author: JUSTICE McNAMARA

text:
    GEOQUEST PRODUCTIONS, LTD., Plaintiff-Appellant, v. EMBASSY HOME ENTERTAINMENT, a/k/a Nelson Entertainment Incorporated, Defendant-Appellee.
    First District (6th Division)
    No. 1—91—1976
    Opinion filed April 24, 1992.

      Peter Flynn, P.C., and Peter C. Vilmos, both of Cherry & Flynn, of Chicago, for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (James R. Morrin and Jill A. Cuba, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Geoquest Productions (Geoquest), filed this breach of contract action against defendant, Embassy Home Entertainment, Inc. (Embassy), a videocassette distributor. Prior to trial, the trial court granted defendant’s in limine motion barring evidence of an alleged, prior oral promise guaranteeing minimum sales. On appeal, plaintiff contends that the trial court erred in granting defendant’s motion.

In 1985, Geoquest produced a murder mystery videocassette program entitled “The Gold Key” which it planned to market as a prize game. Geoquest envisioned that it would sell the film in video stores and award a $100,000 prize to the first purchaser of the videocassette who solved the mystery. Geoquest budgeted $70,000 for advertising and promotion of the film. After Geoquest substantially completed the film and the promotion materials, it contacted Embassy about distribution. Negotiations between the parties took place over a three-day period in July 1985 at defendant’s home office in Los Angeles. During this time, Richard Kutok, Geoquest’s president, met with the following Embassy agents: Reg Childs, president; Rand Bleimeister, vice-president of sales and marketing; Margaret Cleave, director of marketing; and Jess Wittenburg, senior vice-president and in-house attorney. The parties agreed that defendant would distribute the film and discussed the terms of the agreement. On July 26, 1985, Embassy forwarded to Geoquest a letter agreement for Embassy’s distribution of the film. The letter began as follows:

“We will in all likelihood submit a more formal contract later, but, in the meantime, I’d like to confirm our agreement regarding Embassy’s video distribution of THE GOLD KEY on the following terms: ***.”

Geoquest did not sign the July 26 letter agreement. Additional negotiations ensued, and on August 20, 1985, Embassy sent Geoquest a second letter which incorporated several changes. Under the “shortfall provision,” if the revenues from the film did not meet Embassy’s advertising expenditures, Geoquest would promptly pay Embassy the shortfall upon satisfactory proof of such expenditures. The document also revised the dates pertaining to the solicitation of orders and the start and end dates for the contest. This letter began as follows:

“I’ve revised the draft of July 26 along the lines you, I and Rand have been discussing. This letter can now serve to confirm our agreement regarding Embassy’s video distribution of THE GOLD KEY on the following terms: ***.”

Geoquest did not sign this letter agreement. After more negotiations, Embassy submitted the third version of the parties’ agreement to Geoquest, which Geoquest signed and returned on or about September 18, 1985. This version deleted the suggested retail price provision, established a minimum selling price for the film, limited Geoquest’s obligation to provide errors and omissions insurance, and shifted the responsibility to arrange for manufacture of the film from Geoquest to Embassy. This letter agreement, like the two prior agreements, contained the following language above the signature lines:

“If I’ve got the essential terms right, please indicate Geoquest’s agreement by signing and returning the enclosed copy. *** Until such time, if ever, that we execute a more formal agreement, this letter will serve to reflect the binding agreement between the parties.”

Pursuant to the letter agreement, on August 19 Embassy began to formally solicit orders from its distributors and to advertise and promote The Gold Key. By the December 23, 1985, cut-off date for sales, Embassy had sold only 5,700 copies of the film. After Embassy deducted from the sales revenues for returns, Geoquest received no sales revenues from Embassy.

Rand Bleimeister, Embassy’s vice-president of sales and marketing, testified at his deposition that he told plaintiff that “if we get lucky,” the film would sell between 75,000 and 100,000 copies, but that “if we get unlucky,” it might only sell 20,000. Bleimeister stated that such statement did not amount to a guarantee. He stated, however, that it was not unusual for Embassy to guarantee “a certain amount of income to the licensor.” Bleimeister testified that the August 20 letter contained the terms of the parties’ agreement, although he admitted that it did not indicate: the accounting period for the film sales; the percentage of revenues to be held as a reserve against returns; the ability of distributors to return unsold films; and a conflict of law provision.

In December 1986, plaintiff filed this breach of contract action against defendant. Count I of the third amended complaint alleged that the parties entered into a written contract for distribution of the film and that Embassy made an oral promise to sell 100,000 copies of the film as part of their agreement. Geoquest alleged that Embassy breached this oral promise. Count I also alleged that Geoquest altered its pricing structure based upon defendant’s oral promise to sell a minimum of 100,000 videocassettes. Count II alleged a breach of the August 20 written agreement.

Prior to trial, the trial court granted Embassy’s motion to bar parol evidence concerning the alleged oral promise. The court found the written agreement complete and unambiguous, and stated that if an oral contract existed, it was absorbed into the written agreement. Geoquest then voluntarily dismissed count II. Embassy filed a motion for summary judgment as to count I, on the ground that the trial court’s in limine ruling barred any evidence related to an alleged oral promise to sell 100,000 copies of the videocassette. The court then granted summary judgment in favor of defendant. Although plaintiff appeals from the summary judgment order pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301), the parties stipulated that the only issue on appeal would be whether the trial court properly granted the in limine motion. In this regard, the parties also stipulated that if the trial court improperly granted the in limine motion, then the summary judgment in defendant’s favor was also improper.

Under the parol evidence rule, extrinsic or parol evidence concerning a prior or contemporaneous agreement is not admissible to vary or contradict a fully integrated writing. (Commonwealth Eastern Mortgage Co. v. Vaughn (1989), 179 Ill. App. 3d 129, 534 N.E.2d 453; Johnson v. Flueckiger (1980), 81 Ill. App. 3d 623, 401 N.E.2d 1317.) Parol or extrinsic evidence may not be introduced to show additional consistent terms of a contract unless the writing is incomplete or ambiguous. (Koester v. Weber, Cohn & Riley, Inc. (1989), 193 Ill. App. 3d 1045, 550 N.E.2d 1004; Johnson v. Flueckiger, 81 Ill. App. 3d 623, 401 N.E.2d 1317.) Plaintiff here claims that the letter did not contain the parties’ final agreement and that plaintiff anticipated a subsequent, more formal document. Plaintiff, however, does not maintain that the agreement or its terms were ambiguous.

The threshold question for our review then is whether the August letter was a fully integrated writing. The question of whether a document constitutes a fully integrated agreement has been characterized as a question of law to be determined by the trial court. (Pecora v. Szabo (1981), 94 Ill. App. 3d 57, 418 N.E.2d 431.) Under the four corners test, the court must find from the contract itself that the document is incomplete before it will allow the admission of extrinsic evidence. (See Kolar v. Ray (1986), 142 Ill. App. 3d 912, 492 N.E.2d 899.) Our courts have also considered the circumstances of the case and any relevant evidence in order to determine whether the document was intended as a total integration. (Hartbarger v. SCA Services, Inc. (1990), 200 Ill. App. 3d 1000, 558 N.E.2d 596; Lewis v. Loyola University (1986), 149 Ill. App. 3d 88, 500 N.E.2d 47; Maas v. Board of Trustees of Community College District No. 529 (1981), 94 Ill. App. 3d 562, 418 N.E.2d 1029.) Under either test and after consideration of both the contract language and the circumstances, we conclude that the document in this case was an integrated contract, and the trial court therefore properly excluded parol evidence.

The plain and unambiguous contract language convinces us that the parties intended to be bound by the letter document. The paragraph above the signature lines in the executed document provided:

“If I’ve got the essential terms right, please indicate [your] agreement by signing and returning the enclosed copy. *** Until such time, if ever, that we execute a more formal agreement, this letter will serve to reflect the binding agreement between the parties.” (Emphasis added.)

The writing acknowledged revisions of the initial July 26 draft and then expressly stated that this letter “can now serve to confirm our agreement.” Geoquest executed and returned the letter agreement to Embassy as requested. By so doing, Geoquest indicated that it considered this document to be a “binding agreement.” The language unambiguously demonstrates the parties’ intent to be bound by the letter’s terms. Nor does the fact that the letter referred to the possibility of a subsequent, more formal agreement prevent this letter from being an integrated contract. (Chicago Investment Corp. v. Do lins (1985), 107 Ill. 2d 120, 481 N.E.2d 712.) Indeed, the language also contemplates that a more formal agreement might never be drawn and expressly provides that this letter constitutes the parties’ binding agreement “until such time, if ever” that a subsequent agreement is drawn. Clearly, the writing did not make the execution of a more formal agreement a condition precedent to a binding contract, nor did it indicate that the parties could cancel their agreement if they did not execute a more formal document. (See Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 565 N.E.2d 990.) Instead, the letter was the parties’ “binding agreement.” Moreover, nothing suggests that any subsequent, more formal document would not be substantially based upon the terms of this letter. (Chicago Investment Corp. v. Dolins, 107 Ill. 2d 120, 481 N.E.2d 712.) Simply, the plain language of the document belies plaintiff’s argument that the agreement is not integrated.

Nor do the circumstances in this case require a different result. The written document here was the third version of the parties’ agreement and was signed by both parties after rather extensive negotiations and substantial revisions in its terms. Nor does the record reveal that plaintiff executed this document under duress or through fraud. Moreover, although defendant’s agents referred to sales in excess of 100,000 videocassettes, we do not believe that the parties intended such “projection” to be a term of their distribution agreement. Indeed, Embassy requested Geoquest’s agreement “[i]f *** the essential terms [are] right.” The alleged 100,000-unit sales guarantee, which would assure Geoquest revenues of more than $800,000 and have tremendous economic consequences for both parties, would certainly be considered an “essential term” of the agreement. Under the circumstances, we believe that if the parties intended to make such alleged guarantee a term of their agreement, they would have included it in the written document that the parties signed. The absence of a minimum sales term in the contract, unlike the missing term for compensation in Koester, does not render the contract incomplete. Rather, the failure to include this term after several revisions, particularly in light of the language stating that the letter contained “the essential terms,” convinces us that the parties did not intend to include a 100,000-unit minimum sales guarantee.

Plaintiff relies heavily on Bleimeister’s testimony that the letter omitted “a great many” terms. We are unpersuaded, however, that this testimony requires a contrary result. The omitted provisions from the parties’ agreement are relatively insignificant when compared to the alleged sales minimum. Roth v. Meeker (1979), 72 Ill. App. 3d 66, 389 N.E.2d 1248, cited by defendant, is instructive on this issue. In Roth, plaintiff sought damages allegedly resulting from defendant’s refusal to vacate possession of premises leased to plaintiffs from the purchaser of defendant’s land. Defendant tried to introduce testimony that he entered into an oral contract with the purchaser to retain possession of certain buildings. This court found such testimony barred under the parol evidence rule because such alleged oral promise would normally have been incorporated into the written agreement. Under Roth, the alleged oral promise in this case to guarantee minimum sales normally would have been included in the written agreement containing “the essential terms.” Its absence supports the ruling of the trial court.

Nor does Lewis v. Loyola University require us to find that the letter agreement was incomplete, as plaintiff maintains. In Lewis, the parties executed a letter agreement appointing plaintiff to defendant’s faculty. Defendant moved to bar evidence under the parol evidence rule of an alleged prior promise via letter to recommend plaintiff for tenure. This court concluded that the contract did not express the parties’ complete agreement and that the trial court, therefore, properly allowed the parol evidence. In so deciding, this court stated “[i]t cannot seriously be argued that a form contract for a teaching position” embodies the parties’ complete agreement and understanding. (Lewis, 149 Ill. App. 3d at 93, 500 N.E.2d at 50.) The court also noted that the language of the prior letter indicated that the letter was part of the contract. Lewis is inapposite here because the language in the agreement between Geoquest and Embassy unequivocally stated that the letter constituted the parties’ “binding agreement.” Moreover, the agreement, which contained detailed and specific terms, cannot be characterized as “a form contract” as was the case in Lewis.

We also reject plaintiff’s claim that the parol evidence rule does not apply because the agreement was an oral contract, inasmuch as it was partly written and partly oral. This claim is belied by the unambiguous language characterizing the letter agreement as binding. If the parties intended the alleged oral promise to be part of their contract, we believe that the written document certainly would have included this substantial term. Moreover, it is well settled that all prior negotiations are merged into a written contract which is conclusively presumed to include all material terms. (Johnson v. Flueckiger, 81 Ill. App. 3d 623, 401 N.E.2d 1317; Lewis v. Loyola University, 149 Ill. App. 3d 88, 500 N.E.2d 47.) The detailed written agreement resulted from two earlier drafts and continuing negotiations. We believe that the parties had ample opportunity prior to executing this agreement to reduce the alleged sales minimum to writing if in fact such promise existed as a term of their contract.

The totality of the record in this case convinces us that the parties intended to be bound by the August 20 letter agreement, as revised. Because we so decide, we need not determine whether the alleged minimum sales guarantee was a consistent term.

For the above-stated reasons, we conclude that the trial court properly found that the executed letter was an integrated contract and therefore properly barred evidence of the alleged oral promise to guarantee minimum sales under the parol evidence rule. We accordingly affirm the order of the circuit court of Cook County granting defendant’s motion in limine and its subsequent order granting summary judgment for defendant.

Judgment affirmed.

EGAN, P.J., and RAKOWSKI, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREIMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY DIAMOND, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—2670
    Opinion filed April 29, 1992.

      Maria A. Harrigan and David M. Goldwin, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Margaret J. Faustmann, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

In a bench trial, defendant Anthony Diamond (Diamond) was convicted of the stabbing murder of Michael Joyce (Joyce) and sentenced to an extended term of 80 years.

On appeal, defendant contends: (1) that the prosecution’s closing argument suggesting two of its witnesses had great credibility because they had made prior consistent statements denied him a fair trial, although no consistent statements were in evidence; (2) that the evidence at trial was insufficient to prove him guilty of murder beyond a reasonable doubt; and (3) that a single stabbing of the victim was not so brutal or heinous as to warrant an extended-term sentence.

Defendant and four friends drove to a bar in the 2900 block of Irving Park Road on August 2, 1986. While defendant and three of the others entered the bar, Dino Mitchell (Mitchell) was denied admission because of his age and remained outside; he was soon joined by Javier Jarquin (Jarquin). As the two stood near their car, they observed Joyce walking toward them and Mitchell flashed a gang sign to Joyce. Jarquin testified that Joyce then told Mitchell, “If you want some of me, step around the corner.”

As Mitchell and Joyce walked to an alley behind the tavern, Jar-quin returned to the bar and advised defendant of the confrontation. When defendant, Jarquin and defendant’s girl friend, Yvette Bergner (Bergner), reached the alley, Joyce told them to stay back, called Mitchell into the alley and stated he intended to attack Mitchell. Jar-quin testified that Mitchell merely stood his ground, taking no action, although armed with a folding knife which Jarquin had provided him before he entered the alley with the victim.

Jarquin further testified that defendant ordered him to run through a gangway, enter the alley behind Joyce, and block his exit. Upon reaching the alley, he ran toward the street and saw defendant, Mitchell and Bergner getting into the car and observed Joyce walking toward him with his hand over his chest and blood on his clothes.

Mitchell testified that after Joyce had shoved him, defendant ordered Mitchell three times to “stick him” with the knife. As Mitchell turned to walk away, defendant grabbed the knife from him and stabbed Joyce in the left side of the chest.

Bergner testified that she had known defendant about one year and knew him to be a leader of the Simon City Royals street gang. She, too, testified that defendant directed Mitchell to “stick him” and had ordered Jarquin to run through adjoining rear yards to position himself behind Joyce in the alley and block Joyce’s exit.

Bergner further corroborated defendant’s snatching of the knife from Mitchell and the stabbing of Joyce. This witness then related that later in the car, defendant said, “It was the first one and it felt good.”

At the insistance of defendant, Jarquin and Bergner initially gave a false account of events to police, but later made statements corresponding to their testimony.

Defendant’s testimony differed from the other eyewitnesses’; he claimed it was Jarquin who yelled “stick him” and that Mitchell had done the stabbing.

Defendant first contends that during closing argument, the prosecution referred to statements Jarquin and Bergner made to police that were consistent with their trial testimony. Defendant contends these statements were erroneously used to bolster the witnesses’ credibility and that the error was compounded because the statements had been excluded at trial. The trial judge overruled defendant’s objections to their reference in closing argument although he does mention the statements in his findings of fact.

To preserve a question for review, both a trial objection and a written post-trial motion specifying the issue are required. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) When a party fails to set forth specific grounds in a written motion for new trial, the issue is waived on review in the absence of plain error. Enoch, 122 Ill. 2d at 187.

Here the record shows that defendant failed to raise this issue in his post-trial motion for acquittal or new trial. While defendant charged in his post-trial motion that there was an assumption of facts not in evidence, he specified only two instances relating to that issue, neither of which included the issue raised in this appeal. The post-trial motion is deficient since it lacks the specificity required to preserve the alleged error for review. People v. Harris (1990), 196 Ill. App. 3d 663, 675, 554 N.E.2d 367.

We may not ignore the clear mandate of the statute that the alleged error be set forth in writing in a motion for new trial. (Enoch, 122 Ill. 2d at 187.) Defendant has not met the requirement of the statute (Ill. Rev. Stat. 1989, ch. 38, par. 116 — 1) and in accordance with Enoch has waived this issue on review.

Further, the plain error doctrine is inapplicable here since the evidence is not closely balanced, nor do we find the comments to be of such magnitude that the defendant was denied a fair trial. See Harris, 196 Ill. App. 3d at 675.

Defendant next contends that the evidence at trial was insufficient to prove him guilty of murder beyond a reasonable doubt. He argues that the trial court erroneously interpreted the medical evidence, thus negating the possibility that Mitchell, rather than defendant, could have been the assailant.

The trial court found that the pathologist’s report demonstrated competent medical evidence that the nature of the stab wound excluded an assailant of Mitchell’s short stature, given the location of the wound (54 inches from the ground), the angle of wound and the plane of the blade (straight in and horizontal), and the force of the thrust (hard enough to bruise the skin and pierce a rib). We find the trial court’s interpretation of the medical evidence was logical and reasonable.

Defendant also contends that he was not proved guilty beyond a reasonable doubt because the testimony of the State’s three witnesses was inconsistent, and that their respective impeachments seriously impaired their credibility. He acknowledges that all three testified that defendant stabbed Joyce, but asserts that the balance of their testimony is so contradictory that it raises a reasonable doubt as to what occurred.

While there might be minor discrepancies in the testimony of the three witnesses, there are no discrepancies as to who stabbed Joyce, or the time or place of the occurrence.

After reviewing the evidence in a light most favorable to the prosecution, we find that no rational trier of fact could fail to find defendant guilty beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 48-49, 538 N.E.2d 461.) The testimony of the State’s witnesses was supported by and consistent with the trial court’s reasonable interpretation of the medical evidence.

Defendant next suggests that the single stab to Joyce’s chest was not so exceptionally brutal or heinous as to warrant an extended-term sentence of 80 years. We disagree.

A defendant may be sentenced to an extended term if the court finds that the offense was “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(2).) The statute was not intended to convert every offense into an extraordinary offense subject to an extended-term sentence (People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025; People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520), and the conduct must be exceptionally brutal or heinous in its indication of wanton cruelty. People v. Price (1987), 158 Ill. App. 3d 921, 929, 511 N.E.2d 958.

“Heinous” has been defined as “hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal,” while “brutal” has been defined as “grossly ruthless,” “devoid of mercy or compassion: cruel and cold-blooded.” (People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344; Price, 158 Ill. App. 3d 921, 511 N.E.2d 958.) There is no requirement that defendant’s conduct include torturing the victim or inflicting unnecessary pain. (La Pointe, 88 Ill. 2d at 501.) Also, a single act which causes death or injury may be sufficient to demonstrate the existence of wanton cruelty. People v. Barfield (1989), 187 Ill. App. 3d 190, 202, 543 N.E.2d 812.

Defendant cites several cases in which this court has found the actions of the defendant not so exceptionally brutal and heinous as to merit an extended term. Price, 158 Ill. App. 3d 921, 511 N.E.2d 958 (in which defendant, a prostitute, had deliberated before stabbing an unarmed customer four times, leading to his death, then falsely claiming self-defense to rape); People v. Kane (1986), 140 Ill. App. 3d 928, 489 N.E.2d 500 (where defendant admitted he planned to kill or rob during the evening that he murdered a cab driver by shooting him once in the back of the head and then robbing him); People v. Thomas (1985), 139 Ill. App. 3d 163, 486 N.E.2d 1362 (where the defendant participated in the planned attempted robbery and stabbing death of the victim); People v. Holiday (1985), 130 Ill. App. 3d 753, 474 N.E.2d 1280 (where the defendant shot the deceased twice in the chest while committing armed robbery even though the deceased offered no resistance).

Defendant argues that his actions were less brutal or heinous than those of the defendants in these cited cases since he did not plan to commit a crime, arm himself or seek out a victim. He contends that the extended-term sentence is not warranted because his victim was stabbed but once during a confrontation that he did not instigate and which the victim helped escalate.

The trial court provides us with a detailed explanation for the imposition of the extended-term sentence: defendant’s urging of Jarquin to stab Joyce; defendant’s dispatch of Jarquin to block Joyce’s avenue of retreat from the alley; defendant’s forceful stabbing that broke one of Joyce’s ribs; defendant’s failure to offer or obtain any help for Joyce after the stabbing; Joyce’s physical and mental suffering as he staggered down the alley and slowly bled to death; and defendant’s statement after the stabbing that, “It was the first one and it felt good.”

The trial judge also stated that he considered defendant’s prior felony convictions; his angry, violent outbursts to the probation officer and his threats to jail officers, which indicate an unwillingness or inability to cooperate in meaningful rehabilitation; and the fact that, from all appearances, defendant is a “very, very dangerous person” who callously and for no apparent reason plunged a knife into a person, knowing it might cause death.

We may not reverse a trial court’s determination absent an abuse of discretion. (Andrews, 132 Ill. 2d 451, 548 N.E.2d 1025.) When reviewing whether a defendant’s sentence is excessive, the entire spectrum of facts surrounding the incident must be analyzed and evaluated, each case on its own particular facts and circumstances. People v. Bishop (1989), 179 Ill. App. 3d 99, 103, 534 N.E.2d 401.

In Andrews, the supreme court, upholding an extended-term sentence, focused upon the defendant’s significant criminal history of violent crimes rather than thefts or burglaries; his callous attitude and complete lack of remorse for the crime; and the premeditation of the murder. (Andrews, 132 Ill. 2d at 466.) Cases since Andrews have recognized the supreme court’s continued focus on a defendant’s prior history of violent crimes, his attitude and any expression of remorse-fulness in determining whether to impose an extended sentence. People v. Pirrello (1991), 207 Ill. App. 3d 208, 216, 565 N.E.2d 324; People v. Curtis (1990), 207 Ill. App. 3d 628, 630, 566 N.E.2d 324; People v. Brown (1990), 195 Ill. App. 3d 78, 85-86, 551 N.E.2d 1100.

In applying the factors cited in Andrews to the instant case, we find that the trial court carefully weighed its decision and that imposition of the extended sentence was not an abuse of discretion.

Defendant also argues that the victim impact statement, prepared by Joyce’s mother and introduced at his sentence hearing, contained irrelevant and inflammatory information.

We disagree and note that the supreme court decided People v. Felella (1989), 131 Ill. 2d 525, 546 N.E.2d 492, after defendant filed his appellate brief. Felella allows a victim impact statement to be introduced in noncapital cases, and we find the trial court was not unduly influenced by the statement when it sentenced defendant. People v. Scott (1989), 180 Ill. App. 3d 418, 424-25, 535 N.E.2d 1113.

For the foregoing reasons, we affirm the trial court.

Affirmed.

RIZZI and TULLY, JJ., concur.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE HAYES, Defendant-Appellant.
    First District (3rd Division)
    No. 1—90—0115
    Opinion filed April 29, 1992.

      Alan D. Goldberg, of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Barbara Bailey, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

Following a bench trial, defendant, Eddie Hayes, was convicted of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1) of his seven-year-old son and sentenced to 25 years’ imprisonment. On appeal, defendant asserts that (1) he received ineffective assistance of counsel because his defense counsel, who was under the mistaken assumption that the State had the burden of proving his sanity beyond a reasonable doubt, failed to produce available evidence of his insanity; (2) defense counsel’s representation at the post-trial hearing, where defense counsel alleged his own ineffectiveness, violated defendant’s sixth amendment right to conflict-free counsel; and (3) a new post-trial hearing is required because the trial court mistakenly believed that ineffective assistance of counsel was not a permissible basis for granting a motion for a new trial and forbade defense counsel from introducing evidence in support of his motion.

We reverse because there was ineffective assistance of counsel; the trial court did not apparently believe that ineffective assistance of counsel was a basis for granting a motion for a new trial; and the trial court denied defendant’s request to present evidence in support of his ineffective assistance of counsel claim.

On March 28, 1988, defendant was found unfit to stand trial after being examined by the Psychiatric Institute’s Drs. Gerson Kaplan and Mathew Markos, who examined defendant and found him mentally unfit to stand trial and unable to cooperate with counsel in his defense. They also stated that defendant was subject to involuntary admission during which time he should become fit to stand trial within one year with hospital psychiatric treatment. The doctors’ opinions were based on their diagnosis that defendant exhibited signs of schizo-affective disorder with illogical erosion of speech inappropriate effect, elevated mood, and diminished insight and judgment. In addition, defendant reported hearing voices and felt people were controlling his thoughts.

The trial court found defendant unfit for trial, likely to regain fitness within a year, and subject to involuntary admission. Defendant was sent to the Department of Mental Health and Developmental Disabilities, which was ordered to provide the court with periodic reports of defendant’s mental condition.

On May 3, 1989, a restoration hearing was held and defendant was found fit to stand trial. Dr. Markos testified that defendant’s mood had been stabilized with antipsychotic medication; there was no evidence of hallucinations or delusions; and defendant understood the court proceedings. Explaining that defendant will have schizophrenia all his life but can remain symptom free with medication, Dr. Markos concluded that defendant was mentally competent to stand trial provided that he remained on his medication.

At trial, Rochelle Price testified that she allowed her son, Eddie Price, to visit defendant, who was his father, on November 30, 1987. Defendant came to Ms. Price’s home between 2:30 and 3 p.m. to take his son back to his apartment. Ms. Price told defendant that she wanted her son back before 10 p.m. Between 5:30 and 6 p.m., Eddie Price called his mother twice. Both times Ms. Price spoke to her son and defendant. She told defendant to bring their son home instead of letting him repeatedly call her. Defendant told her that he would be there shortly.

When defendant did not arrive, Ms. Price called his home four times, but got no answer. Between 11 and 11:30 p.m., she called again. Someone took the receiver off the hook, but did not say anything. Since Ms. Price heard her son’s voice and music in the background, she and her brother went to defendant’s home, arriving between 11:45 p.m. and 12 midnight.

Initially, no one answered the door. Ms. Price continued to knock and eventually defendant came to the door. He cracked it open and asked her what she wanted. She told defendant that she had come to get her son. When defendant responded that their son was spending the night with him, Ms. Price said that he could not because he had school in the morning. She then asked defendant to get her son ready and bring him out to her. Defendant went back into his apartment.

After 10 to 15 minutes had passed, Ms. Price knocked again. When defendant came to the door, she asked him what was taking so long. Defendant responded that their son would be there in a minute, then went back into the apartment. At that time, the police and firefighters came up to the porch and told Ms. Price that they had a report of a little boy drowning in a bathtub.

The police called defendant to the door and identified themselves. When defendant opened the door, Ms. Price ran to the bathroom, where her son was facedown in a tub of water. The police took her outside while they tried to revive her son, who was later taken to the hospital where he died two days later. Defense counsel did not cross-examine Ms. Price.

Detective Thomas Sherry, who investigated the drowning, testified that the bathtub was partially filled with water and there was water on the floor. In the bedroom, Sherry found a boy’s shoe next to a pair of men’s leather gloves, which were wet. On the bed was a man’s dress shirt, which was also wet. In the kitchen, Sherry found a similar boy’s shoe and a man’s wet belt draped over the back of a chair.

Jeanne Baker, a Chicago police dispatcher, testified that she received a 911 call at 12:27 a.m. on December 1, 1987, and forwarded it to the fire department ambulance. A copy of the 911 tape was played in court. The man’s voice asked for an ambulance. When asked about the problem, he said, “I killed my son. I killed my son.” When asked how he did that, the man responded that he drowned him a few minutes earlier. The man then stated that his last name was “Hayes.”

The defense presented Dr. Mathew Markos, a forensic psychiatrist at the Psychiatric Institute, who testified that he examined defendant four times. On March 16, 1988, and October 13, 1988, he was found mentally not fit to stand trial. He was mentally fit with medication on January 24, 1989, and on August 24, 1989, Dr. Markos found defendant mentally fit with medication, but had no opinion on defendant’s sanity.

Dr. Markos also testified that he had no opinion regarding defendant’s sanity on December 1, 1987. Prior to the psychiatric examination, Dr. Markos reviewed previous psychiatric reports, including reports from Madden Mental Health Center, where defendant was admitted for three or four days in June 1987. There were also records from Chester Mental Health Center prior to the incident. Dr. Markos testified that defendant’s records indicated that he had received in-patient psychiatric treatment with psychotropic medication. Prior to the incident, defendant had been diagnosed as having schizophrenia, paranoid-type psychoactivity, psychoactive substance abuse, which is drug abuse, and antisocial personality disorder.

Dr. Markos explained that schizophrenia is a psychotic mental disorder characterized by illogical thought and is different from drug-induced psychosis. A schizophrenic can also have hallucinations and delusions.

In addition to being schizophrenic, Dr. Markos testified, defendant was also under the influence of psychoactive substances at the time of the offense; that is, four joints of marijuana laced with POP and a six-pack of beer. Defendant told the doctor that he would not have killed his son if he had not taken the drugs.

Even though his report indicated that he did not have an opinion regarding defendant’s sanity at the time of the incident, Dr. Markos testified that defendant was perhaps able to appreciate the wrongfulness of his act at the time of the incident. Dr. Markos based his opinion on the 911 tape of defendant’s call to the police after the incident, his behavior soon after the incident, and on information defendant gave Dr. Markos. Dr. Markos further stated, however, that he was not sure whether defendant knew right from wrong or the consequences of his acts at the time of the incident. Dr. Markos related that defendant was stabilized with medicine at the time of his last examination.

On cross-examination, Dr. Markos testified that defendant stated that he had taken the drugs and a six-pack of beer two hours before the incident and wanted to enjoy his high. He was lying down when he asked his son for the time. Defendant became annoyed because he thought his son had given the wrong time. To teach him a lesson, defendant took a belt and hit his son a few times. Because the victim did not cry, defendant thought that he was not remorseful. Defendant became more enraged and decided to teach his son a lesson, so he dunked him underwater in the bathtub. Because he still did not cry and was acting tough, defendant thought that his son was being defiant. Therefore, defendant pushed him further under the water and kept pushing him until he realized that his son was dead. Defendant stated more than once that the incident was a result of the drugs he ingested. During the August 24, 1989, interview, Dr. Markos testified, defendant was remorseful.

Dr. Markos further testified that defendant was speaking coherently on the 911 tape immediately after the incident. Dr. Markos explained that being schizophrenic does not necessarily mean that the person is insane since it is possible for him to appreciate the criminality of his conduct.

During closing arguments, defense counsel stated that the State failed to prove its case because it had not proven that defendant had the mental competency at the time of the incident to form an intent. After the State explained the law on the insanity defense, the defense counsel replied that if Illinois law did require defendant to prove his own insanity, that would be unconstitutional and contrary to the basic doctrine of Anglo-American law.

The trial court found that the State proved all the elements of first degree murder. The trial court also found that the intoxication defense could not stand in this case and that it did not believe that defendant was insane at the time of the offense.

In the motion for a new trial, the defense counsel stated that the measure of proof for the insanity defense is “very, very, very, very confusing.” He contended that the State was required to disprove insanity since defendant raised the issue of his sanity and that he had proved insanity at the time of the incident beyond a reasonable doubt.

The trial judge stated that she was limited to granting a new trial only for a mistake of law or newly discovered evidence. She went on to say that she was very troubled by the way the defense tried the case and by his argument in favor of his motion for a new trial. Because defense counsel admitted that there was evidence of which he was aware that he did not present at trial, the trial court stated “possibly this case was tried in an incompetent manner.” The trial court denied the motion for a new trial, stating that incompetence of the defense counsel was not an appropriate reason for a trial court to grant a new trial.

During the sentencing hearing, the trial court found defendant eligible for the death penalty, but mitigating factors precluded such a sentence. In mitigation, defendant presented his mother, Annie Hayes, who testified that defendant had been in and out of mental hospitals three or four times a year ever since his younger brother was killed in 1971. On the day of the incident, defendant had gone to the doctor because he was in a bad mental state and received medication, but did not take it. Ms. Hayes also testified that defendant had broken her finger once and cut his father’s arm, requiring 35 stitches.

Defendant’s brother, James Daniels, testified that defendant and his son were at Daniels’ house between 8 and 9 p.m. on November 30, 1987. At that time, Eddie Price was in fine condition and defendant was loving toward him. When they left, defendant was in a bad mental state. Daniels had ordered defendant out of his house at that time, but did not think that Eddie Price was threatened by defendant’s behavior.

After a brief statement by defendant, the trial court sentenced him to 25 years’ imprisonment. The trial court stated that the mittimus should indicate that defendant needed medical treatment during his incarceration.

Defendant asserts that he received ineffective assistance of counsel because his attorney, who was under the mistaken assumption that the State had the burden of proving his sanity beyond a reasonable doubt, failed to produce available evidence of defendant’s insanity. In his answer to discovery, defendant raised the affirmative defense of insanity, stating that “the State will not be able to prove its case in all essential elements because of the mental infirmity or insanity of the defendant at the time of the incident.” After all the evidence had been heard at trial, defense counsel presented a motion for acquittal, in which he argued that the State had failed to prove his client’s sanity beyond a reasonable doubt.

In his memorandum in support of the motion for a new trial, defense counsel admitted that he had been under the misapprehension that the State was required to prove defendant’s mental competence beyond a reasonable doubt. Therefore, he stated, he did not present evidence that was in the record and available to the State. Defense counsel asserted that he should have presented defendant’s mother, father, and brother to testify regarding defendant’s mental condition on the day of the incident. He asserted that he should also have presented evidence of (1) a prescription bottle dated November 30, 1987; (2) reports from Cook County jail and hospital documenting that defendant had tried to set fire to the jail and went into a violent psychopathic episode, causing injury to himself and jail personnel; (3) evidence from the fitness hearing, which indicated that defendant had schizo-affective disorder and was subject to involuntary admission on March 3, 1988; and (4) doctors’ reports that defendant’s mental disorder went into remission with the administration of drugs.

Defendant relies on cases where there was ineffective assistance of counsel because the defense counsel misunderstood the applicable law. In People v. Wright (1986), 111 Ill. 2d 18, the defense counsel did not understand the affirmative defense of intoxication. In People v. Rainey (1986), 149 Ill. App. 3d 327, 331, the defense attorney misapprehended the law regarding the insanity defense. A new trial was ordered because the error deprived the defendant of a finding of guilty but mentally ill. No evidence of the defendant’s mental condition was presented at trial. If the proper evidence had been placed before it at trial, the trial court stated, it would have found the defendant guilty but mentally ill. (Rainey, 149 Ill. App. 3d at 331.) Moreover, the court noted, the evidence was readily available to counsel since it was presented at the fitness and sentencing hearings. Rainey, 149 Ill. App. 3d at 331.

Defendant also cites failure-to-investigate cases. In People v. Baldwin (1989), 185 Ill. App. 3d 1079, 1091, the defense counsel’s failure to investigate defendant’s psychiatric records deprived him of his right to effective assistance of counsel since there was a reasonable probability that proper investigation might have produced a different trial result. The court stated that the psychiatric records compiled after the offense were clearly pertinent to the potential issue of insanity because a person’s psychiatric history is one of the most important criteria in making a diagnosis. Baldwin, 185 Ill. App. 3d at 1090.

In People v. Howard (1979), 74 Ill. App. 3d 138, 141, the defense counsel’s failure to investigate defendant’s psychiatric records deprived him of his right to effective assistance of counsel since there was a reasonable probability that proper investigation might have produced a different trial result. The court in People v. Dillard (1990), 204 Ill. App. 3d 7, 10, stated that whether failure-to-investigate is incompetence depends on the value of the evidence and the closeness of the case. In People v. Corder (1982), 103 Ill. App. 3d 434, the defendant received ineffective assistance of counsel because his attorney failed to interview witnesses and present readily available evidence. Defendant also cites People v. House (1990), 141 Ill. 2d 323, 389, where the court ruled that cumulative errors committed by counsel constituted ineffective assistance of counsel.

The State responds that defendant’s allegation of ineffective assistance of counsel was based on counsel’s decision not to present certain witnesses, which was a matter of trial strategy, not incompetence. Even though defense counsel knew of the existence of evidence of defendant’s mental condition through family members and hospital records prior to trial, the State contends, he decided to rely only on Dr. Markos’ testimony.

The State’s argument ignores the fact that the defense counsel misunderstood the applicable law on the affirmative defense of insanity. Not only did he admit that he misunderstood the law, but the answer to discovery and motion for acquittal argue that the State had the burden of proving defendant’s sanity beyond a reasonable doubt. In deciding whether defendant was afforded effective assistance of counsel, it is necessary to determine the correctness of counsel’s understanding of the applicable law.

Although it is true that the decision whether to present a particular witness is generally a matter of trial strategy, the defense counsel must first determine the defense theory appropriate trader the circumstances. (Wright, 111 Ill. 2d at 27.) If counsel’s decision not to raise a defense or present witnesses in support of that defense is attributable to a misapprehension of the law, that is not a trial tactic or strategy. Wright, 111 Ill. 2d at 27.

The State then asserts that even if defense counsel made unprofessional errors, defendant was not prejudiced by those errors because the trial was a bench trial and the trial court was apprised of the law. The State further argues that the only evidence presented at trial regarding defendant’s insanity was Dr. Markos’ testimony that he did not have an opinion on defendant’s sanity at the time of the incident. Therefore, the State contends, his testimony did not prove defendant was insane.

Furthermore, the State contends, there was sufficient evidence that defendant was sane at the time of the offense, including that defendant called the police and requested an ambulance right after drowning his son. In addition, the State claims, defendant was voluntarily under the influence of alcohol and marijuana laced with PCP, which was the cause of his drowning his son.

Defendant replies that the relevant inquiry for prejudice is whether the failures of the defense counsel undermine confidence in the judgment ordered by the trial court. Because the trial court could have found defendant not guilty by reason of insanity or guilty but mentally ill (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 3), defendant argues, he was prejudiced by the evidence that defense counsel did not present. After sentencing, the trial judge ordered that the mittimus reflect that defendant should receive treatment during his incarceration.

Relying on People v. Taylor (1971), 1 Ill. App. 3d 1053, defendant also asserts that, even if his actions were performed while he was under the influence of drugs and alcohol, the possibility that he also had a mental disease or defect of which the killing was a product was not precluded. Even though there was evidence of both insanity and the ingestion of large amounts of alcohol in Taylor, the court did not discuss the effects of the drinking on the defendant’s mental illness. Taylor, 1 Ill. App. 3d at 1062.

The sixth amendment of the United States Constitution guarantees the right to effective counsel in order to protect the fundamental right to a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 685-86, 80 L. Ed. 2d 674, 692, 104 S. Ct. 2052, 2063.) In order to establish ineffective assistance of counsel under Strickland, a defendant must prove that his counsel was deficient and that he was prejudiced by that deficiency. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; People v. Albanese (1984), 104 Ill. 2d 504, 525.) Prejudice requires showing that the counsel’s errors were so serious that the defendant was deprived of a fair trial. (Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064.) The defendant must show that there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the trial’s outcome. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698,104 S. Ct. at 2068.

Defense counsel erred because he misunderstood the burden of proof for the insanity defense. Defendant presented Dr. Markos’ testimony during which he discussed the history and current status of defendant’s mental illness. If defense counsel had fully understood the insanity defense, he would have presented the testimony of family members who would have testified that defendant had had ongoing mental problems, was in a bad mental state on the day of the killing, and did not take medication that day. That testimony was presented at the sentencing hearing.

The trial judge stated that she thought the defense might have been incompetent, but did not think that that was grounds for a new trial. Her statement indicates that perhaps there was a reasonable probability that the result of the trial would have been different if the trial judge had heard the testimony of the family members at trial. Defense counsel’s error was so egregious that it prejudiced defendant, resulting in ineffective assistance of counsel.

Next, defendant asserts that his sixth amendment right to conflict-free counsel was violated when his defense counsel alleged his own ineffective assistance in a post-trial motion. Even though the trial court acknowledged that the ineffectiveness allegation had potential merit, defendant argues, it took no steps to alleviate the conflict of interest. Defendant contends that when a judge is aware of facts showing the existence of a conflict of interest, she is obligated to either appoint substitute counsel or to advise the defendant of the existence of the conflict and determine whether he is willing to waive the conflict. In this trial, defendant was represented by a retained attorney.

Defendant relies on Wood v. Georgia (1981), 450 U.S. 261, 266, 67 L. Ed. 2d 220, 227, 101 S. Ct. 1097, 1100-01, where the defendants were represented by an attorney retained and paid for by the defendants’ employer, who was the owner of an adult bookstore that was the subject of the criminal activity. When attorneys are hired and paid for by third parties, the Court stated, the trial court should take note of potential conflict. (Wood, 450 U.S. at 269, 67 L. Ed. 2d at 229, 101 S. Ct. at 1102.) Since the trial court knew that the defendants’ employer paid for their attorney and was pressing a constitutional challenge rather than arguing for leniency, the Supreme Court concluded that the trial court had a duty to inquire further into the possibility of actual conflict. Wood, 450 U.S. at 273, 67 L. Ed. 2d at 231, 101 S. Ct. at 1104.

The State responds that it was not the trial court’s duty to advise or exercise any authority or control over defendant’s selection of retained counsel. Furthermore, the State indicates, neither defendant nor his counsel requested that the trial court appoint new counsel to represent defendant in arguing the allegations of ineffective assistance of counsel. Only the parties hold the power to break the contract of representation entered into by a defendant and his privately retained attorney (People v. Jackson (1985), 131 Ill. App. 3d 128, 140), the State comments.

The State relies on People v. Pecoraro (1991), 144 Ill. 2d 1, 13, where retained counsel was not replaced at his hearing on post-trial motions based on ineffective assistance of counsel. The Illinois Supreme Court ruled that it is not within the trial court’s authority to advise or exercise any influence or control over the selection of counsel by defendant, who was able to, and did, choose counsel of his own choice. (Pecoraro, 144 Ill. 2d at 15.) Moreover, the court stated, the trial court could not force defendant to retain counsel other than that chosen by defendant. Pecoraro, 144 Ill. 2d at 15.

Pecoraro does not preclude the trial court from taking action if it sees incompetence. If the incompetency is related to an insanity issue, where defendant obviously does not understand what is happening, the trial court must step in to protect defendant. The ultimate focus of the trial court’s inquiry must be on the underlying conduct alleged to have prejudiced the defendant. People v. Jameson (1987), 155 Ill. App. 3d 650, 663.

The trial judge in this case should have at least inquired into the possibility of actual conflict. She expressed her displeasure with the defense counsel’s representation of defendant, recognizing that there was possible neglect of defendant’s case. Since ineffective assistance of counsel related to defendant’s sanity was raised, further inquiry would have revealed that it was necessary for the trial judge to step in to protect defendant in this case.

Next, defendant correctly asserts that the trial court mistakenly believed that ineffective assistance of counsel was not a permissible basis for granting a motion for a new trial. A new trial can be granted based on ineffective assistance of counsel if there is substantial prejudice. People v. Krankel (1984), 102 Ill. 2d 181, 189; People v. Brandon (1987), 157 Ill. App. 3d 835, 845; People v. Jackson (1987), 158 Ill. App. 3d 394, 402.

Finally, the trial court improperly denied defendant's request to present evidence or make an offer of proof regarding his mental condition in support of the ineffective assistance of counsel claim. The evaluation of post-trial claims of ineffective assistance of counsel requires examination of the factual assertions underlying the claim. Jackson, 158 Ill. App. 3d at 401.

Based on the foregoing, defendant’s conviction is reversed and remanded for a new trial.

Reversed and remanded.

GREIMAN, P.J., and RIZZI, J., concur.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM MOORE, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—2675
    Opinion filed May 1, 1992.

      Thomas Peter, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael P. Latz, and Michael Falagario, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Following a joint jury trial, defendant William Moore (Moore) and Omar Dixon (Dixon) were found guilty of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(a)) and attempted armed robbery (Ill. Rev. Stat. 1983, ch. 38, pars. 8 — 4, 18 — 2). Moore was sentenced to concurrent terms of 40 years for murder and 10 years for attempted armed robbery.

Moore was arrested on November 20, 1984, and subsequently charged with attempted armed robbery and murder. A guilty verdict was returned on October 11, 1985. Post-trial motions were heard and denied, and on November 22, 1985, defendant was sentenced to 40 years in the Illinois Department of Corrections.

The reason this case took so much time to arrive in the appellate court was that Moore’s trial attorney failed to file a notice of appeal from Moore’s conviction and sentence. When Moore finally learned that he did not have an appeal pending, he filed a post-conviction petition. That petition was granted pursuant to People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, and People v. Moore (1990), 133 Ill. 2d 331, 549 N.E.2d 1257, and in doing so defendant was granted leave to file a late notice of appeal. On September 10, 1990, the notice of appeal was filed in accordance with the ruling of the trial court on Moore’s post-conviction petition.

On appeal defendant contends (1) that the jury was erroneously instructed on the propriety of the use of deadly force, (2) that the trial court committed reversible error when it admitted the hearsay statements made by a codefendant without redacting all references to defendant and without giving the jury a proper, timely instruction, and (3) the trial court erred when it imposed the maximum sentence on a 16-year-old with no prior record.

The charges arose out of the fatal shooting of 17-year-old Benjamin Wilson (Wilson) on November 20,1984. The facts are as follows.

At trial, 17-year-old Jetun Rush (Jetun) testified that at about 12:30 p.m. she and Wilson, who was her boyfriend and the father of their child, left Simeon Vocational High School (Simeon) where they were both students and began walking north on Vincennes Avenue. They noticed a group of boys and girls standing on the grass and the sidewalk in front of a store about one-half block from the school. By the time they reached the group, the girls had walked away, leaving about five or six boys gathered on and next to the sidewalk. Moore was standing close to the fence and Dixon was standing nearby on the grass. Attempting to make their way around the group, Wilson said, “[EJxcuse me.” Moore turned around and asked Wilson what he had said. Wilson repeated, “[Ejxcuse me,” and continued walking another four or five feet. At that point, a taller boy (identified as Dixon) stepped in front of Wilson, grabbed him by his jacket and said, “[S]ay, man, you got any money?” Wilson pushed him away responding, “Say man, you think you’re tough?” Dixon repeated his demand for money and reached into his pockets. Wilson pushed him away again, asking, “[W]hat are you going to do, shoot me?” Dixon responded, “You still think you’re tough. Let’s shoot this punk.” Whereupon she heard the first shot fired by Moore. As Wilson tried to dodge away, Jetun saw Moore shoot him a second time, after which he fell into her arms. Dixon then exhorted Moore, “Let’s go. Here come the police.” Both Moore and Dixon ran from the scene. After she sat Wilson down next to the fence, she ran back to the school and the police and an ambulance were summoned. Later that evening, Jetun viewed two lineups and identified both Moore and Dixon as the offenders.

On cross-examination, Jetun repeatedly denied that Wilson had argued with Moore; however, she acknowledged telling the responding officers that Wilson bumped into one of the boys and that there had been a verbal altercation. She further stated that, having seen the gun in Moore’s waistband when he first turned around, she warned Wilson and admonished him, “[L]et’s go,” but she did not attempt to physically pull him away, and that each time she was asked to describe what had occurred, she told the police that Dixon had said to Moore, “[Ljet’s shoot this punk.”

Detective Bosco testified that when he questioned Dixon following his arrest later that evening Dixon told him that he was standing in front of the store with his friend Leonard Whitlock (Whitlock) when Wilson, who had been walking with his girl friend, bumped into Moore. An argument ensued and it appeared that Wilson intended to fight. At that point, Moore produced a handgun and shot Wilson twice. Dixon told him that at no time did he see a weapon in the victim’s hand. As he (Dixon) and Whitlock walked away, he observed Moore running from the scene. On cross-examination, Bosco stated that when he interviewed Jetun a few hours after the shooting, she told him that there had been an argument but she did not say that she saw a gun prior to the time Moore fired it at Wilson. Neither did she tell him that Dixon told Moore to shoot Wilson, but it was his (Bosco’s) belief that she related that information to another officer, Detective McGuire, who did not testify at trial.

Sean Baylis (Baylis), a student at Simeon, testified that he was walking toward the store when he saw defendant and Whitlock, both of whom he knew from the neighborhood, and two other boys standing near the school gate. After exchanging a greeting, he proceeded to the store to play some video games. A short time later, Dixon and the three other boys came into the store for a few minutes and then left. He identified Moore as one of the boys that was present. While his companion took his turn on the video game, he sat down near the front window of the store. He saw Dixon approach Wilson, grab his arm, say something and then push Wilson back toward the store window. Moore then pulled out a gun and shot Wilson. Wilson walked behind a tree in front of the store but when he came from around it, Moore shot him a second time.

On cross-examination, Baylis stated that it was when he heard a bump against the store window that his attention was drawn to the scene in front of the store. After the shooting, a tall boy came to Wilson’s aid. Baylis immediately returned to school without saying anything to anyone, but later after another student had informed the police that he (Baylis) had witnessed the shooting, he was summoned to the principal’s office, where he told the assistant principal and two police officers what he had witnessed. Later that evening, he repeated the same information three different times to plainclothes officers at the police station.

John Everett, the assistant principal of Simeon, testified that when he was informed that Wilson had been shot, he went to the scene, where he saw several students surrounding Wilson, attempting to comfort him. He spoke with Baylis, who was among the students on the scene, but because Baylis appeared to be somewhat stunned, he took him back to his office at the school. There, Baylis told him, in the presence of the school’s youth officer and another Chicago police officer, that two boys, one of whom he knew as “Omar,” had confronted Wilson outside the store. Baylis did not mention that any pushing had occurred or that Wilson had run behind a tree after the first shot.

John Brady, an assistant State’s Attorney assigned to felony review on the night of the shooting, testified that he first questioned Moore at 2 a.m. on November 21, 1984. He had an additional conversation with Moore at which time a written summary was taken regarding the shooting of Ben Wilson.

According to the summary, which Brady read from the witness stand, Moore stated that on the morning of the shooting, he met Whitlock, his cousin, Eddie Thompson, and Dixon at Calumet High School, where they were students. They discussed an incident in which $10 had been taken from Thompson’s sister, Cynthia, at Simeon the previous day. Moore told Whitlock that he was going to Thompson’s house to get a gun and would meet him (Whitlock) back at school afterward. Later, the four of them took a bus to Simeon and walked to a video game room where they met some girls they knew. From there, he, Whitlock and Dixon walked to a second game room on Vincennes Avenue. As he was standing on the sidewalk talking to a girl named Kim, he was bumped in the back. He turned around and saw Wilson, whom he had seen play basketball at Simeon the previous year. Moore asked, “[WJhat’s going on, tall boy?” to which Wilson replied, “[FJ— you.” Moore responded in kind and in the course of the argument that ensued, he drew the .22 caliber pistol he had taken from Thompson’s house. At that point, Dixon said, “[Ljet’s see if this punk has some money,” and attempted to reach into Wilson’s pockets. Wilson asked, “What are you going to do, shoot me?” Dixon then pushed Wilson and Wilson pushed him back. Moore fired two shots at Wilson. He, Whitlock and Dixon then ran from the scene. He gave the gun to Dixon, who told him Thompson took it. Later he saw Thompson and asked about the gun. Thompson told him that he had “put it up somewhere.” The only portion of Brady’s summary not read to the jury was Moore’s statement that after being pushed by Wilson, “[Dixon] yelled, pop him!” that excerpt having been ordered redacted by the trial court.

Brady further testified that he first spoke with Dixon at 11 p.m. on November 20, 1984. He also prepared a handwritten summary of the statement made by Dixon during a conversation with him at about 3:25 a.m. on November 21, 1984, a few minutes after his second meeting with Moore. According to Brady’s summary, which he also read during his direct examination, Dixon’s account of the events of the morning of November 20 was virtually identical to Moore’s. Regarding the incident involving the $10 taken from Thompson’s sister the day before, Dixon added that when they saw Kim and Erica at the video game room, the girls told them that the person who had taken the money from Cynthia was an older boy who was not a student at Simeon. He, Moore and Whitlock then walked to the store on Vincennes Avenue. As they were standing on the sidewalk talking, a tall boy (Wilson) bumped into Moore. Wilson and Moore began to argue and Moore pulled out a gun. Wilson asked, “[AJre you going to shoot me?” Dixon then said, “[Ljet’s see if this punk has some money,” and walked toward Wilson whereupon Wilson pushed him. Then he said to Moore, “[TJhis punk pushed me.” Moore pulled out a gun and shot Wilson twice. They then ran from the scene. Later, they drove to Moore’s house and waited in the car while Thompson hid the gun somewhere in the backyard. Brady testified that each summary was read and signed by Moore and Dixon, respectively.

On cross-examination, Brady reiterated that the summaries were not verbatim accounts of Dixon’s and Moore’s statements but stated that they both had refused to give a sworn, court-reported statement. He also acknowledged, on cross-examination by counsel for Moore, that in his summary of his conversation with Moore, he excluded as being irrelevant Moore’s statement that the person who took the $10 from Thompson’s sister had put the money down the front of his pants and told her that she would have to take the money out of his pants if she wanted it back and that it was because of that incident that Moore decided to take the gun from Thompson’s house.

Kimberly Smith (Kim) testified that Dixon, Moore, Whitlock, Thompson and Marcellus Hunter (Hunter), all of whom she knew from her neighborhood, were walking past the store as she and a classmate approached it during their lunch period. They stopped in front of the store, and while she was talking to Hunter, she saw a boy and a girl (Wilson and Jetun) walk through the group. As they did, she noticed that Moore “fell back,” after which Moore and Wilson began to argue. Jetun unsuccessfully tried twice to pull Wilson away. During the argument, Moore and Wilson stepped closer to each other but then Moore took two steps backward. It was at that point that she heard a loud noise. She saw Wilson bending over and then ran back to school.

On cross-examination by the State, Kim acknowledged that after the shooting she did not tell anyone what she had seen. On cross-examination by Dixon, she stated that she had asked Whitlock to “cool out the argument” because she was afraid that something was going to happen, and that just after that, she heard the loud noise. At no time did she see Dixon or Wilson push the other nor did she hear Dixon say anything to Moore or put his hands into Wilson’s pockets. Neither did she hear Wilson say “What are you going to do, shoot me?” nor see anyone holding a gun.

Dixon testified on his own behalf. He testified that on the morning of the shooting, he and Moore met near their lockers at Calumet High School and agreed to skip their classes and go to Thompson’s house, where they ate breakfast and spent the morning watching television. While there Moore and Thompson told him about the incident involving the taking of money from Thompson’s sister, Cynthia, but there was no discussion of seeking revenge or of confronting a person known as “Iceberg.” Just before leaving Thompson’s house, sometime after 11 a.m., Moore came down the stairs and showed him a small gun. Moore then went back upstairs with the gun and a short time later he came down with his coat and they left. He, Moore and Thompson returned to their school, where they met Whitlock, and then took a bus to Simeon to see some friends. They went to a video game room on 81st Street and Normal Avenue, played a few video games and, after about 10 minutes, he and Moore walked Erica back to school. From there they walked to a store on Vincennes Avenue where they were rejoined by Whitlock, Erica, Kimberly Smith and Marcellus Hunter. As he was standing in the grass talking to Whitlock, a tall boy and a girl (Wilson and Jetun) walked up to the group. Dixon did not know either Wilson or Jetun. He then saw Moore “bounce off the fence” as though he had been bumped into it and subsequently heard Moore ask Wilson for an apology. Wilson said, “I don’t owe you no type of apology. F— you.” Moore responded in kind. The girl attempted to pull Wilson away, but he pulled away from her and continued arguing with Moore. It appeared to him that Wilson and Moore might begin to fight, and he would have helped Moore if a fight had occurred, but because there was no physical contact between them he did not intervene. He did not grab, push or touch Wilson in any way nor did he say anything to Wilson or to Moore prior to the shooting. Rather, he testified, it was Wilson who began walking toward Moore, at which point he heard two gunshots. He did not see the gun nor did he know that Moore had been carrying it. He immediately ran from the scene and boarded a bus on 79th and Vincennes. Moore and Whitlock boarded the same bus at the next stop.

When Dixon arrived home shortly after 9 p.m. that evening, the police grabbed him, handcuffed him and, after stops at Moore’s and Whitlock’s homes, they took him to the police station. Later that evening, he stood in a lineup and was then placed in a room alone. About one-half hour later, Brady and a police officer came in to question him. He told Brady that Moore “was in an incident with this guy and that he [Moore] had shot him.” After appearing in several more lineups, he was taken back to the room where he remained alone for several hours until Brady returned and told him that his previous statement was a lie and that there was “more to it.” When he told Brady that what he had related was true, Brady left. A few minutes later he was taken to another room where he remained most of the night. At about 3:30 a.m. Brady, accompanied by two police officers, came in with a prepared written statement and told him to read it and sign it. Although the statement was not true, he signed it because he had not slept, eaten or talked to anyone while at the police station and was very tired and afraid and “just wanted to get it over with.” No one asked him if he wanted to make a court-reported statement nor was he told that he was under arrest for any crime. He believed that he had been brought in only for questioning and it was not until about 6 a.m. that Brady informed him that he was under arrest for murder.

On cross-examination by the State, Dixon denied that he left school that morning to get a gun. He also specifically denied the truth of the statements attributed to him in Brady’s summary regarding his involvement and participation in the events immediately preceding and following the shooting.

Moore’s uncle was the only witness called on his behalf, testifying to Moore’s background and character. Moore expressly waived his right to testify.

Following argument by counsel, the jury found Moore and Dixon guilty of murder and attempted armed robbery.

I

In the first of three points, Moore argues that the jury that convicted him was erroneously instructed that Moore could not use deadly force unless he reasonably believed he was in danger of death or great bodily harm. He argues that deadly force may be used to prevent the commission of a forcible felony.

Defendant relies on People v. Garcia (1988), 169 Ill. App. 3d 618, 523 N.E.2d 992, where the court held that committing a battery while on a public way constitutes an aggravated battery. In Garcia failure to give a jury instruction on the use of deadly force to resist this type of aggravated battery was reversible error. Defendant argues that since defendant presented evidence that Ben Wilson provoked the incident, had committed an aggravated battery, and was threatening to commit another aggravated battery, a jury instruction on the use of deadly force to prevent the commission of a forcible felony should have been given. Defendant maintains that failure to give that instruction in Garcia was reversible error and thus it is reversible error in this case. However, we note the court in Garcia concluded its analysis of the issue by stating:

“Failure to give this instruction, when tendered by the defendant, deprived the defendant of a defense that existed under the law. This resulting denial of due process requires that defendant be granted a new trial.” (Emphasis added.) (Garcia, 169 Ill. App. 3d at 621, 523 N.E.2d at 994.)

Apparently in Garcia an instruction was tendered and denied. In the present case no such instruction was tendered.

The burden of preparing jury instructions is on the parties, and a party may not raise the failure to give an instruction on appeal unless he shall have tendered it. (People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513.) Generally, the failure to make an objection at trial to an error in the jury instruction constitutes a waiver of the error, if any exists. (People v. Chapman (1981), 94 Ill. App. 3d 602, 418 N.E.2d 995.) We note that the court in Garcia in analyzing another jury instruction issue recognized the aforementioned principles citing both Underwood and Chapman. Garcia, 169 Ill. App. 3d at 621, 523 N.E.2d at 994.

Moore’s trial defense counsel did not object to the People’s instruction on the justification to the use of force, nor did he tender any other instruction on self-defense. We find that the issue is waived.

Finally, even if the point was not waived in this case the error is harmless in light of the overwhelming evidence of Moore’s guilt. “A refusal to give an instruction will be held to be harmless and not a ground for reversal where it can be said that the result of the trial would not have been different if the instruction had been given.” (People v. Moore (1983), 95 Ill. 2d 404, 410, 447 N.E.2d 1327.) Considering the quantum of the State’s evidence, we conclude that the jury’s verdict would have been the same.

II

In his second point Moore claims the introduction of a statement made by his codefendant, Dixon, to the State’s Attorney confessing his part in the crime without a limiting instruction was error requiring a reversal of Moore’s conviction. Dixon’s confession was read to the jury. Dixon testified and admitted he read and signed the confession but denied the contents contained therein.

The confrontation clause of the sixth and fourteenth amendments guarantees the right of a criminal defendant to be confronted with the witnesses against him, including the right to cross-examine those witnesses. (Cruz v. New York (1987), 481 U.S. 186, 189, 95 L. Ed. 2d 162, 169, 107 S. Ct. 1714, 1717.) However, no sixth amendment confrontation violation occurred by the introduction of Dixon’s confession because Dixon testified at trial and was subject to cross-examination. Bruton v. United States (1968), 391 U.S. 123, 136, 20 L. Ed. 2d 476, 485, 88 S. Ct. 1620, 1628; Nelson v. O’Neil (1971), 402 U.S. 622, 627, 29 L. Ed. 2d 222, 227, 91 S. Ct. 1723, 1726-27; People v. Moman (1990), 201 Ill. App. 3d 293, 304, 558 N.E.2d 1231.

Moore asserts that Dixon’s out-of-court statement implicating him is inadmissible against him because it is incompetent hearsay evidence. In Lee v. Illinois (1986), 476 U.S. 530, 543, 90 L. Ed. 2d 514, 527-28, 106 S. Ct. 2056, 2063, the United States Supreme Court indicated that even where the hearsay evidence does not fall within a firmly rooted hearsay exception, the confrontation clause would not be violated by an unavailable codefendant’s confession that has an “independent indicia of reliability” to overcome the presumption of unreliability placed upon an accomplice’s incriminating confession. Lee suggested that interlocking confessions may provide the independent indicia of reliability required to overcome the presumption of unreliability of an accomplice’s confession. (Lee, 476 U.S. at 545, 90 L. Ed. 2d at 529, 106 S. Ct. at 2064.) However, Lee recognized that even if the confession meets the “Lee test” for admissibility under the sixth amendment analysis, State hearsay rules could act independently of the confrontation clause to preclude admission of codefendants’ reliable confessions. Lee, 476 U.S. at 539, 90 L. Ed. 2d at 525, 106 S. Ct. at 2061.

Under Illinois law, a codefendant’s statements are generally inadmissible as hearsay against a defendant, unless the statements were made in the presence of the defendant or assented to by him. (People v. Collins (1989), 184 Ill. App. 3d 321, 539 N.E.2d 736.) In People v. Curtis (1989), 190 Ill. App. 3d 207, 214, 546 N.E.2d 624, 628, and People v. Collins (1989), 184 Ill. App. 3d 321, 329, 539 N.E.2d 736, 741, the Illinois Appellate Court held that statements that incriminate the defendant are incompetent evidence against the defendant, unless an exception to the hearsay rule is applicable. In People v. Duncan (1988), 124 Ill. 2d 400, 414, 530 N.E.2d 423, the court referring to a codefendant’s statement indicated, “Unless some other exception to the hearsay rule applied, we have allowed admission of such statements at joint trials only reluctantly, only with proper limiting instructions, and only if the statements are cleansed of all references to a nondeclaring defendant.” In People v. Moman (1990), 201 Ill. App. 3d 293, 558 N.E.2d 1231, the court indicated that until the Illinois Supreme Court rules otherwise, it will follow the appellate courts in this district (having previously referred to Curtis and Collins) finding the fact that a confession is interlocking under Lee does not render the confession admissible under Illinois evidentiary analysis. We must follow the holdings of the first district of the appellate court. Therefore, we must find that it was error under Illinois evidentiary law to admit Dixon’s statement without redacting all references to the defendant.

However, a finding that it was error under Illinois evidentiary law to admit a codefendant’s confession at defendant’s trial without redacting all references to defendant does not necessarily dispose of the issue. We must next determine whether the error may be deemed harmless. Moman, 201 Ill. App. 3d at 308.

The State argues that even if the trial court erroneously considered the codefendant’s statement against the defendant, the error was harmless. When a trial error affects a Federal constitutional right, it is reversible error unless it is harmless beyond a reasonable doubt. (People v. Owens (1984), 102 Ill. 2d 88, 104, 464 N.E.2d 261.) The sufficiency of the evidence proving guilt beyond a reasonable doubt must be considered in determining whether the error was harmless. (People v. Macfarland (1992), 228 Ill. App. 3d 107, 121.) If the evidence of the defendant’s guilt is uncontroverted and/or so overwhelming that the constitutional violation resulting from its admission at trial did not have an effect on the verdict, then the error is harmless beyond a reasonable doubt. People v. Dixon (1988), 169 Ill. App. 3d 959, 978, 523 N.E.2d 1160.

Notwithstanding the fact that this court found that the evidence in Dixon was not harmless beyond a reasonable doubt, we find the facts distinguishable as they relate to Moore. Moore did not testify at the parties’ joint trial, and this court held that absent the opportunity for cross-examination, the admission of Moore’s statement against Dixon violated the confrontation clause. (Dixon, 169 Ill. App. 3d 959, 523 N.E.2d 1160.) Dixon testified at trial, admitting that he read and signed his confession, but maintained that the statement was untrue and that he signed the statement only because he was tired and the assistant State’s Attorney told him to sign it. Moore’s counsel had the opportunity to cross-examine Dixon. Moreover, in Dixon, this court referring to the prosecutor’s closing argument stated, “the prosecutor not only overtly invited the jury, in contravention of the trial court’s instruction, to consider the redacted version of Moore’s statement against [Dixon] but also obliquely brought to their attention that portion of Moore’s statement wherein he accused defendant of having ‘yelled, “pop him,” ’ which had been ordered redacted by the court.” Dixon, 169 Ill. App. 3d at 978.

In People v. Moman (1990), 201 Ill. App. 3d 293, 558 N.E.2d 1231, the confession of a testifying codefendant was admitted. The court held that there was no confrontation violation due to the fact the codefendant testified. The court found that the admission of the codefendant’s confession without redacting all references to the defendant was error. The court found no basis for overlooking the fact that the codefendant was subject to full and effective cross-examination at trial and explained that a contrary finding would effectively eliminate any harmless error analysis from reviews of denials of severance, contrary to the numerous decisions invoking such analysis in severance cases. The court concluded that any error in the admission of the codefendant’s statements was harmless because the evidence submitted against the defendant established his guilt beyond a reasonable doubt.

The testimony of Jetun Rush and Sean Baylis, coupled with Moore’s own confession, was more than sufficient to prove defendant guilty. In addition, the jury was given limiting instructions, admonishing it not to consider either defendant’s statement against his codefendant. Prior to opening arguments the trial judge stated, “As I said to you before, also there are two defendants. So each one must be given separate consideration to their cases.” Moreover, among the instructions tendered to the jury were the following: Illinois Pattern Jury Instructions, Criminal, Nos. 3.05 and 3.08 (2d ed. 1981).

“You should give separate consideration to each defendant. Each is entitled to have his case decided on the evidence and the law which is applicable to him.
Any evidence which was limited to one defendant should not be considered by you as to the other defendant.”
And:
“A statement made by one defendant may not be considered by you against any other defendant.”

Accordingly, we find that any error from the admission of Dixon’s unredacted statement at the parties’ joint trial was harmless beyond a reasonable doubt.

Ill

Moore’s final point is that the trial judge improperly sentenced him to a 40-year term of imprisonment. Moore contends that his sentence is excessive in light of the fact that he had no prior criminal history. He points out that his father died two years earlier of lung cancer and that he was only 16 years old at the time of the crime. Moore held summer jobs and earned a certificate of merit for tutoring children in reading and math. He argues that his character and background suggest the minimum term of imprisonment would be sufficient to protect society and to punish and rehabilitate him.

The court feels that the sentence imposed in this case is a severe one. The court also feels that some public benefit would be realized from a cost ratio study on the issue of whether long sentences in homicide cases reduce crime among teenagers. However, based on the rules of law which this court must follow, we cannot reduce the sentence in this case.

It is firmly established that the trial court’s judgment with regard to the appropriate punishment is entitled to great deference. (People v. Illgen (1991), 145 Ill. 2d 353, 379, 583 N.E.2d 515.) A reviewing court cannot alter a sentence absent an abuse of discretion on the part of the trial judge. (People v. Steppan (1985), 105 Ill. 2d 310, 323, 473 N.E.2d 1300; People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) A reviewing court must not substitute its judgment for that of a sentencing court merely because it would have weighed the factors differently. People v. Pittman (1982), 93 Ill. 2d 169, 178, 442 N.E.2d 836.

The fact that defendant was a first-time offender is no more than a mitigating factor which is to be considered by the court along with other mitigating and aggravating factors. (People v. Tatum (1989), 181 Ill. App. 3d 821, 537 N.E.2d 875.) A defendant’s lack of a prior record is not necessarily the most persuasive consideration at sentencing (compare People v. Streit (1991), 142 Ill. 2d 13, 566 N.E.2d 1351) and, in fact, the seriousness of the crime has been called the most important factor to be considered in imposing sentence. People v. Hernandez (1990), 204 Ill. App. 3d 732, 740, 562 N.E.2d 219.

In People v. Barney (1982), 111 Ill. App. 3d 669, 679, 444 N.E.2d 518, 525, this court stated as follows:

“[T]he imposition of a sentence of any length within the range provided for the class of the crime of which defendant was convicted is a decision committed by the statute to the discretion of the sentencing court. The statute imposes no requirement that the minimum sentence be imposed in the absence of aggravating factors.”

A sentence within the statutory guideline that is alleged to be excessive will not be disturbed on review unless it is manifestly disproportionate to the nature of the offense. People v. Cabrera (1987), 116 Ill. 2d 474, 493-94, 508 N.E.2d 708, 716.

The trial judge heard defense counsel’s extensive presentation of the factors in mitigation. During sentencing the trial judge acknowledged that this was a tragic case and stated:

“There is no question in my mind these two knew exactly what they had. They had a gun. That was the equalizer for them when they were in the community. And what did they do? They went out in the middle of the afternoon, not ten at night, and because the individual happened to be a big boy and maybe a hero in the particular neighborhood, they decided they’d pick on him, and of course the equalizer was the gun, on a city street right near a high school. And here they engage this big individual who is the local hero and end up shooting and killing him and taking off.
I have no sympathy for either one of them and I don’t think it’s just an average type of crime. I think crime on any city street is bad and disagree with you [defense counsel] as far as the sentence is concerned. How can you possibly give the minimum? This is an attempt armed robbery and a murder on the city street in the middle of the afternoon. Streets are bad.”

The judge also indicated that no matter what sentence he imposed, Moore and Dixon would still be young men when they are released from prison.

Murder is a Class X felony. At the time of sentencing the conviction of murder carried a sentence of 20 to 40 years. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1(a)(1)(a).) The record reflects that the trial judge considered factors in aggravation and mitigation and the sentence imposed was within the statutory guidelines for murder. We cannot hold that the trial judge abused his discretion or failed to follow legislative guidelines in imposing the sentence.

Accordingly, for all the reasons set forth above, we affirm the decision of the trial court.

Judgment affirmed.

McNULTY, P.J., and LORENZ, J., concur.