication that the defendant had previously attempted to enter a plea of guilty to the theft charge, yet nowhere in the record is there any evidence of such a fact.” This contention is, of course, open to the same objection as the previous one, that actually, by his testimony at the trial, the defendant, in effect, did admit to the theft, for his own purposes, and so it makes little difference whether or not the jury thought he had attempted to plead guilty to that offense previously. As a matter of fact, we do not consider the prosecutor’s remark to have the implication imputed to it by the defendant. The defendant apparently is arguing that the phrase, “cop-out” is equivalent to “cop a plea” which is, of course, translatable as to plead guilty. But we do not agree that “cop-out” is equivalent to “cop a plea.” It is, we believe, more equivalent to the idea of an argument or stratagem having the purpose of evading or lessening the consequences of one’s act and we believe the prosecutor’s remark when so interpreted was not prejudicial under the circumstances.

The statute under which the defendant was convicted provides for a penitentiary sentence if it is a second conviction, whereas only a fine or incarceration in a penal institution other than the penitentiary is provided for a first offense. The defendant was sentenced to the penitentiary on the basis that this was his second conviction for theft and the defendant contends this was improper because where tire statute provides an enhanced penalty for a second conviction of the same offense, the fact of previous conviction must be alleged in the indictment, which the State failed to do in this case. Defendant cites in support of this contention People v. Ostrand (1966), 35 Ill.2d 520 (citing People v. Booker (1966), 34 Ill.2d 16) and the decision of this court in People v. Connell (1972), 6 Ill.App.3d 791.

While People v. Ostrand, supra, contained the observation that, “it was not only proper to allow the allegation and proof of a prior felony conviction, but it was necessary in order to prove defendant’s commission of the felony of carrying a concealed weapon.” (35 Ill.2d at 529.) The State argues that this was based on the 1961 Criminal Code which was repealed in 1962. The State further argues that the theft section of the Criminal Code, section 16 — 1, since 1963, contains no reference to alleging a previous conviction of theft in order to enhance the penalty for a second offense. It merely states, “A person convicted of such theft a second or subsequent time, or after a prior conviction of any type of theft, shall be imprisoned in the penitentiary from one to five years.” Tire State cites People v. Kelly (1965), 66 Ill.App.2d 204, 216, for authority that:

“* * # pursuant to the current statutory scheme, prior convictions for theft would not and should not be alleged in an indictment, and no proof thereof should be received before conviction of the current offense.”

However, subsequent cases (People v. Owens (1967), 37 Ill.2d 131, 132; People v. Weaver (1968), 41 Ill.2d 434, 438; and People v. Dixon (1970), 46 Ill.2d 502) follow Ostrand and hold that the court may not impose an enhanced penalty for a successive conviction unless the prior conviction is alleged in the indictment and proved. In People v. Ferrara (1969), 111 Ill.App.2d 472, 479, this court followed Ostrand and upheld a conviction upon an indictment for theft which set forth a prior offense of robbery as a basis for the enhanced penalty. Also, in People v. Connell (1972), 6 Ill.App.3d 791 (abstract opinion), we followed Ostrand under the same theft statute before us. We find that the rule of the cited cases demands that the defendant be informed in the indictment of the prior offense to be relied upon and that it be proved.

The remaining contention of the defendant, that under the provisions of the Unified Code of Corrections the defendant’s sentence should be reduced to a maximum of 3 years, rather than 5, becomes moot in view of our holding that it is necessary to allege the previous conviction in the indictment in order to assess the enhanced penalty.

The judgment of the trial court is therefore affirmed, except as to the sentence imposed, and the case is remanded to the Circuit Court of Lake County with directions to vacate the sentence imposed and to resentence the defendant in accordance with the provisions of the Unified Code of Corrections applicable to a first conviction of theft of property having a value of less than $150.

Conviction affirmed, cause remanded with directions for resentencing.

GUILD and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE BEAM

license: Public Domain

text:
    The Wood Dale Public Library District, Petitioner-Appellee, v. The Village of Itasca et al., Respondents-Appellants.
    (No. 73-80;
    Second District
    September 27, 1974.

      Lawrence C. Traeger, Jr., of Chicago, for appellants.
    Juergensmeyer & Zimmerman, of Elgin, for appellee.
   Mr. JUSTICE BEAM

delivered the opinion of the court:

This appeal is from a judgment of the circuit court of Du Page County in a statutory proceeding for judicial review of action taken by the Village of Itasca. Two parcels of land situated in the Wood Dale Public Library District were annexed to the Village of Itasca. This resulted in the disconnection of the land from the Wood Dale Public Library District. The Library District commenced the present litigation by filing petitions opposing the disconnections.

The petitioner, Wood Dale Public Library District, has operated as a public library district since 1962 and the respondent Village of Itasca is a municipal corporation that maintains a public library with elected library directors.

The Village of Itasca annexed a parcel of 113 acres referred to as the Commonwealth Edison property. Then, later, by a separate ordinance, Itasca annexed another parcel of 61 acres referred to as the Ralston Purina property. The two parcels which are situated on the perimeter of the Wood Dale Library District, are not subdivided. The parcels were assessed as farmland under the assessment roles of 1970 and are now zoned “M” (limited manufacturing) under the annexing ordinances.

Separate petitions were filed by the Wood Dale District opposing the disconnections. These were ultimately consolidated. The circuit court found that the loss of the assessed valuation of the two parcels by reason of disconnection from the Wood Dale Library District “will and would impair” the ability of the Library District to render adequate library services and ordered the disconnection of the two parcels “not to occur.” The Village of Itasca and its library directors filed a post-trial motion which was denied. The Village appeals.

The controlling issue is whether the Wood Dale Public Library District as a matter of law under the petitions opposing disconnections met the burden of proving the truth of the allegations that the loss of assessed valuation by reason of such disconnections “will impair the ability of the District to render fully adequate library service to the territory remaining with the District.” We hold that petitioner failed to sustain its burden of proof by competent evidence that disconnections “will impair” its ability to render fully adequate library service to the territory remaining within the district.

The 1970 assessed valuations for tax assessment purposes applicable to our case are: Commonwealth Edison parcel $67,020; Ralston Purina parcel $33,970; and a total valuation of $34,861,528 for all of the Wood Dale Library District. The combined total assessed valuation of the two parcels is less than three one-thousandths of the total assessed valuation of the District.

Section 3 — 1 of the Illinois Public Library District Act (Ill. Rev. Stat. 1969, ch. 81, § 1003 — 1) provides that a library district may levy for library purposes an annual tax not exceeding .12% of tire taxable property within the district, as equalized and assessed by the Department of Local Government Affairs. The annual tax rate levied by the Wood Dale Library District was approximately 11.9 cents per $100 of assessed valuation. The Wood Dale Library District could have extended the 1970 assessed valuation by the 12-cent rate that would have resulted in a levy of $41,833.83; instead, under the 11.9-cent rate it levied $348.61 less, or $41,485.22. The annual rate levied against the two parcels under the 1970 valuations produced total taxes in the amount of $120.17. If the Library District, exclusive of the two parcels in question, had levied the full 12-cent rate permitted, the taxes produced would have been $41,-712.63 or $227 more than the District levied.

The Wood Dale Library District argues that the court must look to the tax year in which the court hearing was being held and thus must take into consideration the most recent valuations as of the date of the hearing. We cannot agree with this proposition which is speculative. If the court relied on that premise, then it would be necessary to have evidence as to the present value of all the property situated in the library district at the time of the hearing. The only just way in determining the ultimate issue is to compare the two parcels that were disconnected with the assessed valuation of the district and thus use the year 1970 for all purposes in order to compare the financial loss to the library district.

A witness testified that the value of the two parcels of real estate presently zoned “manufacturing” have a value far in excess of the then assessed valuations. His testimony further reflects that the subject property would be improved with manufacturing buildings or commercial enterprises within 5 to 10 years. The lower court properly sustained an objection to this testimony as to the cash value and projected assessed value. The testimony was highly speculative. In any event, the testimony failed to consider values of the entire Wood Dale District.

Testimony of Mrs. Hannoy, a member of the board of trustees and treasurer of the Library District, concluded that the Library District does not have adequate tax funds to operate the Library District in a manner to meet the minimum standards prescribed by the American Library Association. There was no comparision with other library districts nor an analysis of the operation of the Wood Dale District. Thus we find th's testimony was founded on conclusions.

Wood Dale District contends that under section 3 — 7(b) of the act relating to public libraries (Ill. Rev. Stat. 1969, ch. 81, § 3 — 7(b)), the Village of Itasca shall pay to Wood Dale District library taxes collected by Itasca from taxes levied upon taxable property within the library district. There is no reported case interpreting this statute. We hold for purposes of this case that this statute is construed to cover the disbursement of taxes levied and extended prior to the annexation of the two parcels and pending the disconnection of the two parcels through final court proceedings.

Wood Dale District further urges that section 4 — 11 should be considered. We conclude this statutory provision has no application to the facts here presented during the interim period of annexation and has no force or effect subsequent to a valid disconnection proceedings.

The Wood Dale District cites People ex rel. Kelly v. Lund, 25 Ill.2d 387, 185 N.E.2d 174, which interpreted the Fire Protection Districts Act (Ill. Rev. Stat. 1969, ch. 127%, § 31b) (comparable in some respects to the library act, ch. 81, § 4 — 11). The court there concluded that where a portion of a fire protection district was subsequently annexed to a city with a fire department, the city should not exercise any powers over that portion of the district with respect to fire protection, and regulation, and objections to fire protection taxes by the city over that portion of the district were sustained. This case was decided prior to the passage of the Fire Protection Districts Act (Ill. Rev. Stat. 1969, ch. 127%, § 38.3). This statute entitled “Disconnection by operation of law # * *” is virtually the same as section 2 — 9a of the Public Library District Act (Ill. Rev. Stat. 1969, ch. 81, par. 1002 — 9.1). Section 20 of the Fire Protection District Act (Ill. Rev. Stat. 1969, ch. 127%, par. 38.3), is interpreted by the court in the recent case of In re Roberts Park Fire Protection District, 20 Ill.App.3d 282, 314 N.E.2d 208. The order of the trial court permitting disconnection was reversed. The facts in that case are decidedly different from the instant case. In the Park Fire District cause, the portion of the district which was located within the village comprised 30% or 35% of the total area of the district. Also, approximately 24.5% of the total revenue of the district resulted from taxes on real estate within the village. It is evident the disconnection of the portion of the village would have a grave and immediate effect on the territory remaining within the fire district. The court stated:

“This court does not wish to be placed in the position of approving a disconnection with resulting substantial loss of tax revenue to the District where the evidence shows so clearly that such action would impair the present fully adequate fire protection.” (20 Ill.App.3d at 291.)

It is obvious the court interpreted the words of the statute as having a “present” effect on the District.

The rights of the parties are governed by section 2 — 9a of the Public Library District Act (Ill. Rev. Stat. 1969, ch. 81, § 1002 — 9.1). The applicable provisions of this statute are as follows:

“Any territory within a public library district that is or has been annexed to a city, village or incorporated town that maintains a public library is, by operation of law, disconnected from tire public library district * * *. Such disconnection by operation of law does not occur if, within 60 days after such annexation * * *, the public library district files with the appropriate court a petition alleging that such disconnection toill cause the territory remaining in the district to be noncontiguous or that the loss of assessed valuation by reason of such disconnection will impair the ability of the district to render fully adequate library service to the territory remaining with the district. * * e At such hearing, the district has the burden of proving the truth of the allegations in its petition.” (Emphasis supplied.)

It is a recognized principle of statutory construction that where two or more constructions may be placed upon a statute, the court should use the construction which leads to a logical result. (Board of Education v. Community High School District No. 211, 89 Ill.App.2d 481, 232 N.E.2d 316.) If we apply the construction urged by the Wood Dale District, then any loss of assessed valuation would impair the Library District’s ability to render fully adequate library service. We are not persuaded that the legislature intended that result in a disconnection proceedings. To so hold would mean that there could never be a disconnection as there would always be some loss of assessed valuation. In this case, the loss of $120.17 in comparison with a levy of $41,485.22 under the 11.9-cent rate used by the District, or $41,833.83 if the Library District had levied under the permissible rate of 12 cents, does not result in an impairment of the ability of the District to render fully adequate library service.

Webster’s New Twentieth Century Dictionary (2d ed. 1965) defines the key words involved in our statute as follows: “wiU”— an auxiliary used to express futurity; “impair” — to make worse, less, etc; and the word “adequate” — 1. equal to a requirement or occasion; sufficient; suitable.

Where the same word is used in different portions of a statute, the presumption is that the word is employed with the same meaning throughout the statute. (Radford v. Withrow, 401 Ill. 14, 81 N.E.2d 417.) The statute in question employs the word “will” as follows:

“* * * [W]ill cause the territory remaining in the district to be noncontiguous or that the loss of assessed valuation by reason of such disconnection will impair the ability of the district to render fully adequate library service * * (Ill. Rev. Stat. 1969, ch. 81, § 1002 — 9.1.)

The General Assembly intended the entire statute and the parts thereof to be consistent. (People ex rel. Community High School District No. 231 v. Hupe, 2 Ill.2d 434, 118 N.E.2d 328.) It is obvious that whether the remaining territory will be noncontiguous is determinable in the immediate future, in other words, as soon as disconnection occurs. Using this same principle then, “will impair” also means in point of time the moment disconnection takes place. The words “will cause,” “fully” and “adequate,” and “will impair” all have a current and immediate future effect; otherwise, the phrases and words would not be consistent.

Wood Dale Library District further contends the disconnections should not occur even though Wood Dale was not levying taxes at the maximum rate and cites Horth v. Board of Education, 42 Ill.App.2d 65, 191 N.E.2d 601, and Bloom Township High School v. County Board of School Trustees, 59 Ill.App.2d 415, 207 N.E.2d 694. The court in those cases considered many factors in addition to the loss of tax funds in denying detachments. The loss of tax money was not the controlling issue. In Horth, the court stated: “Defendant contends that loss of assessed valuation through annexation does not prevent annexation when the maximum rate is not being levied by the district from which the territory is detached. We think that in general terms, this is a true statement.” 42 Ill.App.2d at 77.

In considering the school cases, it is noted that in a detachment proceedings there is always a base valuation loss which results in a loss of income to the district from which detachment is made, but this loss can in no way affect educational facilities detrimentally unless the maximum legal tax rate is being levied at the time of the detachment. Board of Education v. Scott, 105 Ill.App.2d 192, 244 N.E.2d 821.

There are no residents on the two parcels in the case at bar and the tax revenue loss is minimal, only $120.17. Disconnection of the two parcels will not impair the ability of the library district “to render fully adequate library service.” Again, if this small amount results in an impairment, then the statute should provide that any loss would prevent disconnection. We hold that such a minimal loss to the Wood Dale District will not cause such an impairment to prevent a disconnection of the two parcels.

The Wood Dale District raises another issue referred to as “salami” disconnections and cites Bloom. The court held that evidence is relevant to consider the effect of detachments in the past on the district in the future. The court in Bloom found there had been four previous detachments and the conditions resulting from those detachments were being used to promote the present detachment.

Testimony of Mrs. Hannoy and comments of counsel during the hearing indicated there were two parcels referred to as the Nottke tract and the Elk Grove Village tract which have been disconnected. The testimony is not very enlightening but indicates the disconnection must have occurred “years ago.” In view of the limited evidence offered as to these two prior disconnections, as well as a lack of testimony reflecting the loss of revenue, we find that those two former disconnections have no controlling effect with reference to the present disconnections.

The court in Board of Education v. County Board of School Trustees, 77 Ill.App.2d 368, 222 N.E.2d 343, said:

“Economic reality must cause us to observe that this statutory framework can well permit of nibbling away at territory, taking more in the aggregate than would or could be permitted at any one time. The dilemma * * * must be resolved in a legislative, not a judicial, forum.” (77 Ill.App.2d at 373.)

The record is silent on the question as to whether the two prior disconnections were used in any way to promote the present disconnections. In any event, based on Board of Education v. County Board of School Trustees, there was not a sufficient history of disconnections in the instant case to prevent the present disconnections.

The court must examine each annexation or detachment proceedings in the light of the facts existing at that time, and for that purpose it is impermissible to speculate as to the effect of future detachments. (Board of Education v. Scott.) We can neither anticipate nor project the conditions of the library district at some future time when another disconnection proceedings may or may not be instituted.

We are cognizant of the principle which requires us to examine the record before us and to determine whether the evidence justifies the judgment. (Friedman Electric Co. v. St. Clair County Housing Authority, 23 Ill.App.2d 16, 161 N.E.2d 473.) The findings of the able trial judge should not be disturbed unless we conclude the findings reached by him and the result were manifestly against the weight of evidence. (Reese v. Melahn, 53 Ill.2d 508, 292 N.E.2d 375.) We feel the trial court’s finding that the disconnections of the two parcels "will and would impair” the ability of the Wood Dale Library District to render fully adequate library services and the court’s judgment order granting Wood Dale’s petitions and thus denying the disconnections of the parcels are against the manifest weight of the evidence.

The judgment appealed from is reversed. The cause is remanded with directions to enter judgment denying the petitions of the Wood Dale Public Library District.

Judgment reversed and cause remanded with directions.

A. SCOTT, P. J., and DIXON, J., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    Gustave Wanner, Plaintiff-Appellee, v. Harry Alfred Keenan, Defendant-Appellant.
    (No. 73-319;
    Second District
    September 27, 1974.

      Rehearing denied October 23, 1974.

      A. E. Sohn, of Chicago, for appeHant.
    David A. Decker, of Waukegan, for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

As the result of an auto collision, plaintiff sued for damages caused by defendant Keenan’s negligence and by the acts of one Kramer, d/b/a Echo Lake Inn, in selling alcoholic beverages to defendant. At the close of evidence, the trial court directed a verdict against defendant on the issue of liability. The jury found Kramer not guilty and assessed damages against defendant in the sum of $17,500.

Defendant appeals contending that reversible error occurred when the court (1) directed a verdict against him, (2) allowed plaintiff, in rebuttal argument, to make improper and prejudicial remarks, (3) improperly instructed the jury, (4) failed to admit all photographs of the accident scene, and (5) denied his motion to correct the record. Defendant also claims that damages awarded are excessive.

After spending a misty winter afternoon drinking and conversing with another patron at the Echo Lake Inn, defendant, at about 4:30 or 5 P.M., drove in a southerly direction along Route 59. As he approached the intersection of Route 14, he slowed to a speed of 10 to 15 m.p.h., noticed the traffic light turn green for his direction and observed a stationary car, its left turn signal flashing, in the inner northbound lane. For the most part, defendant’s view of the northbound curb lane of Route 59 was obstructed by that vehicle. Without stopping, defendant made a left turn onto Route 14. Plaintiffs car, being driven by his son, simultaneously approached tire intersection from the south in the curb lane of Route 59, traveling at a speed of approximately 25 m.p.h. Plaintiff was in the front passenger’s seat, his wife in the rear. When about 6' from the intersection, plaintiff noticed defendant’s car entering their path; he shouted to his son to “look out” as the son applied the brakes and swerved in an attempt to avoid a collision. In the southeast quadrant of the intersection, plaintiffs car struck the right front fender of defendant’s car and, on impact plaintiff’s head struck the right visor.

As a result of the occurrence, defendant pled guilty to the charge of reckless driving.

Defendant claims that the question of his negligence and that of plaintiff’s contributory negligence were matters to be resolved by the jury and argues that the trial court erred by directing a verdict on the issue of his liability. That argument, however, cannot survive the test of the Pedrick rule whereby a trial court may properly direct a verdict if the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510 (1967).

Concerning the issue of defendant’s negligence, his duty of ordinary care in making a left turn across oncoming traffic with the right of way is to ascertain whether or not he has a safe interval to make the turn, and to yield to oncoming traffic which is so close as to constitute an immediate hazard. (Ill. Rev. Stat. 1971, ch. 95Vz, § 11 — 902.) The evidence, when viewed in its aspects most favorable to the defendant, established (by defendants own admission) that his view of the curb lane was obstructed by a stationary car in the approaching center lane, that he could see only a short distance in the curb lane due to this obstruction, that in spite of these facts he proceeded to make his left turn without stopping to ascertain whether there was a safe interval in which to proceed, that he had had 4 or 5 shots of whiskey and 2 12-ounce bottles of beer at the tavern, that he felt a little drowsy but “all right,” and that he pled guilty to reckless driving. After the impact, defendant continued through the intersection a little way before he got out of his auto to look at the damage.

He testified that he felt dazed and wondered what hit him. A police officer testified that when he arrived on the scene, he asked defendant to pull his car to the end of a driveway; that defendant drove his car on the lawn; that he observed a heavy odor of alcohol coming from Mr. Keenan; that defendant could not find his identification and that when getting out of the car, defendant stumbled and could not walk on his own. The officer drove defendant to the police station where he conducted visual tests on the defendant; he testified that, in his opinion, defendant was under the influence of intoxicating liquor. Defendant denied having Rouble finding his identification or having driven on a lawn. He also testified that he was not physically hurt in the accident and that he was in control of his physical and mental faculties.

Under these facts, we find the evidence of defendant’s negligence so overwhelming that no contrary verdict could ever stand.

Regarding the question of plaintiff’s contributory negligence, defendant argues that there was evidence of plaintiff’s failure to exercise ordinary care for his own safety, that there was evidence which indicated the driver was negligent and that such negligence is imputable to the plaintiff as an owner-passenger. When viewed in its aspects most favorable to the defendant, evidence shows that plaintiff, upon recognizing the immediate hazard, shouted a caution to the driver, and that the driver, traveling at a slow rate of speed, had commenced to apply his brakes at the time of plaintiff’s warning and that he then swerved to avoid a collision. This evidence stands uncontradicted. Defendant claims that because, during cross-examination, plaintiff could not recall whether his headlights were on at the time of the collision and that therefore a question of fact existed as to plaintiff’s contributory negligence and the negligence of his driver. We disagree. No evidence was offered to show that plaintifFs lights were not burning. By itself, plaintiff’s lack of specific recollection on this point is insufficient to warrant a jury’s conclusion that plaintiff was guilty of contributory negligence or that his driver was negligent Having reached these conclusions, the doctrine of imputed negligence is not applicable. Again, in accordance with the Pedrick rule, the trial court properly directed a verdict against defendant on the issue of liability.

Defendant alleges reversible error occurred during plaintiffs rebuttal argument in that (a) plaintiff indicated a negative inference could be drawn from the fact that defendant had not called as a witness the tavern patron with whom he had conversed during that afternoon; (b) plaintiff appealed to the jury to consider sympathy as an element of damages; and (c) unwarranted personal attacks upon defense counsel were not stricken nor was the jury instructed to disregard the remarks.

Under the criteria of IPI — Civil 2d 5.01, it is true that no negative inference may be made from the failure to produce a witness if, as here, the witness was equally available to both parties. The record reveals, however, that the negative inference of the remark was directed against Kramer, not Keenan, and it did not therefore work to defendant’s prejudice.

The record belies defendant’s claim that plaintiff raised the element of sympathy. As plaintiff’s counsel clearly stated:

“[Defense counsel] says don’t give him any sympathy, and he mentioned the word sympathy about twenty times during the course of this trial. I’ve never mentioned the word sympathy. He’s had sympathy from his family and friends. We are not here seeking sympathy. We are here seeking our remedy under the law. We are asking for a just verdict.”

Inasmuch as the element of sympathy was initially injected into the case by defendant, plaintiff’s remarks were a fair rebuttal.

As to the personal attacks on defense counsel, we (despite defendant’s failure to object) examine whether the remarks prompted prejudiciality sufficient to deny the defendant a fair trial. (Belfield v. Coop, 8 Ill.2d 293, 311-13 (1956).) The trial judge is responsible for the justice of his judgments (Wozniak v. Segal, 56 Ill.2d 457, 460 (1974)) and has a duty to control the trial in order to insure a just result (City of Chicago v. Pridmore, 12 Ill.2d 447, 453 (1957)). A reviewing court will grant the trial judge every reasonable presumption that he has properly performed his duties and exercised his discretionary powers. An argument must be clearly improper and prejudicial in order for a reviewing court to reverse a verdict on these grounds. (Whiteside v. Evers, 13 Ill.App.3d 1089, 1090-91 (1973).) The record .here reveals that plaintiffs counsel characterized defense counsels as not being in good faith in their handling of the case. It was Kramer’s counsel who objected to these references and his objections were overruled by the trial court. We note that the trial court, by such overruling, by not injecting itself, sua sponte, into the argument, and by denying defendant’s post-trial motion, indicated its conclusion that the argument was a fair rebuttal. It must also be noted that after hearing the rebuttal argument, which was directed with equal force against counsel for both defendants, the jury found Kramer not guilty. We do not find, under the facts shown by the record, that the remarks prompted prejudice which would deny defendant a fair trial.

Defendant next alleges that the trial court erred in refusing to instruct the jury that plaintiff’s failure to call his wife or son as a witness raised a negative inference. Inasmuch as this instruction (IPI — Civil 2d 5.01) was refused after the trial court had already directed a verdict on defendant’s liability, we examine whether the refusal resulted in any prejudice to defendant on the issue of damages. A similar problem was considered in Hildebrand v. Baltimore sh O. R.R. Co., 41 Ill.App.2d 217, 227 (1963). There several of the plaintiff’s attending physicians had not been called and the court refused IPI — Civil 2d 5.01. In affirming the refusal, the court stated:

“* # * [N]o case is cited holding it reversible error alone not to give the instruction. To hold that it alone constitutes reversible error would impose upon the plaintiff, the task of producing every medical attendant who treated him or else be faced with the charge by the corut that the testimony would be adverse. This result would be undesirable and we believe the ti-ial court should have a wide discretion in giving of this instruction.”

We believe that on the issue of damages such reasoning should apply with equal force to close relatives of the plaintiff. We find that no prejudice resulted to defendant and hold that the trial court was correct in refusing the instruction.

Defendant claims error in the fact that over his objection a modified version of IPI — Civil 2d 41.03 was given. It is specifically noted that this instruction was tendered by Kramer, and not plaintiff. As given, the instruction read:

“Although there is more than one defendant in this action, it does not follow from that fact that although defendant Harry Alfred Keenan is liable, defendant Frank Kramer is also liable. Defendant Frank Kramer is entitled to a fair consideration of his own defense. Defendant Frank Kramer is not to be prejudiced by the fact that the court has directed that you find against Harry Alfred Keenan. The instructions govern the case as to each defendant, insofar as: they are applicable to him, to the same effect as if he were the only defendant in the action, and regardless of whether reference.is made to defendant or defendants, in the singular or plural form. You will decide each defendant’s case separately as if each were a separate lawsuit.”

The “Notes on Use” for the above instruction explain that it should be given in cases where the same issue and questions of law are applicable to two or more defendants and that its purpose is to avoid repetitive instructions. Here, the issues and questions of law concerning each defendant were different, but we believe that a reading of this instruction served a proper purpose. It clearly and unequivocally removed from the jurors any doubt as to the effect that a directed verdict against one defendant may have on their judgment concerning the other defendant, and it instructed them to consider the case fairly and without prejudice. Under the circumstances, we find no error in the giving of this instruction.

Defendant maintains that the trial court erred in refusing to admit two of six photographs of the accident scene. Any probative value in these photographs concerned the issue of liability. Having examined the photos, we find them cumulative in nature and of no bearing upon the directed verdict on liability. The trial court was correct in excluding them from evidence.

It is argued that the trial court erred in denying defendant’s motion to correct certain portions of the transcript. We have examined these points and find that, even if allowed, the corrections would have had no bearing on the issues presented for review.

The final assignment of error is that the jury’s award of damages was excessive, unreasonable and entirely unsupported by the evidence. The amount of damages is an issue of fact for the jury and that finding will not be altered on review unless it is so excessive as to denote that it was influenced by passion or prejudice. The test of excessiveness, however, is not solely a comparison between the verdict and special damages. Each verdict is examined with deference to the determination of the jury and the injury involved. Lau v. West Towns Bus Co., 16 Ill.2d 442, 451-53 (1959); McKasson v. Zimmer Manufacturing Co., 12 Ill.App.3d 429, 440-41 (1973).

Evidence revealed that immediately after impact plaintiff began to experience pain in his neck, arms, hands and fingers; that after a stop at the police station, he was taken by his son to Columbus Hospital in Chicago, where he remained for a week under the care of his family physician. He was placed in neck traction, given diathermy treatment, wore a neck collar and was given medication for pain. His condition stabilized in April of 1972. At the time of trial, it was evidenced that he had lost control in his left hand and the last three fingers of his right hand due to numbness, that it had become awkward for him to use his hands and that this posed a daily problem which he did not have before the accident. Plaintiff also suffers from pain in the neck once or twice a week.

During a month in 1961, plaintiff had been hospitalized and treated by the same physician as a result of pain radiating from his- neck to his right hand. The ailment was diagnosed as degenerative osteoarthritis of the cervical spine and radiculitis. Upon his release from the hospital, plaintiff had no further complaints. His condition was diagnosed as stable, his ailment, which can exist without pain, being part of the aging process but that trauma could disturb the stable condition. Plaintiff’s doctor was of the opinion, based on a reasonable degree of medical certainty, that tire injury received in the auto accident aggravated the pre-existing condition, that the blow to the head was the cause of the numbness and pain, and that the condition was permanent. Defendant presented no expert medical testimony.

This evidence, all uncontroverted, was sufficient to support the jury’s verdict which, under the circumstances, is not excessive.

Judgment affirmed.

GUILD and RECHENMACHER, JJ., concur.


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Walter Harrington, Jr., Defendant-Appellant.
    (No. 73-93;
    Second District
    September 24, 1974.

      t William E. Schirger and Jerrold R. Beger, of Schirmer, Schirger, Graff & Beger; of Rockford, for appellant.
    ' Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Edward Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

After a jury trial, defendant was convicted of the voluntary manslaughter of his wife and found not guilty of her murder. He was also found guilty of aggravated battery and not guilty of the attempted murder of one George Morehead. Defendant was sentenced to concurrent terms of 5-20 years in the penitentiary for manslaughter and 3-5 years in the penitentiary for aggravated battery. He appeals, contending that he was not proven sane beyond a reasonable doubt and that prejudicial closing argument by the prosecutor deprived him of a fair trial.

The charges arose out of a shooting on March 3, 1972, at the apartment of George Morehead’s sister. It is undisputed that defendant came up tire back stairs of the apartment at approximately 10 P.M., shot at the doorknob with a .22-caliber pump rifle, kicked the door in, and entered the apartment where he found his wife, his small son, and Morehead. He fired until his gun was empty, killing his wife and wounding Morehead. He kicked Morehead several times in the face, took his son and returned by car to a friend’s home where he called his mother-in-law and then the police.

At trial, defendant sought to prove that he fired in self-defense and also offered the defense of insanity. (Ill. Rev. Stat. 1971, ch. 38, par. 6— 2(a).) On appeal defendant does not raise the issue of self-defense, but claims that he was not proven sane beyond a reasonable doubt and that the prosecutor made prejudicial remarks in closing argument.

Defendant first argues that the testimony of two psychiatrists that defendant was not criminally responsible for his conduct at the time of the shootings was sufficient to raise a reasonable doubt as to his sanity; and that the testimony was not impeached by the lay witnesses offered by the State in rebuttal.

Dr. J. G. Graybill, a psychiatrist, testified for the defense. He stated that he first met defendant on April 26, 1972, saw him four times in all, and examined a report of a psychologist to whom he referred defendant. Dr. Graybill related defendant’s history substantially in accordance with defendant’s own testimony at the trial. Defendant was 22 years old at the time of the trial; was bom in Mississippi and had 16 brothers and sisters and half-brothers and half-sisters; and grew up in Waterloo, Iowa, where he excelled academically and in sports in high school. He also met his wife there and went together all throughout high school with her. After high school they got married, and defendant went to Wartburg College on a football scholarship. His second year in college his wife became pregnant and because of complications with the baby, the defendant’s wife had to stop her work and the defendant had to quit school and get a job. They got deeply in debt, defendant was laid off and creditors were bothering them. They then moved to Rockford where defendant found a job with the Chrysler plant. He bought furniture on credit, but then injured his knee and was hospitalized for surgery.

On the basis of his interviews with defendant, Dr. Graybill learned that defendant considered himself almost ugly in grade school; that defendant thought attainment in other fields was necessary for him to compensate; and that defendant’s wife emphasized her need for more luxurious surroundings causing defendant to purchase on credit. At the time defendant was hospitalized just prior to the Christmas before the shooting, defendant heard that Iris wife was carrying on an affair with George Morehead, but at first refused to believe this. When he came out of the hospital he confronted his wife who had first denied, but then admitted that she had been seeing George Morehead. This affected him emotionally. He did not believe in divorce and tried to discuss the situation with his wife and all concerned. His wife was undecided and put the defendant out of the house, but defendant could not stay away from his wife and son. About this time defendant filed bankruptcy. He was harassed by George Morehead who, defendant’s friends had told him, was armed and intended to do him harm. Defendant was informed that Morehead was saying threatening things about him and on one occasion was followed by Morehead in a car.

On March 3, defendant borrowed $5 from his wife to play pool and drink beer and his wife told him she was going shopping. Because it was snowing defendant became worried about her absence when she did not return. He borrowed a car to look for her and because he knew George Morehead didn’t live far from where he was going and that Morehead had threatened to shoot him, defendant got his rifle. Defendant testified that he didn’t remember anything following the shooting incident until he ran into a pole with his son in the car; then he gradually remembered the incident. However, in a statement made by defendant to police which was introduced into evidence, defendant failed to indicate a loss of memory but rather stated that when he saw More-head and his wife together he flew into a rage.

Dr. Graybill further testified that the defendant in relating the incident of the shooting was extremely self-condemning. This caused the doctor to diagnose his condition as severe depression, to change his medication, and to inform the jail of possible suicide.

The doctor gave an opinion that on March 3, based on defendant’s history and the clinical examination concurred in by the psychological examination, the defendant lacked the capacity to appreciate the criminality of his acts or to conform his behavior to the requirements of the law. The doctor referred to the March 3 incident as an acute psychotic episode or an acute rupture of the ego functions. He stated that psychiatrically the ego is that function which permits an individual to perceive reality and react appropriately to the realistic situation. If an individual is overburdened by stress and is unable to defend himself against this stress he retreats to a lower level and loses contact with reality which may result in an assaultive or physical violence. When his hemeostasis balance is regained the individual may return to a relatively normal pattern of action; ego rupture may be very temporary with prompt restoration of normal function. The doctor stated that ego rupture is an extremely common occurrence. He concluded that defendant had been put through a succession of stresses and the night of March 3 was the final stress which caused the defendant to totally break from reality for a brief period.

On cross-examination, the doctor stated that the facts which defendant had told him were not otherwise verified so that the d:agnosis was dependent upon the truth of the facts related to him by defendant. The doctor characterized defendant’s actions as stemming from a mental disease, but stated that defendant manifested no prior serious symptoms of a mental disease. When asked if defendant were weak in ego strength, the doctor replied that the defendant is very vulnerable to protracted stress “as we all are,” and that prior to the shooting incident defendant’s ego strength was being eroded by the constant stress in which he was placed. When questions as to Dr. Meninger’s five common threads in cases of episodic discontrol as being present in defendant’s case, the doctor gave negative, equivocal or uncertain answers on all five. The doctor also answered that if two 250-pound policemen had been present when defendant entered Morehead’s apartment, they might have acted as sufficient control to prevent defendant from shooting.

Dr. Carl Hamann, a psychiatrist, also testified for the defense. He offered his opinion from his find'ngs and the history of the defendant that on tire evening of March 3, 1972, the defendant was probably suffering, or at least defendant’s behavior was consistent with, an acute reactive psychotic episode and that it was conceivable, in a reasonable degree of accuracy, that defendant was suffering from an acute episodic reactive depression or psychosis which negated his. criminal responsibility (as that term is defined in the Criminal Code). .

When cross-examination was directed to his use of the term “conceivable," the doctor said it was more probable than not probable that defendant was not criminally responsible. He stated that an acute reactive psychotic episode is characterized by loss of the control of an individual, reality is not tested in its usual way, one’s judgment is impaired, and one does not react or behave in the usual controlled manner. The episode could vary from a short time to a prolonged period of time, and people are prone to episodes such as defendant exhibited who have altered ego structures and lots of other personality deficits. The defendant manifested an early history of ego weakness and problems, but there was no evidence of a history of psychotic depression, activities, or episodes prior to March 3 that the doctor knew of from the defendant. The doctor explained defendant’s episode was caused by a crescendo of many life-threatening events.

The doctor stated that his diagnosis was consistent with the behavior of the defendant both before and after the shooting based on what he had obtained in the way óf case history from the defendant and also based on observing the defendant and reading between the lines. At the time the doctor examined the defendant, some weeks after the event of March 3, the defendant was in a deep suicidal depression. When asked if what happened was a case of someone violently losing his temper, the doctor said that part of one’s behavior in a disorganized fashion could be described in a term of anger, or it also could be described in many other terms.

A detective, Charles Jackson, testified for the prosecution that when he answered the call to go to the apartment of a Jesse O’Neil, defendant was holding his son on his lap and a gun was on a bed near where he was sitting. No attempt was made to hide the gun and the defendant indicated that the gun was the one involved. In the squad car the defendant asked, “Are they dead yet?” When informed at police headquarters of his wife’s death, the defendant broke down and cried for half an hour.

George Krebs, a detective, testified for the State that in escorting defendant to headquarters, the defendant stated, “If only she had stayed away from me, I wouldn’t have done this.” The witness testified that when he saw the defendant on March 3, 1972, from about 10:30 P.M., the defendant was coherent, calm, slightly nervous, had full understanding where he was and what he was doing and good recall in detail. The witness stated that some of his duties in the past 6 years involved experiences with some 12 to 14 people a year with mental problems. He expressed an opinion that when he saw the defendant, the defendant was not suffering from a mental disease or defect which would make him incapable of appreciating the criminality of his conduct or conforming his conduct to the requirements of law.

William Francis, a policeman, testified that he was with the defendant about 20 minutes shortly after defendant called about the shooting. He had 13 years of experience with persons with mental problems to the extent of about 10 such people a year. Defendant appeared calm, answered intelligently, his thoughts did not stray and he appeared normal. In the witness’ opinion the defendant did not appear to be suffering from a mental disease or defect to tire extent that he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

Section 6 — 2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par-. 6 — 2(a)) provides:

“Insanity, (a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.”

All men are presumed to be sane. (People v. Smothers (1973), 55 Ill.2d 172, 174; People v. Arnold (1974), 17 Ill.App.3d 1043, 1049.) Once the defense introduces evidence of insanity, the presumption of the accused’s sanity no longer prevails and the State must prove beyond a reasonable doubt that at the time of committing the crime charged, the accused was legally sane. People v. Hawkins (1972), 53 Ill.2d 181, 186.

The State, however, is not required to introduce explicit opinion testimony of the defendant’s sanity in order to satisfy its burden of proof, but may satisfy its burden by other facts in evidence and by the opinion of nonexpert witnesses as to an individual’s sanity based upon personal observations. (People v. Smothers, 55 Ill.2d 172, 174; People v. Arnold, 17 Ill.App.3d 1043, 1049.) The fact that there is no evidence of either prior mental treatment or prior irrational conduct is also of importance. People v. Smothers, 55 Ill.2d 172, 175.

The defendant contends that the State’s rebuttal witnesses did not know the defendant prior to the offenses, but only through brief contact afterward; that the lay witnesses did not testify as to defendant’s sanity at the time of the offenses and therefore did not contradict or impeach the testimony of the expert witnesses on the issue of insanity.

On the whole record before us, however, the jury could properly have found that defendant’s psychotic episode was a matter of anger and rage which resulted in violence stemming from the provocations he was facing. The jury was not required to accept as controlling the psychiatrists’ conclusion that what they characterized as a reactive psychotic episode or ego rupture was a mental disease or defect which would avoid criminal responsibility within the meaning of section 6 — 2(a) of the Criminal Code. (Ill. Rev. Stat. 1971, eh. 38, par. 6 — 2(a).) When asked if what happened with defendant was a case of someone violently losing his temper, Dr. Hamann said his behavior could be in part described in terms of anger as well as in many other terms. Dr. Graybill’s description of ego rupture or loss of ability to perceive and react realistically and the consequent retreat to a lower level of assaultive or physical violence is consistent with anger or rage. Dr. Graybill noted that the episode may be veiy temporary and that it is an extremely common occurrence. Defendant’s own statement to police characterized his conduct as that of rage.

In People v. Miller (1965), 33 Ill.2d 439, 443, psychiatric testimony which indicated that defendant had a personality disorder, formed unrealistic judgments and was unable to evaluate situations that faced him was held to fall far short of establishing a mental disease or mental defect within the meaning of the statute. Similarly in People v. Lono (1973), 11 Ill.App.3d 443, 449, the court found that even though the State offered no rebuttal evidence, the record justified the court’s conclusion that defendant was sane. The court noted that evidence that a defendant has been disturbed in mind and excited does not justify reasonable doubt of sanity; nor does evidence of idiosyncratic behavior, irresponsible conduct, personality disorders, unrealistic judgments, the commission of atrocious crimes, or an alleged lapse of memory which is otherwise not related to insanity. See also People v. Smothers, 55 Ill.2d 172, 175; People v. Moore (174), 19 Ill.App.3d 334, 339-40; People v. Ureste (1972), 7 Ill.App.3d 545, 550-551.

Under aH of the circumstances in evidence we are not justified in overturning the jury’s finding of sanity which is not manifestly against the weight of the evidence. See People v. Ford (1968), 39 Ill.2d 318, 321; People v. Anderson (1968), 104 Ill.App.2d 47, 54.

We must then reach defendant’s further contention that remarks of the prosecutor in closing argument were a gross misrepresentation of the record and deprived the defendant of a fair and impartial trial.

In his closing argument defense counsel stated that the only evidence bearing on defendant’s sanity was the testimony of the two psychiatrists and the two police officers. He then asked:

“Would you want your life to depend upon the type of proof which the State has produced on the issue of insanity?
Why hasn’t the State come in this courtroom with a psychologist or psychiatrist?”

The State then objected, and the court ruled that the prosecutor could respond in argument. Defense counsel continued:

“Why haven’t they brought in someone to say that Walter Harrington is perfectly sane? Why haven’t they? The only reason why they have not done so is because they could not come up with any contradictory testimony.
# # #
What testimony do we have other than the testimony of the two doctors? How can you say in this case there is no reasonable doubt concerning Walter Harrington’s sanity when the only testimony is the testimony by the two psychiatrists and the State has produced no rebuttal testimony?”

Counsel shortly thereafter closed his argument and moments later the State’s Attorney in the rebuttal argument said:

“He says why have we not come in with a psychologist or psychiatrist. Well, it wasn’t until the very morning of the trial, after I made a motion to the court—
[Defense Counsel]: Your honor I am going to object * * *,
[The Court]: He may respond to the question raised in your argument within reason.
[State’s Attorney]: It wasn’t until the morning of the trial, when I made a motion to compel the defendant to tell me what his defense was that I knew he was, in fact, going with insanity. Under the rules of discovery he originally filed, back I think about three months ago, a motion indicating his defense would be compulsion, necessity, self-defense and insanity, leaving me to determine which one it was. And there are other reasons as well.”

The State argues that its comment fell within the scope of fan-rebuttal in answer to the challenge made in defense counsel’s closing argument. (See People v. Smith (1962), 24 Ill.2d 198, 200; People v. Lewis (1962), 25 Ill.2d 442, 446.) We would agree that in this case the prosecutor could well respond to defense counsel’s invitation for an explanation for the State’s failure to bring in a psychologist or a psychiatrist in rebuttal. But the further inquiry must be made of whether the prosecutor gave a proper response, one that was a legitimate statement in answer to the defense argument. See People v. Dukes (1957), 12 Ill.2d 334, 342; see also People v. Helm (1973), 9 Ill.App.3d 143, 149-150; People v. Hopkins (1970), 124 Ill.App.2d 415, 419-420; People v. Mwathery (1968), 103 Ill.App.2d 114, 118-121.

An examination of the record reveals that on June 9, 1972, the defendant answered the State’s motion for disclosure stating:

“Defendant wishes to rely upon the defense of Chapter 38, Article 4 — 3 mental state and 6 — 2, 7 — 13, 7 — 11, 7 — 1, 7 — 2 and 7 — 3 from Illinois Revised Statutes and subject to the general defenses as are necessary at the time of the trial.”

On June 15, 1972, defense counsel informed the court and the State of a letter from Dr. Graybill stating that it was highly likely defendant could not cooperate in his defense and that he suffers from psychotic depression. A competency examination was requested and defense counsel informed the court that one of the defenses was going to be insanity. The State joined in the motion for a competency hearing and also filed a motion to compel defendant to submit to a psychiatric examination for the purpose of determining defendant’s sanity as defined in section 6 — 2 of the Criminal Code, stating:

“The facts and circumstances of the crime with which the defendant is charged justify a reasonable belief that the defense of insanity may be raised by the said defendant, WALTER HARRINGTON, JR., at trial.”

The court granted the motions and appointed Dr. Hamann and a Dr. Henry to make the examination as to defendant’s sanity and appointed Dr. Graybill and a Dr. Hammal to conduct the competency examination. Reports were filed showing defendant competent to stand trial.

Defendant’s list of witnesses filed September 21, 1972, included Drs. Graybill and Hamann. Further, at the pre-trial conference, the State’s Attorney asked for more particulars of a defense and defense counsel affirmatively stated that he was using insanity. The trial thereafter commenced on September 25, 1972, and continued through September 29, 1972.

Given the background of the case of which the jury was ignorant, we must conclude that the prosecutor’s remark constituted an incorrect and therefore improper response to defense counsel’s comments on the lack of psychiatric testimony to support the State’s case. The natural import of the prosecutor’s remark would lead the jury to believe that defense counsel’s reliance upon the defense of insanity at trial was a late-blooming strategy which took the State by surprise thereby explaining the prosecutor’s failure to present expert rebuttal testimony. The true state of the record which was known to the prosecutor but unknown to the jury supported practically the opposite conclusion. The prosecutor knew or should have known well before trial that defense counsel intended to use and probably would use the insanity defense. The prosecutor had sufficient time to arrange for expert testimony on behalf of the State in rebuttal at defendant’s trial, if he so desired, and therefore misled the jury in answering defense counsel’s comment on the absence of expert testimony by the State.

Although we do not sanction the method chosen by the prosecutor to answer defense counsel’s queries, we do not thereby conclude that a new trial is warranted. The remark complained of constituted but one impropriety in an extended trial which filled three volumes of transcript. (Cf. Donnelly v. DeChristoforo (1974), 40 L.Ed.2d 431, 438, 94 S.Ct. 1868.) The prosecutor’s statement, while misleading, was not totally so, since the prosecutor pointed out that defendant did file 3 months before trial an answer to discovery indicating an intention to rely on the insanity defense among others.

Defendant contends that the prosecutor’s remark implied that defense counsel was resorting to trickery and attempting to confuse the issues. No explicit statements accusing defense counsel of deception were made, and as defense counsel states, the characterization would have to arise by implication. We do not deem the remarks here to have been of sufficient magnitude to have substantially prejudiced the defendant. No inflammatory language was used, and as is evident from the report of the trial proceedings, the jury must have been aware that defense counsel was making a conscientious attempt to present the defense of insanity. The cases cited by defendant to sustain his claim of prejudice (People v. Berry (1960), 18 Ill.2d 453; People v. Freedman (1954), 4 Ill.2d 414; People v. Polenik (1950), 407 Ill. 337) all involve remarks which compare neither in scope nor degree to the remark here under consideration. See People v. Woodley (1965), 57 Ill.App.2d 380, 384-386.

Finally, it is our considered opinion that had the error complained of been omitted the jury could not have returned a verdict more favorable to the defendant. The jury acknowledged its sympathy with defendant’s position by returning verdicts of voluntary manslaughter and aggravated battery instead of murder and attempted murder in circumstances which could have easily justified convictions on the latter more serious offenses. (Compare, e.g., People v. Arnold (1974), 17 Ill.App.3d 1043.) The motive of the crimes was obvious, one which readily forms an evidentiary basis for murder and voluntary manslaughter convictions. The defendant lacked any prior record of aberrational behavior, and his behavior after the crime was also normal according to rebuttal testimony. Even the psychiatrist’s description of episodic discontrol and ego rupture supported a finding of anger, and defendant’s statement to police characterized his own conduct in shooting his wife and Morehead as one of rage when he saw them together.

■ Our research has uncovered no cases which have found insanity or even considered the case close on the issue of insanity where, as here, the nature and motive of the crime are not unusual and the defendant has manifested no aberrational behavior either before or after the crime. As we have pointed out, precedents of this State require a stronger showing than was made here to raise a reasonable doubt that defendant was suffering from a mental disease or defect sufficient to avoid criminal responsibility within the meaning of section 6 — 2 of the Criminal Code; and it is not reasonable to assume that the properly instructed jury would have been prejudiced by the prosecutor’s remark so as to affect the verdict. The improper response by the prosecutor did not constitute reversible error.

The defendant has also complained that the following comment by the prosecutor in closing argument was improper and prejudicial:

“Ladies and gentlemen, we hear complaints today about courts and the law and crimes and the degree of permissiveness that is involved in all areas of our society. You are here in this case. You are part of this court structure. You represent the conscience of the community, you and each of you do. You may become part of the permissiveness of this society by saying that this man was temporarily insane and finding him not guilty or you may enforce the law as it ought to be enforced by finding him guilty of murder.”

No objection was made to the argument.

Defendant contends this remark falls beyond the bounds of urging fearless administration of the law; that it equates a finding of temporary insanity with permissiveness in our society; that the prosecutor was attempting to play upon the emotions and fears of the jury; that it went beyond the record; and that it was prejudicial because it sought to sustain the State’s case at its weakest point through means that could not have aided the jury in weighing and evaluating the evidence.

Defendant cites People v. Moore (1956), 9 Ill.2d 224, but there the argument went far beyond what we have here, and the court there did not specifically condemn the part of the argument which defendant sets out in his brief and claims supports his position in this case. The other case cited by defendant is even less support for his position. See People v. Halteman (1957), 10 Ill.2d 74.

Defendant concedes that the prosecutor may dwell on the evil results of crime and urge fearless administration of the law. (People v. Ostrand (1966), 35 Ill.2d 520; People v. Halteman, 10 Ill.2d 74.) In the instant case the prosecutor’s comment was in the category of urging fearless administration of the law, i.e., that it would be permissiveness in this case to find defendant temporarily insane. Although it would have been better if the prosecutor had made it clear that the permissiveness would stem from the lack of circumstances in this case justifying temporary insanity rather than just the general permissiveness he referred to, in the absence of objection we will not find plain error resulting in prejudice. (People v. Smothers, 55 Ill.2d 172, 176; People v. Pecora (1969), 107 Ill.App.2d 283; People v. Count (1969), 106 Ill.App.2d 258.) Moreover, it should be noted that the prosecutor called for a murder conviction in the objected to argument and there were facts which could have readily supported such a conviction, but the jury chose to return lesser, manslaughter and aggravated battery, verdicts. It would thus appear from the record that the jury was not unduly influenced by the prosecutor’s argument.

The irregularities complained of could not reasonably have affected the result. (See People v. Berry, 18 Ill.2d 453, 460.) The judgment is therefore affirmed.

Affirmed.

T. MORAN, P. J., and RECHENMACHER, J., concur.

       The prosecutor indicated these five common threads were: a) faulty control over aggressive impulses; b) severe degree of sexual inhibition; c) emotional deprivation and parental violence in early life; d) loneliness, having only shallow relationships with others; e) transient-moods of depression.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert C. Burch, Jr., Defendant-Appellant.
    (No. 73-101;
    Second District
    September 25, 1974.

      Frank Ariano, of Elgin, for appellant.

      Gerry Dondanville, State’s Attorney, of Geneva (Clarence W. Wittenstrom, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Defendant was convicted in a jury trial of the offenses of rape, conspiracy and aggravated battery. He was sentenced to 4-15 years for rape, 1-5 years for aggravated battery, and 1-5 years for conspiracy, all to run concurrently.

He appeals, contending that he was not proven guilty beyond a reasonable doubt; that various errors in the admission of testimony, in closing argument and in the giving of an Allen type instruction prevented a fair trial; and that he may not be convicted of both rape and the conspiracy to commit that rape.

We have recently reviewed the case of an indicted co-defendant, William Casner, who was separately tried. (See People v. Casner (1974), 20 Ill.App.3d 107.) The testimony of the prosecutrix and corroborating witnesses at this trial is essentially the same as in the Casner record and as stated in our opinion in Casner, and we will not repeat it here. In the trial below this defendant testified that he did not have intercourse with the prosecutrix; that only Casner got into the back seat with her, and that while Casner may have had sexual intercourse based on what the defendant heard in the car, no forcible intercourse even by Casner took place.

From our review of this record we conclude that the evidence is sufficient to sustain the conviction. The prosecutrix’s testimony was clear and convincing and was maintained in all substantial aspects under vigorous cross-examination. The forcible rape was corroborated by the testimony of a physician, photographic evidence and the testimony of the baby sitter who saw the victim immediately after the alleged offenses. Defendant’s explanation at trial to explain the prosecutrix’s injuries was inherently unbelievable and inadequate. On the whole record there was ample evidence to support the jury’s finding of guilt beyond a reasonable doubt.

We next consider defendant’s argument that trial errors were prejudicial.

Defendant contends first that reversible error was committed because the court on its own motion did not prohibit testimony that co-defendant Casner was convicted in a separate trial for the same offenses. Defendant claims that the prejudice of such testimony was accentuated by the prosecutor’s reference to Casner’s conviction in closing argument. Defendant argues that a judgment of conviction of a co-defendant in a severed trial is not competent proof on the issue of guilt in his own trial. The State responds that while the statement of the rule is generally true, it does not apply to a case in which there are accountability and conspiracy issues as here.

While defendant was testifying on his own behalf he was asked by his counsel if he knew where Casner was at the time of defendant’s trial, to which the defendant replied:

“A. Yes, I do. He is in the State Penitentiary.
Q. For what?
A. For exactly what he did.
Q. To [the prosecutrix]?
A. Yes.”

In closing argument the State’s Attorney referred to this questioning and asked whether it did not prove that the complaining witness’s story had been proven out if the co-defendant was in jail. The prosecutor also told the jury that they would receive an instruction involving accountability for another’s acts and that the jury should find defendant accountable even if some of the jury happened to believe that defendant did not have intercourse with the prosecutrix.

In closing argument defense counsel told the jury that there was no question in his mind but what the complaining witness was seriously harmed,

“But Casner is in the penitentiary right now for that crime * * *.

And it is not the same evidence here as it was in the Casner trial.” The prosecutor objected to this statement on the ground that there was nothing in the evidence to show anything different about the evidence presented in the two cases. The court then instructed the jury to try the case on the evidence they had heard in the court room at defendant’s trial.

Part of defendant’s trial strategy was to shift the blame on Casner. Defendant testified that Casner hit the prosecutrix and that he told Casner to stop it; that Casner was intoxicated somewhat; that it was only Casner who had intercourse with the prosecutrix; that defendant was in the front seat minding his own business; that it was Casner who threatened defendant when defendant said he was going to the police; and that it was Casner who fled. Faced with strong evidence that the prosecutrix was forcibly raped in the presence of Casner and defendent, shifting the blame to Casner, while not persuasive, was one of the few courses open to defendant’s counsel in an attempt to make a defense.

Under the modern cases, and in view of broadened accountability statutes, it is error to admit into evidence the conviction of a co-indictee, co-conspirator, co-defendant, or accomplice who was separately tried or who pleaded guilty. See Annot, 48 A.L.R.2d 1016 (1956). The rule, however, has little application in the particular circumstances of this case. The prosecutor did not introduce into trial the reference to Casner s conviction; it was elicited on direct examination of defendant by his own counsel as part of defense counsel’s trial strategy, and thereafter argued by defense counsel to the jury to concede that the prosecutrix had been seriously harmed and that Casner was in the penitentiary for having so harmed her. The prosecutor’s response therefore was invited, and defendant’s contention is without merit. People v. Burage (1961), 23 Ill.2d 280, 282-283.

Defendant also claims that it was prejudicial error for the trial judge to call Ivan A. Wemhoff as the court’s witness without a specific request by the prosecutor and over defendant’s objection; and that the error was compounded by limitation of the right of cross-examination by defense counsel.

Wemhoff was a polygraph expert who was hired by the defendant and listed as a defense witness. He was not called by the defense but was subpoenaed by the State as a rebuttal witness, apparently after he had refused to testify as a witness for the State without a subpoena. In a hearing before the judge, it was disclosed to the court that the witness was expected to prove an impeaching statement made after a polygraph examination by the defendant admitting that defendant had sexual intercourse with the prosecutrix, but claiming that the intercourse was voluntary. Defense counsel moved that the witness be precluded from so testifying on the ground that the Miranda warnings had not been given prior to the polygraph examination, and the court denied the motion. Defense counsel made no objection to Wemhoff being called as a court’s witness. The court asked a limited number of questions and tendered the witness for cross-examination by both parties. Under these circumstances the case of People v. Moriarity (1966), 33 Ill.2d 606, 615, cited by defendant does not support his position, and the failure specifically to object to Wemhoff testifying as a court’s witness waived the objection so that it cannot be urged on appeal. People v. Headrick (1965), 65 Ill.App.2d 169, 173.

Defendant’s contention that his counsel was unduly restricted in cross-examining the court’s witness Wemhoff likewise is without merit. Defense counsel sought to explain the circumstances of defendant’s impeaching statement by attempting to elicit from Wemhoff that the lie-detector results would show that the defendant had intercourse with the prosecutrix but that it was voluntary. Apparently defense counsel wanted to show that defendant, in order to comport his story with the examiner’s opinion, falsely told Wemhoff he had voluntary intercourse with the prosecutrix. Alternatively it appears that it was believed that the polygraph results would show defendant’s innocence. The facts sought to be elicited by defense counsel were in direct conflict with defendant’s own testimony that he did not have intercourse with the prosecutrix - and that he did not tell Wemhoff that he did. And the claim of voluntary intercourse could only be established by reference to polygraph results which defense counsel considered favorable on the issue but which were themselves inadmissible. See People v. Nicholls (1969), 42 Ill.2d 91, 97; People v. Zazzetta (1963), 27 Ill.2d 302.

Nor are we persuaded that defendant was improperly restricted in the examination of Wemhoff when defense counsel sought to inquire whether the prosecutrix had made impeaching statements to the polygraph examiner. As the State has pointed out, no foundation for such impeachment was ever laid during defendant’s extensive cross-examination of the prosecutrix. See People v. Rainford (1965), 58 Ill.App.2d 312, 317-318.

Defendant makes the further contention, however, that the State in fact brought out the results of the polygraph tests and that this amounted to reversible error. In laying a foundation for the impeaching statement made by defendant to Wemhoff, the prosecutor asked defendant in cross-examination whether defendant had ever told anybody that he had had intercourse with the complaining witness. The defendant replied:

“A No, I did not.
He told me that this is — this is what he got out of the test, that he did not think that I had forceably [sic] had sex with [the prosecutrix], And I told him that I had been told to come in there and tell the truth and that is exactly what I did and if I was telling the truth and it showed that I was lying there was nothing more I could say.
Q So he said you didn’t pass; right? Then you are saying that he said these things; is that right?
A He came in and told me that there was certain things that were on the test that were vague.”

No objection was made.

On re-direct examination, defense counsel proceeded to have identified three exhibits (which were never allowed into evidence) from John E. Reid & Associates, which counsel had defendant acknowledge were lie-detector-test people. It is at this point that Wemhoff was then called as a rebuttal witness and identified in response to the court’s questioning as a polygraph examiner for John E. Reid & Associates. Defense counsel sought to elicit statements from Wemhoff made to defendant concerning lie-detector tests which were given, but objection thereto was sustained. Defense counsel made an offer of proof on what the lie-detector results would show, then called the defendant in surrebuttal.

In the surrebuttal examination of the defendant, defense counsel elicited from defendant the fact that he went to the lie-detector people, that defendant had taken a prior lie-detector test, and that defendant was told by Wemhoff that he had failed the first test. Defense counsel sought to elicit other information about the tests, including the test results but objections thereto were again sustained. Defense counsel called Wemhoff as his witness and tried unsuccessfully to have the polygraph-test exhibits admitted into evidence. In its objections and closing arguments the State took the position that lie-detector results were not admissible. Defense counsel in his closing arguments stated that he had tried to have the lie-detector statements admitted into evidence but was prevented from doing so by the State’s objections.

It thus appears that the State was the initial offender in improperly pursuing and eliciting an answer that a lie-detector test had been taken and that the results were at least vague and possibly negative on some points. The defendant did not object to the State’s questions concerning lie-detector results. In fact, defense counsel sought to go extensively and with great persistence into the results of the lie-detector tests as well as the conversations which had surrounded them, and it was the prosecutor’s objections which prevented th:s line of inquiry.

As we have previously noted the results of lie-detector tests may not properly be admitted into evidence. (People v. Nicholls (1970), 44 Ill.2d 533, 539; People v. Zazzetta (1963), 27 Ill.2d 302.) The mere identification of a witness as a polygraph examiner in and of itself is not error. (People v. Flowers (1958), 14 Ill.2d 406, 413.) The fact that the record indicates that a defendant went to a crime laboratory for a lie test and talked to a lie-detector examiner with no presumption as to the results of the test has been held not to be a cause for reversal. (People v. Sammons (1959), 17 Ill.2d 316, 320.) It has been held that comments in argument that a witness at first “flunked” a lie-detector test and then told the truth is error, but not reversible error when stricken upon objection. People v. Martin (1965), 62 Ill.App.2d 203, 211-212. Compare People v. Hines (1967), 87 Ill.App.2d 283, 290.

Unlike the circumstances involved in the cited cases, however, a considerable amount of the polygraph-test results did go to the jury. There is little doubt that the information concerning the polygraph results which did get to the jury may have been prejudicial to the defendant since it indicated at least to some extent that defendant had failed the tests. The prejudice was compounded because defendant’s offer of proof, contrary to the impression which may have been left with the jury, showed that the examiner was of the opinion that the defendant may have had only voluntary and not forcible intercourse with the prosecutrix. If we were to rule on the effect upon the jury of the information which it received as to the lie-detector results without reference to who was responsible for the error, we would not be justified in applying the waiver rule; the issue would fall within the category of plain error under Supreme Court .Rule 615(a). (Ill. Rev. Stat. 1971, ch. 110A, par. 615(a).) Although .there are cases which hold that failure to object to otherwise inadmissible testimony or evidence of lie tests waives the objection upon review and no plain error is presented (e.g., Richardson v. Commonwealth (1969), 355 Mass. 112, 243 N.E.2d 801, 803; Marable v. State (1958), 203 Tenn. 440, 313 S.W.2d 451, 458-59; People v. Baker (1967), 7 Mich.App. 471, 152 N.W.2d 43, 46-47; Cook v. State (Tex.App. 1965), 388 S.W.2d 707, 709), other cases which we deem more persuasive under the facts of this case consider improper references too prejudicial to be waived by failure to object. State v. Varos (1961), 69 N.M. 19, 363 P.2d 629, 632; People v. Schiers (1971), 19 Cal.App.3d 102, 96 Cal. Rptr. 330, 338; State v. McDavitt (1972), 118 N.J. Super. 77, 286 A.2d 86, 87; State v. Hegel (1964), 9 Ohio App 2d 12, 222 N.E.2d 666, 668; see also Annot., 95 A.L.R.2d 819, 827-832 (1964).

In view of the whole record of this case, however, we conclude that justice does not require that we apply the plain error rule to reverse the cause. There exists clear and convincing proof of guilt beyond a reasonable doubt and the impact of the improper evidence was substantially due to the strategy of the defense. The most damaging references to the lie-detector results were elicited by defendant’s own counsel. The failure to object to the improper evidence of lie-detector-test results was not inadvertent or out of fear of focusing the jury’s attention to the matter, but rather was a conscious choice by defense counsel to pursue a definite strategy. In Pulakis v. State (Alaska 1970), 476 P.2d 474, 479-480, the court held that defendant waived any objection to the written report of the results of the polygraph examinations since his trial counsel’s strategy was to allow and not to exclude the polygraph evidence because counsel thought his client would be benefited more by the jury’s knowledge of his consent to be tested than he would be harmed by the results of the tests. The court noted that the plain error rule was inapplicable because it was a known right which was intelligently waived. We think similar considerations apply here. Defense counsel consciously chose the trial strategy of attempting to show as much of tire lie-detector results as possible, and to show defendant’s willingness to take the tests. Defendant thereby purposefully waived any objection he might have had and cannot now complain of plain error. See also Rank v. State (Alaska 1962), 373 P.2d 734, 736; State v. Chavez (1969), 80 N.M. 786, 461 P.2d 919, 921; Sheppard v. Maxwell (6th Cir. 1965), 346 F.2d 707, 732, rev'd on other grounds (1966), 384 U.S. 333, 16 L.Ed.2d 600, 86 S.Ct. 1507.

Defendant next contends that the court erred both in voir dire examination and in the written instruction to the jury in informing the jury on the requirement of a unanimous verdict.

People’s Instruction No. 4 (IPI — Civil No. 1.05 (1971)) read:

“Any verdict you reach must be unanimous. And in your deliberations you should examine the questions submitted with a proper regard and consideration for the opinions of each other. You should listen to each other’s arguments with an open mind, and you should make every reasonable effort to reach a verdict.”

The instruction is not objectionable under the standards set forth in People v. Prim, (1972), 53 Ill.2d 62, 76-7. It does not contain any heed the majority language nor does it inform the jury that if they fail to agree the case must be retried and that it is their duty to reach a verdict, language criticized in Prim. The instruction tells the jury that reasonable effort should be made to reach a verdict and the language used cannot fairly be characterized as coercive.

The voir dire examination of one of the jurors did contain erroneous statements, requesting a juror to ask herself such questions as “Is the majority right or am I right?” In light of repeated emphasis by defense counsel including a statement in closing argument that individual belief of guilt is necessary, and in view of People’s Instruction No. 4, any possible coercive effect of the voir dire questioning is deemed cured. Moreover, no objection was made to any of the matters here complained of. One who seeks in a reviewing court to avoid the waiver of defects in admonishments to the jury by reason of failure to object has the burden of establishing that the defects are substantial and resulted in denying a fair trial and justice to the defendant. (People v. Knox (1969), 116 Ill.App.2d 427, 434.) Defendant cannot sustain such a burden here.

We, therefore, affirm the judgment finding the defendant guilty of rape and aggravated battery. The conviction for conspiracy to commit rape, however, as the parties agree, is improper since one cannot be convicted of the inchoate offense and the principal offense arising from the same conduct. We have disposed of this identical issue in People v. Casner (1973), 20 Ill.App.3d 107. The conspiracy conviction is therefore reversed and the sentence entered on that conviction is hereby vacated. This result does not affect the judgment and conviction on the rape charge. See People v. Miller (1966), 74 Ill.App.2d 356, 359.

Affirmed in part, reversed in part.

T. MORAN, P. J., and RECHENMACHER, J., concur.