author: JUSTICE STEIGMANN

text:
    DEBORAH KIERSCH, Plaintiff-Appellant v. AGNES OGENA, DefendantAppellee.
    Fourth District
    No. 4-91-0764
    Opinion filed June 29,1992.
    Rehearing denied July 30,1992.
    Timothy W. Kelly, of Allison & Kelly, of Bloomington, for appellant.
    Joseph J. Goleash, Jr., of Illinois State University, of Normal, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In October 1990, plaintiff, Deborah Kiersch, filed a medical malpractice action against defendant, Agnes Ogena, a medical doctor licensed in the State of Illinois. The complaint alleged that defendant was employed by Illinois State University (ISU) as a physician for student health services and that she negligently treated plaintiff, who was an ISU student at the time. In November 1990, defendant filed a motion to dismiss, arguing (1) the case had to be heard in the Illinois Court of Claims, and (2) the circuit court did not have subject-matter jurisdiction because plaintiff’s claim was essentially against the State of Illinois. In September 1991, the trial court granted defendant’s motion to dismiss. Plaintiff appeals and we reverse.

I. BACKGROUND

In her complaint, plaintiff alleged that defendant provided medical treatment to plaintiff by attempting to remove a wart from her right hand through the use of bichlorocetic acid. Plaintiff alleged that while applying the acid to her hand, defendant negligently allowed the acid to drip onto other, healthy portions of plaintiff’s hand, thereby causing severe burns. Plaintiff’s complaint concluded by alleging that because of defendant’s negligent treatment, plaintiff had incurred pain and suffering, had suffered additional medical expenses, had been disfigured, and would incur pain and suffering in the future. Plaintiff prayed for damages against defendant in excess of $15,000.

Defendant moved to dismiss under section 2 — 619(a)(1) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2— 619(a)(1)), alleging that she was employed by ISU and acted within the scope of her employment at the time of the alleged injury. Therefore, defendant asserted that plaintiff’s complaint sounded in tort against the State of Illinois, that the circuit court did not have subject-matter jurisdiction over tort claims against the State, and thus plaintiff’s complaint could be brought only in the Court of Claims. In support of defendant’s motion to dismiss, she attached an exhibit which indicated that ISU provided legal representation and indemnification for its employees, as follows:

“[For] a claim of action instituted against *** [an ISU] employee *** which is based upon *** injury allegedly arising from an act or omission occurring within the scope of duties on behalf of [ISU]. Upon timely request of the [employee, ISU] shall determine the appropriateness of providing counsel for the defense of the claim or action and indemnification for actual costs incurred as a result of such claim or action. [ISU] *** shall provide such defense and indemnification upon a determination that the individual has acted in good faith, without malice, and within the apparent scope of his or her authority. *** Legal representation and indemnification is subject to the representation and indemnification of State Employees [Indemnification] Act.”

Based upon the above ISU policy, defendant argued at the trial level (and repeats the argument here) that the State of Illinois is the true party at risk in satisfying any monetary judgment that might be rendered against defendant because the State, through ISU policymakers, has elected to indemnify employees such as defendant. The trial court agreed with this argument and dismissed plaintiff’s complaint for the following reasons:

“2. That Defendant was at the time of the alleged injury an employee of the State of Illinois, namely, the Board of Regents of the Regency Universities System, a body corporate and politic of the State;
3. That Defendant was acting within the scope of her employment at the time of the alleged negligent act;
4. That employees of the State are not immune from suit for their own negligence merely because they are acting within the scope of their employment;
5. That the State through the Board of Regents has promulgated a policy indemnifying employees sued for negligence, thus rendering the State rather than the Defendant the liable party;
6. That claims sounding in tort against the State of Illinois may only be brought under the waiver of sovereign immunity granted under the provisions of the Court of Claims Act[.]”

Because this case comes before us on an appeal from the trial court’s granting defendant's motion to dismiss, we must accept all well-pleaded facts contained in plaintiff’s complaint as true. Munizza v. City of Chicago (1991), 222 Ill. App. 3d 50, 52, 583 N.E.2d 561, 563.

II. ANALYSIS

In Currie v. Lao (1992), 148 Ill. 2d 151, 592 N.E.2d 977, the supreme court recently addressed an argument identical to that made by defendant in the present case (albeit in a different factual context). In Currie, defendant Lao was an Illinois State trooper who responded to a reported disturbance within the City of Joliet. The record did not reveal why defendant did so, considering that Joliet has its own police force. As Lao drove to the location of the disturbance, he got lost and wound up driving the wrong way on a one-way street. Lao’s automobile collided with Currie’s vehicle, and Currie sued Lao for negligence. A trial was held, and the jury returned a verdict for Currie and awarded him money damages. Currie, 148 Ill. 2d at 157, 592 N.E.2d at 979.

As does defendant in the present case, Lao argued on appeal that plaintiff’s suit was in reality a claim against the State because Lao was performing his official duties as a State trooper at the time of the accident. Therefore, Lao argued, because sovereign immunity dictates that the State can be sued only in the Court of Claims, that court has exclusive jurisdiction over the matter and the circuit court was without subject-matter jurisdiction to hear the case. (Currie, 148 Ill. 2d at 157, 592 N.E.2d at 979.) The supreme court disagreed and wrote the following:

“Article XIII, section 4, of the Illinois Constitution of 1970 abolished sovereign immunity ‘[ejxcept as the General Assembly may provide by law.’ (Ill. Const. 1970, art. XIII, §4.) Pursuant to this grant of authority, the legislature enacted the State Lawsuit Immunity Act, which provides, in pertinent part:
‘Except as provided in *** “AN ACT to create the Court of Claims ***”, *** the State of Illinois shall not be made a defendant or party in any court.’ Ill. Rev. Stat. 1987, ch. 127, par. 801.
The Court of Claims Act established the Court of Claims and endowed it with the exclusive jurisdiction to hear certain matters, including the following:
‘(d) All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit, *** provided, that an award for damages in a case sounding in tort, other than certain cases involving the operation of a State vehicle described in this paragraph, shall not exceed the sum of $100,000 to or for the benefit of any claimant. The $100,000 limit prescribed by this Section does not apply to an award of damages in any case sounding in tort arising out of the operation by a State employee of a vehicle owned, leased or controlled by the State.’ (Ill. Rev. Stat. 1987, ch. 37, par. 439.8(d).)
The issue before us is whether plaintiff’s claim against Lao, an employee of the State of Illinois, is in reality a claim against the State such that the Court of Claims has exclusive jurisdiction over the action.
The determination of whether an action is in fact a suit against the State turns upon an analysis of the issues involved and the relief sought, rather than the formal designation of the parties. [Citations.] An action brought nominally against a State employee in his individual capacity will be found to be a claim against the State where a judgment for the plaintiff could operate to control the actions of the State or subject it to liability. [Citation.]
*** [T]he proper inquiry is to analyze the source of the duty the employee is charged with breaching in committing the allegedly negligent act. Where the charged act of negligence arose out of the State employee’s breach of a duty that is imposed on him solely by virtue of his State employment, sovereign immunity will bar maintenance of the action in circuit court. [Citations.] Conversely, where the employee is charged with breaching a duty imposed on him independently of his State employment, sovereign immunity will not attach and a negligence claim may be maintained against him in circuit court. [Citations.] In other words, where an employee of the State, although acting within the scope of his employment, is charged with breaching a duty that arose independently of his State employment, a suit against him will not be shielded by sovereign immunity.
This distinction best preserves the spirit of the sovereign immunity doctrine. The legislative grant of sovereign immunity shields the State from being hailed into circuit court; it is not a blanket grant of immunity for all State employees.” (Emphasis in original.) Currie, 148 Ill. 2d at 157-59, 592 N.E.2d at 979-80.

The supreme court concluded that the duty Lao was charged with breaching did not arise as a result of his employment as a State trooper, but rather arose as a result of his status as the driver of an automobile on a public roadway. (Currie, 148 Ill. 2d at 161-62, 592 N.E.2d at 981.) The court specifically rejected Lao’s sovereign immunity argument and stated, “we find under the facts of this case that Lao was not performing an uniquely governmental function at the time of the collision.” (Currie, 148 Ill. 2d at 162, 592 N.E.2d at 981.) In so holding, the supreme court distinguished this court’s decision in Campbell v. White (1991), 207 Ill. App. 3d 541, 566 N.E.2d 47, wherein the defendant was a State law enforcement officer engaged in a high-speed chase of a suspect. This court held that the defendant in Campbell was operating his motor vehicle in a manner in which only a governmental official is authorized to act. Quoting Campbell, the supreme court wrote the following:

“ ‘The actions complained of are within defendant’s normal and official functions as an agent of the State. And, while defendant ordinarily would owe a duty to the general public not to drive negligently, the specific acts of negligence *** alleged revolve around the operation of a State Police vehicle in a manner uniquely related to his State employment ***. *** Such an action is only nominally against the individual employee and must be brought in the Court of Claims.’ (Emphasis added.) (Campbell, 207 Ill. App. 3d at 552.)
Thus, crucial to the court’s decision in Campbell was its finding that the defendant’s acts of negligence arose out of his driving his vehicle in a manner uniquely related to his governmental employment. As stated, Lao’s operation of his vehicle at the time of the collision was not uniquely related to his position as a State trooper.” Currie, 148 Ill. 2d at 164-65, 592 N.E.2d at 982-83.

We view the supreme court’s decision in Currie as reaffirming the appellate court’s analysis in both Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 372 N.E.2d 1131, and Watson v. St. Annes Hospital (1979), 68 Ill. App. 3d 1048, 386 N.E.2d 885. In Madden, plaintiff filed a wrongful death action against Dr. Kuehn, a prison physician, alleging that he negligently treated plaintiff’s decedent, who died as a result. (Madden, 56 Ill. App. 3d at 998-99, 372 N.E.2d at 1132.) Dr. Kuehn died before plaintiff filed suit, so his estate was the designated defendant. Dr. Kuehn’s estate raised the same argument regarding sovereign immunity that defendant raises in the present case. The Madden court rejected that argument and wrote the following:

“A suit nominally against an officer or employee of the State should be regarded as an action against the State '*** if the State, *** is the real party against which relief is sought.’ [Citation.] In this case, Dr. Kuehn was not asserted to have been acting in an administrative or legislative capacity at the time of his examination and treatment of the decedent. Instead, the duties which he is alleged to have breached are those which every physician owes his patient, rather than obligations incurred solely by virtue of holding a public office. [Citations.] The State cannot be rendered liable by this suit, since the action was not filed in the Court of Claims. The recovery which is sought here is against the assets of Dr. Kuehn’s estate or malpractice insurance carrier. The suit against Dr. Kuehn’s estate can in no way be said to ‘control’ any action of the State and the State is not the ‘real party in interest.’ Under these circumstances, the action against the estate of Doctor Kuehn is not effectively a suit against the State.” Madden, 56 Ill. App. 3d at 1001, 372 N.E.2d at 1133-34.

In Watson, plaintiff filed a medical malpractice action against physicians employed by the University of Illinois. Again, the defendant-physicians argued that the suit against them had to be dismissed on the ground that claims involving State employees must be heard exclusively in the Court of Claims. (Watson, 68 Ill. App. 3d at 1050-51, 386 N.E.2d at 886-87.) The trial court granted defendants’ motion to dismiss, and the appellate court reversed. In so doing, the court cited Madden approvingly and wrote the following:

“We hold in the instant cases, that plaintiffs’ suits against the individual defendants seek recovery against their personal assets or such insurance as they may carry and, because the State is not amenable to liability and its action are not subject to control for its alleged negligence, the State is not the real party in interest and the suits are not actions against the State which require that they be filed in the Court of Claims.
Defendants’ counsel on oral argument urged this court to recognize that the individual defendants would not be likely to carry professional liability insurance; that if there is insurance, it has been supplied by the State as a protection to the individuals; that to hold the individual defendants liable under these circumstances would discourage them and others from seeking employment through the State; and that State funds were, after all, used in order to maintain the hospitals which accorded treatment to the injured parties and financially provided the necessary staff. None of the foregoing assertions are supported by any evidence in the record, however, and may not be considered for the purposes of determining the issues herein. Indeed, were they so supported, in any case they would not compel a conclusion different from that which we reach. Similarly, the existence or absence of insurance cannot affect the result.” Watson, 68 Ill. App. 3d at 1053-54, 386 N.E.2d at 889.

As in Madden and Watson, the duty plaintiff alleges that defendant breached in this case arose independently of her State employment and is no different than that duty which any physician owes to her patient. Consistent with the supreme court’s decision in Currie, we hold that sovereign immunity does not attach in the present case. Accordingly, plaintiff’s negligence claim may be maintained against defendant in circuit court because defendant “is charged with breaching a duty imposed on [her] independently of [her] State employment.” (Emphasis in original.) Currie, 148 Ill. 2d at 159, 592 N.E.2d at 980.

We also reject defendant’s argument that ISU’s provision for legal representation and indemnification of its employees somehow transforms all suits against ISU employees in their individual capacities into suits against the State, requiring that such suits be brought in the Court of Claims. In response to this argument, plaintiff correctly points out that defendant confuses liability with indemnity — that is, defendant tries to equate ISU’s decision to indemnify its employees with direct liability of ISU for its employees’ negligent conduct. The two are not the same, and the decision of ISU to indemnify its employees does not deprive the circuit courts of subject-matter jurisdiction over claims otherwise properly brought in the circuit court.

In so holding, we note that there is nothing particularly unusual about ISU’s policy to provide legal representation and indemnification for its employees in tort cases brought against them personally. The written policy of ISU on this subject, quoted earlier in this opinion, cites the State Employee Indemnification Act (Act) (Ill. Rev. Stat. 1989, ch. 127, par. 1301 et seq.), which provides, in section 2(a) thereof, for legal representation and indemnification of every State employee under circumstances similar to those discussed in the ISU policy. (See Ill. Rev. Stat. 1989, ch. 127, par. 1302(a).) Yet, section 2(d) of the Act (Ill. Rev. Stat. 1989, ch. 127, par. 1302(d)) speaks of findings made by “the court or jury,” thereby clearly indicating that the legislature contemplated that actions against State employees for damages, for which the State would be obligated to indemnify the employees under the Act, might be brought in circuit court, as opposed to the Court of Claims. This conclusion follows because the Court of Claims conducts its judicial business without juries. See Ill. Rev. Stat. 1989, ch. 37, par. 439.16.

If the State’s indemnification of State employees were sufficient by itself (as defendant argues) to deprive the circuit court of subject-matter jurisdiction and to require all tort claims against such employees to be heard in the Court of Claims, then the supreme court’s analysis in Citrne — deciding whether a tort claim against the defendant State trooper should be heard in the Court of Claims — would be utterly pointless. Accordingly, we find defendant’s argument regarding indemnity to be without merit.

III. CONCLUSION

For the reasons stated, we reverse the trial court’s dismissal of plaintiff’s complaint and remand this cause for further proceedings consistent with the views expressed herein.

Reversed and remanded.

KNECHT and LUND, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    JOHN SCHOONOVER, Plaintiff-Appellant, v. AMERICAN FAMILY INSURANCE GROUP, Defendant-Appellee.
    Fourth District
    No. 4—91—0900
    Opinion filed June 18,1992.
    R. John Alvarez, of Grosboll, Becker, Tice, Alvarez & Smith, of Peters-burg, for appellant.
    Karen L. Kendall, Bradley S. McMillan, Duncan B. Cooper III, and David A. Perkins, all of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This case is the latest of a series of decisions of this court concerning the operation of Supreme Court Rule 308(a), which states:

“When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. Such a statement may be made at the time of the entry of the order or thereafter on the court’s own motion or on motion of any party. The Appellate Court may thereupon in its discretion allow an appeal from the order.” 134 Ill. 2d R. 308(a).

The procedures giving rise to the instant appeal began on April 4, 1989, when plaintiff John Schoonover filed a complaint in the circuit court of Morgan County against defendant American Family Insurance Company to recover, pursuant to a homeowner’s insurance policy issued by defendant, for fire damage to a house owned by him. On October 5, 1990, that court denied a second defense motion for summary judgment based upon the theory that the suit was tardily filed under the terms of the policy. That order of dismissal contained the findings required under Supreme Court Rule 308(a) for us to grant leave to appeal the order and we granted leave to appeal. We reversed the order denying summary judgment and remanded to the circuit court with directions to grant a summary judgment in favor of the defendant. Schoonover v. American Family Insurance Co. (1991), 214 Ill. App. 3d 33, 572 N.E.2d 1258, appeal denied (1991), 141 Ill. 2d 560, 580 N.E.2d 134.

After plaintiff filed his complaint in Schoonover, defendant was served with summons on April 11, 1989. Then, as now, Supreme Court Rules 101(d) and 181(a) (134 Ill. 2d Rules 101(d), 181(a)) required defendants in cases of the nature involved here to appear within 30 days of summons. However, defendant made no appearance until June 1, 1989, when it filed a motion for additional time until June 1, 1989, and to be excused from filing a verified pleading. On June 8, 1989, plaintiff responded by objecting to the extension and requesting a default because of defendant’s tardiness in appearing. On June 9, 1989, the circuit court denied plaintiff’s motion for default and granted defendant’s motion for an extension of time.

On remand, after our decision in Schoonover, the circuit court entered a summary judgment in favor of defendant as directed by the mandate of this court. On December 5, 1991, plaintiff filed the instant notice of appeal as to that judgment. He now contends that the summary judgment entered pursuant to the mandate was erroneous because the circuit court erred in denying his motion for a default judgment against defendant. Defendant maintains that the decision of the court directing entry of summary judgment is res judicata and law of the case as to the propriety of the summary judgment and, in any event, the circuit court acted within its discretion in denying the motion for a default judgment.

Under the holding in Relph v. Board of Education of DePue Unit School District No. 103 (1981), 84 Ill. 2d 436, 420 N.E.2d 147, the theory of res judicata is not available to defendant. In Relph, in separate counties, teachers discharged by school districts in reduction of forces because of economic conditions sought writs of mandamus to require their rehiring. Circuit courts entered summary judgments for the respondents. On appeal the circuit courts were directed to enter summary judgments for the teachers. (Hagopian v. Board of Education of Tampico Community Unit School District No. 4 (1978), 56 Ill. App. 3d 940, 372 N.E.2d 990; Relph v. Board of Education of DePue Unit School District No. 103 (1977), 51 Ill. App. 3d 1036, 366 N.E.2d 1125.) Subsequent to the remands, the supreme court decided Lenard v. Board of Education of Fairfield School District No. 112 (1979), 74 Ill. 2d 260, 384 N.E.2d 1321, which placed a new interpretation upon the law involved.

On remand from the Hagopian and Relph appellate decisions, the circuit courts took the position that the appellate court decisions were res judicata and no consideration could be given to the Lenard opinion. Appellate courts agreed (Hagopian v. Board of Education of Tampico Community Unit School District No. 4 (1980), 83 Ill. App. 3d 1097, 404 N.E.2d 899; Relph v. Board of Education of the DePue Unit School District No. 103 (1980), 83 Ill. App. 3d 1139, 404 N.E.2d 922). On consolidated appeals to the supreme court, that court held that the appellate court judgments which remanded the case, although directing entry of judgments, did not have a res judicata effect. The court explained:

“The judgments of the appellate court were not final judgments in the sense that they did not terminate the litigation but remanded the cases to the trial courts with directions that judgments be entered, which judgments, in turn, would be appealable to the appellate court under our constitution. The appellate court’s decisions, in turn, would then be subject to review by this court through petitions for leave to appeal. (73 Ill. 2d R. 315(a).) Since the judgments in these cases were still subject to the appellate process, they were not to be given res judicata effect. The most that can be said of the appellate court’s mandate in each case is that it established the law of the case.” Relph, 84 Ill. 2d at 442-43, 420 N.E.2d at 150.

The doctrine of the law of the case was explained by this court in Lubbers v. Norfolk & Western Ry. Co. (1986), 147 Ill. App. 3d 501, 511, 498 N.E.2d 357, 365, as “[wjhere, in a prior appeal, questions of law are presented and determined, such become the law of the case and are generally binding and will control in a subsequent appeal unless the facts presented in the subsequent proceedings are so substantially different as to require a different interpretation.” (See also Bisco v. Liberty Mutual Insurance Co. (1990), 204 Ill. App. 3d 19, 561 N.E.2d 1289, appeal denied (1991), 136 Ill. 2d 541, 567 N.E.2d 329.) The foregoing rule was further qualified by the supreme court to indicate that it is applicable only to a subsequent appeal to the appellate court and not the supreme court even though it denied leave to appeal in the first case and is not applicable if a change in the interpretation of the law has occurred between the appeals. Relph, 84 Ill. 2d at 443, 420 N.E.2d at 150.

The law of the case rule in regard to a case decided in the first appeal pursuant to Supreme Court Rule 308 presents tricky procedural questions. Was the question of the propriety of the trial court’s denial of plaintiff’s motion for a default decided in Schoonover when we ordered the circuit court to enter a summary judgment for defendant? Should plaintiff have cited that claim of error on review in Schoonover in support of his theory that summary judgment for defendant should not have been allowed? Should and could plaintiff have cross-appealed the denial of the motion for default in Schoonover?

The questions are complicated by a feature of the Schoonover decision which we have not yet discussed. We held there that the provision of Supreme Court Rule 308(a) requiring the circuit court to identify “the question of law involved” does not limit the issues which can be raised in support of the appeal. Rather, the order appealed can be attacked by any point raised in the circuit court. This court had not spoken directly to this question before but several decisions of the other districts of the appellate court had held that the scope of review was limited to the identifying questions (i.e., Koch v. Spalding (1988), 174 Ill. App. 3d 692, 529 N.E.2d 19; Getto v. City of Chicago (1981), 92 Ill. App. 3d 1045, 416 N.E.2d 1110). We agreed with the dissent of Justice Harrison in Koch and the opinion in In re Oil Spill by Amoco Cadiz (7th Cir. 1981), 659 E2d 789, the latter of which gave a construction of a Federal statute (28 U.S.C. § 1292(b) (1988)), from which Supreme Court Rule 308 was derived, similar to that of Justice Harrison’s dissent.

The procedural problem confronting plaintiff here is not entirely a product of our interpretation of Supreme Court Rule 308(a) in Schoonover because a similar problem would have existed if the summary judgment had been ordered based entirely upon one of the identifying questions. He still would have the problem of preserving the question of the ruling on the motion to default. However, under an interpretation that in a Supreme Court Rule 308 appeal the issues can go beyond the identifying questions to fully decide the propriety of the order appealed, plaintiff would have been more likely to take every step to preserve the question concerning the denial of the default.

The instant case is not our first encounter with problems arising in the circuit court after reversals of interlocutory orders in appeals granted under Supreme Court Rule 308. In Sinclair v. State Bank (1991), 207 Ill. App. 3d 430, 566 N.E.2d 44, appeal denied (1991), 139 Ill. 2d 605, 575 N.E.2d 924 (Sinclair I), this court accepted a Supreme Court Rule 308 appeal from an order of the circuit court denying a motion to dismiss the complaint. The circuit court order identified two questions of law as being involved. This court held that the circuit court had erroneously ruled as to both questions and reversed without remandment. Unlike in Schoonover, we based our decision upon the identified questions. However, the effect of our decision was to dismiss the complaint for failure to state a cause of action without the plaintiff having the opportunity to amend which would have existed if the complaint had been dismissed by the circuit court.

While leave to appeal to the supreme court was pending in Sinclair I, that plaintiff filed a motion in the circuit court seeking to file an additional count on a different theory. The circuit court, noting no remandment had been ordered, denied the motion and the plaintiff appealed. This court noted that had the dismissal of the complaint occurred in the circuit court, section 2 — 615(d) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615(d)) would have given the plaintiff an opportunity to seek to file an amended complaint. Recognizing that we should have ordered remandment for that purpose in Sinclair I, this court concluded that under the peculiar circumstances of that case, fairness required that the plaintiff be permitted to have an opportunity to present a proposed amendment. This court then reversed and remanded for that purpose. Sinclair v. State Bank (1992), 226 Ill. App. 3d 909 (Sinclair II); see also Healy v. Vaupel (1990), 133 Ill. 2d 295, 317, 549 N.E.2d 1240,1251.

By analogy to the manner in which this court dealt in Sinclair II with the problems arising from Sinclair I, we elect to consider first the question of whether the circuit court’s denial of plaintiff’s motion for a default judgment was error. Defendant’s appearance and request for additional time to plead was tardy by slightly more than 30 days. Plaintiff maintains that because defendant was in a business where it was inherently subject to frequent litigation, had business sophistication, and had access to capable counsel, defendant had no excuse for its tardiness.

In contending the circuit court abused its discretion in denying plaintiff’s request to default defendant, plaintiff relies upon Graf's Beverages of Illinois, Inc. v. Tauber (1977), 50 Ill. App. 3d 1047, 366 N.E.2d 150, and Piekarczyk v. Gibas (1951), 342 Ill. App. 510, 97 N.E.2d 129 (abstract of decision). In Grafs, the defendant appealed from an order refusing to vacate a default judgment. There, unlike here, the defendant had been defaulted for failure to timely plead and the appellate court was upholding rather than setting aside, as plaintiff would have us do, the discretion of the circuit court. The opinion in Piekarczyk was published only in abstract, which plaintiff has not appended to his brief. Ill. Rev. Stat. 1991, ch. 110A, par. 908.

Section 2 — 1301(e) of the Code provided, in part, that even after a default judgment has been entered, “[t]he court may in its discretion, before final order or judgment, set aside any default.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1301(e).) Here, no default had been entered but the court’s discretion to deny a default must be at least as great as the discretion as to whether to set aside a default. (See Freeborn & Peters v. Professional Seminars Associates, Inc. (1988), 176 Ill. App. 3d 714, 718-19, 531 N.E.2d 806, 809.) The reason why the court has considerable discretion is because of the drastic nature of a default. Wollschlager v. Sundstrand Corp. (1986), 143 Ill. App. 3d 347, 349, 493 N.E.2d 107, 109; Widicus v. Southwestern Electric Cooperative, Inc. (1960), 26 Ill. App. 2d 102,109, 167 N.E.2d 799, 803.

In Havana National Bank v. Satorius-Curry, Inc. (1988), 167 Ill. App. 3d 562, 565, 521 N.E.2d 645, 647, this court explained that the issue as to whether a defendant should be defaulted depends upon whether justice is being granted and that this depends upon (1) the diligence or lack of diligence by the defaultee, (2) the existence of a meritorious defense, and (3) the relative hardships on the parties arising from a default or a refusal of the court to default. In Wilkin Insulation Co. v. Holtz (1989), 186 Ill. App. 3d 151, 155-56, 542 N.E.2d 157, 160, the court affirmed a default judgment where the defendant had caused numerous delays and disregarded trial court orders but stated that a reviewing court should not interfere with a trial court’s discretion in ruling in regard to a default.

The circuit court does not have unlimited discretion in rulings in regard to defaulting a defendant. (Grafs, 50 Ill. App. 3d at 1051, 366 N.E.2d at 153.) However, here the plaintiff did not move for a default until defendant had appeared and no showing was made that plaintiff suffered any substantial prejudice by the delay in excess of 30 days. The decision in Schoonover indicates the defendant did have a viable defense. On the record presented, which includes no transcript of the hearing on the motion for default, we do not determine the circuit court abused its discretion in denying that motion.

Plaintiff maintains that fundamental unfairness to him results from an inconsistence between the strict standard which we applied to the requirements of the policy in regard to his making a claim against defendant within one year of his loss and the standard which permitted defendant to tardily contest plaintiff’s complaint. However, the purpose of the one-year limitation of the policy was because investigation by the insurer of the validity of the claim would be hampered by further delay. Plaintiff was not hampered in this manner because of defendant’s tardiness in making an appearance. Moreover, the policy makes no provision for a court’s discretion in regard to whether the time for filing claims may be extended at the discretion of the court while the statutory provisions providing for a default expressly grant discretion to the court.

We conclude that the doctrine of the law of the case also requires us to affirm. Accordingly, we do so for the reasons stated.

Affirmed.

STEIGMANN and LUND, JJ., concur.


author: JUSTICE COOK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS LANTER, Defendant-Appellant.
    Fourth District
    No. 4—91—0550
    Opinion filed June 11,1992.
    Daniel D. Yuhas and Lawrence Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

After a jury trial defendant was convicted of aggravated battery and aggravated assault (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 4(b)(7), 12 — 2(aXl)), stemming from an incident that occurred at his home on November 10, 1990. He was sentenced to five years in the Department of Corrections for aggravated battery and 364 days for aggravated assault, to run concurrently. On appeal, defendant argues (1) the trial court erred in refusing to allow him to examine the prospective jurors regarding his intoxication defense, and (2) trial counsel was constitutionally ineffective for failing to inquire during voir dire whether any of the prospective jurors harbored a disqualifying view towards his intoxication defense. We reverse and remand for a new trial.

On the date in question, Jerry Sullivan, a fireman for the Decatur fire department, and Donald Anderson, a paramedic for the Decatur ambulance service, responded to a call indicating a possible drug overdose at defendant’s home. Defendant was found in his basement and, after being calmed down, was escorted outside to be taken to a hospital. As he neared the ambulance, he became upset and swung at Sullivan. Sullivan blocked the blow and was struck in the forearm. Subsequently, defendant began “shouting threatening remarks” at Anderson. Defendant reached for a knife he carried in a sheath on his belt, unsnapped the case, and began pulling the knife out. Sullivan grabbed the knife, and defendant was restrained and placed in police custody. Defendant contended that he was not guilty of these offenses by virtue of the intoxication defense (Ill. Rev. Stat. 1989, ch. 38, par. 6 — 3(a) (defendant not responsible if intoxicated condition “so extreme as to suspend the power of reason and render him incapable of forming a specific intent which is an element of the offense”)).

During voir dire, defense counsel asked a prospective juror if she had any feelings or viewpoints concerning alcohol and drugs which would cause her to favor one of the parties. Subsequently, the following colloquy was exchanged:

“Q. [By counsel for defendant:] Now *** I already asked you, but with the other eleven jurors, do any of you have any feelings concerning the use of alcohol or drugs which could affect your ability to be a juror in this case, if there were testimony about alcohol or drugs?
MR. STEADMAN [prosecutor]: I am going to object to that, Judge.
THE COURT: Sustained.”

Defense counsel used his peremptory challenges to excuse four jurors. Four more jurors were called, and defense counsel again attempted to inquire whether these jurors had any feelings or opinions concerning alcohol or drugs. The court again sustained the State’s objection to this question. No further attempts were made to inquire as to the venire’s feelings toward the intoxication defense nor did defense counsel inquire as to why the court sustained the State’s objections. There is no indication in the record on appeal that defense counsel used all of his peremptory challenges.

At the close of the trial, the jury was instructed on the intoxication defense. After a period of time, the jury indicated it was unable to reach a decision. The court advised the jurors that they had only been deliberating for a short time and should continue with their deliberations. Subsequently, the jury found defendant guilty, and he filed a post-trial motion for a new trial or, in the alternative, for a directed verdict of not guilty. He argued, inter alia, that the court erred in sustaining the State’s objection to defendant’s question during voir dire.

During the hearing on defendant’s post-trial motion, the court explained its ruling. It stated:

“Paragraph 4 of the defendant’s motion [dealt] with the interrogation of the prospective jurors and the question put to them whether they had any feelings or views concerning alcoholic liquor or drugs. That question was sustained by the court because it [was] improper in its form. I submit that every person has feelings or views concerning alcoholic liquor or drugs. Those feelings or views may be supportive of the use of alcohol or drugs or they may be non-supportive of the use of alcohol or drugs, but the question in its form, if correctly answered, can be answered only in the affirmative. Counsel did not choose, after the court sustained the objection, to follow up the question by presenting it in its proper form and therefore has waived any right he may have had under the authority cited to the court to inquire further into biases against the use of alcoholic liquor or drugs so as to prejudice a juror’s view of the evidence or to render a fair and impartial verdict. The question was improper in form. The objection was sustained. Counsel waived any further right to pursue it by his failure to restate the question in proper form. The record will show the arguments heard. Motion denied.”

This appeal followed.

We first consider defendant’s argument that under People v. Stack (1986), 112 Ill. 2d 301, 493 N.E.2d 339, the trial court abused its discretion by refusing to allow him to question the venire regarding his intoxication defense. Stack reviewed three questions posed by defense counsel which the trial judge refused to tender to the venire. The questions pertained to that defendant’s defense of insanity, which defense the court stated remained a subject of intense controversy. Defendant contends the proffered question in this case is no different than the question posed in Stack, “ ‘Do you have any feeling or viewpoint concerning the defense of insanity in a criminal case[,]’ ” which the supreme court ultimately determined should have been put to the prospective jurors. Stack, 112 Ill. 2d at 310, 493 N.E.2d at 343.

The fundamental purpose of voir dire is to ensure the selection of an impartial jury. Voir dire is not a means of indoctrinating a jury or impaneling one with a particular predisposition. (People v. Bowel (1986), 111 Ill. 2d 58, 64, 488 N.E.2d 995, 998.) Although it is well settled that a defendant is entitled to a trial by an impartial jury, the court has a right to reasonably regulate the manner in which jurors are selected. (People v. Skipper (1988), 177 Ill. App. 3d 684, 687, 533 N.E.2d 44, 45.) In this regard, Supreme Court Rule 234 provides:

“The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties *** to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions.” (134 Ill. 2d R. 234.)

“Examination of prospective jurors by court or by counsel is *** a matter of trial detail which courts can regulate in the exercise of judicial discretion.” (People v. Jackson (1977), 69 Ill. 2d 252, 260, 371 N.E.2d 602, 606.) To successfully challenge the adequacy of voir dire, it is not, however, necessary for the defendant to show that the jury, in fact, was prejudiced. (People v. Visnack (1985), 135 Ill. App. 3d 113, 122-23, 481 N.E.2d 744, 750 (wherein no plain error was found), citing United States v. Dellinger (7th Cir. 1972), 472 F.2d 340, 367; cf. People v. Phillips (1981), 99 Ill. App. 3d 362, 369, 425 N.E.2d 1040, 1046 (suggesting that appellant must show jury finally selected was not fair or impartial).) Rather, the standard for evaluating a court’s exercise of discretion during voir dire is whether the questions posed and the procedures employed created a reasonable assurance that prejudice would be discovered if present. (People v. Sanders (1986), 143 Ill. App. 3d 402, 405, 493 N.E.2d 1, 3 (mere fact gun was involved would prejudice jurors); Visnack, 135 Ill. App. 3d at 123, 481 N.E.2d at 750.) Courts must be alert to attempts to convert voir dire into a vehicle for preeducating and indoctrinating prospective jurors as to a particular theory of defense. (People v. Kendricks (1984), 121 Ill. App. 3d 442, 448-49, 459 N.E.2d 1137, 1141-42.) Reasonable limitations on voir dire do not deprive a litigant of his right to trial by an impartial jury. “However, a failure to permit pertinent inquiries to enable a party to ascer-

tain whether the minds of the jurors are free from bias or prejudice which would constitute a basis of challenge for cause, or which would enable him to exercise his right of peremptory challenge intelligently, may constitute reversible error.” People v. Lobb (1959), 17 Ill. 2d 287, 300, 161 N.E.2d 325, 332-33; see also People v. Thomas (1980), 89 Ill. App. 3d 592, 599, 411 N.E.2d 1076, 1082; Gasiorowski v. Homer (1977), 47 Ill. App. 3d 989, 991, 365 N.E.2d 43, 45.

Not every affirmative defense is so controversial as to render voir dire questioning appropriate. (See, e.g., Kendricks, 121 Ill. App. 3d at 449, 459 N.E.2d at 1142 (self-defense not controversial; trial court properly refused to question concerning it); People v. Phillips (1981), 99 Ill. App. 3d 362, 425 N.E.2d 1040 (defense of compulsion).) However, in our view, the voir dire question posed by defense counsel regarding the venire’s feelings toward alcohol or drugs was properly probative of bias, and counsel should have been permitted to put the question to prospective jurors. The question did not violate Supreme Court Rule 234 (134 Ill. 2d R. 234) because it did not touch upon matters of law or instruction. It sought only to determine whether prospective jurors would be biased. As the record reflects, the trial court failed to ask any questions regarding the venire’s feelings toward alcohol or drugs and twice sustained the State’s objection to defense counsel’s attempts to inquire into this area. Although the trial court asked prospective jurors whether there was anything about the nature of the charges which would affect their ability to be fair and impartial and whether they could follow the law as instructed by the court, we cannot say that the voir dire process employed was sufficient to have created a reasonable assurance that any prejudice toward intoxicated persons or the intoxication defense would have been disclosed. The trial court’s failure to elicit pertinent information from the jurors or to allow defense counsel to inquire himself prevented defendant from intelligently exercising his peremptory challenges. Accordingly, we reverse and remand for further proceedings.

Because of our resolution of the first issue, we need not address defendant’s argument that trial counsel was incompetent.

Reversed and remanded.

GREEN, P.J., and KNECHT, J., concur.


author: JUSTICE LUND JUSTICE STEIGMANN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY RAY PRESLEY, Defendant-Appellant.
    Fourth District
    No. 4—91—0643
    Opinion filed June 18,1992.

      STEIGMANN, J., specially concurring.
    Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Johnny Ray Presley was charged by amended information in the circuit court of Adams County with four counts of first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1(a)(1), (a)(2), (aX3)) and one count of attempt (robbery) (Ill. Rev. Stat. 1989, ch. 38, pars. 18 — 1(a), 8 — 4(a)). After a jury trial, he was convicted on three counts of first degree murder and acquitted of attempt (robbery). He was sentenced to an extended term of 75 years’ imprisonment. He now appeals, claiming error in (1) the trial court’s refusal of his involuntary manslaughter and second degree murder (see Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 3, 9 — 2) jury instructions, (2) the admission of testimony concerning certain statements made by his nontestifying codefendant, and (3) the trial court’s holding “in abeyance” judgments on two of the first degree murder counts.

The defendant, who lived in Dubuque, Iowa, testified he was visiting his mother in Quincy on the weekend of April 13, 1991. He and William Friday were charged with causing the death of Earl Bundy, Sr., on April 14, 1991, following a beating which took place at the home of Carla Williams, defendant’s cousin.

Testimony at the trial was that defendant, Williams, and Bundy, together with Tony Black and Cindy Gredell, were at various bars in Quincy on the evening of April 13, 1991. All were drinking heavily. Gredell testified that she and Williams were drinking shots, mixed drinks, and beer. The men were drinking beer. She testified that everyone was intoxicated, especially Williams.

Defendant testified that he drank between 15 and 22 eight-ounce glasses of beer before the group went to Williams’ house about 3:30 a.m. on April 14, 1991. Bundy was buying most of the drinks. Defendant testified that he had about $35 that night. Black testified that neither he nor defendant had any money. At some point that evening, the group was joined by Friday. Before they went to Williams’ house, Bundy bought a case of beer at the bar to take with them. They all got into Bundy’s car and drove to Williams’ house. When they arrived there, they were talking and drinking the beer Bundy had purchased. Black testified that while he was in the kitchen, defendant talked to him about taking Bundy’s money. He said defendant told him that Williams was going to try to get the money, and defendant did not specifically ask him to help rob Bundy.

Connie Manus, the 13-year-old babysitter who was staying that night with Williams’ three small children, testified that when the group came into the house, Bundy sat on the couch in the living room with Williams, showing her some pictures. About 15 minutes later, Bundy and Williams went into Williams’ bedroom, where Williams kept her pictures. Manus could see them sitting on the corner of the bed. There is a doorway between the living room and the bedroom, but there is no door on it.

Cindy Gredell testified that while she was in the kitchen she heard Williams call for her. She went into the bedroom. The lights were off, and the only source of light was from the living room and the television. Gredell observed Williams lying on her stomach on the bed and Bundy lying on top of her. They both had their clothes on. Bundy appeared to be trying to get into Williams’ pants and shirt. Gredell told Bundy to get off Williams, but he shoved her away. Williams told her to get defendant. Gredell and Williams both called for him. According to Gredell, defendant and Friday came into the room and defendant told Bundy to get off Williams or he would “beat his ass.” Bundy replied, “No, she’s not going to make a fool out of me.” Defendant again told Bundy “for the last time” to get off or he would beat Bundy’s “ass.” Gredell testified that Bundy rolled part way off Williams and held himself up on the bed with his arms. Defendant then hit Bundy in the face with his fist, causing Bundy’s head to snap back and hit the headboard. Defendant then lifted Bundy off the bed, hit him in the face again, and said, “If you want to fuck, I’ll fuck you up your ass.” According to Gredell, defendant made this statement twice. Friday said, “We might as well get that money he’s been bragging about all night.” Friday then took a wallet out of Bundy’s back pocket.

Gredell testified that defendant continued to hit Bundy and shoved him into another adjacent bedroom. Defendant was bent over Bundy, hitting him. Friday also went into the other bedroom, and Gredell stood in the doorway telling defendant and Friday to stop hitting Bundy. Bundy was screaming for help. She testified that defendant and Friday were calling each other different names and that they called her. by another name. When she replied that this was not her name, they said, “Shut up you stupid bitch and get out of here.” She could see Friday kicking at Bundy, but it was dark and she could not see whether his foot hit Bundy. Once again, she told defendant and Friday to stop because they were frightening the children, who were in the adjacent bedroom. They told her to get out of there. At this point, Williams was passed out drunk in her bedroom. Gredell testified that at no time did she see Bundy hit defendant or Friday, or even attempt to do so in any way.

Gredell further testified that she left the bedroom and, when she returned a short time later, Bundy was covered with a blanket. Defendant and Friday were still hitting him. Gredell estimated that 15 to 30 minutes had elapsed from the time defendant and Friday first went into Williams’ bedroom and the time Gredell went back in and saw the blanket over Bundy’s head. Defendant told Friday to get a gun, and Friday pretended he had a gun. Friday put his hands to the back of Bundy’s neck while the blanket was draped over his head. Friday told Bundy to tell him where the money was or Friday would kill Bundy. Bundy replied, “If you’re going to kill me, you fuckin’ do it now.”

Gredell testified that defendant and Friday asked Bundy for his car keys, and they then asked Gredell to get rid of the car. She later left in the car, but came back with it and returned the keys to Friday, saying she did not want to be involved. At that point, defendant was sitting on top of Bundy. She accused defendant and Friday of killing Bundy. Friday denied this, nudging Bundy’s leg until he moved and mumbled something. Friday told defendant that Gredell had not gotten rid of the car. Either defendant or Friday said this was all right, since they would need the car anyway. When she went into Williams’ bedroom later, Gredell saw blood on the floor and a yellow mop or broom handle.

Connie Manus testified that Gredell came into the kitchen and told her and Tony Black that there was a fight going on in the bedroom. She heard a couple of “thumps” from the bedroom. Then she heard Williams say “leave the old man alone.” She and Black left the house and took a walk around the block. When they returned to the house, Black left. Gredell took Manus to Williams’ mother’s house. She could not get into the house, so she walked back to Williams’ house. As she approached the house, she saw defendant and Friday throw Bundy off the front porch and drag him across the street. A blanket was draped across Bundy. They put him in the trunk of his car. She was standing on the front porch with Gredell. Defendant got into the driver’s side of the car and Friday started to get in on the passenger’s side. He then stopped and went to defendant’s side and spoke with defendant, then Friday approached Manus and Gredell and told them not to tell because he did not want to see anything happen to their pretty faces. Gredell also testified to this threat. Friday said he and defendant were going down to the bottom roads.

Tony Black testified that he has only partial hearing in both ears. After Gredell came into the kitchen to tell him and Manus that there was fighting going on in the bedroom, he yelled at defendant and Friday to stop fighting. Someone shouted at him, “Mind your own fucking business,” and “Get the hell out of here.” He could not distinguish who said this. He did not, however, believe it was Bundy. He also heard someone yelling, asking where “it” was at, and someone else saying, “I don’t know what you want. I don’t know where it is. I don’t have it.” He believed it was Bundy who made these statements. Black testified that after he and Manus returned from their walk around the block, he stood at the front porch steps. He did not go in the house. The front door was partially open. He heard screaming. He believed it was Bundy and that he was in severe distress.

The evidence also revealed that sometime later that morning there was a fire at the Williams house and Williams and two of her three children were killed.

Sergeant Gregory Scott of the Quincy police department testified that Bundy’s car was found in the Mississippi River. Bundy’s body was in the trunk, covered with the blanket. The body had only one shoe on. He also participated in the investigation of the fire at the Williams house. He located what appeared to be Bundy’s other shoe at the house. He also found a yellow mop or broom handle that had been partially burned in the fire.

Donetta Smith testified that she, defendant, and her boyfriend, Damon Seiz, went riding around in a truck at mid-morning on April 14, 1991. Defendant told her to drive to the river. He then said that he had put a man in the trunk of a car, put the car in drive, and allowed it to go into the river. They all went to defendant’s mother’s house later, and defendant went to bed. The police pulled up outside the house, and Seiz awakened defendant to tell him the police were outside and that they probably were looking for defendant. Seiz then asked defendant if he had done it and defendant said yes. Defendant went out the back door of the house.

Dr. Grant Johnson testified that he performed an autopsy on Bundy’s body. Bundy was 5 feet 6 inches tall and weighed 136 pounds. There were multiple abrasions over the facial region and contusions around the eyes. There were tears on the inside of the lips. He believed that some of the abrasions were inflicted after death. When the right eye was opened, it was very bloody. The facial injuries were all consistent with forceful blunt impact. A fist could have caused such damage. There were blows to the sides of the head, which caused deep hemorrhaging. Fairly substantial force would be required to inflict such injuries. Bundy’s larynx had been fractured, which would have also required considerable force. Something blunt, such as a hand, forearm, leg, or foot would have had to cause this injury. In Dr. Johnson’s opinion, the cause of death was the neck injury. Death most likely occurred within a matter of seconds. He testified, however, that he could not completely rule out drowning as a cause of the death. Even if Bundy did not drown, he would have died from the neck injury.

Dr. Johnson’s testimony indicated there were substantial blows to Bundy’s back which would have required great force to inflict. There were parallel marks on the back that were created by blows against

the skin with a slender, round object. There was deep hemorrhaging underneath these marks. Generally, the deeper the hemorrhaging, the more force was used to inflict the blows. The doctor believed that approximately nine separate blows were struck, but it was difficult to give an exact number since some of the marks appeared to be merged.

The doctor further testified to injuries to Bundy’s buttocks. There was a tearing of the skin tissue between the buttocks adjacent to the anus. It appeared that some object had entered at that point and created a channel of about four inches in length alongside the rectum. There was a great deal of hemorrhaging there, which means the wound was inflicted before Bundy’s death. The doctor testified such an injury would be extremely painful. It would take considerable force to plunge an instrument that far up into the rectum when it had to go through skin. The object used had a blunt end. When asked if the yellow mop or broom handle could have inflicted the injuries to the back and the injury to the rectum, he stated these injuries were consistent with the handle having been used. The doctor indicated it was likely that Bundy’s jeans and underpants were pulled down at the time of the blows to his back and the injury to his rectum.

Bundy’s blood-alcohol level was 0.059% and his urine level was 0.177. The doctor also testified there were no markings on Bundy’s hands or arms that were similar to those on his back and buttocks. This indicates a lack of defensive effort on Bundy’s part. The pattern of markings on Bundy’s back and buttocks indicate that he was relatively immobile while the blows were being struck. Had he been moving around a lot, he would have sustained injuries to other parts of his body as well.

Defendant testified on his own behalf. Everyone at the house was pretty drunk. He stated he had no intentions of robbing Bundy and he did not talk with anyone about getting Bundy’s money. When he heard Williams call his name, he walked into the bedroom and saw Bundy sitting on Williams. He told Bundy to get off. When Bundy did not do so, defendant told him to get off or he would not like defendant anymore. According to defendant, Bundy then got up and said, “[Y]ou ain’t going to make no fool out of me, boy.” Bundy began walking toward defendant. Defendant thought Bundy was going to attack him. Defendant then hit Bundy in the face, knocking him to the floor. Bundy’s pants were unzipped and they came down when he fell to the floor. Defendant testified that he was angry that Bundy was trying to force himself on Williams. Defendant just wanted to get Bundy off Williams. When Bundy tried to get up, defendant tackled him to the floor. He sat on Bundy’s back and started beating on him. While he was doing this, he noticed that Friday had come into the room. Defendant denied striking Bundy in the neck area, and he stated he did not see anyone strike him there. Friday started kicking Bundy in the head. Defendant did not hear Friday say anything about Bundy’s money. Friday took Bundy’s shoe off his foot because Bundy said his money was there if they wanted it. Defendant denied trying to rob Bundy. He admitted striking Bundy with the broom handle about three times. He also admitted putting the handle up Bundy’s rectum and then throwing the handle on the floor. He testified that Friday picked the handle up and hit Bundy with it.

Defendant and Friday beat on Bundy for about 15 to 20 minutes. Defendant testified he sat on Bundy’s back because he did not want Bundy to get away. He said Bundy tried to fight back at first by squirming and trying to get on top of him, but that he overpowered Bundy. Bundy was a small man; in height, he came up to defendant’s nose. Defendant admitted the incident could not be called a fight — it was a beating. After the beating was over, defendant and Friday tried, without success, to get everyone to leave the house.

Defendant further testified that Bundy walked out of the house under his own power. He denied that he and Friday dragged Bundy out of the house or threw him off the front porch. Defendant stated it was his intention to hide Bundy somewhere until he woke up. Defendant saw Friday walk over to Manus and Gredell and say something to them, but he did not know what was said and he did not tell Friday to say anything to them. Defendant believed Bundy was alive when he was placed in the trunk.

After Bundy was in the trunk, defendant drove the car away. At some point, Friday took over the wheel and drove to the river. Friday said they had to get rid of Bundy because he could get them for kidnapping. Friday pulled the car up to a boat ramp and said they could get rid of the car there. Defendant testified that he protested against doing this, as it would kill Bundy. Defendant said he told Friday to let him out of the car. Friday put the car in drive and let it go into the river. He and Friday then walked back to town. Defendant testified he did not intend to kill Bundy.

I

On appeal, defendant’s first claim of error is that the trial court should have given his tendered instructions on involuntary manslaughter. Defendant was charged with four counts of first degree murder. Count I of the amended information charged that defendant beat Bundy and placed him in the Mississippi River with the intent to kill him. Count II alleged intent to do great bodily harm to Bundy, thereby causing his death. Count III alleged that defendant knew his acts created a strong probability of death or great bodily harm to Bundy, thereby causing his death. Count IV alleged felony first degree murder, based upon the alleged attempt to rob Bundy. Defendant was convicted on counts I, II, and III, and acquitted on count IV.

The main difference between first degree murder and involuntary manslaughter lies in the mental state which accompanies the conduct causing the homicide. Section 9 — 1(a) of the Criminal Code of 1961 (Code) defines first degree murder as follows:

“First degree Murder — Death penalties — Exceptions—Separate Hearings — Proof—Findings—Appellate procedures — Reversals.
(a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
(3) He is attempting or committing a forcible felony other than second degree murder.” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a).)

A person acts intentionally when his conscious objective or purpose is to accomplish the result or engage in the conduct proscribed. Ill. Rev. Stat. 1989, ch. 38, par. 4 — 4.

Involuntary manslaughter is defined by section 9 — 3(a) of the Code in pertinent part as follows:

“Involuntary Manslaughter and Reckless Homicide, (a) A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly ***.” Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3(a).

“Recklessness” is defined by section 4 — 6 of the Code, which states in pertinent part:

“Recklessness. A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Ill. Rev. Stat. 1989, ch. 38, par. 4 — 6.

When there is evidence in the record which, if believed by the jury, would reduce a crime from murder to manslaughter, an instruction on manslaughter should be given. (People v. Foster (1987), 119 Ill. 2d 69, 87, 518 N.E.2d 82, 89.) This is true even if the evidence is very slight. (People v. Stevenson (1990), 196 Ill. App. 3d 225, 230, 553 N.E.2d 441, 445, appeal denied (1990), 133 Ill. 2d 569, 561 N.E.2d 703.) However, an involuntary manslaughter instruction should not be given when the evidence clearly shows the homicide to be murder. Foster, 119 Ill. 2d at 87, 518 N.E.2d at 89.

Defendant maintains that the evidence supported an instruction on involuntary manslaughter. He points to his testimony that he did not intend to kill Bundy and his testimony that he abandoned the car when he learned Friday was going to let it go into the river. He also alleges there was no evidence showing that he struck the fatal blow to Bundy’s neck. He further argues that the fact neither he nor Friday used a gun or a knife evidences a lack of intent to kill. Defendant also relies on the evidence that he and Bundy were intoxicated. He argues this may indicate recklessness sufficient to support an involuntary manslaughter instruction. We reject these contentions.

In order to support an involuntary manslaughter instruction, there must be some evidence in the record, however slight, that defendant did not intend to kill or injure Bundy, but that defendant’s acts resulted from some reckless conduct on his part.

This case is unlike the factual situation in People v. Wright (1986), 111 Ill. 2d 18, 488 N.E.2d 973, which is cited by defendant in support of his arguments. In that case, the defendant shot and killed her daughter. The evidence showed that on the day of the killing, defendant had been drinking and was intoxicated through the combined effects of the alcohol and medication. She awoke from an alcohol-induced sleep when she heard noises downstairs. Forgetting that her daughter was in the house, she went to the top of the stairs with a gun and asked who was there. Her daughter appeared and asked why she was holding a gun. The gun discharged, killing her daughter. The defendant testified she thought the gun was pointed toward the wall and that she had not intended to fire the weapon or to kill her daughter. She was ultimately convicted of involuntary manslaughter. Wright, 111 Ill. 2d at 21-25, 488 N.E.2d at 975-76.

In the instant case, we do not have a situation where defendant administered one or two blows that might have unexpectedly caused Bundy’s death. Defendant admitted that he and Friday beat Bundy for a period of 15 to 20 minutes, while holding him down so that he could not escape. The pathologist testified to the severe injuries Bundy suffered as a result of the beating and from the handle which defendant admitted to jamming up Bundy’s rectum. The savage nature of the beating negates any suggestion of recklessness. This conclusion is supported by other cases not cited by defendant wherein vicious beatings have been administered and involuntary manslaughter instructions have been refused by the trial courts. In People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696, defendant severely beat a four-year-old child with a mop stick, causing his death. The pathologist testified the child had suffered multiple linear bruises too numerous to count. His face, arms, legs, chest, back, and buttocks were swollen and deeply bruised. The defendant was convicted of murder. The appellate court reversed the conviction, finding the trial court should have instructed the jury on involuntary manslaughter. This finding was based upon the defendant’s testimony that he had not intended to kill the child. The supreme court reversed the appellate court, finding there was no evidence in the record to show reckless conduct. The court stated that even if defendant’s statement that he did not mean to kill the child was considered some evidence of reckless conduct, the severity of the beating negated any suggestion that the conduct was merely reckless. Ward, 101 Ill. 2d at 446-51, 463 N.E.2d at 697-700.

In Foster, the defendant was convicted of murder for the beating death of his girlfriend. There was evidence that the defendant was staggering and looked like he was “high.” The evidence showed, and defendant himself admitted, that he repeatedly struck the victim with a baseball bat on her legs, arms, and back. He then inserted the broken bat handle in her rectum. The pathologist testified the victim died as the result of multiple blunt trauma, resulting in swelling of her brain and internal hemorrhaging of her liver. The trial court rejected defense instructions on involuntary manslaughter. The supreme court affirmed the conviction. In rejecting defendant’s contention that his conduct was reckless because he was in an intoxicated and drugged condition and that he was acting out of extreme jealousy, the court pointed to the severity of the victim’s injuries and the defendant’s own testimony that he deliberately struck the victim numerous times with the bat. The court then observed that:

“A voluntary and willful act which has the natural tendency to cause death or great bodily harm is sufficient evidence of the intent required for the offense of murder. [Citations.] Though intoxication may support a finding of recklessness [citation], the record in no way supports the defendant’s claim that he was intoxicated at the time of the beating.” Foster, 119 Ill. 2d at 88, 518 N.E.2d at 90.

Defendant here seeks to use his alleged intoxication to support his refused involuntary manslaughter instruction. However, we reject that argument. Although there was evidence of heavy drinking by defendant, it is clear from the evidence that defendant knew what he was doing during that evening. He himself testified as to the beating of Bundy and putting the car in the river with Bundy in the trunk. He had no difficulty recalling details of what was done to Bundy. The severity of the beating itself negates any suggestion of recklessness, despite defendant’s intoxication. We conclude that the trial court properly refused to instruct the jury on involuntary manslaughter.

Defendant’s second claim of error is that the trial court should have given the jury his tendered instruction on second degree murder. Second degree murder is defined by sections 9 — 2(a) and (b) of the Code as follows:

“Second Degree Murder, (a) A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9 — 1 of this Code and either of the following mitigating factors are present:
(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed; or
(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.
(b) Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 2(a), (b).

Defendant contends there is evidence in the record from which the jury could have found the existence of adequate provocation by Bundy, thereby mitigating the crime from first degree murder to second degree murder. According to defendant, this provocation consisted of Bundy’s alleged attempted rape of defendant’s cousin, to whom the evidence showed defendant was close. In addition, defendant points out that he was threatened by Bundy after defendant twice told Bundy to get off Williams. Defendant also refers to the parties’ alleged intoxication as further mitigating evidence.

Traditionally, there are four situations which have been recognized by Illinois courts as involving serious provocation: (1) substantial physical injury or assault, (2) mutual quarrel or combat, (3) illegal arrest, and (4) adultery with the offender’s spouse. However, neither mere words nor gestures constitute adequate provocation. People v. McCarthy (1989), 132 Ill. 2d 331, 340-41, 547 N.E.2d 459, 462-63.

Nothing that happened at the Williams’ house even remotely fits any of these categories. In fact, defendant does not specifically argue that any of these categories apply. Rather, he seeks to rely upon the facts of (1) the alleged attempted rape, (2) his testimony that Bundy verbally threatened him and approached him as if to attack him, and (3) defendant’s intoxication.

Defendant’s intoxication does not serve to mitigate this crime to second degree murder. He cites People v. Healy (1988), 168 Ill. App. 3d 349, 522 N.E.2d 749, in support of his intoxication argument. However, defendant’s reliance on that case is misplaced. In Healy, the defendant stabbed the victim, who later died. There was evidence of a fight between the defendant and the victim. There was also evidence of the defendant’s intoxication. In the fight, the defendant suffered a cut to his hand. The trial court refused a voluntary manslaughter instruction. The appellate court reversed, stating the instruction should have been given. There was conflicting evidence as to how the fight started and as to whether the defendant or the victim drew the knife. (Healy, 168 Ill. App. 3d at 350-54, 522 N.E.2d at 750-52.) In the instant case, there was no evidence of mutual combat. Even assuming Bundy approached defendant after being told to get off Williams, the evidence is clear that Bundy never struck defendant even once. He put up no defense. Defendant testified to this fact, and the pathologist’s testimony as to the lack of defensive wounds on Bundy’s hands and arms confirmed this testimony.

As to defendant’s claim of adequate provocation, the evidence was conflicting concerning whether Bundy approached defendant or threatened him after defendant told him to get off Williams. Gredell testified that after being told the second time to get off, Bundy rolled off Williams but remained on the bed. She testified that defendant then hit Bundy, causing his head to snap back and strike the headboard of the bed. Defendant testified that Bundy walked toward him and said, “You ain’t going to make no fool out of me, boy.” However, Gredell testified that when defendant told Bundy to get off Williams, Bundy said, “No, she’s not going to make a fool out of me,” apparently referring to Williams. Even if Bundy’s actions could be considered provocation, we would be compelled to find the provocation was entirely inadequate to justify defendant’s response. Defendant’s beating of Bundy was grossly out of proportion to any provocation Bundy may have provided. A crime is murder when a defendant attacks a victim with violence that is out of proportion to the provocation. (People v. Austin (1989), 133 Ill. 2d 118, 127, 549 N.E.2d 331, 335.) Here, defendant participated in a prolonged beating of Bundy with a blunt object. Bundy put up no defense. In fact, defendant himself testified that Bundy tried to get away and that defendant, who was larger than Bundy, sat on him to keep him from escaping. Williams, Gredell, and Black all told defendant and Friday to stop beating Bundy. When the beating was finished, defendant and Friday placed Bundy in the trunk of his car and ran the car into the river, thus drowning him if he was not already dead from the beating. This extreme violence certainly was unnecessary if, as defendant testified, all he wanted to do was to get Bundy off Williams. As a matter of law, defendant was not entitled to a jury instruction on second degree murder.

II

Defendant’s next claim of error involves the admission into evidence of certain alleged hearsay statements made by the nontestifying codefendant William Friday and some alleged misstatements of the evidence by the prosecutor in closing argument.

Manus and Gredell testified that after putting Bundy in the trunk of the car, Friday approached them and told them to keep their mouths shut if they wanted to keep their pretty faces. This testimony was elicited by the prosecutor. Defense counsel raised no objection to the testimony of either witness. In fact, on cross-examination of Gredell, defense counsel asked her about Friday’s statements, thus eliciting this testimony once again. No claim of error as to these statements was raised in defendant’s post-trial motion.

Defendant also complains of the prosecutor’s closing argument concerning Friday’s statements to Manus and Gredell. The prosecutor made the following comments:

“Then Mr. Friday comes over, says ‘We’re going to go down to the Bottoms and we’re going to leave him down there,’ and he threatens both Cindy and Connie, threatens that they will hurt their pretty faces, something to that effect. And it scares them, and both of them told you that. At the time that both of them were initially interviewed on April 14th, both the defendant and Mr. Friday were still at large, so their fear was very real, and for good reason. I suppose people say, ‘Oh, I’ll kill you’ and you don’t think much about it, but after you have just seen them kill somebody, somehow that threat comes a little closer to the heart and means a little more than it might otherwise have.”

Defendant claims the prosecutor misstated the evidence. He points out the evidence did not show that Friday stated he and defendant were going to leave Bundy “down there.” He also claims that Manus did not see the fight and that Gredell saw Bundy alive before he was taken from the house.

Defendant also claims error in the introduction into evidence, through Gredell, of other statements made by Friday. He complains of the following testimony:

“A. [By Gredell:] He told Will to get that gun out and Will acted like he had a gun.
Q. [By the prosecutor:] How did Will act like he had a gun?
A. With his hands.
Q. What did he do with his hands?
A. Put them up on the back of Earl’s neck.
Q. And did Will Friday say anything at this point?
A. He told him that he’d better tell him where the money is or Will was going to kill him.”

Defendant claims this evidence was damaging because it suggested to the jury that defendant had an intent to kill Bundy. He claims its admission was reversible error. Defendant complains this error was exacerbated by the prosecutor in his rebuttal closing argument, when he made the following statements: “The defendant says [to codefendant Friday], ‘Get the gun.’ The pretend gun is put there. And the defendant says, ‘Give us the money or we will shoot you.’ ” Defendant claims the evidence did not show he was the one who made the last statement quoted.

We note that defense counsel made no objection to any of the complained-of testimony. He also failed to object to the alleged misstatements of evidence by the prosecutor in closing argument. None of these claims of error were raised in defendant’s post-trial motion.

In order to preserve a claim of error for appellate review, an objection must be made at trial and the error must be raised in a defendant’s post-trial motion. Failure to do so, in the absence of plain error, waives the issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Under the plain-error doctrine, an appellate court may consider claimed error that has not been properly preserved, if the error deprived the accused of a fair trial or the evidence is closely balanced. People v. Pickett (1973), 54 Ill. 2d 280, 282-83, 296 N.E.2d 856, 858; People v. Whitehead (1987), 116 Ill. 2d 425, 447-48, 508 N.E.2d 687, 695.

While the plain-error doctrine is not applicable to this case, we elect to discuss defendant’s contentions of error in the interests of future judicial economy. We find his arguments to be without merit.

Defendant claims the codefendant’s statements that were testified to by Manus and Gredell incriminated him and were improperly admitted in violation of his right to cross-examine witnesses as guaranteed by the sixth and fourteenth amendments to the United States Constitution (Constitution) (U.S. Const., amends. VI, XIV). In support of this argument, defendant cites Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. In Bruton, defendant Bruton and codefendant Evans were tried jointly on a Federal charge of postal armed robbery. Evans did not testify. A postal inspector was allowed to testify that Evans had confessed to him that Bruton and Evans had committed the robbery. The trial judge instructed the jury that Evans’ confession could be considered against him, but that it was inadmissible hearsay as to Bruton and could not be considered as evidence against him. Both defendants were convicted. On appeal, the United States Supreme Court reversed Bruton’s conviction, holding that admission of Evans’ confession in the joint trial deprived Bruton of his right to cross-examination under the confrontation clause of the sixth amendment to the Constitution. The Court stated that instructing the jury not to consider the confession against Bruton was insufficient to ensure that the jury would not use the extrajudicial confession of Evans in considering Bruton’s guilt or innocence. Bruton, 391 U.S. at 126, 20 L. Ed. 2d at 479, 88 S. Ct. at 1622.

Defendant’s reliance on Bruton is misplaced. The rule enunciated in that case applies to a confession or other statement of a nontestifying codefendant which is used to inculpate the defendant in the crime. (People v. Cruz (1988), 121 Ill. 2d 321, 324, 521 N.E.2d 18, 19; see also People v. Allen (1983), 119 Ill. App. 3d 186, 193, 456 N.E.2d 336, 341.) The statement made by Friday to Manus and Gredell, warning them to keep quiet if they wanted to keep their pretty faces, was not a confession or admission and did not inculpate defendant. The statement made by Friday that he and defendant were going down to the bottom roads was also not a confession or admission. Friday’s statements (as he placed his hands at the back of Bundy’s neck) advising Bundy to tell Friday where the money was or he (Friday) would kill Bundy did not inculpate defendant.

We note this is not a case wherein a defendant denies he participated in the criminal activity. (See People v. Johnson (1987), 116 Ill. 2d 13, 506 N.E.2d 563 (where defendant denied he participated in an attempted armed robbery and murder and the testimony of police officers was allowed as to statements of nontestifying codefendants identifying defendant as the man who killed the victim, resulting in a reversal on appeal for violation of the Bruton rule).) Here, Gredell, who was not charged with any crime, testified she saw defendant beating Bundy. Defendant himself testified at the trial and admitted his involvement. Defendant concedes he is guilty of some crime. The major question in this appeal involves whether the evidence allowed the jury to be instructed on the lesser offenses of second degree murder and involuntary manslaughter. This is not a case for the application of Bruton. Defendant was not deprived of his constitutional right of confrontation under the sixth and fourteenth amendments.

As for alleged misstatements of the prosecutor in closing argument, even were we to find error in those statements, we would be compelled to conclude that it did not rise to the level of plain error so as to relieve defendant of his failure to properly preserve the issue. The evidence against defendant was not closely balanced. Defendant himself testified and admitted his guilt. In light of our holding that no evidence exists from which the jury could have found defendant guilty of either of the lesser offenses of second degree murder or involuntary manslaughter, any alleged error in the prosecutor’s closing argument was harmless.

Ill

Defendant’s last contention is that the trial court erred in holding two of his vacated murder convictions “in abeyance,” pending resolution of this appeal. The trial court vacated the judgments on defendant’s convictions in count II (charging intent to do great bodily harm, resulting in death) and count III (charging acts done with knowledge that death or great bodily harm would result). However, the trial court also ordered the vacated convictions held “in abeyance,” pending appeal. The State concedes the proper procedure is to merely vacate the convictions under counts II and III.

Where a defendant is convicted of multiple charges of murder and only one person has been killed, the convictions on the less serious murder charges should be vacated. (People v. Guest (1986), 115 Ill. 2d 72, 103-04, 503 N.E.2d 255, 269.) Here, the charge of intentional murder is deemed the most serious offense. The convictions on the other murder charges should be vacated. The judgment of the trial court should be modified to vacate the judgments on the convictions on counts II and III.

Defendant’s conviction of murder under count I of the amended information is affirmed. The judgment order is modified, vacating the judgments on defendant’s convictions on count II and count III and striking therefrom the words “and held in abeyance pending appeal.”

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

KNECHT, J., concurs.

JUSTICE STEIGMANN,

specially concurring:

Although I agree with the result reached by the majority opinion, I write separately (1) to point out my disagreement with the majority opinion’s discussion of Bruton, and (2) to comment on the trial court’s selection of instructions and verdict forms.

I

On appeal, defendant argues that admitting into evidence certain hearsay statements made by the nontestifying codefendant, William Friday, violated his constitutional right to cross-examine witnesses, as guaranteed by the sixth and fourteenth amendments. He cites Bruton in support of this argument, and this court addresses defendant’s Bruton argument on the merits before rejecting it. In my judgment, this court should not do so.

In their treatise on criminal procedure, Professors Wayne R. La-Fave and Jerold H. Israel wrote the following:

“In Bruton, the Court emphasized that it was dealing with a case in which ‘the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence.’ Lower courts have thus concluded that Bruton has no application when a statement by defendant’s partner in crime is received under some exception to the hearsay rule. Illustrative are cases where the evidence was admissible because the statement was made by a co-conspirator during the course of and in furtherance of the conspiracy ***. These decisions seem correct in light of Dutton v. Evans [(1970), 400 U.S. 74, 27 L. Ed. 2d 213, 91 S. Ct. 210], where the Supreme Court upheld the use of hearsay evidence in the form of a statement by a co-conspirator not on trial made during the concealment phase of the conspiracy. Distinguishing Bruton because the instant case did not involve evidence which was ‘devastating’ or ‘a confession made in the coercive atmosphere of official interrogation,’ the Court in Dutton held the admitted statement was ‘sufficiently clothed with “indicia” of reliability’ that it was properly ‘placed before the jury though there is no confrontation with the declarant.’ In short, the ‘right of confrontation *** is not absolute.’ ” (Emphasis added.) 2 W. LaFave & J. Israel, Criminal Procedure §17.2, at 364 (1984).

For the reasons stated above, Bruton does not apply to the present case because codefendant Friday’s statements were fully admissible under the coconspirator exception to the hearsay rule. (See People v. Sanchez (1989), 189 Ill. App. 3d 1011, 1017, 546 N.E.2d 268, 272.) Accordingly, this court should decline to discuss Bruton at all. I fear that the majority opinion’s discussion of Bruton in a context in which that case does not apply might cause confusion among the bench and bar.

II

The record shows that the trial court instructed the jury on first degree murder by giving the jury four separate sets of definitional and issues instructions, tracking thereby the four counts charging the defendant with first degree murder under sections 9 — l(aXl), (a)(2), and (aX3), respectively, of the Code (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — l(aXl), (aX2), (aX3)). Count I charged first degree murder based on “intent to kill” (section 9 — l(aXl) of the Code); count II charged first degree murder based on “intent to do great bodily harm” (section 9— l(aXl) of the Code); count III charged first degree murder based on knowledge “such acts create[d] a strong probability of death or great bodily harm” (section 9 — l(aX2) of the Code); and count IV charged first degree murder based on “felony murder” (section 9 — l(aX3) of the Code). The jury returned guilty verdicts of first degree murder as charged in counts I, II, and III. The trial court vacated convictions on the verdicts based upon counts II and III and ordered these vacated convictions held “in abeyance” pending appeal.

The procedure employed by the trial court to instruct the jury was error. Illinois Pattern Jury Instructions, Criminal, Nos. 7.01A and 7.02A (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d) make clear that the jury should be instructed with only one definitional instruction and one issues instruction regarding that offense no matter how many counts of murder may be charged against a defendant. Two recent decisions of the Illinois Supreme Court support the instructional scheme presently used in the IPI Criminal instructions regarding first degree murder. Those cases, People v. Johnson (1992), 149 Ill. 2d 118, 156-57, People v. Scott (1992), 148 Ill. 2d 479, 554-55, reemphasize that under Illinois law, there is only one offense of first degree murder, no matter how many different ways the State may choose to charge a defendant with that offense under section 9 — 1(a) of the Code.

IPI Criminal 2d Nos. 7.01A and 7.02A (Supp. 1989) provide for different language by which first degree murder may be charged, so there is no need for a trial court to provide separate definitional and issues instructions, as the court did in the present case. By doing so, the trial court unnecessarily risked confusing the jury and violated the mandate of Supreme Court Rule 451(a) (134 Ill. 2d R. 451(a)) that “the IPI Criminal instruction shall be used” unless the court determines that it does not accurately state the law. (Emphasis added.) No such determination of inaccuracy was made by the trial court in the present case, nor could such a determination be made; clearly IPI Criminal 2d Nos. 7.01A and 7.02A (Supp. 1989) accurately state the law. In the present case, the trial court deviated from the language of the IPI Criminal instructions apparently as a mere matter of preference. Doing so violates the mandate of Rule 451(a), and trial courts should refrain from such deviations in the future.