author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS COBB, Defendant-Appellant.
    Second District
    No. 2—87—1194
    Opinion filed August 1, 1989.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Thomas Cobb, was charged by indictment with one count each of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(1)) and armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A — 2). After a jury trial, the prosecution nol-prossed the armed violence count, and the jury returned a verdict of guilty on the murder charge. Cobb was sentenced to a 32-year term of imprisonment. Cobb appeals both his conviction and his sentence. We affirm.

On November 3, 1986, Cobb was at the home of the victim, Betty Rogers. Betty lived with her mother, Ethel Rogers, her two sisters, Ann and Dorothy Rogers, and her niece, Shawn Johnson. Cobb and Betty had been dating and planned to watch a football game on television that evening. Cobb watched the game in the living room with Ann, Dorothy and their brother Earl. Betty and Ethel remained in the kitchen. Betty was drinking beer throughout the evening.

Cobb and Betty argued during the first half of the game. At halftime, Cobb left the Rogers home and went to his sister’s house, where he resided, a short distance away. Cobb returned with some of Betty’s belongings that she had left there. On occasion, Betty would stay with Cobb at his sister’s home. Cobb and Betty continued arguing throughout the second half of the game.

Sometime after the game, a struggle ensued in the kitchen and Betty was stabbed four times. The police were called and, upon arrival, found Betty lying on the kitchen floor in a pool of blood. Paramedics were summoned and they took Betty to the hospital. She was pronounced dead shortly thereafter.

The police located Cobb at Victory Memorial Hospital in Waukegan, Illinois. Cobb had gone there to get medical treatment for a laceration and puncture wound to his left temple. Cobb was arrested at the hospital at 2:45 a.m. He was given Miranda warnings and interviewed on two separate occasions.

On November 12, 1986, the Lake County grand jury indicted Cobb for one count each of murder and armed violence. The trial in this matter began on May 11, 1987. The trial court ruled on several motions in limine. The court denied defendant’s motions to exclude evidence that he carried a knife prior to November 4, 1986, and that he had talked of killing the decedent prior to that date. The court also denied defendant’s motion to exclude evidence of a statement made by the victim after she had been stabbed. The trial court granted the State’s motion to prevent defendant from presenting evidence of an incident that occurred approximately 16 years ago and for which the victim had been charged with and acquitted of murder.

At trial, Ann Rogers testified that Cobb and Betty got along sometimes and other times they did not. Two to three weeks prior to the stabbing, Ann had seen a knife in Cobb’s waistband. She testified that on the night in question, she had watched a football game on television and then went to sleep on the living room couch. She was awakened by the sound of Betty’s and Dorothy’s voices in the kitchen. Ann got up and walked into the kitchen. As she arrived at the kitchen doorway, she saw Cobb.hitting Betty with his fists. Cobb struck Betty 10 to 12 times in the head and upper body. Ann told Cobb to stop, but he did not respond. Betty fell to the floor, got up, and grabbed a bottle. She raised the bottle over her head and began to swing it at Cobb. Ann told Betty not to swing the bottle. Ann walked out of the kitchen and did not see if Betty hit Cobb with the bottle. Ann went into the living room to call for her mother. When she returned to the kitchen a couple of minutes later, she found Betty lying on the floor bleeding. There was no one else in the kitchen. She ran out the back door to go to a neighbor’s home to phone the police. She saw Cobb standing by his car. She did not see a knife in Cobb’s possession, nor did she see Cobb stab Betty. Ann went to Judy Williams’ house to get help, and Judy called the police.

Dorothy Rogers also testified that she had seen Cobb with a knife two to three weeks prior to November 3. Cobb came over to the Rogers home, lifted his shirt to display the knife and said, “Where is Miss Mace at because I got a Mr. Mace.” This was in response to a prior incident in which Betty had sprayed Cobb with mace. Dorothy also testified that Betty and Cobb had been arguing throughout the football game on November 3 and that Betty had been drinking all evening. After the game, Dorothy went to the store with her brother Earl and then dropped Earl off at Cobb’s sister’s house. Dorothy returned home and found Betty still in the kitchen drinking beer. Dorothy went to the stove to make a sandwich. She used a steak knife to cut the meat. While Dorothy was standing at the stove, Cobb left the kitchen to go to the bathroom. Betty then approached Dorothy and ordered her to go to bed. Instead of arguing, Dorothy decided to skip the sandwich and go to bed. As she was leaving the kitchen, she glanced over her shoulder and saw Cobb returning to the kitchen. Dorothy also saw Ann approaching the kitchen from the living room. Dorothy saw Cobb strike Betty with his fists two or three times. She did not intervene because she thought it was none of her business. Dorothy did not see Betty pick up a bottle, but did see the bottle in the air. Dorothy continued into the living room and then returned to the kitchen. She saw Betty lying on the floor and Cobb walking through the hallway and out the back door. Dorothy saw a knife in Cobb’s hand but could not see the handle. Dorothy called for Ann, and the two left the house to get help. Dorothy saw Cobb standing by his car. She went with Ann to Judy Williams’ home, and Judy phoned the police. Dorothy went to Cobb’s sister’s house before going back to the Rogers home. Dorothy denied that she argued with or struck Betty. She also denied swinging the steak knife or stabbing Betty.

Shawn Johnson also testified that she saw Cobb carrying a knife with a black handle on two separate occasions approximately two to three weeks prior to November 3. She testified that on November 3, she went to the Zion Leisure Center and returned home at approximately 9:30 p.m. She did her homework in her bedroom and went to sleep at approximately 10:30. She was awakened by her Aunt Ann and Aunt Dorothy, who were screaming. Shawn got out of bed and went into the kitchen. She saw her grandmother, Ethel, wiping blood from the floor. She also saw her Aunt Betty lying on the floor bleeding. Ann and Dorothy were not in the kitchen at this time. Shawn was standing over Betty and approximately three to four inches away from her. She saw Betty trying to raise her head. Betty then said, “Help me. He killed me,” twice. Shawn then looked out the back door and saw Cobb standing on the porch. She did not see a knife in his hand. Shawn ran out of the house because she was scared. She saw Cobb get in his car and drive away very quickly. Shawn then ran to Judy Williams’ house.

Larry Blum, the pathologist who performed the autopsy on Betty Rogers, was also called to testify. Blum stated that the deceased had suffered four stab wounds: one to the right shoulder; one to the neck approximately three inches below the ear; one to the upper back above the shoulder blade; and one to the back of the neck. The wound to the back of her neck also cut into her esophagus. This caused the deceased to aspirate blood into her lung and asphyxiate. Simply put, she drowned by swallowing her own blood. Blum testified that the injuries sustained were caused by a sharp object and were most likely inflicted from the rear. The wounds were consistent with the use of a knife. The deceased had no facial or upper body bruises or lacerations. The deceased had not been subjected to blunt trauma immediately prior to her death. He also testified that the deceased’s blood-alcohol content was .323%. This would cause a person’s reaction time to be slowed. This amount of alcohol could also cause a person to be boisterous or aggressive.

The proofs were closed, and the instructions were given. The trial court gave instructions on the defense of justifiable use of force at the defendant’s request. The court refused the defendant’s instructions regarding the decedent’s violent character or reputation. The jury subsequently returned a guilty verdict of murder.

The cause proceeded to a sentencing hearing on December 11, 1987. The trial court first heard and denied the defense motion for a new trial and an amended motion based on newly discovered evidence. Defendant then requested that a report prepared by Dr. Suraleah Michaels, the clinical psychologist who had interviewed and tested Cobb, be considered at sentencing. Defendant had earlier offered a copy of defendant’s post-arrest statement in mitigation. In the statement, defendant described his argument with Betty Rogers on the night of November 3, 1986, when she refused his request for a cigarette. Since he and Betty were having problems, he went and got her clothing from his residence when the football game ended. Later, when he returned from a trip to the bathroom at the Rogers house, he found Betty in an argument with Dorothy. The sisters were fighting, and one had a knife. Defendant tried to break up the fight. Betty cut him on the forehead with a knife or other object. He was bleeding and panicked and acted to defend himself. He was not sure what he did, but he might have cut Betty. Defendant made a statement at sentencing and expressed his regret for what had occurred. He reiterated that he had intervened in a fight between Betty and Dorothy, that Betty had cut his forehead and that he had then been triggered to act. He could have acted to hurt Betty at that time.

At the close of the hearing, the trial court sentenced defendant to a term of 32 years’ imprisonment upon his conviction. Defendant then filed a timely notice of appeal.

One theory of defense relied upon in this matter was a theory of self-defense justifying Cobb’s actions. The State sought through a motion in limine to prevent defendant from introducing any evidence of an incident that occurred 16 years ago in which the victim had stabbed and killed a man. The defendant sought to introduce this evidence to establish that the victim had a violent character and, therefore, may have been the aggressor. The State argues that the victim was acquitted of the charges relating to the stabbing incident and, therefore, the evidence does not establish that she had a violent character. Additionally, the State points to the fact that this incident occurred 16 years ago and is of little relevance. The court granted the State’s motion, and defendant assigns error to that decision.

We find that this issue has not been properly preserved for our review. Generally, to preserve the issue of the wrongful exclusion of evidence for review, an offer of proof must be submitted. (People v. Christen (1980), 82 Ill. App. 3d 192, 196.) The purpose of an offer of proof:

“[I]s to initially indicate to the trial court and opposing counsel, out of the presence of the jury, the substance of the evidence expected to be offered, so that opposing counsel may object to, and the court may rule on, the admissibility of the evidence presented in the offer of proof. [Citations.] If the trial court sustains an objection to the evidence presented in the offer of proof, it then serves to preserve the evidence for a reviewing court’s determination of the propriety of the trial court’s ruling.” (People v. Duarte (1979), 79 Ill. App. 3d 110, 123.)

A detailed and specific offer of proof is necessary when it is not clear what the witness’ testimony will be or his basis for so testifying. (People v. Robinson (1977), 56 Ill. App. 3d 832, 837.) If the evidence sought is obviously relevant and material, an offer of proof is not required. (Christen, 82 Ill. App. 3d at 196.) “Thus, where the trial court is sufficiently aware of the purpose for which the evidence is offered and the substance of the testimony to be elicited, an offer of proof need not be tendered.” Christen, 82 Ill. App. 3d at 196.

In the case at bar, defendant did not make an offer of proof. Defendant’s counsel simply stated that he was prepared to call the police officer who investigated the prior incident to testify as to a character trait of violence or turbulence. This is wholly insufficient to preserve this issue for review. “[A]n informal offer of proof [by an attorney] which merely summarizes the witness’ testimony in a conelusory manner is insufficient to preserve the error.” (Mulhern v. Talk of the Town, Inc. (1985), 138 Ill. App. 3d 829, 834.) We have no way of determining exactly what the substance of the testimony was. Additionally, we do not know the basis of the officer’s knowledge. The officer may have simply been recalling what other people had told him during his investigation of the incident. This would, of course, be inadmissible hearsay. We cannot fairly determine from the whole record whether excluding this undefined testimony was reversible error. (People v. Lynch (1984), 104 Ill. 2d 194, 202.) Since defendant did not adequately tender an offer of proof, we find this issue to be waived.

Defendant’s next contention is that the court erred in refusing to give the jury an instruction relating to the evidence that defendant was able to adduce at trial pertaining to the victim’s violent character. We disagree. Defendant’s instruction No. 5 stated:

“Evidence that Betty Jean Rogers was a woman of turbulent or quarrelsome character may be considered by you in determining who was the aggressor in the instant case.”

The court correctly refused this instruction, and defendant’s instruction No. 5a was then submitted. This instruction stated:

“The evidence that Betty Jean Rogers was a woman of violent or quarrelsome reputation may be considered by you in determining who was the aggressor in the instant case.”

This instruction was also correctly refused.

Defendant points out that Dorothy testified that the deceased had once maced defendant and that she was sometimes a different person when drunk. Also, Judy Williams testified that when the deceased drank, she would become rowdy and argumentative. Defendant argues that the court erred in not instructing the jury on how to use this character and reputation evidence.

It is fundamental that a defendant is entitled to an instruction on his theory of the case. (People v. Lefler (1967), 38 Ill. 2d 216, 222; People v. Isbell (1988), 177 Ill. App. 3d 854, 865.) In a criminal prosecution, very slight evidence on a given theory will justify the giving of an instruction on that theory. Isbell, 177 Ill. App. 3d at 865.

Initially we note that character and reputation are two separate and distinct matters. Character pertains to what a person actually is, and reputation pertains to what others think that person is. (People v. Buchanan (1980), 91 Ill. App. 3d 13, 17.) Character is show by proof of specific acts, and acts of violence are admissible when the victim’s character is being established to support a theory of self-defense. Buchanan, 91 Ill. App. 3d at 17.

In the case at bar, defendant’s theory was self-defense or justifiable use of force. The court provided the jury with a proper instruction pertaining to this theory of defense. Defendant claims that the court should have further instructed the jury as to how the evidence of the victim’s character and reputation fit into his theory of the case or how it should have been considered.

We find that the evidence elicited was not probative of the vietim’s character or reputation. The only character evidence elicited was the testimony of Dorothy alluding to a specific instance in which the victim maced the defendant. This testimony does not establish that the victim had a violent character. There is no evidence in the record as to what the circumstances surrounding this incident were. It is possible that defendant attacked the victim and her response was necessary to protect herself. We simply do not know why the victim maced the defendant, and, therefore, the sparse evidence of the incident does not tend to establish the victim had a violent character.

The only reputation evidence that was elicited came from Dorothy Rogers and Judy Williams. They testified that when the victim drank, she became a different person. She became “rowdy and argumentative.” We do not find that this evidence tends to establish that the victim had a reputation for violence. (Cf. People v. Fischer (1981), 100 Ill. App. 3d 195, 199 (testimony relating incident in which, after drinking, victim became loud, rowdy, pounded on the bar and was less orderly is insufficient to establish that victim was violent in nature and has no probative value in determining whether victim was the aggressor).) We find that the testimony was not probative of a violent character or reputation. By giving defendant’s instruction No. 5 or 5a, the court would have been telling the jury that appropriate reputation and character evidence was elicited when in fact it was not. We hold that the evidence adduced at trial was not sufficient to require the trial court to give an instruction on how to use this evidence. Therefore, the trial court’s decisions to refuse defendant’s instructions Nos. 5 and 5a were proper.

Defendant’s next contention is that the trial court erred in admitting a statement made by the victim after she was stabbed and shortly before her death. The court found that the statement constituted a dying declaration and spontaneous utterance. Therefore, it was admissible as an exception to the rule against hearsay.

A dying declaration is a statement of fact made by the victim, relating the cause and circumstances of the homicide. (People v. Tilley (1950), 406 Ill. 398, 403; People v. Odum (1963), 27 Ill. 2d 237, 242.) To establish a dying declaration, it must appear that the statement was “made by the victim under the fixed belief and moral conviction that death is impending and certain to follow almost immediately, without opportunity for repentance and in the absence of all hope of avoidance, when he has despaired of life and looks to death as inevitable and at hand.” (Tilley, 406 Ill. at 403; Odum, 27 Ill. 2d at 242-43.) An additional requirement is that the declarant must be in possession of his/her mental faculties sufficiently to comprehend what he/she is doing and to have the ability to give a true and accurate account of the circumstances to which this statement relates. (Tilley, 406 Ill. at 403; People v. Rhoads (1982), 110 Ill. App. 3d 1107, 1119; People v. Davis (1981), 93 Ill. App. 3d 217, 231.) Before such statements are admitted, and upon a preliminary hearing outside the presence of the jury, the trial court must be convinced beyond a reasonable doubt that the elements of a dying declaration are present. (Tilley, 406 Ill. at 403-04; Davis, 93 Ill. App. 3d at 231.) The court takes into account all the facts and circumstances surrounding the declarant before, during and after the statement is made. Tilley, 406 Ill. at 403; People v. Webb (1984), 125 Ill. App. 3d 924, 934; People v. Calaban (1976), 42 Ill. App. 3d 994, 998.

The standard for judicial review of the trial court’s conduct in admitting a dying declaration is whether the record supports the trial court’s factual determination. (People v. Van Broughton (1976), 35 Ill. App. 3d 619, 624.) Our supreme court has stated that it is “reluctant to disturb the ruling of the trial judge on the admissibility of a purported dying declaration.” (Odum, 27 Ill. 2d at 239.) Applying this standard of review to the principles set forth above and the facts of this case, we find that the court did not err in admitting the victim’s statement.

Defendant contends that the State did not establish that the declarant was competent when she made the statement. Defendant points to the fact that the victim had a very high blood-alcohol content when she died and, therefore, she could not have accurately perceived or truthfully reported what had occurred. It is our opinion, and we have found no authority to the contrary, that the fact that the victim had a very high blood-alcohol content does not automatically and as a matter of law mean that the victim was not sufficiently in possession of her mental faculties so as to be unable to comprehend what she was doing and did not have the ability to give a true and accurate account of what happened. There is no evidence in the record the victim was so intoxicated as to be incoherent. No one testified that her speech was slurred or that she did not know what she was doing or with whom she was relating.

In Davis, the evidence indicated that the declarant had a substantial quantity of morphine and traces of alcohol in his bloodstream when he died. The defendant argued that the State failed to show that the declarant was in sufficient possession of his faculties due to this evidence. The court, reviewing all the surrounding facts and circumstances, found that the declarant had promptly and accurately responded to questions asked of him and, therefore, the declarant was in sufficient possession of his faculties. (Davis, 93 Ill. App. 3d at 232-33.) The reviewing court affirmed the trial court’s decision to admit the dying declaration.

Likewise, we find that in spite of the declarant’s high blood-alcohol content, a review of all the circumstances surrounding the statement indicates that the record supports the trial court’s factual determination. The decedent’s blood-alcohol content at the time the statement was made may affect the weight given to the statement but will not render it inadmissible.

Defendant also asserts that the statement was too indefinite because the declarant did not identify her assailant but only stated that “He” killed “me.” Defendant cites to our supreme court’s opinion in People v. Scott (1972), 52 Ill. 2d 432, 438, for the proposition that the testimony recounting the declaration cannot be conjectural, and the declaration must be positive and definite. In Scott, the declarant could barely speak and, in essence, mumbled the declaration. The witness was not sure what the declarant had said and could only speculate as to the actual statement. It is in that context that the court required the declaration to be positive and definite.

In this case, there is no evidence that the declaration was not clearly enunciated. In the factual context of the case, defendant was the only “He” in the vicinity of the homicide. The fact that the declarant did not identify the person who stabbed her by specific name bears on the weight of the testimony and not its admissibility. The court correctly admitted the statement as a dying declaration.

Based upon the above finding, it is unnecessary for us to determine if the statement is also admissible as a spontaneous utterance.

Defendant next contends that the trial court committed reversible error by failing to instruct the jury sua sponte that, to convict the defendant of murder, the State had to prove beyond a reasonable doubt that defendant did not subjectively believe circumstances existed which justified the use of force. Defendant asserts that in this case, this additional element should have been included in the murder instruction.

Defendant tendered, and the court gave, the following instructions:

Defendant’s Instruction No. 4
“To sustain the charge of murder, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of Betty Jean Rogers; and
Second: That when the defendant did so, he knew that his acts created a strong probability of death to Betty Jean Rogers.
Third: That the defendant was not justified in using the force which he used.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” Defendant’s Instruction No. 2
“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another.”

Defendant asserts that the defense of justifiable use of force has two components: (1) a subjective belief that the use of force was necessary for self-protection; and (2) the reasonableness of that belief. Defendant argues that the trial court should have instructed the jury in such a way that these two components of justifiable use of force were separated. Consequently, if the State could not prove that defendant did not possess a subjective belief in the necessity of using force, he could not have been convicted of murder. The instructions that were not submitted, but defendant asserts should have been submitted to the jury, would have required the jury to reject both components of the defense beyond a reasonable doubt in order to convict defendant of murder.

It has long been established in Illinois that it is the court’s duty to give or refuse the instructions tendered by the parties, and a party cannot complain of the court’s failure to give an instruction unless the instruction is prepared and tendered. (People v. Lucas (1910), 244 Ill. 603, 614; People v. Harrison (1946), 395 Ill. 463, 477; People v. Barnard (1984), 104 Ill. 2d 218, 232.) The court has no obligation to instruct sua sponte. (People v. Weisberg (1947), 396 Ill. 412, 421; People v. Parks (1976), 65 Ill. 2d 132, 137.) Also, the trial court has no duty to rewrite instructions tendered by counsel. Barnard, 104 Ill. 2d at 232.

Defendant cites People v. Reddick (1988), 123 Ill. 2d 184, to support his contention that, to sustain a conviction for murder, the State must prove that the defendant did not have a subjective belief that use of force was necessary. Reddick, a consolidated case, involved situations in which the defendants admitted the killings but aggressively pursued voluntary manslaughter defenses. The court stated the issue as follows:

“When a defendant charged with murder asserts that the killing (if unjustified) is at most voluntary manslaughter because *** he acted in the unreasonable belief that the killing was justified ***, who bears the burden of proof on [this issue] and what is the extent of the burden?” (Reddick, 123 Ill. 2d at 193.)

The court described the pertinent murder and voluntary manslaughter instructions as follows:

“[T]o sustain the murder charge the People must prove beyond a reasonable doubt that the defendant performed the acts which caused the decedent’s death; that when the defendant did so, he knew that his acts created a strong probability of death or great bodily harm to the decedent; and that the defendant was not justified in using the force which he used.
The voluntary manslaughter - belief of justification burden-of-proof instruction used in each case stated that to sustain the charge of voluntary manslaughter the People must prove beyond a reasonable doubt that the defendant performed the acts which caused the decedent’s death; that when the defendant did so, he knew that his acts created a strong probability of death or great bodily harm to the decedent; that when the defendant did so he believed that circumstances existed which would have justified killing the decedent; and that the defendant’s belief that such circumstances existed was unreasonable.” Reddick, 123 Ill. 2d at 193-94.

The court found that when a defendant charged with murder asserts that he acted pursuant to an unreasonable belief of justification, the State need not present evidence of this mental state to obtain a conviction for voluntary manslaughter. (Reddick, 123 Ill. 2d at 195.) The reason for this result is that this mental state is of lesser culpability, and defendant relies on its existence to lessen the culpability of his otherwise murderous conduct. Reddick, 123 Ill. 2d at 195.

The court in Reddick concluded that, “if a defendant in a murder trial presents sufficient evidence to raise issues which would reduce the charge of murder to voluntary manslaughter, then to sustain the murder conviction, the People must prove beyond a reasonable doubt that those defenses are meritless, and must also prove beyond a reasonable doubt the statutory elements of murder.” (Reddick, 123 Ill. 2d at 197.) Therefore, “the instructions set forth above, when read together, erroneously state the burdens of proof on the [issue] of whether the defendants acted under *** unreasonable beliefs that their actions were justified.” (Emphasis added.) Reddick, 123 Ill. 2d at 194.

Reddick is not dispositive of this case as it does not address the issue at bar and is distinguishable in several important respects. The defendants in Reddick admitted the killings but pursued voluntary manslaughter defenses to lessen their culpability. Voluntary manslaughter instructions were tendered and given. The court found that “when read together” the instructions were misleading. Conversely, in this case, murder was charged and the defendant did not assert a voluntary manslaughter defense. Defendant did not tender and the court did not give voluntary manslaughter instructions. The murder instruction was not given in conjunction with manslaughter instructions and was not misleading. Reddick was examined under a set of circumstances not present here.

An additional issue was presented and discussed in one of the consolidated cases of Reddick and is particularly helpful here. The defendant in Reddick cited as error the trial court’s failure to instruct the jury on the burden of disproving that defendant acted in self-defense. The court noted that when a defendant presents sufficient evidence to raise the issue of self-defense, the jury must be instructed that it is the State’s burden to prove beyond a reasonable doubt that the use of deadly force was not justified. (Reddick, 123 Ill. 2d at 201, citing People v. Williams (1974), 57 Ill. 2d 239, 242.) The jury was instructed that the State had the burden of proving every element of the crimes charged. However, lack of justification was not listed as an element of the crime charged. The court held that the failure to instruct the jury on the State’s burden -with respect to this element constituted grave and reversible error.

In the case at bar, lack of justification was an element specifically listed in the murder instruction. The import of the above discussion is that the supreme court did not separate the “lack of justification” element into the two components that defendant wishes in this case. The court, while discussing the State’s burden of proof and the elements of each offense, did not find that it is the State’s burden to prove beyond a reasonable doubt that the defendant did not subjectively believe the use of force was necessary. It is our opinion that, if this is an element that the State must prove, the supreme court would have alluded to it in its statement of the proper instruction to be given in a murder case involving self-defense.

Defendant also cites this court’s decision in People v. Denson (1985), 139 Ill. App. 3d 914, to support his position. In Denson, the defendant was charged with murder. The defendant admitted he shot the victims but testified that at the time of the shooting several gang members were standing behind the victims and suddenly something struck him in the mouth. He feared that he was going to be attacked so he fired his gun. The defendant claimed on appeal that the conviction of murder should be reduced to voluntary manslaughter because the evidence showed that he believed, albeit unreasonably, that the killings were justified. The defendant placed into evidence considerable testimony as to his subjective belief that the use of force was necessary. Voluntary manslaughter was presented to the jury and rejected. This court addressed the issue of who bears the burden of proof when the defendant asserts that the offense committed was manslaughter and not murder. This court, citing People v. Bolden (1985), 132 Ill. App. 3d 1047, stated that “[wjhere the defendant presents some evidence of [his belief that force was necessary], the burden is on the State to prove beyond a reasonable doubt that he did not have such a belief in order to obtain a conviction of murder.” (Denson, 139 Ill. App. 3d at 924.) The defendant’s goal in Denson was a conviction of manslaughter and not murder.

We reiterate that voluntary manslaughter was never presented as a theory of defense to murder in this case. Defendant did not tender instructions regarding voluntary manslaughter and is not arguing on appeal that a voluntary manslaughter instruction should have been given. In fact, as trial counsel enunciated in closing arguments and as appellate counsel points out, one theory of defense was that the State could not prove beyond a reasonable doubt that defendant actually committed the acts complained of. A voluntary manslaughter instruction is most often not warranted with this defense. (See People v. Hughes (1982), 109 Ill. App. 3d 352, 361 (defendant who chose to defend on the basis of mistaken identity had a right not to have the jury instructed as to manslaughter); People v. Falkner (1985), 131 Ill. App. 3d 706, 710 (defendant has a right to keep the jury from receiving an instruction on lesser included offense if the defense is alibi or mistaken identity).) The decision in Denson was based on facts not present here and is not dispositive of the issue before us.

In this case, defendant’s goal is acquittal on a charge of murder. Defendant’s closing argument relied solely on the defense that the State.did riot prove beyond a reasonable doubt that he committed the acts complained of. Defendant’s other theory of defense was justifi able use of force, not unjustifiable use of force. Defendant never introduced evidence that he committed the acts but that, while doing so, he had a subjective belief that these acts were necessary to prevent imminent death or great bodily harm. Defendant did not place his subjective belief in issue and chose to rely on the defenses that he was not proved to have stabbed the victim and, if so, that he was justified in his actions. He chose not to submit an instruction on voluntary manslaughter because he did not want to run the risk of being convicted of this offense. However, he believes the court should have submitted a form of the manslaughter instruction to avoid the murder conviction. Defendant is asking for a manslaughter instruction to be infused into a murder instruction. We find no authority or rationale that supports this undertaking.

In this case, where the defendant did not introduce any evidence of his subjective belief, the State does not have to prove the additional element that defendant asserts. We find that the jury received proper instructions on murder and justifiable use of force. Therefore, the court did not err by not sua sponte rewriting the instruction submitted.

Defendant next contends that he was denied a fair trial because of several improper comments and misconduct by the State. Every defendant is constitutionally entitled to a fair and impartial trial regardless of his guilt or innocence. (People v. Brown (1983), 113 Ill. App. 3d 625, 629.) This includes the right to a trial free from improper comments. (People v. Roberts (1981), 100 Ill. App. 3d 469, 477.) However, a conviction will not be disturbed unless these comments constitute a material factor in the conviction or result in substantial prejudice to the defendant. Roberts, 100 Ill. App. 3d at 477; People v. Witted (1979), 79 Ill. App. 3d 156, 165.

The first instance of alleged misconduct occurred during the State’s opening argument. The prosecutor informed the jury that it would hear testimony about a prior threat on the victim’s life made by defendant. The State did not proffer this evidence during the trial.

The fact that the State informed the jury that it would present evidence of a prior threat on the victim’s life, and then failed to present it, does not necessarily constitute reversible error. It is improper, with foreknowledge, to include matters in an opening statement which are not thereafter proved. (People v. Platter (1980), 89 Ill. App. 3d 803, 824.) However, absent deliberate misconduct by the prosecutor, this is not reversible error unless the reference resulted in substantial prejudice to the defendant. (Platter, 89 Ill. App. 3d at 824.) We cannot infer from the record that this omission of evidence was deliberate misconduct on the part of the prosecutor. Additionally, the jury was informed on several occasions by counsel and by the court that opening statements are not to be considered as evidence. We do not find'that this comment resulted in substantial prejudice to defendant. Therefore, it was not reversible error.

The second instance of alleged misconduct occurred during the evidentiary phase of the trial. Defendant alleges that leading questions were asked of Dorothy and Ann Rogers, the two main occurrence witnesses for the State. Defendant claims that these leading questions were highly prejudicial in that the prosecutor essentially substituted her own testimony for that of the witnesses.

A leading question is a question that suggests the answer by putting into the witness’ mind the words or thought of the answer. (People v. Schladweiler (1925), 315 Ill. 553, 556.) Generally, it is improper to lead witnesses except on cross-examination. (Farmar v. Crane (1975), 32 Ill. App. 3d 383, 389.) It is true that the transcript of the testimony of Dorothy and Ann Rogers contains leading questions. However, defendant was prompt with his objections which the court sustained. Additionally, the court, while recognizing that the witnesses were of limited intelligence, admonished the State and instructed the jury to disregard responses to leading questions that were material. We find that most of the leading questions asked did not involve material information and, when they did, the court cured any error by sustaining objections and instructing the jury to disregard the testimony. (See People v. Gutierrez (1985), 136 Ill. App. 3d 774, 785; People v. Outlaw (1979), 75 Ill. App. 3d 626, 646.) Therefore, defendant was not prejudiced by the use of leading questions in this case.

Another instance of alleged misconduct occurred during the State’s closing argument. Defendant, in his closing argument, argued to the jury that he did not flee or attempt to conceal himself from the police. Additionally, he cooperated with the police after he was arrested. The State, in its rebuttal argument, commented that defendant had no choice but to cooperate as he was arrested. Defendant states that he had a constitutional right to remain silent and to obtain counsel once he was arrested. Defendant claims the prosecutor improperly downplayed defendant’s cooperation and, in fact, misstated the law by claiming defendant had no choice but to cooperate. Defendant asserts that this constitutes reversible error.

The comment made by the prosecutor with respect to defendant’s cooperation with the police when he was arrested did not constitute reversible error. A prosecutor’s misstatement of the law in closing argument can be grounds for reversal depending upon the circumstances of the case. (People v. Eckhardt (1984), 124 Ill. App. 3d 1041, 1043.) However, in this case, the court sustained defendant’s objection and clearly instructed the jury to disregard the statement. The court went on to explain to the jury that what is said in closing argument is not evidence and should not be regarded as such. This prompt action by the court cured any error that occurred. Defendant was not unduly prejudiced by the State’s comment.

During the discussion of the above issue between the parties and the court, defendant claims another instance of misconduct arose. There was a pretrial order entered which stated that all objections were to be argued outside the presence of the jury. The State had accused defense counsel on several instances throughout the trial of violating that order. During the discussion of the rebuttal argument, and in the presence of the jury, the prosecutor objected to the defense counsel’s conduct and stated, “There is a motion in limine, a court order, regarding his conduct.” Defendant contends that this accusation in the presence of the jury constituted prejudicial error.

This comment should not have been made in the presence of the jury. However, a defendant cannot assert prejudice where he or his counsel has provoked or invited the comments of which he complains. (People v. Evans (1988), 173 Ill. App. 3d 186, 205.) It is clear that the State’s comment was made in response to defense counsel’s violation of the court order. We find that this comment was provoked by defense counsel and, therefore, cannot support a claim of prejudice.

Defendant also asserts that the State’s closing argument included inflammatory remarks going beyond the evidence and statements known to be false. It is well established that a prosecutor is given wide latitude in closing argument as long as the comments are based on the evidence or reasonable inferences therefrom. (People v. Clay (1984), 124 Ill. App. 3d 140, 149.) The statements objected to by defendant were based on direct testimony of the witnesses and reasonable inferences therefrom. Additionally, as stated previously, the jury was repeatedly instructed that comments made during closing arguments are not evidence. We find no error resulting from these comments of the prosecutor.

Defendant claims that any one of these errors constitutes reversible error, but they also should be considered cumulatively to lead to the conclusion that defendant did not receive a fair trial. The State argues that any error that may have occurred was cured by the court in sustaining defendant’s objections and instructing the jury. A reviewing court may consider the cumulative impact of improper prosecutorial remarks and conduct rather than assessing them in isolation. (Brown, 113 Ill. App. 3d at 630.) The errors that occurred were promptly cured by the court’s action. We do not find that the cumulative effect of these errors denied defendant a fair trial.

Defendant next contends that he was denied the effective assistance of counsel because his attorney failed to investigate and present a theory of defense predicated on insanity. We are not persuaded.

“Effective assistance of counsel refers to competent, not perfect, presentation.” (People v. Hillenbrand (1988), 121 Ill. 2d 537, 548.) To establish ineffective assistance of counsel, a defendant must prove that counsel’s performance was deficient and that the defendant was prejudiced by this deficiency. (People v. Barnard (1984), 104 Ill. 2d 218, 237, citing Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.) To be deficient, counsel’s errors must be so great that counsel is not acting as “ ‘counsel’ [as] guaranteed *** by the Sixth Amendment.” (Strickland, 466 U. S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) Errors in trial strategy, judgment or tactics will not, in and of themselves, render counsel deficient. (Hillenbrand, 121 Ill. 2d at 548.) To establish prejudice, the defendant must prove that there is a reasonable probability that, but for counsel’s deficient conduct, the outcome of the proceeding would have been different. (Barnard, 104 Ill. 2d at 237-38.) We must review the record as a whole and the totality of counsel’s conduct in determining whether counsel was incompetent. (People v. Peterson (1989), 182 Ill. App. 3d 756, 761; People v. Murphy (1987), 160 Ill. App. 3d 781, 786.) There is a strong presumption that counsel’s conduct falls within the wide range of competent professional assistance. Peterson, 182 Ill. App. 3d at 761.

In this case, defendant claims that his attorney did not adequately investigate the possibility of an insanity defense. The only evidence of record that establishes this is the fact that there was no request for a fitness hearing prior to trial and insanity was not offered as a defense at trial. This evidence does not establish that defendant’s counsel did not investigate the possibility of presenting an insanity defense.

The choice of presenting the defense of self-defense and not presenting an insanity defense is one of strategy. Additionally, it is clear from the record that defendant’s counsel pursued this case vigorously. Counsel made several pretrial motions, cross-examined witnesses extensively, made intelligent arguments to the court based on the evidence presented, submitted post-trial motions and provided evidence and argument at the sentencing hearing. The record does not reflect that counsel did not consider an insanity defense, and the decision not to present this defense is one of strategy. Defendant received effective assistance of counsel throughout the proceedings and, therefore, is not entitled to a new trial.

Defendant’s final contention is that the sentence imposed by the trial court was excessive. Defendant points to the several mitigating factors presented to establish that the imposition of a 32-year prison term was error. We disagree.

The imposition of a criminal sentence is a matter of judicial discretion, and the decision of the trial court will not be altered upon review absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153; People v. Katsigiannis (1988), 171 Ill. App. 3d 1090, 1102.) A trial court’s decision in sentencing is entitled to great weight and deference (People v. Younger (1986), 112 Ill. 2d 422, 427-28), and a reviewing court will not substitute its judgment for that of the trial court simply because it would have balanced the appropriate factors differently. (People v. Cox (1980), 82 Ill. 2d 268, 280.) This is especially true where the sentence imposed is within the statutory limitations. People v. Lambrechts (1977), 69 Ill. 2d 544, 559.

The trial court conscientiously took into account all factors in aggravation and mitigation. The court considered the psychiatric evaluations presented and defendant’s statement in mitigation, but placed great weight on the fact that the victim was stabbed four times, three times in the back. The court took into account the appropriate factors and made a reasoned decision.

We find that the court did not abuse its discretion in sentencing defendant to a term of 32 years.

For the reasons stated, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

LINDBERG and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BASILIO GAYTAN, Defendant-Appellant.
    Second District
    No. 2—87—1198
    Opinion filed August 1, 1989.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Barbara J. Slingerland, of Springfield (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Basilio Gaytan, was found guilty following a bench trial of one count of unlawful delivery of 15 grams or more of a substance containing cocaine (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)) and one count of unlawful possession of a controlled substance with intent to deliver a controlled substance containing 15 grams or more of cocaine (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)) and was sentenced, on the unlawful delivery conviction, to nine years’ imprisonment, fined $21,600, and ordered to pay $3,200 restitution to the Du Page County Metropolitan Enforcement Group (Du Meg). The trial court vacated the conviction on the possession with intent to deliver count, and the State nol-prossed the five remaining counts which were for offenses on earlier dates for which the State had elected not to proceed.

On appeal, defendant raises three issues: (1) whether the trial court erred in denying his pretrial motion to require the State to disclose the address of its informant; (2) whether the trial court erred in denying defendant’s motion to suppress his post-arrest statements; and (3) whether the trial court erred in ordering defendant to pay $3,200 restitution to Du Meg.

Prior to trial, defendant filed a motion to suppress his confession, alleging that he was not advised of or did not waive the Miranda warnings and that he did not understand English sufficiently to comprehend or waive the Miranda warnings. Defendant also filed an amended motion to suppress statements alleging that his statements were involuntary due to physical force used against him at the time of his arrest, namely, that on at least two occasions he was struck in the back of the head and punched in the testicles by one of the arresting officers. The amended motion also realleged that defendant was not advised of or did not waive his Miranda rights prior to being questioned.

At the suppression hearing, the State presented testimony of Officer Michael Sullivan, who participated in removing defendant from his vehicle and placing him under arrest, Officers Joe De Anda and Elizabeth Brantner, who transported defendant to the police station and interrogated him, and two county deputies who processed defendant at the Du Page County jail. According to Sullivan, he was present during the entire time defendant was arrested, and he observed no one punch, kick or strike defendant, nor did he do so himself. Neither De Anda nor Brantner observed any officer strike defendant, and defendant indicated, in response to Brantner’s inquiry if he was okay, that he was “[fjine.” Both sheriff’s deputies indicated that they observed no bruises, abrasions or cuts on defendant and that defendant made no complaints regarding pain or physical injury.

Defendant testified, inter alia, that one of the officers attempted to hit him with a gun at the time of his arrest. According to defendant, at the time of his arrest someone hit him in the back of the head, “not really hard,” and another officer hit him in the testicles and asked him, “Where are your weapons?” Defendant stated on cross-examination that no one hit him hard, but that his head was swollen for three weeks, and that he was not struck very hard in the testicles. Defendant also admitted that the officers placed him in the squad car carefully. Defendant did not offer any testimony that he was struck or threatened during his interrogation at the police station when he gave a statement, nor did he testify that the physical incidents at his arrest caused him to give the statement. The trial court denied defendant’s motion to suppress.

Prior to trial, defendant filed a motion to disclose the identity of a State informant and “all pertinent information pertaining to the informant,” including his proper name and address. The State orally objected to defendant’s motion on July 24, 1987, and again on November 10, 1987. The trial court stated that it would treat defendant’s motion as a continuing motion to produce and would make a ruling later if the evidence at trial showed the informant to be a material witness. Defendant renewed his motion to disclose the location of the informant at the close of the State’s case, and the trial court denied the motion.

The following facts were adduced at trial. Defendant owned and operated a grocery store called La Victoria II located in West Chicago. Defendant admitted using cocaine and had on occasion purchased cocaine for himself and an acquaintance, Audi Higgins. Sometime in late October or early November 1986, Higgins brought a scale to defendant’s store and gave it to defendant. Defendant stated that Officer Charles Dvorak, the undercover officer in this case, had sold the scale to Higgins to obtain money to purchase drugs.

Officer Dvorak, an undercover officer for Du Meg, was first introduced to defendant in late October or early November 1986 by Audi Higgins, who was an informant for Du Meg. According to Dvorak, he made six purchases of cocaine in varying quantities from defendant between early November 1986 and February 25, 1987. The informant, Higgins, was not present at any of the transactions except the first, and Dvorak had no contact with Higgins after January 20,1987.

Finally, Dvorak met with defendant in a business parking lot on February 25, 1987, and defendant delivered two clear plastic bags of a substance purported to be cocaine to Dvorak while they were seated in defendant’s car. Dvorak gave defendant $3,600, exited the vehicle and activated a prearranged arrest signal, and defendant was arrested.

Defendant testified that he had purchased cocaine for his and Higgins’ use prior to meeting Dvorak, but he had never sold cocaine to anyone, including Higgins. Defendant admitted selling half a gram of cocaine to Dvorak at their first meeting when Higgins introduced him to Dvorak, but stated that he refused to sell any initially and that Dvorak asked him eight times before he finally sold him the cocaine. According to defendant, Dvorak had attempted to contact him on numerous occasions after November 13, 1986, and prior to his arrest regarding the purchase of cocaine and that defendant told Dvorak on January 20, 1987, that he thought it would be a good idea to stop selling cocaine. Defendant stated that he told Dvorak every time he met with him that he did not “want any problems with drugs.” Defendant admitted selling cocaine to Dvorak on various occasions between early November 1986 and February 1987. Also, on February 24, 1987, Dvorak met with defendant at his store to arrange to purchase more cocaine, and although defendant initially refused to sell more drugs and told Dvorak he was uninterested in selling larger quantities of drugs because he was afraid, defendant did agree to sell more cocaine to Dvorak. Although defendant testified that he talked to Higgins almost every day between November and January, he offered no testimony that Higgins witnessed or participated in any transactions between defendant and Dvorak after the initial transaction in early November.

Defendant raises two contentions on appeal regarding whether the trial court erred in denying his pretrial motion to require the State to disclose the address of its informant. First, he argues that Supreme Court Rule 412(j)(ii) (107 Ill. 2d R. 412(j)(ii)) does not apply in this case because he knew the identity of the informant and merely sought the informant’s address. Second, defendant contends, assuming Rule 412(j)(ii) is applicable, the informant was a material witness to his entrapment defense, and, therefore, the State should have been required to disclose the informant’s address or location.

The State responds first that Higgins was not a material witness because he was present only at the initial transaction in early November 1986 with defendant and Dvorak and was not present or involved in the later transaction on February 25, 1987, for which defendant was tried. Secondly, the State argues that Higgins’ disclosure would not have been helpful to defendant because its evidence that defendant was predisposed to commit the offense negated any entrapment defense.

Supreme Court Rule 412(j)(ii) states:

“(ii) Informants. Disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.” (107 Ill. 2d R. 412(j)(ii).)

In deciding whether to require disclosure of an informant’s identity, a court must balance the public’s interest in protecting the flow of information against the defendant’s right to prepare his defense. (People v. Lewis (1974), 57 Ill. 2d 232, 235, 311 N.E.2d 685; see Roviaro v. United States (1957), 353 U.S. 53, 62, 1 L. Ed. 2d 639, 646, 77 S. Ct. 623, 628-29.) To determine a proper balance, the court must look to the particular circumstances of each case and take into consideration the crime charged, the possible defenses, the potential significance of the informant’s testimony, and any other relevant factors. (Lewis, 57 Ill. 2d at 235, 311 N.E.2d at 687.) Thus, disclosure is required where the informant acted in the dual role of informant-participant in the crime being prosecuted (Lewis, 57 Ill. 2d at 235, 311 N.E.2d at 687) or was actively involved in the events leading up to the transaction for which the defendant is being prosecuted and is asserting the defense of entrapment. People v. Raess (1986), 146 Ill. App. 3d 384, 392-93, 496 N.E. 2d 1186.

Here, the State relied on Rule 412(j)(ii) in refusing to disclose the address of the informant. Defendant initially argues that Rule 412(j)(ii) applies only to situations where a defendant does not know the identity of the informer. According to defendant, as he knew who the informer was, the State could not utilize Rule 412(j)(ii) in failing to disclose the informant’s address. Such an argument, however, misses the point of Rule 412(j)(ii). The purpose behind Rule 412(j)(ii) is to protect the identity of an informant and therefore to encourage use of informants. (Lewis, 57 Ill. 2d at 237-38, 311 N.E.2d at 688-89.) Identity may very well include location or address, particularly where, as here, defendant already knows the name or physical identity of the informant. The only way that the State might effectively protect the “identity” of an informant under these circumstances is to not disclose his address or whereabouts. Further, it should be kept in mind that disclosure of an informant’s location or address, like his identity, would hamper the purpose behind the nondisclosure rule because it would subject an informant to publicity or to exposure related to the trial. Accordingly, Rule 412(j)(ii) is an equally applicable basis for the State to refuse to disclose the address or location of an informant as it is for the State’s refusal to disclose the name of the informant.

Defendant argues that, even assuming the applicability of Rule 412(j)(ii), he was denied due process because the State’s failure to disclose the informant’s address denied him access to a material witness to his entrapment defense. In order to determine whether an informant is a material witness and, therefore, whether his address should have been disclosed, it is necessary to understand the nature of the entrapment defense and its applicability under the circumstances present here.

The entrapment defense is set forth in the Illinois Criminal Code of 1961 (Criminal Code):

“§7 — 12. Entrapment. A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or fácility for committing an offense in furtherance of a criminal purpose which such person has originated.” (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 12.)

Entrapment is established when a law enforcement officer or his agent conceives a criminal enterprise and invites or induces a defendant into committing an offense which he would not have otherwise committed. (People v. Dabrowski (1987), 162 Ill. App. 3d 684, 696, 515 N.E.2d 1345.) Where the defendant already has the intent to commit a crime, however, and does so merely because an officer, for purposes of securing evidence, affords the defendant the opportunity to commit the crime or purposely aids and encourages him in its perpetration, there is no entrapment. (Dabrowski, 162 Ill. App. 3d at 696, 515 N.E.2d at 1353.) To establish entrapment, the evidence must disclose an improper inducement on the part of the law enforcement authority and the lack of a predisposition to commit the crime on the part of the defendant. Dabrowski, 162 Ill. App. 3d at 696, 515 N.E.2d at 1353.

The entrapment defense may apply where a defendant is prosecuted for a transaction which occurs after a series of transactions. (See Sherman v. United States (1958), 356 U.S. 369, 374, 2 L. Ed. 2d 848, 852, 78 S. Ct. 819, 822; see also People v. Washington (1987), 154 Ill. App. 3d 648, 652-54, 506 N.E.2d 1387.) Where the transaction in question is not an independent act subsequent to the inducement, but part of a course of conduct which was the product of the inducement, then entrapment is a potential defense. See Sherman, 356 U.S. at 374, 2 L. Ed. 2d at 852, 78 S. Ct. at 822.

In the present case, defendant argues that the informer was present when Dvorak initially induced him into selling cocaine to Dvorak and that the subsequent transactions, including the final one for which he was tried, were part of a course of conduct arising out of the initial inducement. Thus, defendant contends, failure to reveal the address of the informer denied him access to a material witness to his defense of entrapment.

While it is true that prosecution for a subsequent transaction does not necessarily shield the State from a claim of entrapment arising out of prior transactions, all of which are part of an ongoing course of conduct initiated by the police, a defendant must establish the relationship between the transaction in question and the prior transactions. The defendant here has failed to do so. Defendant has not offered any evidence which demonstrates that any alleged inducement as to the initial transaction was in any way operative at the time of or affected the final transaction for which he was charged. Nor has defendant offered any evidence that Higgins was involved in or witnessed any transactions including the one for which defendant was prosecuted, which occurred after the initial transaction in early November. After the initial sale to Dvorak when the informant was present in early November 1986, some five other transactions occurred between defendant and Dvorak alone in which the informant played no role nor was a witness thereto. Without such a showing, defendant has failed to establish the materiality of the informant as to the entrapment defense raised regarding the particular transaction for which he was prosecuted.

It may very well be that the informer would be material to an entrapment defense had defendant been prosecuted for the initial transaction. (See Lewis, 57 Ill. 2d at 235, 311 N.E.2d at 687.) That question is not present here. Nor does defendant allege in his motion, or argue on appeal, that the informer was in any way involved as a participant or witness in the final transaction for which he was prosecuted here. Thus, defendant has failed to demonstrate the materiality of the informant as to the issue of entrapment for this particular transaction. (See People v. Thornton (1984), 125 Ill. App. 3d 316, 318-19, 465 N.E.2d 1049.) Balancing the public interest in protecting the flow of information against a defendant’s right to prepare his defense, we conclude that under the circumstances here the State’s failure to disclose the informant’s address or location, if known, did not deny defendant due process.

Defendant next contends that the cause must be remanded for a new suppression hearing because the State did not call all the material witnesses to his arrest at the suppression hearing even though he alleged he had been physically abused at the arrest site prior to giving a statement later at the police station. Although all the witnesses to his making of the statement were called to testify at the suppression hearing, defendant maintains that most of the officers in a group of 12 who had been involved in his arrest where he was beaten were not called to testify.

Defendant acknowledges that he did not object in the proceedings below to the failure of the State to call all material witnesses on the issue of whether the confession was voluntary as expressly required pursuant to section 114 — 11(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 11(d)), but argues that we should recognize the issue as plain error (107 Ill. 2d R. 615(a)). While some appellate court decisions have held the failure to object as a waiver of the issue on review without discussion of the plain-error doctrine (see, e.g., People v. Bates (1988), 169 Ill. App. 3d 218, 223, 523 N.E.2d 675; People v. Clay (1981), 98 Ill. App. 3d 534, 541, 424 N.E.2d 814; People v. Lewis (1979), 75 Ill. App. 3d 259, 279, 393 N.E.2d 1098), others have applied the plain-error rule. (See, e.g., People v. Johnson (1988), 167 Ill. App. 3d 659, 668-69, 521 N.E.2d 609; People v. Willis (1975), 26 Ill. App. 3d 518, 524-25, 325 N.E.2d 715.) People v. Tucker-El (1984), 123 Ill. App. 3d 955, 463 N.E.2d 991, cited by defendant, where this court applied the plain-error rule, is inapposite as an objection was made in the trial court, but the issue was not preserved in a post-trial motion.

As the plain-error rule is a limited exception to the general waiver rule (People v. Barnard (1984), 104 Ill. 2d 218, 229, 470 N.E.2d 1005) and is a limitation on the parties and not the courts (People v. Hoskins (1984), 101 Ill. 2d 209, 219, 461 N.E.2d 941), we shall consider the issue, but find no error in the State’s failure to present the testimony of every officer present at his arrest. The material-witness rule applies where the voluntary nature of a confession is brought into question by a motion to suppress. (People v. Brooks (1987), 115 Ill. 2d 510, 516, 505 N.E.2d 336.) Under the rule, the State must produce all material witnesses connected with the taking of the statements or present during any alleged misconduct related to the voluntariness of the statement or explain their absence. (Brooks, 115 Ill. 2d at 516, 505 N.E.2d at 339; People v. Armstrong (1972), 51 Ill. 2d 471, 475-76, 282 N.E.2d 712.) Persons who must be called as witnesses, or whose absence must be explained, are those persons whose testimony would be material on the issue of the voluntary nature of the confession. Armstrong, 51 Ill. 2d at 476, 282 N.E.2d at 715.

Here, defendant’s amended motion to suppress states, in pertinent part:

“1. Defendant was arrested on February 25,1987 and charged with unlawful delivery of controlled substances.
2. Following his arrest, the Defendant, with his hands handcuffed behind his back, on at least two (2) occasions was struck in the back of his head and was punched in the testicles by one of the arresting officers, whom Defendant cannot identify by name, and all the while said officer asking the Defendant, ‘Where’s [sic] the guns?’
3. That Defendant was then transported to the West Chicago Police Department, where he was interrogated by Agent Elizabeth A. Brantner and Det. Joe DeAnda regarding the charges against him and as a result of which the State has obtained various statements from Defendant that it will seek to use as evidence against him in the trial of this cause.”

The amended motion fails to allege that any physical force used against defendant at the time of his arrest resulted in the subsequent statements made later at the police station being involuntary or the product of coercion. Nor does the amended motion allege what effect, if any, the officer’s alleged use of physical force had on defendant’s later admissions. We further note that at the suppression hearing defendant briefly testified to his asking Officer De Anda why the arresting officers hit him, but did not testify to what effect the arresting officers’ misconduct might have had on the voluntariness of his decision to confess.

Where a defendant fails to claim that his confession was the product of coercion or was involuntary, it is unnecessary for the State to produce all of the witnesses to the confession. {In re Lamb (1975), 61 Ill. 2d 383, 389-90, 336 N.E.2d 753; see People v. Hills (1980), 78 Ill. 2d 500, 506, 401 N.E.2d 523.) Likewise, where, as here, defendant claims that the police used excessive force in arresting him but failed to establish, in either his motion to suppress or in his testimony at the suppression hearing, any relationship between the alleged use of force and his subsequent confession such that the use of force resulted in a coerced or involuntary confession, the State need not produce all the witnesses present during the alleged misconduct. Accordingly, it was not error for the State to have failed to present testimony of the other officers present at the scene of defendant’s arrest.

Defendant lastly contends that the trial court erred in ordering him to pay restitution in the amount of $3,200 to Du Meg. First, he contends that the trial court lacked statutory authority to order restitution because Du Meg is not a “victim” of defendant’s crime within the meaning of section 5 — 5—6 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—6) authorizing the payment of restitution by defendants to victims in criminal cases. Second, he maintains that the trial court did not have the authority to order restitution based on conduct of the defendant which was not the basis of the conviction.

The State responds that restitution was properly ordered because “victim,” as defined in section 3 of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Victim’s Bill of Rights Act) (Ill. Rev. Stat. 1985, ch. 38, par. 1403(a)), means “person” and “person” is defined as including the government in section 2 — 15 of the Criminal Code (Ill. Rev. Stat. 1985, ch. 38, par. 2 — 15). The State further maintains that it was proper for the trial court to order restitution based on the various transactions prior to the one for which defendant was convicted because they comprised a course of conduct closely related to the conduct for which defendant was convicted.

Du Meg, which expends public funds on criminal investigations, has been held not to be a “victim” within the meaning of the statute authorizing the payment of restitution by defendants to victims in criminal cases. (See People v. McGrath (1989), 182 Ill. App. 3d 389, 395-96, 538 N.E.2d 855, 859; People v. Winchell (1986), 140 Ill. App. 3d 244, 247, 488 N.E.2d 620; People v. Evans (1984), 122 Ill. App. 3d 733, 740, 461 N.E.2d 634.) The State, however, criticizes the Winchell and Evans decisions and urges a statutory definition of “victim” by first referring to the definition of “victim” contained in section 5 — 1—22 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 1—22). Section 5 — 1—22 defines “victim” by reference to section 3(a) of the Victim’s Bill of Rights Act (Ill. Rev. Stat. 1985, ch. 38, par. 1403(a)), which refers to “victims” as “persons.” The State then argues that “person” is defined in section 2 — 15 of the Criminal Code (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 15) as including “government.” Accordingly, the State maintains, Du Meg is a “person” under the Criminal Code and, therefore, is a “victim” for purposes of section 5 — 5—6 of the Unified Code of Corrections, which provides for restitution to “victims” of a crime.

The focus of section 5 — 5—6 of the Code of Corrections under which restitution may be ordered to a victim is on the criminal acts the defendant is convicted of, such as where property was taken, property damage incurred, or personal injury suffered. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—6(a), (b).) The victim of such crimes is entitled to restitution in the court’s discretion. Rather than looking solely at the definition of “victim” in section 5 — 1—22, which adopts the meaning of “victim” in section 3 of the Victim’s Bill of Rights Act and is limited to victims of violent crimes only, we believe section 5 — 5—6 applies more broadly to victims other than from violent crimes, and, accordingly, we further look to whether property was taken, property damage was incurred, or personal injury sustained. Public monies expended in the pursuit of solving crimes do not fall within any of these categories and are not contemplated by the restitution statute. (See Evans, 122 Ill. App. 3d at 740, 461 N.E.2d at 639.) Other forms of penalties to discourage profiting from illegal drug offenses are provided in the Controlled Substances Act such as substantial fines and forfeiture of property. Evans, 122 Ill. App. 3d at 740, 461 N.E.2d at 639.

Thus, restitution under section 5 — 5—6 is not authorized, and the trial court lacked the authority to order restitution. This court need not consider defendant’s alternative argument that restitution was improper because it was based on transactions of which defendant was not convicted.

The judgment of the circuit court finding defendant guilty of unlawful delivery of a substance containing more than 15 grams of cocaine and sentencing him to nine years’ imprisonment and a $21,600 fine is affirmed. That part of the sentence ordering defendant to pay $3,200 restitution to Du Meg is vacated.

Affirmed in part; vacated in part.

LINDBERG and WOODWARD, JJ., concur.


text:
    ESTATE OF RALPH J. DOMPKE, Deceased, by Christopher V. Brown, Adm’r, Petitioner-Appellee, v. MAEBELLE F. DOMPKE, Respondent-Appellant.
    Second District
    No. 2—88—0948
    Opinion filed August 3, 1989.

      Kenneth L. Cunniff, of Kenneth L. Cunniff, Ltd., and Joseph Reed Millsaps, both of Chicago, for appellant.
    Gareth C. Levitón, of Morrissey & Kay, of Oak Brook, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Respondent, Maebelle E Dompke, appeals from a grant of summary judgment entered in favor of petitioner, Christopher V. Brown. Respondent contends that: (1) summary judgment should not have been entered for petitioner; (2) summary judgment should have been entered for respondent; and (3) even if the grant of summary judgment was correct, the court erred in ruling that all of the property in question should be transferred to petitioner. We disagree and affirm.

Maebelle F. Dompke (Maebelle) and Ralph J. Dompke (Ralph) were husband and wife prior to December 31, 1981. Their marital property included stocks and a bond in a brokerage account owned as joint tenants. A judgment for dissolution of marriage was entered by the circuit court of Cook County on December 31, 1981. This judgment expressly incorporated a written property settlement agreement which specified, among other things, that the stocks and bond in Ralph’s possession were to be Ralph’s property. The agreement, which was to settle all matters between them for property rights, referred to no other stocks or bonds, although it did allocate between the' parties several bank accounts, money market funds, and real estate. While all necessary conveyances of real estate were achieved, Maebelle never conveyed her interest in the stocks and bond (the securities) to Ralph. Ralph continued to receive statements and dividends from the brokerage account addressed to “Ralph J. Dompke and Mrs. Maebelle F. Dompke Jt. Ten.” on a regular basis.

Ralph died intestate on December 4, 1986. Christopher V. Brown was appointed administrator of the estate of Ralph J. Dompke, deceased (Estate). Maebelle refused to transfer title of the securities to the Estate, and the Estate filed a citation to recover assets in the circuit court of Du Page County on December 21, 1987. Maebelle moved to dismiss the citation, but her motion was denied. Both parties then moved for summary judgment. The trial court granted the Estate’s motion for summary judgment and denied Maebelle’s motion. Maebelle appeals from this order.

A motion for summary judgment will be granted if the pleadings, depositions, admissions and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005.) “Merely alleging that a genuine issue of material fact exists without presenting any statement of fact to contradict the defendants’ version, does not thereby create such an issue.” (Peltz v. Chicago Transit Authority (1975), 31 Ill. App. 3d 948, 951.) Evidencé is to be viewed in a light most favorable to the nonmovant in determining whether a genuine issue of material fact exists. (Doherty v. Kill (1986), 140 Ill. App. 3d 158, 162.) If there are no such facts in dispute, inferences may be drawn from the undisputed facts to determine if respondent is entitled to judgment as a matter of law. If no fair-minded person could draw different inferences from these facts, then there is no triable issue and the motion for summary judgment should be granted. Peltz, 31 Ill. App. 3d at 951.

Respondent’s argument, in essence, is that the Estate was unable to show, by clear and convincing evidence, that the joint tenancy in the securities was severed. Therefore, as surviving joint tenant, she would be sole owner of the securities.

The facts here are undisputed, so summary judgment is proper. The only question before the court is whether, as a matter of law, the joint tenancy in the securities was severed. If it was, the grant of summary judgment to the Estate was correct. If it was not, summary judgment should have been granted to Maebelle.

“When an agreement by divorcing spouses concerning property rights is approved by the court and incorporated into the divorce decree, it becomes merged in the decree and the rights of the parties thereafter rest upon the decree.” (In re Estate of Coleman (1979), 77 Ill. App. 3d 397, 399.) Normal rules of contract construction should be applied in interpreting such an agreement. (Coleman, 77 Ill. App. 3d at 399.) The court should give effect to the intentions of the parties and the court, as determined from the language of the unambiguous instrument. Coleman, 77 Ill. App. 3d at 399.

The judgment of dissolution of marriage provides in relevant part:

“The parties have acknowledged and agreed that their marital property, exclusive of items of nominal value, is considered and disposed of in this Article and all other property not provided for in this Agreement, whether acquired before or during their marriage is non-marital. The intent of this paragraph is to divide the assets of the parties equally so that each will have property, although different in character, of equal value to be distributed in kind so that it will not be necessary to liquidate all of the family assets and divide the cash equally. On completion of the transfer required under this Agreement, as set forth in Exhibit A hereto, each party shall keep his or her separate property, free and clear,of any interest of the part. Exhibit A represents a full and complete disclosure by each party of all of the assets.”

Exhibit A provides in part:

“WIFE SHALL HAVE AS HER SOLE PROPERTY:
(7) Certificate of Deposit — $10,000
(8) Bank account currently held in joint tenancy with balance of approximately $17,000
HUSBAND SHALL HAVE AS HIS SOLE PROPERTY:
(3) Stocks and bond in his possession valued at $18,600
(4) Savings account with a balance of approximately $2700
(5) Money market fund”

A joint tenancy will be severed when one or more of the four unities of time, title, interest, or possession is destroyed. (Jackson v. O’Connell (1961), 23 Ill. 2d 52, 55.) However, respondent incorrectly maintains that these unities are only destroyed by an actual transfer of interest in the property or an execution of judgment against one of the tenants. Joint tenants can agree to hold as tenants in common and thus sever the joint tenancy. (In re Estate of Brack (1979), 76 Ill. App. 3d 1050, 1053.) Such an agreement can be express or implied from conduct of the parties inconsistent with holding in joint tenancy. Brack, 76 Ill. App. 3d at 1053.

In the case at bar, we find that the parties expressly agreed to even more than the mere severance of the joint tenancy in the securities. The decree provides that, “on completion of the transfer required under this agreement,” Ralph Dompke should hold “free and clear of any interest” of Maebelle Dompke “[sjtocks and bond in his possession valued at $18,600.” This language evinces an agreement to dissolve all common ownership of the securities and to vest sole ownership in Ralph Dompke. The court expressly “merged *** and incorporated” the Dompke’s property settlement agreement into its dissolution decree. Therefore, each party has been entitled to its enforcement since the entry of the decree, and “the trial court was required to direct performance of those obligations under the decree so as to fully execute its terms.” Coleman, 77 Ill. App. 3d at 400.

In order to fully execute the terms of the decree, Maebelle must assign all of her interest in the securities to the Estate. Maebelle’s contention that Ralph did not adequately pursue her to effect any transfer during his lifetime is meritless. An analogy can be drawn here to the equitable doctrine of unclean hands: one seeking equity cannot take advantage of his own wrong. Maebelle was under a court-enforceable duty to assign her interest to Ralph. She may not contend that, since she failed to perform her duty under the agreement, Ralph’s inaction should now be cause for her to obtain the securities. The subsequent death of Ralph in no way defeats the enforceable intention of the parties manifested in the decree. (Coleman, 77 Ill. App. 3d at 400.) She may not retain that which she should have transferred previously.

We also find unconvincing respondent’s contention that the settlement agreement is ambiguous. The parties agreed that exhibit A of the property settlement “represents a full and complete disclosure of each party of all the assets.” Several other financial instruments and accounts were listed, but no other stocks or bonds were mentioned. There being no other stocks or bonds listed as marital property, we find no ambiguity as to which stocks and bonds were to be assigned to Ralph Dompke.

Respondent also points to a life insurance policy under which she was still listed as beneficiary at the time of Ralph’s death. Maebelle contends that maintenance of this policy manifests an intention, inconsistent with the stated intent of the decree, not to sever all joint interests in the former marital property. This then would mitigate against any clear and convincing evidence of a severance of joint tenancy. Maebelle further speculated that Ralph may have intended to maintain the joint tenancy in the securities, again inconsistently with the express intent of the decree, so that Maebelle would receive his interest at his death.

It is true that a presumption of donative intent arises from the creation of a joint tenancy. (See Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587.) This presumption can be overcome only by clear and convincing evidence of a lack of such intent. (Murgic, 31 Ill. 2d at 591.) We have already found, in the language of the dissolution decree and its incorporated settlement agreement, clear and convincing evidence that the Dompkes intended to sever their joint tenancy. Therefore, Maebelle would have had to prove the creation of a new joint tenancy in the stocks and bond after the issuance of the decree. This she did not do. There is no evidence of the existence of the four unities required for a joint tenancy. In addition, no inference of donative intent can be drawn from Ralph’s inaction. He did not act prior to his death. Since she never made the required assignment, he could not donate his interests to her by inactivity. The life insurance policy analogy is a non sequitur. Whether this policy was a token of Mr. Dompke’s feelings for his ex-wife or an oversight on his part does not affect our decision today.

Having found that the joint tenancy was severed as a matter of law, we find that the trial court was correct in issuing summary judgment in petitioner’s favor. This necessarily defeats respondent’s second contention, that summary judgment should have been granted in her favor.

Respondent finally contends that, even if the joint tenancy was severed by the divorce decree, the severance affected only the value of the stock owned at the date of dissolution. Any subsequent stock acquired by the account, still listed in joint tenancy, would be entitled to the presumption of joint tenancy and would thus pass to her as sole surviving joint tenant.

Respondent cites no statutory or case law to support this contention. Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)) provides that an appellant’s brief must contain citations to relevant authority supporting arguments on appeal. A contention supported by some argument but by no authority does not satisfy the requirements of this rule. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 608.) The court is under no obligation to research respondent’s case for her. Since respondent has failed to comport with the requirements of this rule, we will not respond to this argument.

For the reasons stated above, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

DUNN and LINDBERG, JR, concur.