author: JUSTICE COUSINS

text:
    EDWARD M. COHON AND ASSOCIATES, LTD., Plaintiff-Appellee, v. FIRST NATIONAL BANK OF HIGHLAND PARK, as Trustee, et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—91—2768
    Opinion filed June 18, 1993.
    Rehearing denied July 22, 1993.

      Adler & Adler, of Chicago (Joseph I. Adler and Charles E. Adler, of counsel), for appellants.
    Andrea B. Friedlander, of Deerfield, for appellee.
   JUSTICE COUSINS

delivered the opinion of the court:

Plaintiff-appellee, Edward M. Cohon & Associates, Ltd. (Cohon), an architectural firm, filed a mechanics’ lien against defendants-appellants, First National Bank of Highland Park, as trustee under trust number 4172, Imperial Realty Company, and Larry M. Klairmont (Klairmont). Cohon then brought suit to foreclose on his mechanics’ lien. Trial ensued, and the trial court found that Cohon’s mechanics’ lien was valid, that Cohon did not breach the flat fee contract, and that Cohon was entitled to $211,886.01 plus costs. The trial court did not make a finding as to Cohon’s quantum meruit claim because that count was pled in the alternative. Klairmont appealed.

The issues presented for review are: (1) whether plaintiff’s mechanics’ lien claim was fraudulent; (2) whether all necessary parties were joined in the action; (3) whether judgment was entered on wrongfully admitted evidence and beyond the pleaded issues; (4) whether the trial court misinterpreted the contract between plaintiff and defendant; and (5) whether there was a basis for judgment against Imperial Realty Company.

Affirmed.

Background

In the fall of 1986, Cohon and Klairmont began discussing the redevelopment and utilization of what is known as the Hall Printing plant site which Klairmont was going to acquire. The project was to encompass over four city blocks of existing industrial-type buildings on a land site of approximately 1 million square feet.

Their discussions analyzed the possibilities of rehabilitating some of the existing buildings, demolishing parts of some, and a mixed program to demolish part, rehabilitate part, and build new. As a result of these discussions, they agreed that Cohon would be the project architect.

The area of the site designated for first redevelopment was the area south of Wellington Avenue and north of Diversey Avenue. It was to be utilized for the shopping center (Section 1). The parties continued to exchange ideas and investigate different ideas regarding possible uses for the remainder of the site.

Cohon forwarded an AIA contract (a standard architectural contract) dated September 3, 1986, to Klairmont for execution. Klairmont never executed the contract or stated why it was not signed.

On October 17, 1986, Cohon directed a letter to Klairmont to confirm their agreement of October 16, 1986. Klairmont never responded or denied the content of the letter. Thereafter, Cohon proceeded to work on the project.

Monthly invoices were sent to Klairmont starting in November and December 1986 on Section 1, reciting the base fixed fee, and on Sections 5, 6, 8, and 12, establishing hourly rates and computation of fees earned during the month previous to the invoice date.

Cohon testified that he did not issue monthly invoices to Klairmont for Section 1 at the agreed $20,000-per-month installment pursuant to the provisions of the unsigned AIA contract and the October 17, 1986, letter because he did not want to get ahead of the developer in the progress pace of the shopping center. He billed only for the actual amount of work done.

However, Klairmont testified that he felt his agreement for architectural services with Cohon was very loose. Moreover, Klairmont testified that he did not acknowledge Cohon’s letter because he felt that it did not memorialize their agreement. Since he was not sure that the shopping center could be built, he felt that he and Cohon had a conditional agreement and that no compensation would be due Cohon if the shopping center were not completed and a flat fixed fee of $300,000 would be due if the shopping center were built and completed. Klairmont further testified that he never agreed to make monthly payments of $20,000 as the work on the shopping center progressed. Since there was no loan commitment, Klairmont stated that he would pay Cohon what he felt could be paid from the operating revenues of Imperial Realty Company. He further testified that there was no agreement that Cohon would be entitled to the percentages of compensation as set out on page nine of the AIA contract. He felt that if the shopping center did not get built, he and Cohon would discuss compensation for Cohon’s efforts.

From November 1986 through June 1987 Cohon did extensive work on Section 1 (shopping center), Section 5 (industrial portion of site), Section 12 (master utility plan), and Sections 6 and 8 (mini warehouse and basement ramp under the north building of the shopping center for clients’ vehicle storage). Through the summer of 1987, to the end of that year, the work continued on these identified areas and, in addition, Section 9 (building 1, Belmont frontage).

Through all of these months of 1986 and 1987, Cohon directed monthly invoices to Klairmont on each of the sections identified based on hourly fees except for the Section 1 shopping center invoices, which reflected the value of services rendered in a particular month relative to the fixed fee basic contract amount of $300,000.

Payments were received from Imperial Realty Company throughout this period and credited to the various invoices. Klairmont acknowledged receiving the invoices and testified that he expressed to Cohon his unhappiness and inability to understand the invoices. On November 27, 1987, Klairmont wrote Cohon complaining that Cohon wanted more money on outstanding invoices. According to the letter, Imperial Realty Company had paid $116,281.45 to date to Cohon out of its operating funds.

Klairmont, in this letter, further acknowledged the agreement to $20,000 per month on the shopping center account and that because a commitment was due on the mini warehouse shortly, ample funds would be available. He testified that he did intend to pay Cohon the $20,000 per month after the loan commitment was received.

During 1988, Cohon continued working on Section 1 (shopping center phase 1) and Section 9 (building 1, Belmont frontage). He completed work on Section 5 (industrial portion of the site), Section 12 (master utility plan), Sections 6, 7, and 8 (the mini warehouse), and Section 10 (the overall lease plan). In mid-1988, he commenced work on Section 11 (the portion of the site identified as the south side of Diversey). Monthly invoices were sent to Klairmont on the sections identified and some payments were received from Imperial Realty Company and credited to various invoices.

Cohon prepared an overall site plan dated January 16, 1989, of the entire project. In March of 1989, his work on Section 11 (south side of Diversey) was concluded. In September of 1989, his work on Sections 2 and 9 (building 1, Belmont frontage, and new tech building) was concluded. During 1989, monthly invoices were sent for the work done on Sections 1 through 5, and 9 through 12. Some payments were received and credited.

However, regarding the shopping center (Section 1), Klairmont wanted Cohon to change the location of two co-anchor tenants. Cohon and Klairmont discussed these changes and Cohon’s fees for accomplishing these modifications. This discussion culminated in the letter Cohon sent Klairmont on July 6, 1989. Cohon testified that he felt the changes to the north and west building of the shopping center were of such magnitude, encompassing over 100,000 square feet and new construction drawings, that this revision required additional compensation. Cohon refused to redo the working drawings without additional compensation, and he ceased working on Sections 1 and 3 (commercial retail phase 1 and Phar-Mor SP-2 plan) in June of 1989.

Cohon consented to Klairmont’s engaging the services of another architect for the shopping center project with the understanding that he and Klairmont had an oral agreement that all of Cohon’s unpaid invoices would be paid as soon as financing for the shopping center was finalized. Klairmont testified that Cohon was mistaken in his presumption that he would satisfy the outstanding invoices. He stated that he felt that Cohon had been overpaid for the work he had done on the project and that the changes should have been done at no additional charge.

Klairmont next communicated with Cohon by letter dated September 14, 1989, wherein he advised Cohon that the loan had been approved and upon approval of disbursement he would sit down to finalize outstanding invoices. Klairmont testified that Cohon had continued his work on the other areas of the project and his reference to outstanding invoices were those pertaining to areas other than the shopping center.

Cohon’s last services as project architect were performed at the end of October or November 1, 1989. On November 16, 1989, Klairmont wrote Cohon, stating that Imperial Realty Company had paid Cohon $385,703.85 to date. Klairmont further enclosed payment of $10,000. He requested that Cohon forward itemization of his billings on each section of the project so he could evaluate the claimed outstanding balances. Klairmont testified that he sent the $10,000 as a good-faith payment gesture because Cohon was asking for further remuneration. Klairmont stated he could not understand the invoices and did not know the status of the various aspects of the project, other than the shopping center.

Klairmont again wrote Cohon on December 14, 1989, after they apparently had had other communications. He advised Cohon that if Cohon desired, they could meet to settle in full. Klairmont testified that he meant a full settlement of whatever was due Cohon. However, he felt that Cohon’s work on the shopping center was of no value because Cohon had refused to complete the modifications as needed.

On December 28, 1989, Cohon filed a mechanics’ lien on the project property. Klairmont wrote Cohon on January 16, 1990, denying he owed Cohon the amounts claimed.

Pursuant to the trial court’s request, Cohon filed a pretrial memorandum outlining the various projects. The accounting indicated that for Section 1 (shopping center phase 1) $148,893 was due. Klairmont paid $78,107 out of $227,000 billed. As for Section 2 (building number 1 Belmont site and new tech building), $60,270 was due. This entailed the development of part of the industrial portions of the property. Co-hon considered this to be an additional service and billed at an hourly rate. Defendant did not pay for this work. As for Section 3 (drawing SP-2 for lease attachment to Phar-Mor lease), $2,330 was due. This consisted of changes to drawings on the commercial portion of the property. Cohon billed Klairmont at an hourly rate because he considered this to be an additional service. Klairmont did not pay for this work. As for Section 4 (reimbursables), $393.01 was due for expenses incurred by Cohon in connection with the development of the property. These amounts total $211,886.01. Cohon did not indicate a balance due for Sections 5 through 12.

Shortly before the commencement of Cohon’s foreclosure of lien proceedings, Klairmont filed two motions to strike and dismiss the second amended complaint which were denied. In his first motion, Klairmont argued that the mechanics’ lien as filed was fraudulent in the amount claimed. The trial court denied that motion. In its judgment and order, the trial court later explained that it denied such motion because a question of fact remained as to whether the mechanics’ lien was fraudulent.

The trial court denied the second motion (failure to join a necessary party) and later stated, in its judgment and order, that public notice had been given. The trial court explained that it denied Klairmont’s motion because Cohon’s lien rights referred back to the date of its contract, Cohon filed the mechanics’ lien on December 28, 1989, and that Cohon filed his foreclosure of lien suit on March 2, 1990. The trial court considered that a portion of the rem had been conveyed to a different trust at the same bank by a deed recorded April 19, 1990, and that a mortgage encumbrance had been executed by that trust and recorded on May 2,1990.

The trial court deemed that, based on the evidence, Cohon and Klairmont, in the fall of 1986, entered into an oral contract for Cohon to perform architectural services for the project identified as the redevelopment of the Hall Printing plant. The trial court identified the professional services that were to be performed and the compensation agreed to as: (1) an overall master plan for the redevelopment of the entire site to be paid on an hourly fee basis billable monthly; (2) industrial and mini warehouse utilization of the site to be paid on an hourly fee basis billable monthly; and (3) the commercial/retail shopping center (phase I) and parking area utilization of part of the site to be paid on a fixed flat fee of $300,000 with a down payment and balance payable monthly.

The trial court concluded that the October 17, 1986, letter memorialized the compensation the parties negotiated for the commercial/ retail shopping center phase I portion of the contract from the fee of $1.75 a square foot as proposed in the AIA contract form to the fixed flat fee.

The trial court determined that, based on the evidence, the balance claimed by Cohon for his services on Section 1 ($148,893) and his identification of the unearned amount of the fixed fee contract ($73,000) was fair and reasonable and that the amounts claimed by Cohon for his services on Sections 2 and 3 based on hourly fees were also fair and reasonable. The trial court also awarded Cohon “reimbursables” (Section 4), which was standard in the architectural community.

The trial court found that Cohon had perfected and had proven a valid mechanics’ lien in the face amount of $211,886.01 against the interests in the rem of defendants First National Bank of Highland Park, as trustee under trust number 4172, Imperial Realty Company, and Klairmont.

Opinion

I

Klairmont first contends that Cohon’s mechanics’ lien was fraudulent because he overstated the amount due by $62,973.01. We disagree.

Section 7 of the Mechanics Lien Act (Ill. Rev. Stat. 1989, ch. 82, par. 7) provides, in pertinent part:

“No such lien shall be defeated to the proper amount thereof because of an error or overcharging on the part of any person claiming a lien therefor under this Act, unless it shall be shown that such error or overcharge is made with intent to defraud ***.” (Emphasis added.)

Furthermore,

“the courts of Hlinois have held that errors or overcharging by lien claimants will not defeat their claim for lien absent clear intent to defraud. This principle is in complete accord with the language of the statute above cited and is another corollary to the generally accepted *** principle that fraud is never presumed but must be the subject of clear and convincing proof.” Atlee Electric Co. v. Johnson Construction Co. (1973), 14 Ill. App. 3d 716, 725, 303 N.E.2d 192.

Klairmont contends that Cohon’s claim for a mechanics’ lien is fraudulent because the "written contract covered only the shopping center phase of the project. Based upon this premise, Klairmont asserts that because Cohon’s claim for lien sought compensation for other phases of the project, the lien is necessarily fraudulent and, therefore, invalid.

However, the trial court specifically found that the mechanics’ lien was not fraudulent. The trial court based this finding on the scope of the parties’ agreement. The court found that the parties’ agreement included more than just the shopping center portion of the property. The trial court stated:

“Based on the evidence the court finds that Cohon and Klairmont, in the Fall of 1986, entered into an oral contract for Co-hon to perform architectural services for the project identified as the redevelopment of the Hall Printing Plant. The professional services to be performed and the compensation agreed to therefor were identifiable to three distinct efforts:
1. Overall master plan for redevelopment of the entire site; on a hourly fee basis billable monthly.
2. Industrial and Mini Warehouse utilization of part of the site; on a hourly fee basis billable monthly.
3. Commercial/Retail Shopping Center Phase I and parking area utilization of part of the site; on a fixed flat fee of $300,000.00 with a down payment and balance payable monthly.”

The trial court additionally found that the amount claimed in Cohon’s mechanics’ lien was fair and reasonable.

The record contains sufficient evidence to support these findings of fact. Cohon testified that his agreement with Klairmont covered both the shopping center and the nonshopping center phases of the project, and Cohon’s October 17, 1986, letter to Klairmont confirmed this understanding. In addition, Cohon testified that he was familiar with the range of fees charged by other architects in the Chicago area for projects similar to this one,, and that the fees he was charging Klairmont were within that range.

Further, the record does not contain any evidence of an intent to defraud which is required to invalidate a mechanics’ lien on the basis that the lien overstates the amount owed. In the instant case, the trial court implicitly found that there was no intent to defraud when it found that Cohon’s lien was not fraudulent.

The existence of an intent to defraud is a question of fact to be decided by the trier of fact and will not be disturbed on appeal unless it is against the manifest weight of the evidence. Bailey v. Meador (1980), 91 Ill. App. 3d 143, 145, 414 N.E.2d 279.

In attempting to prove that an overstatement of an amount due in a mechanics’ lien constituted fraud, Klairmont relies on Fedco Electric Co. v. Stunkel (1979), 77 Ill. App. 3d 48, 395 N.E.2d 1116. However, the facts in Fedco are distinguishable from the case at bar. In Fedco, the amount of the lien was over $13,000 more than the amount sought in the lien claimant’s complaint, and the lien claimant specifically admitted that he intentionally overstated the amount of his lien because he had previously encountered difficulties receiving payments from the owner. The lien claimant further testified that he failed to credit the owner for payment of $19,220, that he charged the owner $13,500 for work actually done for one of the owner’s tenants, he failed to give the owner a credit for approximately $2,500 for various other items, and he double-billed the owner for some work.

In contrast, Klairmont did not prove such discrepancies here. The record contains sufficient evidence to support the trial court’s finding that Cohon’s claim for mechanics’ lien was not fraudulent.

II

Klairmont next contends that all necessary parties were not joined in Cohon’s suit. We disagree.

The pertinent part of section 11 of the Mechanics Lien Act (Ill. Rev. Stat. 1989, ch. 82, par. 11) provides:

“The plaintiff shall make all parties interested, of whose interest he is notified or has knowledge ***. *** Parties in interest, within the meaning of this act, shall include persons entitled to liens thereunder whose claims are not, as well as are, due at the time of the commencement of suit ***.”

Klairmont’s argument is founded on his belief that the trial court erred in denying his motion to strike and dismiss for failure to join necessary parties. The basis for Klairmont’s motion to strike and dismiss was that Cohon failed to name as party-defendants in the foreclosure lien suit, the trust that acquired title to the property on April 19, 1990, and the lending institution that recorded a mortgage against the property on May 2,1990.

However,

“[t]he rule is, that one who acquires title to property during the pendency of a suit to foreclose a mortgage is bound by the decree in the foreclosure suit and takes the property subject to any judgment or decree which may be then rendered.” (Kemper v. Weber (1925), 318 Ill. 494, 498, 149 N.E. 478.)

The Kemper court continued:

“It was not necessary that plaintiffs in error, who were purchasers lis pendens, be made parties to the proceeding pending at the time they acquired their deeds to this property. Such a purchaser has a right to appear if he deems it proper and urge in the name of his grantor any defense against the pending proceeding which his grantor has failed to make.” Kemper, 318 Ill. at 498, 149 N.E. 478.

Both of the alleged necessary parties acquired their interests in the property during the pendency of Cohon’s foreclosure suit. Cohon filed a mechanics’ lien on December 28, 1989, and filed his foreclosure suit on March 2, 1990. The trust did not acquire title to the property until April 19, 1990. The mortgage lender did not record its mortgage against the property until May 2, 1990. The fact that Cohon subsequently amended his claim for lien on August 14, 1990, to correct a typographical error (Cohon changed the completion date from November 1, 1987, to November 1, 1989) and amend his complaint does not change the date on which the foreclosure suit was filed or affect the notice given by virtue of this filing. The trial court correctly stated:

“Public notice had been pronounced of the claim the plaintiff was making against the rem and the named parties. Third parties that subsequently acquire an interest do so at their peril and subject to notice.”

Ill

Klairmont next contends that the trial court entered judgment on wrongfully admitted evidence and claims that were not pled. We disagree.

In determining relevancy, the trial court must consider the evidence in the light of factual issues raised by the pleadings, and it is not error to exclude testimony that has no bearing on the specific issues under consideration. (Schneiderman v. Kahalnik (1990), 200 Ill. App. 3d 629, 635-36, 558 N.E.2d 334.) The determination of what is relevant is within the trial court’s discretion, and reversal of its decision is not warranted absent an abuse of that discretion. Schneiderman, 200 Ill. App. 3d at 636, 558 N.E.2d 334.

Klairmont asserts that Cohon’s complaint was based upon the AIA contract and that this contract was limited to the shopping center phase of the project. Klairmont further contends that evidence on any of the other phases of the project was irrelevant and should not have been admitted into evidence.

The evidence relating to the nonshopping center phases of the project constituted relevant evidence. The October 17, 1986, letter which Cohon sent to Klairmont made reference to the AIA contract as well as the other sections of the project:

“Dear Larry [Klairmont]:
This letter will confirm our agreement reached yesterday on fees pending the formal signed contract which your attorney is going over. For Phase 1 of the retail/commercial of approximately 200,000 square feet, our fee will be a straight $300,000.00. For any and all work that we do at this time for the ‘industrial’ part, our fee will be on an hourly basis as per the hourly schedule set forth in the contract. This also includes investigation and field measuring of the place.
As per your request, we would like the fee payment on the hourly portion put on a due and payable billing basis during the month following completion of the work. On the basic contract, the initial payment of $25,000.00 is due and payable November 1, 1986 and the balance will be due and payable on a month basis of $20,000.00 per month. These monthly payments will commence January 1, 1987 and run until paid in full, which will run through 1987 and the beginning of 1988. This should give you the spread that you would like in regard to our payments.”

The trial court made a specific finding of fact that the parties’ oral agreement covered all of the phases of the project on which Co-hon introduced evidence. There were 12 sections, Cohon worked on these sections, and different payment methods were required for each. Moreover, the October 17, 1986, letter coupled with the unexecuted AIA contract set forth the agreement. The record is devoid of any demonstration that the trial court predicated its findings on irrelevant evidence.

IV

Klairmont next contends that the trial court erred in finding that Cohon did not breach its flat fee contract. We disagree.

A trial court’s construction of an oral agreement between the parties will be followed unless it is against the manifest weight of the evidence and an opposite conclusion is clearly warranted. Laff v. John O. Butler Co. (1978), 64 Ill. App. 3d 603, 612, 381 N.E.2d 423, cert. denied (1979), 444 U.S. 844, 62 L. Ed. 2d 57, 100 S. Ct. 88.

Klairmont asserts that Cohon breached the flat fee agreement by refusing to redo, without additional compensation, working drawings covering over 100,000 square feet of shopping center space to enable the two anchor tenants to switch locations.

The trial court specifically considered Cohon’s refusal to redo the construction drawings:

“Location changes of the major co-anchor tenants Phar-Mor and Child World in the Shopping Center caused Cohon to cease his work on Section 1 and 3, Commercial Retail Phase 1 and Phar-Mor SP-2 plan in June of 1989. Cohon and Klairmont had discussions about these changes and the fees Cohon wanted to accomplish these modifications which culminated in the letter Cohon sent Klairmont on 7/6/89 (Plaintiff Exhibit 5). Cohon felt the changes to the North and West buildings of the Center were of such a magnitude, encompassing over 100,000 square feet and new construction drawings, that this revision required additional compensation as was the custom of the architecture profession and, specifically provided for in the standard AIA contract.”

The evidence is undisputed that Cohon agreed to a flat fee for his work on the shopping center phase of the project with the understanding that the terms of the AIA contract governed the parties’ relationship. Section 1.7.12 of the AIA contract specifically provides that the type of revisions requested by Klairmont constituted “Additional Services” which were not part of Cohon’s flat fee under the contract. Section 1.7.12 provides that “Additional Services” include:

“Making revisions in Drawings, Specifications or other documents when such revisions are inconsistent with written approvals or instructions previously given, are required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents or are due to other causes not solely within the control of the Architect.”

The requested change to the working drawings to accommodate the anchor tenants’ change in location was a cause “not solely within the control of the Architect.” Therefore, Cohon’s refusal to redo the working drawings as part of his flat fee cannot be considered a breach of the parties’ agreement.

V

Klairmont finally contends that there is no basis for judgment against Imperial Realty Company. The basis for this contention was the record was devoid of any proof or testimony that Imperial Realty Company was a party to the agreement with Cohon. We disagree.

The question of the intent of the parties in connection with an oral contract is a question of fact to be determined by the trier of fact. Panko v. Advanced Appliance Service (1977), 55 Ill. App. 3d 301, 304, 371 N.E.2d 3.

The trial court made a specific finding of fact that Imperial Realty Company was a party to the contract with Cohon:

“Mr. Klairmont was acting individually as agent for or on behalf of his alter ego, Imperial Realty Company, which defendants’ answer identified as a corporation but Mr. Klairmont testified to as being his sole proprietorship ***.”

The record supports this finding. Klairmont testified that he was the owner of Imperial Realty Company and all of the correspondence, with one exception, from Klairmont to Cohon was written on Imperial Realty Company’s stationery and was signed “IMPERIAL REALTY COMPANY,” with the name “Larry M. Klairmont” underneath the company’s name.

As the record contains sufficient evidence to support all of the trial court’s findings, none of which were against the manifest weight of the evidence, the trial court did not err in entering judgment against the defendants.

Judgment affirmed.

GORDON, P.J., and McNULTY, J., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY BEAUFORD, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—0307
    Opinion filed November 12, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Michael Davidson and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.

      John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Mary Erigid Kenny, and Roseanne McDonnell, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant, Jerry Beauford, appeals from his conviction of murder, presenting as issues whether the involuntary manslaughter instruction given incorrectly stated the burden of proof; defendant was denied a fair trial because the involuntary manslaughter instruction failed to include a definition of “recklessness”; defendant was denied a fair trial by the circuit court’s incorrect instruction to the jury regarding the justifiable use of force; and the prosecutor’s comments during closing arguments operated to deny defendant a fair trial.

Defendant shot the victim, Clifford Beauford (Clifford), his wife, on April 7, 1974,. and immediately fled the jurisdiction. Law enforcement agents apprehended him 13 years later in Alabama. Following extradition proceedings, defendant was indicted for murder. A jury found him guilty as charged, and the court sentenced him to not less than 17 years and no more than 35 years in the custody of the Department of Corrections.

At trial, Chicago police officer Stanley Gorniak testified that he found Clifford in her bedroom, lying on the floor between the bed and a chair. The bedroom bore no signs of a struggle. Gorniak recovered a .38 caliber revolver from under the mattress.

Jeannie McCray, Clifford’s daughter and an eyewitness to the shooting, lived with her mother and two sisters in the basement apartment of the house. Her grandparents lived in the upstairs apartment. At the time of the shooting, Clifford and defendant were married, but the couple had been estranged for several months. Defendant arrived at the house between 4:30 and 5 p.m. and asked Clifford to fix him something to eat. Clifford went to the kitchen, and defendant left the house for a few minutes, reentering shortly thereafter. During this time, Clifford had heated some food and had taken it into the bedroom, where defendant later joined her, leaving the door slightly ajar. An argument then ensued between the couple, and both parties exchanged harsh words. Clifford asked defendant to leave. Jeannie, who had been in the living room at this time, then pushed the bedroom door open fully and saw defendant standing in front of her mother with a gun in his hand. According to Jeannie, defendant was standing 12 feet from Clifford and was pointing at her a gun he usually kept in the glove compartment of his car. Clifford was unarmed although Jeannie admitted that her mother normally kept her own gun “under the mattress.” Defendant then shot Clifford, who fell between the bed and a chair. Jeannie ran to a neighbor’s house and called police. From the neighbor’s porch, Jeannie saw defendant back out of the house and “flash” his gun at her grandfather, who had come downstairs to investigate. Defendant then drove away in his car.

Brenda Griffin, a neighborhood friend of Jeannie’s, was also present during the shooting and corroborated Jeannie’s account of the events leading up to the shooting.

Charlene Sullivan, Jeannie’s sister, was also at the house during the time in question. She left to get some ice cream and, as she returned to the house, heard what sounded like a “firecracker.” As Charlene opened the door, Jeannie, who was screaming, ran out of the house. Charlene ran into her mother’s room and saw defendant standing at the foot of the bed, holding a gun. Charlene then ran upstairs to her grandparents’ apartment.

Dr. Tae An performed the autopsy on the victim, who died from a single gunshot wound. The bullet entered in the left shoulder and travelled downward, lacerating the left lung, the aorta and the spinal cord. Dr. An stated that the wound’s appearance indicated that the victim was not shot at close range.

Several Chicago police officers testified as to their attempts to locate defendant following the shooting. Both State and Federal warrants were issued for his arrest. On August 5, 1987, defendant was arrested for drunk driving in Alabama and subsequently was extradited to face the charges at issue here.

Defendant called several witnesses who averred that Clifford had a reputation for violence in the community. Carolyn Sanders recalled that, at one time, Clifford pulled a gun on her; however, she could not remember the date or year of the incident.

Defendant testified in his own behalf. Although he and Clifford were married, defendant had engaged in a relationship with another woman during 1974 and had fathered a child by her. On the day of the shooting, he went to his wife’s house. During his stay, the couple spoke in her bedroom, where defendant took off his coat and emptied his pockets. He put the gun he had with him in a dresser drawer. Eventually, the couple began to argue, and defendant decided to leave. Clifford, however, slammed the bedroom door shut and pulled out the gun that defendant had brought with him. Defendant grabbed for the gun, with both hands over his head. As Clifford and defendant struggled for control of the gun, it went off. After Clifford fell away, defendant “froze” with the gun in his hand. At that moment, Jeannie entered the room. Defendant then fled.

I

Relying on People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, defendant raises a two-prong argument concerning the propriety of the involuntary manslaughter instructions given to the jury. Defendant first claims the instruction erroneously informed the jury that the State had to prove that defendant acted recklessly when he shot Clifford Beauford. Defendant also argues that the jury should have been instructed that the State had the burden of disproving that defendant acted recklessly when he shot Clifford.

Our supreme court rejected both arguments in People v. Lucas (1989), 132 Ill. 2d 399, 441-42, 548 N.E.2d 1003. There, the court reviewed involuntary manslaughter instructions similar to those used in the instant case and held that the State did not have to disprove recklessness in order to establish the intent or knowledge necessary for a murder conviction because recklessness is not an affirmative defense to murder, but rather, a separate and distinct mental state. “Since murder is an intentional or knowing killing [citation] and involuntary manslaughter, by definition, is an unintentional killing [citation], where a determination is made that one exists (i.e., an intentional killing), to be legally consistent, the other (i.e., an unintentional killing) must be found not to exist [citations].” (People v. Lucas, 132 Ill. 2d at 442; see also People v. Spears (1986), 112 Ill. 2d 396, 404, 493 N.E.2d 1030; People v. Hoffer (1985), 106 Ill. 2d 186, 195, 478 N.E.2d 335, cert. denied (1985), 474 U.S. 847, 88 L. Ed. 2d 114, 106 S. Ct. 139.) Accordingly, the involuntary manslaughter instructions given here were not erroneous.

Defendant also maintains that the instructions prevented the jury from considering the evidence in mitigation put forth by defendant. At bar, defendant testified as to the “accidental” nature of the shooting and presented some evidence of the victim’s reputation for violence and for carrying a gun. Although the State had the burden of proving a reckless mental state to support a charge of involuntary manslaughter, it appears that any evidence regarding defendant’s mental state presented by defendant in refuting the charge would be considered by the jury. (People v. Lucas, 132 Ill. 2d at 443.) Based on the foregoing, no error is apparent from this record.

II

Defendant argues that the circuit court’s failure to instruct the jury on the definition of recklessness deprived him of his right to a fair trial. The jury was given Illinois Pattern Jury Instructions, Criminal, No. 7.07 (2d ed. 1981) (hereinafter IPI Criminal 2d). Defendant contends that the court should also have given IPI Criminal 2d No. 5.01, defining “recklessly,” which the committee note states should be given with instruction No. 7.07.

Generally, the burden of preparing jury instructions is primarily on the parties, not on the circuit court, which is under no obligation either to give instructions not requested by counsel or to rewrite instructions tendered by counsel. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) Moreover, no party may raise on appeal the failure to give an instruction unless he had tendered the instruction at trial. (People v. Carlson, 79 Ill. 2d at 583-84.) If the instruction is substantially defective, however, the waiver doctrine will not apply. People v. Carlson, 79 Ill. 2d at 584. See also 134 Ill. 2d R. 451(c).

In the present case, the court failed to give the jury a definitional instruction. The failure of a court to give sua sponte the definitional instruction of “recklessly” has been held not to be a substantial defect in the instructions which would preclude the application of the waiver doctrine. (People v. Carlson, 79 Ill. 2d at 584; People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513.) Defendant, therefore, has waived his right to complain on appeal.

III

Defendant next claims the jury was not instructed properly on the issue of justifiable use of force in self-defense since no instruction was given which stated that the State had the burden of proving beyond a reasonable doubt that the use of deadly force was not justified, citing People v. Reddick (123 Ill. 2d at 148).

The jury in this case received a series of instructions, based upon IPI Criminal 2d Nos. 2.03 (“The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence”); 7.02A (“To sustain the charge of murder or the charge of voluntary manslaughter, the State must prove the following propositions ***[;] [t]o sustain the charge of murder instead of voluntary manslaughter, the State must prove beyond a reasonable doubt the following additional proposition”); and 24 — 25.06(“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 use of imminent use of unlawful force”). The jury was not given IPI Criminal No. 25.05, which provides that, in addition to the elements of the crime, the State must prove beyond a reasonable doubt “[t]hat the defendant was not justified in using the force which he used.”

As noted above, the failure to object at trial to an asserted error in jury instruction waives the question (People v. Carlson, 79 Ill. 2d at 583-84), and no party may raise on appeal the failure to give an instruction unless he tendered it at trial. (People v. Underwood (1978), 72 Ill. 2d 124, 129, 378 N.E.2d 513.) At bar, defendant neither objected to IPI Criminal 2d No. 7.02A nor tendered IPI Criminal 25.05 to the court. Further, defendant failed to raise the issue in his post-trial motion. As a result, the issue is waived. See People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.

Defendant, however, maintains that the circuit court’s failure to give IPI Criminal 25.05 constituted plain error under Supreme Court Rule 451(c) (134 Ill. 2d R. 451(c)) and People v. Berry (1984), 99 Ill. 2d 499, 460 N.E.2d 742. In Berry, the supreme court noted that the waiver rule was to be applied to all cases except those in which “grave error” must be corrected or those in which the evidence is so close factually “that fundamental fairness requires the jury be properly instructed.” (People v. Berry, 99 Ill. 2d at 505, citing People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248.) In Berry, the court relied on People v. Huckstead (91 Ill. 2d 536, 440 N.E.2d 1248), where the court found that the instructions tendered (IPI Criminal Nos. 2.03, 7.02, 24.06), in conjunction with the closing arguments given by both sides, sufficiently informed the jury that the State had the burden of proving that defendant was not justified in the force that he used. (People v. Huckstead, 91 Ill. 2d at 545.) Additionally, defense counsel, during his argument, repeatedly informed the jury of the necessity that the State prove that defendant was not justified in the force he used. In rebuttal argument, the State also iterated that it had the burden to show that the force used was not justified. The court found that the failure to give IPI Criminal No. 25.05 did not constitute grave error under these facts. People v. Huckstead, 91 Ill. 2d at 546.

In Berry, however, the court ruled that neither counsel’s arguments informed the jury of the State’s burden of proving, beyond a reasonable doubt, that the defendant was not justified in his use of force. Moreover, the evidence in Berry was held to be factually close. (Cf. People v. Huckstead, 91 Ill. 2d at 547.) As a result, the waiver rule could not be applied, and a new trial was required. People v. Berry, 99 Ill. 2d at 506-07.

At bar, defense counsel argued that the State had the burden to prove defendant guilty beyond a reasonable doubt of the charge of murder. The State never mentioned its burden in either its closing or rebuttal arguments. Although the arguments at bar do not rise to the level of completeness found in Huekstead, the jury here was informed, through the court’s instructions, of the State’s burden of proof. With respect to the “factually close” prong of the plain error test, a review of the record reveals that the evidence was not factually close. The eyewitness account of the shooting and the medical testimony contradicts defendant’s account of a close range, accidental shooting. Under the circumstances of this case, the circuit court’s failure to give IPI Criminal No. 25.05 does not constitute reversible error.

IV

Defendant cites four instances of improper closing remarks made by the State which he claims operated to deny him a fair trial.

It should be noted initially that all but one of the remarks were unobjected to at trial and raised in the post-trial motion. Failure to object to a remark at trial and the failure to specifically raise the argument in the written post-trial motion have been held to constitute a waiver of the issue upon appeal. (See People v. Thomas (1990), 137 Ill. 2d 500, 524, 561 N.E.2d 57, cert. denied (1991), 488 U.S. 1127, 112 L. Ed. 2d 1196, 111 S. Ct. 1092; People v. Surles (1984), 126 Ill. App. 3d 216, 226, 466 N.E.2d 1295.) Accordingly, the unobjected-to remarks must be considered waived.

Nevertheless, in reviewing defendant’s allegations here, it has long been recognized that, generally, a prosecutor is allowed a great deal of latitude in making the closing argument and the circuit court’s determination of the propriety of the argument will be followed absent an abuse of discretion. (People v. Cisewski (1987), 118 Ill. 2d 163, 175-76, 514 N.E.2d 970.) Improper remarks are the basis of reversal only where they result in substantial prejudice to the defendant. (People v. Piscotti (1985), 136 Ill. App. 3d 420, 441, 483 N.E.2d 363.) Furthermore, a defendant may not assert such prejudice where the comments were provoked or invited by the arguments of his counsel.

The first comment complained of is the prosecutor’s reference to crime:

“Ladies and Gentlemen, everyday you can pick up the paper and you can curse crime and you can see about burglaries and robberies and rapes *** and something has to be done.”

Defendant’s objection was overruled by the circuit court. Defendant argues here that the comment served to inflame the passions of the jury. We disagree. A prosecutor may comment on the evils of crime, denounce the accused and urge the jury to engage in the fearless administration of justice. (People v. Stiff (1989), 185 Ill. App. 3d 751, 756, 542 N.E.2d 392.) The comment does not constitute error.

Defendant next points to the prosecutor’s continued references to the time defendant had to “concoct” a story to explain his actions if he got caught. Although unobjected to at trial, defendant now claims that such comment created prejudice because the prosecutor portrayed him to the jury as a liar. The prosecutor’s argument was founded upon the evidence and the legitimate inferences drawn from it and as such was proper since defendant’s version of the shooting was contrary to both the eyewitness testimony and the medical testimony. See People v. Harris (1989), 187 Ill. App. 3d 832, 842, 543 N.E.2d 859.

Defendant also contends that the prosecutor’s assertion that the downward path of the fatal bullet resulted from Clifford’s twisting away from defendant as he fired at her was unsupported by the evidence. This argument is unpersuasive since a prosecutor may argue upon the facts or legitimate inferences drawn from the evidence. (People v. Harris, 187 Ill. App. 3d at 842.) Dr. An testified that the bullet travelled downward after entering Clifford’s left shoulder. Jeannie McCray stated that defendant was standing in front of Clifford when he shot her and that Clifford’s face looked “strange.” It is not unreasonable to infer from this evidence that Clifford may have turned away to avoid the impact of the bullet. The complained-of remark was not error.

Finally, defendant alleges that the prosecutor misstated the law by claiming that “[tjhere is one charge here and the charge is murder that the defendant did in fact commit the acts which caused the death of *** Clifford Beauford.” Even if this court were to find this remark erroneous, we consider it harmless since the circuit court gave the jury proper instructions and advised it that the closing arguments were not evidence. See People v. Stiff (1989), 185 Ill. App. 3d 751, 756, 542 N.E.2d 392.

Accordingly, the remarks complained of within the context of the closing argument, whether considered individually or cumulatively, did not result in substantial error, constitute a material factor in conviction, or operate to deny defendant a fair trial. People v. Morando (1988), 169 Ill. App. 3d 716, 733, 523 N.E.2d 1061.

Based on the foregoing, defendant’s conviction must be affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE JOHNSON

text:
    BYRON BOLL, Plaintiff-Appellee, v. THE CHICAGO PARK DISTRICT, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—1954
    Opinion filed December 26, 1991.
    Rehearing denied May 8, 1992.

      Nancy Jo Arnold and John C. Doyle, both of Kralovec, Marquard, Doyle & Gibbons, and Michael A. Pollard and Francis D. Morrissey, both of Baker & McKenzie, both of Chicago, for appellant.
    Terrence K. Hegarty & Associates, Ltd., and William J. Harte, Ltd., both of Chicago (Terrence K. Hegarty, William J. Harte, James S. Smith, and Courtney C. Nottage, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, it found in favor of plaintiff, Byron Boll, in the amount of $16.5 million and against defendant, the Chicago Park District. The case was a negligence action. Due to plaintiff’s 55% comparative negligence, the award was reduced to $7.4 million. A timely post-trial motion of defendant was denied upon the entry of a remittitur and judgment was entered in favor of plaintiff in the amount of approximately $6.6 million. This appeal followed the denial of defendant’s post-trial motion.

On appeal, defendant asks this court to consider three alternatives for relief. First, it requests a judgment in its favor notwithstanding the verdict. In the alternative, it asks this court to reverse the judgment and remand to the trial court with instructions to enter judgment in its favor. If the court chooses neither of these options, defendant asks the court to reverse the judgment and remand to the trial court for a new trial.

We affirm.

The incident at issue occurred in Soldier Field, located at 14th Street and Lake Shore Drive, in Chicago, Hlinois. The facility was built in the 1920’s for the Pan American Games. Today, the stadium houses the playing field of the Chicago Bears football team. The north end of the stadium houses 11,000 fans who exit out of six wells or vomitories onto the north concourse. The only exits available off the concourse are at the ends of the concourse and two exit ramps in the north parking lot. The distance from one end of the concourse to the other is 300 feet. Witnesses described being in that crowd as “fighting the mass going east or west” and being “unable to get a piece of paper in between two people.” Plaintiff testified that he had never been in such a crowd before the time of the incident.

The consistency of plaintiff’s version of the events has been called into question. He was either “pushed, shoved and knocked over” the railing by the crowd, or he “fell” as a result of the crowd. Plaintiff testified that his reason for working his way to the outside railing on the concourse was to see what was holding up the crowd. At that moment, the force of the crowd pushed him over the railing. His attempts to climb back inside of the concourse were unsuccessful. As a result of the fall, plaintiff sustained a spinal cord injury and is now a quadriplegic.

Plaintiff alleged negligence and lack of exercise of ordinary care in the design and management of defendant’s exit corridor. Plaintiff also alleged negligence in the hiring of an unqualified manager who did not address the extreme crowding or the open-air railing. These allegations were included in the issue instruction to the jury. The second count of the complaint alleged “willful and wanton misconduct.” Other counts alleging similar conduct were condensed into the jury issue instructions.

All three of defendant’s eyewitnesses testified that plaintiff jumped over the railing of the concourse in an attempt to jump down onto the ramp but was unsuccessful and fell to the ground. The jury-heard plaintiff question the credibility of all of these witnesses with respect to their memories of the event and their exact locations at the time of the event.

Plaintiff’s version of the incident is different from that of the three witnesses. Further, no one was able to corroborate his story. Plaintiff’s brothers, who accompanied him to the game, were not with him at the time of the accident. However, there were witnesses able to attest to the safety problems caused by crowd congestion on the concourse.

The paramedics who ministered to plaintiff after his fall also testified in contradiction to plaintiff’s version. Generally, their testimony was that plaintiff had jumped to the ground. Plaintiff testified that after the fall he was conscious but could not talk. He understood the voice of paramedic Betsy Cook to be giving orders, but he could not discern the words of the lower-pitched male paramedics.

Defendant’s motion in limine, to bar plaintiff from introducing any evidence and argument as to any prior incidents of other people having jumped over the concourse railing, was denied. Defendant’s other motion in limine, to bar plaintiff from pursuing alternative factual theories for recovery, was also denied. As a result of these denials, testimony was admitted to the effect that the congestion problem on the north concourse was a contributing factor regardless of exactly how plaintiff sustained his injuries.

Also admissible was testimony concerning whether or not plaintiff was intoxicated at the time of the accident. The paramedics testified that plaintiff admitted that he had been drinking and that they smelled the odor of alcohol around plaintiff. Plaintiff testified that he consumed four beers and four hot dogs at the game. Plaintiff stated that he was neither drunk nor physically impaired from his beer consumption.

Evidence was heard to support plaintiff’s claim that defendant’s hiring of Frank Hauser as stadium manager was negligent. The jury also heard that there had been negative publicity in the news media regarding Ed Kelly, the former park district superintendent. Kelly had appointed Hauser as stadium manager. Hauser’s character and expertise in stadium management were called into question. However, Hauser’s job as a stadium manager focused on coordination. There was a specific safety department. Yet, according to plaintiff’s expert in park and recreational planning, Hauser did not have the training, background or experience to operate a facility such as Soldier Field. On the basis of all of the testimony regarding Hauser, defendant moved for a mistrial. The motion was denied.

Plaintiff has contended throughout this case that the crowding on the concourse resulted from the design and management of the concourse. This crowding then resulted in his accident. Plaintiff’s claim regarding the structure of the concourse is that Soldier Field was in violation of the Chicago Building Code. Defendant claimed that the named provisions, as well as the entire Chicago Building Code, were not applicable in this case. Further, it contested the competency of the expert testimony to render opinions on statutory interpretation.

Plaintiff’s expert, Jacob Pauls, said his areas of expertise were “building life safety” and “human factors.” Despite an agreement prohibiting such testimony, Pauls was allowed to testify about crowd conditions at “The Who” rock concert in Toronto, Canada, where a number of people were killed. Defendant’s objection to the admission of this testimony and motion for a mistrial were both overruled.

Defendant objected to testimony and argument regarding beer sales as being irrelevant and prejudicial. Generally, plaintiff’s experts argued that the beer sales were a significant source of revenue to defendant and gave it a greater obligation to the fans.

The jury verdict was reduced as a result of defendant’s post-trial motion. Nevertheless, defendant’s request for a judgment notwithstanding the verdict or, alternatively, a new trial, was denied. This appeal followed.

On appeal, defendant contends that (1) plaintiff’s case was based on an inherently unbelievable and uncorroborated story, but erroneous rulings by the trial court enabled him to prevail even though the jury did not believe him; and (2) certain errors of the trial court prejudiced defendant and directly contributed to the improper verdict returned by the jury.

In order for this court to consider reversal of the trial court, we must consider the standard of review. The responsibility of a reviewing court is as follows:

“A reviewing court has a duty to reverse the judgment of the trial court where it determines that the judgment is against the manifest weight of the evidence. [Citation.] However, in making this determination, the appellate court must view the evidence introduced at trial and the inferences drawn therefrom in the aspect most favorable to the prevailing party below.” Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 370.

Defendant argues the necessity of a judgment notwithstanding the verdict due to errors made by the trial court which wrongly influenced the jury’s verdict. The standard for granting this motion is clear:

“A motion for a judgment notwithstanding the verdict should be granted only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand.” Treadwell v. Downey (1991), 209 Ill. App. 3d 999, 1001, citing Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 503.

Defendant admits that the jury’s verdict was logical based on what it heard, but claims that the jury was able to hear conflicting versions of the event from plaintiff. Further, the presentation was such that by either version, plaintiff could prevail. The law on jury verdicts is clear. “It is well settled that a jury verdict should not be set aside merely because the jury could have drawn different inferences and conclusions from conflicting testimony.” (Treadwell, 209 Ill. App. 3d at 1002.) The responsibility of the jury is important in the case at bar as it involves findings of fact.

“[I]t is preeminently the jury’s function to determine the issue of whether defendant[ ] exercised reasonable care trader the circumstances. [Citation.] If reasonable minds may differ as to the inferences and conclusions to be drawn from the facts, then judgment n.o.v. should not be entered.” Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 509-10.

The standard of review for granting a new trial is very deferential. The verdict must be contrary to the manifest weight of the evidence and appear to be palpably erroneous. (L.D. Brinkman & Co. Midwest v. National Sponge Cushion Co. (1979), 76 Ill. App. 3d 683, 688.) The jury in the case at bar returned a general verdict in favor of plaintiff. It is well established that such a verdict will be sustained “if there are one or more good causes of action or counts to support it.” Moore v. Jewel Tea Co. (1970), 46 Ill. 2d 288, 294.

Given conflicting evidence, disturbing a verdict on appeal requires a clear showing of an opposite conclusion. (Career Opportunities Inc. v. Grant, Wright & Baker, Inc. (1980), 91 Ill. App. 3d 984, 987.) In the case at bar, it is not clear that the verdict reached was in error. The jury heard extensive testimony as to how plaintiff descended from the railing. Several witnesses testified to the extreme crowd conditions. The examining physician described plaintiff as having been pushed by the crowd, thereby casting doubt on the theory that plaintiff’s ending up over the railing was entirely of his own volition. Therefore, we affirm the ruling of the trial court.

Plaintiff asserted that his accident was caused by the crowd. He contends that in attempting to look above the crowd and see why it was moving so slowly, he was pushed over the open-air railing, lost his grip, and fell to the ground. The trial court heard evidence that this crowd resulted from severe congestion exiting Soldier Field. Further, the court heard evidence that defendant had knowledge of an existing problem with exiting the stadium and failed to take measures to improve the situation.

From plaintiff’s witnesses, and his own testimony, the jury was able to conclude that the bumping and pushing of the crowd caused plaintiff to go over the railing. Plaintiff was consistent in his assessment of the cause of the accident and did not amend his complaint at any time. The case at bar is distinguishable from O’Neill v. Chicago Transit Authority (1972), 5 Ill. App. 3d 69, where plaintiff amended his complaint at the close of the evidence and included defendant’s version of the events. O’Neill, 5 Ill. App. 3d at 72.

Next, defendant argues that its duties to plaintiff as an invitee are limited. It describes the dangers faced by plaintiff as obvious. In Illinois, this categorization does not absolve defendant from all responsibility. In Ward v. K mart Corp. (1990), 136 Ill. 2d 132, the supreme court stated the following:

“This court has not recently had occasion to address the validity of the ‘known’ or ‘obvious’ risk principle. We do so now. We conclude that to the extent that the rule may have held that the duty of reasonable care owed by an owner or occupier to those lawfully on his premises does not under any circumstances extend to conditions which are known or obvious to such entrants, that rule is not the law in this State.” (Emphasis in original.) Ward, 136 Ill. 2d at 145.

With respect to the issue of duty, the Ward court stated the following:

“The ‘reasonable foreseeability’ of injury is one important concern [citation], but this court has recognized that foreseeability alone provides an inadequate foundation upon which to base the existence of a legal duty [citations]. Other considerations include the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.” Ward, 136 Ill. 2d at 140-41.

Defendant cites this court’s rulings in Nally v. City of Chicago (1989), 190 Ill. App. 3d 218, and Coates v. W.W. Babcock Co. (1990), 203 Ill. App. 3d 165, to counter plaintiff’s interpretation of Ward. In Natty, the plaintiffs cited to Steinhauer v. Arnie Bauer Cadillac Co. (1988), 172 Ill. App. 3d 314. Steinhauer stands for the proposition that “the degree of care exercised by the plaintiff and the obviousness of the danger are ordinarily questions of fact.” (Nally, 190 Ill. App. 3d at 221.) We found that the facts of Natty were distinguishable from those in Steinhauer.

The case at bar is similar to Steinhauer. That case involved a plaintiff who was injured by a ledge protruding from the wall near a chair where plaintiff was directed to sit by defendant. In the case at bar, plaintiff was injured as a result of the crowding due to defendant’s design and management of the stadium. Further, plaintiff was a business invitee. The degree of care exercised by plaintiff on the concourse remains a question of fact. It was a common occurrence for fans to climb over the railings in trying to escape the crowds. Further, defendant was aware of this practice and did nothing to stop it.

With respect to the second argument in Nally v. City of Chicago (1989), 190 Ill. App. 3d 218, the case at bar would fall into the categories listed in the comments to section 343A of the Restatement (Second) of Torts. The relevant portion of the Restatement provides as follows:

“ ‘(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.’ ” (Nally, 190 Ill. App. 3d at 221-22, quoting Restatement (Second) of Torts §343A(1), at 218 (1965).)

The comments to the Restatement give the following examples:

“ ‘(1) where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it; or (2) where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.’ ” Nally, 190 Ill. App. 3d at 222, quoting Restatement (Second) of Torts §343A, comment f, at 220 (1965).

First, unlike in Natty, plaintiff in the case at bar had the major distraction of crowding such that his movements were literally controlled by the force of the crowd. As noted by the expert on crowd safety, this type of frustration would cause an invitee’s attention to be distracted. Second, defendant was aware that at every game some fans proceeded to encounter the open-air railings to escape the crowds, despite the risk.

Defendant also cites Coates v. W.W. Babcock Co. (1990), 203 Ill. App. 3d 165, to support its contention that the Ward exception for nonliability for open and obvious dangers is not applicable in the case at bar. In Coates, the plaintiff’s amended complaint gave no indication of the applicability of this exception. (Coates, 203 Ill. App. 3d at 168-69.) Yet, in the case at bar, plaintiff presented evidence that the park district should have been aware that exit conditions along the concourse were a source of distraction from the dangers of the open-air railings.

In Ward, the plaintiff knew that the concrete post existed but it was foreseeable that he would be injured by it because his vision was blocked while exiting the store with an unusually large purchase.

In the case at bar, there were a large number of people exiting, compounded by the problem that two exits were deemed inaccessible. At the end of the game, plaintiff was forced to contend with the magnitude of the crowd and his frustration at being unable to depart from the stadium in a more expedient fashion. Defendant knew that the inability to exit had caused invitees to climb over the railings. There was testimony that this occurred at the rate of two people per game for three to four years before plaintiff’s injury. Clearly, the cost in preventing this dangerous practice was small in comparison to the benefit received as a result of imposing corrective measures. Defendant could have reinforced the railing or opened more exit routes. Yet, defendant did nothing.

Therefore, we hold that the trial court did not abuse its discretion in finding that defendant owed its invitees a duty of reasonable care with respect to an unreasonable danger posed by the conditions, even if they could be considered open and obvious.

Defendant argues that plaintiff’s contributory negligence showed that his actions were voluntary and, therefore, merited the entry of a judgment notwithstanding the verdict. It argues that the jury instructions permitted a recovery for plaintiff whether he had jumped voluntarily or had been pushed over the railing.

In Illinois, the adequacy of jury instructions is to be determined as follows: “whether, taken as a whole and in series, they fairly, fully, and comprehensively apprised the jury as to the applicable legal principles [citation], and a jury instruction should not assume as true any version of disputed facts which the jury should be expected to resolve.” (Pietka v. Chelco Corp. (1982), 107 Ill. App. 3d 544, 554.) The instructions given clearly defined the legal principles of negligence, contributory negligence, plaintiff’s duty of care for his own safety, and proximate cause. In the case at bar, the jury returned a general verdict in favor of plaintiff and defendant submitted no special interrogatories on its theory of sole proximate cause.

The jury was able to hear evidence from both parties to the case. The evidence developed opposing theories with respect to the cause of the accident and who was to blame. The jury was instructed on the legal principles at issue and was able to consider those principles in light of the evidence presented. “It is the law that the jury’s intention may be construed, not only from the actual verdict, but from consideration of the whole record that was before the jury, and the court will enter proper judgments thereon.” (Kimes v. Trapp (1964), 52 Ill. App. 2d 442, 445.) The jury’s intention was to hold defendant responsible for breach of duty of reasonable care despite the degree of fault by plaintiff. Its findings were clear, unambiguous, and reasonable. The issue of whether plaintiff ending up over the railing was accidental or intentional was a factual dispute to be determined by the jury. The role of the jury is well established:

“It is the jury’s function to assess the credibility of the witnesses and the weight to be accorded their testimony, and to select from among conflicting inferences and conclusions that which is most reasonable. [Citation.] Merely because the jury could have drawn different inferences or conclusions is not a basis for setting aside a verdict.” Eckdahl v. Lease-A-Plane International Licensing Corp. (1979), 69 Ill. App. 3d 864, 870.

Several issues were presented to the jury. The jury responded with a general verdict in favor of plaintiff but also with a finding that plaintiff was 55% comparatively negligent. The return of a general verdict “creates a presumption that all material issues of fact upon which proof was offered were found in favor of the prevailing party.” McMahon v. Richard Gorazd, Inc. (1985), 135 Ill. App. 3d 211, 217.

In examining the evidence in a light most favorable to the nonmoving party, there is sufficient evidence to support the jury’s verdict in favor of plaintiff. The evidence presented could not be interpreted as unequivocally absolving defendant of all guilt regarding plaintiff’s fall. A reviewing court cannot substitute its judgment for that of the jury in deciding factual disputes pertaining to the details of plaintiff’s fall unless the jury’s factual findings are “unreasonable, arbitrary, and not based on the evidence.” (Pietka v. Chelco Corp. (1982), 107 Ill. App. 3d 544, 553.) Further, “[a] party has the right to have the jury instructed on his theory of the case and the question as to what issues have been raised by the evidence is within the discretion of the trial court.” Burge v. Morton (1981), 99 Ill. App. 3d 266, 269.

The Burge court explained that the reviewing court’s concern should be whether the result reached in the trial court was reasonable based on the facts in evidence and not whether other conclusions might have been reached. (Burge, 99 Ill. App. 3d at 270.) Thus, we find that the jury’s verdict was not against the manifest weight of the evidence and, therefore, we affirm the ruling of the trial court.

The second issue is whether errors of the trial court prejudiced defendant and directly contributed to the alleged improper verdict returned by the jury. The testimony concerning .the negligent hiring, beer sales, and local politics was prejudicial. Plaintiff also contends that testimony of “The Who” rock concert in Toronto, Canada, by plaintiff’s expert, Jacob Pauls, was prejudicial. However, the admission of such testimony is not a basis for a reviewing court to grant a reversal. It is not the function of the appellate court to second-guess the trial court. The decision whether or not to admit evidence is at the discretion of the trial court. Behrstock v. Ace Hose & Rubber Co. (1986), 147 Ill. App. 3d 76, 84.

Defendant contends that it was prejudicial error to allow plaintiff to present opinion testimony by nonlawyers that defendant violated the Chicago Building Code. Specifically, it contends that the code does not apply to Soldier Field because it is an independent municipality. However, part of the purpose of the Chicago Building Code is public safety. Cases have held that the building code ordinance will be enforced in the interest of public health and safety, as long as there is no interference with the purpose of the park district. (Village of Swansea v. County of St. Clair (1977), 45 Ill. App. 3d 184; see also Wilmette Park District v. Village of Wilmette (1986), 112 Ill. 2d 6.) Further, the record states that Soldier Field used the Chicago Building Code as its only safety standard during the renovation of the stadium. The act of purchasing a ticket to enter the stadium causes the park district to be engaged in a nongovernmental function. This activity falls outside of the function of the park district as a municipal entity. Thus, defendant would “be held to the same standard of care as that imposed on a private party.” Comastro v. Village of Rosemont (1984), 122 Ill. App. 3d 405, 408.

Defendant argues that the applicable statutes should be construed narrowly, applicable only to emergency situations. However, the rule is as follows:

“[I]n personal injury cases where liability is grounded in a statutory or ordinance violation, questions of whether a plaintiff comes within the class of persons intended to be protected by the statute or ordinance and whether the injury is of the kind generally intended to be prevented have been dealt with in terms of proximate cause and, as such, are subject to the determinations of the triers of fact.” (Shehy v. Bober (1979), 78 Ill. App. 3d 1061, 1067.)

With respect to the jury instructions concerning the Chicago Building Code, we give great deference to the trial court. Maynard v. Irving Davis Co. (1970), 122 Ill. App. 2d 28, 34.

Defendant also claims plaintiff’s expert witnesses should not have been permitted to testify concerning violations of the safety provisions of the Chicago Building Code. In personal injury actions, the allowance of expert testimony regarding structures and building codes is a matter left to the discretion of the trial court. (Mattice v. Goodman (1988), 173 Ill. App. 3d 236, 241.) In the case at bar, both parties were able to present extensive expert testimony on this and other issues.

For the foregoing reasons, we affirm the ruling of the trial court and deny defendant’s request for judgment notwithstanding the verdict or for a new trial.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SYLVESTER SMALLEY, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—0950
    Opinion filed December 27, 1991.

      Michael J. Pelletier and Pamela Z. O’Shea, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kevin Sweeney, and Michael Latz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Following a trial without a jury, defendant Sylvester Smalley was found guilty of first degree murder and armed violence. The court sentenced defendant to concurrent prison terms of 24 years for first degree murder, and 10 years for armed violence. On appeal, defendant contends that the Illinois murder statute is unconstitutional; that his conviction for first degree murder must be reduced to second degree murder; that the convictions for first degree murder and armed violence were based on the same physical act; and that the trial court erred in failing to appoint new counsel for defendant during his post-trial and sentencing hearings.

At trial, Thelma Peterson testified for the State that on December 21, 1987, defendant stabbed and killed her daughter, Sharon Evans. Peterson lived with her boyfriend, A.C. Brown; her daughter; and her daughter’s three children, all of whom were home on the night of the murder. Defendant had been dating decedent. On December 21, 1987, at 10 p.m., defendant argued with her, and she then asked defendant to leave. Defendant then cut the telephone lines in the apartment. Peterson tried to intervene between defendant and her daughter, and defendant cut her hand. Peterson did not see a knife. Peterson then left the apartment and went to a neighbor’s to telephone the police. When she returned, her daughter was lying on the bed, bleeding. Peterson did not see anyone push or threaten defendant. She did not hear an argument earlier that evening. Peterson told the police there had been a fight between decedent and defendant. She gave the police a knife which she found in the kitchen.

Lattice Evans, decedent’s 11-year-old daughter, testified that on December 21, 1987, she heard defendant and her mother argue about money. (A friend named Renee was present, but she soon left.) About two hours later, Lattice saw defendant, Peterson, Brown and decedent in Peterson’s bedroom. She saw defendant cut the telephone line with a knife. Lattice went into the kitchen to telephone the police, but defendant followed her and cut the telephone line there, also. Defendant placed the knife into his back pocket. Lattice took the knife out of his pocket when defendant turned away. Defendant pushed Lattice down and took the knife back. The knife blade was four or five inches long.

Lattice then saw defendant approach her mother. Peterson stepped between them, but defendant cut her hand. When Peterson left the room, defendant grabbed decedent by the hair, struck her, knocked her to the bed and stabbed her twice.

Brown testified that on December 21, 1987, he saw decedent and defendant enter Peterson’s bedroom. He was watching television in the bedroom and did not hear their argument. Decedent asked defendant to leave. Defendant slapped her. He then cut or pulled out the phone lines. Peterson tried to intervene, and defendant cut her hand. When Peterson left the room, Brown saw defendant knock decedent down, get on top of her and stab her twice. Brown never saw anyone threaten or strike defendant. On cross-examination, Brown denied telling the police he had heard the argument or that he had seen anyone push defendant.

The parties stipulated that Dr. Tae Lyong An, a medical examiner, would testify that decedent suffered four stab wounds and that she died as a result of those wounds.

An audio tape of the telephone call reporting the crime to the police was played in chambers.

Defendant testified that he was living with decedent. On December 21, 1987, he had been drinking white port and Kool-aid with decedent and Renee. Defendant testified that decedent liked to get high by taking her blood pressure pills and Tylenol. That night, he, decedent, and Renee injected heroin and cocaine. He argued with decedent for about 15 minutes concerning the proceeds of a lottery prize and an insurance payment. Defendant testified further that decedent was angry because she wanted more drugs. He reassured her that he would try to get more drugs. Decedent slapped him, and he grabbed her arms. They fell down, with defendant on top. Peterson came in and started to strike defendant on the head with a stick. Defendant tried to use the telephone to call his mother for money to buy decedent drugs. Decedent either knocked the telephone from defendant’s hands or defendant threw it.

Defendant testified further that shortly thereafter, decedent went “berserk.” Lattice then “slung” a knife at him. Defendant took the knife and continued arguing with decedent. He saw decedent fall and saw blood on the floor. Defendant saw Peterson with something in her hands. He then became frightened and ran from the apartment, throwing the knife up onto a roof.

Officer Murphy testified that he interviewed Peterson, Brown and Lattice. Peterson told the police that defendant and decedent had been fighting about money and had been drinking. Lattice did not tell the police that defendant cut the telephone lines in her grandmother’s room. Brown told the police that he heard defendant and decedent arguing before they entered the room and that they were fighting about money. Brown pushed defendant. Brown did not tell the police that defendant cut the telephone cord or pulled the cord out of the wall.

The parties stipulated that the autopsy revealed that decedent’s blood contained no cocaine or heroin. Her blood did contain evidence of alcohol (.015 milligrams) and codeine (223 milligrams per milliliter) consumption.

The court found defendant guilty of two counts of first degree murder and one count of armed violence. The mittimus, however, shows defendant was convicted of only one count of murder and one count of armed violence.

Defendant filed a pro se post-trial motion for a new trial, which the court denied.

Opinion

Defendant first contends that the Illinois murder statute (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1 et seq.) is unconstitutional because it violates his rights to due process and equal protection, and violates the separation of powers doctrine. This court recently rejected identical arguments in People v. Davis (1991), 221 Ill. App. 3d 1023, 1026-28, citing numerous other opinions rejecting these arguments. (See, e.g., People v. Newbern (1991), 219 Ill. App. 3d 333, 579 N.E.2d 583; People v. Wright (1991), 218 Ill. App. 3d 764, 578 N.E.2d 1090; People v. Thomas (1991), 216 Ill. App. 3d 469, 576 N.E.2d 1020; People v. Doss (1991), 214 Ill. App. 3d 1051, 574 N.E.2d 806; People v. Gore (1991), 212 Ill. App. 3d 984, 571 N.E.2d 1041.) We follow those decisions and find the statute under which defendant was convicted to be constitutional.

Defendant next contends that his conviction for first degree murder should be reduced to second degree murder because the evidence shows serious provocation.

First degree murder requires proof beyond a reasonable doubt that defendant intentionally killed the victim. (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a).) However, if defendant proves, by a preponderance of the evidence, the mitigating factor that “at the time of the killing he [was] acting under a sudden and intense passion resulting from serious provocation,” the offense is reduced to second degree murder. Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 2(a), (c).

The question of whether a homicide constitutes first or second degree murder is for the trier of fact. (People v. Falconer (1988), 168 Ill. App. 3d 618, 522 N.E.2d 903.) Mutual combat qualifies as serious provocation only if decedent’s conduct is serious enough to unleash an intense passion in a reasonable person. (People v. Pugh (1989), 187 Ill. App. 3d 860, 543 N.E.2d 875.) If the provocation is slight and the retaliation is disproportionately great, the crime is first degree murder. People v. Chevalier (1989), 131 Ill. 2d 66, 544 N.E.2d 942; People v. Dowdell (1980), 84 Ill. App. 3d 707, 406 N.E.2d 123.

Upon reviewing the evidence in the light most favorable to the prosecution (see People v. Williams (1991), 215 Ill. App. 3d 800, 576 N.E.2d 68), we conclude that a rational trier of fact could find beyond a reasonable doubt that defendant did not act under a sudden passion resulting from adequate provocation.

The testimony of the State’s witnesses establishes that defendant argued with decedent about money, and the argument began perhaps as long as two hours before the murder. Decedent asked defendant to leave the apartment. Defendant then cut the telephone lines in one room, followed decedent’s daughter into the kitchen when she tried to use another telephone, and then cut those lines, too. This conduct would indicate that defendant was not acting under sudden passion.

Defendant pushed decedent’s mother out of the way, cutting her hand. Defendant also knocked decedent’s 11-year-old daughter down after she managed to get the knife away from him. Defendant grabbed decedent by the hair, knocked her down, got on top of her, and stabbed her four times. All four of the State’s witnesses testified that defendant was never attacked or threatened.

It is not sufficient to constitute intense provocation that the unarmed decedent and defendant had argued. See People v. Williams, 215 Ill. App. 3d 800, 576 N.E.2d 68 (affirming first degree murder and rejecting defendant’s contention that sufficient provocation had been established where defendant saw her husband leave their bedroom with two women, the women left, defendant and her husband argued, the husband slapped defendant, and defendant stabbed him four times).

The trier of fact could properly find that defendant failed to prove by a preponderance of the evidence that a reasonable person would not have reacted with intense passion and attacked decedent with a knife, stabbing her four times, if they had argued over the proceeds of a lottery prize and an insurance refund.

Defendant next contends that his convictions for first degree murder and armed violence were based upon the same physical act.

Multiple convictions must be vacated when they are based on the same physical act. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) In determining whether defendant’s conduct constituted a single physical act, the court must take into account the prosecutorial intent as reflected in the indictment; the existence of an intervening act; the time interval between successive parts of the defendant’s conduct; the victim’s identity; the similarity of the acts; and the location of the acts. People v. Guzman (1990), 208 Ill. App. 3d 525, 535, 567 N.E.2d 500.

Here, the evidence established that defendant stabbed decedent four times. The location of the stab wounds on decedent’s body is not indicated in the record. There is no evidence of any acts, even decedent’s struggling against defendant, which might have intervened between the stab wounds, or of any time lapse between each stab wound. The wounds were all inflicted on decedent in the same room in the apartment. Moreover, the language of the indictment treats the stabbing as one physical act. See People v. Williams (1991), 215 Ill. App. 3d 800, 576 N.E.2d 68 (wife’s four stabbings of husband in one attack were not separate acts and thus could not support convictions for both armed violence and murder); People v. Gvojic (1987), 160 Ill. App. 3d 1065, 513 N.E.2d 1082 (multiple stab wounds resulting from a single attack held to be the result of only one act).

We conclude that defendant’s convictions for armed violence and murder were predicated on a single physical act. Thus, the armed violence conviction must be vacated. We remand for a new sentencing hearing on the murder conviction. See People v. Fields (1990), 199 Ill. App. 3d 888, 557 N.E.2d 629 (new sentencing hearing required where one conviction vacated, and in sentencing on second conviction, the judge may have been influenced by the' now vacated conviction); People v. Watts (1990), 195 Ill. App. 3d 899, 918, 552 N.E.2d 1048, 1060-61 (same).

Defendant finally contends that the trial court erred in denying his pro se motion for a new trial and in failing to appoint new counsel to represent him at his motion for a new trial and at his sentencing hearing.

Following trial, the court held a joint hearing on defendant’s motion for a new trial and sentencing. Defense counsel presented and argued a motion for a new trial. The court denied the motion. Defendant then presented a pro se motion for a new trial, alleging ineffective assistance of counsel. In his motion, he referred to counsel’s failure to call “witnesses or professional or psychological or drug counselors or psychiatric counselors” to testify. There is no specific identification of those witnesses in the motion. The court heard argument from both sides and then denied the pro se motion. The court found that defense counsel had done a competent job during the trial.

There is “no per se rule that new counsel must be appointed every time a defendant presents a pro se motion for a new trial alleging ineffective assistance of counsel.” (People v. Nitz (1991), 143 Ill. 2d 82, 134, 572 N.E.2d 895, construing People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045.) In Nitz, the court found it was error to force defense counsel into a conflict of interest by ordering him to question the witnesses who defendant maintained should have been called to testify at trial. (Nitz, 143 Ill. 2d at 135.) The court found, however, that it was harmless beyond a reasonable doubt where the court determined that the witnesses’ testimony did not support defendant’s representations. Nitz, 143 Ill. 2d at 135.

Defendant asks, however, that we remand for a new post-trial hearing “because at a minimum, the trial judge is required to inquire into the defendant’s allegations” of ineffective assistance of counsel.

We acknowledge that the better procedure might have been for the trial judge to question defense counsel. (See People v. Nitz (1991), 143 Ill. 2d 82, 572 N.E.2d 895 (where trial court held an evidentiary hearing and asked defense counsel to explain his reasons for not having two individuals testify at trial); People v. Jackson (1985), 131 Ill. App. 3d 128, 474 N.E.2d 466; People v. Jameson (1987), 155 Ill. App. 3d 650, 508 N.E.2d 267.) However, any impropriety here did not rise to the level of error requiring remandment for a new post-trial hearing where the record clearly shows that the alleged errors asserted by defendant fail to support the possibility of ineffective assistance of counsel. See People v. Nitz, 143 Ill. 2d at 135.

The test of incompetency is based on a showing that the attorney’s performance fell below an objective standard of reasonableness and was prejudicial to defendant. In order to establish prejudice, defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 694-96, 80 L. Ed. 2d 674, 698-99, 104 S. Ct. 2052, 2068-69.) Defense trial strategy will generally not support a claim of ineffective representation. People v. Flores (1989), 128 Ill. 2d 66, 106, 538 N.E.2d 481; People v. Williams (1991), 215 Ill. App. 3d 800, 576 N.E.2d 68.

Defendant maintains on appeal that trial counsel could have called an expert witness, or Renee Jenkins, to establish that defendant acted with serious provocation. A decision whether to call such witnesses falls within matters of trial strategy. (People v. Bodoh (1990), 200 Ill. App. 3d 415, 558 N.E.2d 178.) Moreover, defendant suffered no prejudice since the result of the proceeding would have been no different, given the overwhelming evidence that defendant did not murder decedent as a result of adequate provocation, as discussed above. Thus, assuming that trial counsel had made an error in trial strategy, defendant has failed to show that the outcome of the trial would have been different. See People v. Williams (1991), 215 Ill. App. 3d 800, 576 N.E.2d 68.

Accordingly, the judgment of the circuit court of Cook County finding defendant guilty of first degree murder is affirmed, and the cause is remanded with directions to vacate the conviction and sentence for armed violence, and hold a new sentencing hearing on the murder conviction alone.

Judgment affirmed in part; vacated in part; and remanded with directions.

MURRAY and McNULTY, JJ., concur.