author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERL GHARST, Defendant-Appellant (Andrew Riley et al., Defendants).
    Fourth District
    No. 4 — 83—0320
    Opinion filed February 21, 1984.

      Michael B. Metnick, of Metnick & Barewin, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Marlene Newton, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was convicted by a jury of home invasion, armed violence, conspiracy (to commit unauthorized delivery of cocaine), and unlawful restraint, violations of sections 12 — 11, 33A—2, 8—2 and 10—3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 12—11, 33A—2, 8—2, 10—3). He was sentenced to concurrent terms of six years’ imprisonment for home invasion, six years for armed violence, three years for conspiracy, and one year for unlawful restraint.

All offenses stemmed from a dispute over a drug transaction purportedly involving defendant, Andrew Riley, Donald Little, Mark Greene, Dennis Hilderbrand, and Ron Waller. The State relied upon three principal witnesses.

Ron Waller testified that he and his brother, Rory, lived at 1200 East Johns Street in Decatur, Illinois. Sometime after 11 p.m. on April 23, 1982, defendant and Mark Greene visited him at his home. The group intended to contact Dennis Hilderbrand about an $8,000 drug deal. Hilderbrand had apparently ordered a shipment of cocaine. Greene, defendant, and Waller drove to a telephone booth where Waller called Hilderbrand. After making the call, Waller reported to Greene and defendant that Hilderbrand was no longer interested in purchasing the cocaine. Greene informed Waller that the cocaine had already been obtained and could not be returned. He attempted to persuade Waller to purchase it. Waller responded that he had no money. Greene and defendant then dropped Waller off at his house. Waller claimed that he later left home and attended a party.

Waller acknowledged that in a previous statement made to the police, he had attempted to disassociate himself from any drug trafficking. Waller testified under a grant of immunity, immunizing him from prosecution for any offense arising out of the drug transaction.

Ron Waller’s brother, Rory, testified that at 2:30 a.m. on April 24, 1982, he was awakened from his sleep by a knock at the door. The visitor was Mark Greene. Rory recognized Greene and allowed him to enter. Greene asked Rory if he knew where his brother, Ron, was and also if he knew where Dennis Hilderbrand lived. Ron was not at home, but Rory gave Green directions to Hilderbrand’s house. Meanwhile there was another knock at the door. Rory testified that he informed Greene that whoever was at the door would not be allowed to enter. He said that he intended to return to bed and requested that Greene leave. Greene responded that he knew who was at the door; he then unlatched it. Three men entered: defendant, Andrew Riley, and Donald Little. Little was armed with a submachine gun. Little, apparently referring to Ron Waller, asked whether Rory was the “mother-f — er” they were looking for. Greene informed the group that Rory was Ron Waller’s brother. Little then inquired whether Rory knew where Dennis Hilderbrand lived. When Greene responded that he did, Rory was ordered to get his clothes on. Rory testified that he directed the group to Hilderbrand’s residence. He rode in defendant’s car with Mark Greene. Donald Little and Andrew Riley followed in another car. After arriving at Hilderbrand’s house, Little instructed Rory to knock at the door. Rory complied and Hilderbrand answered his knock. When Hilderbrand unlatched the door, Little and Riley entered. Rory claimed that at this point he ran from the scene.

Rory then described a bizarre series of events in which he claimed to have met two separate groups of police officers. The officers were patrolling Eldorado Street, a major thoroughfare in Decatur. Rory acknowledged that he failed to inform the police officers about the events that had transpired. Rory did not relate his story to the police until 4 p.m. on April 24. He went to the police station where he was interviewed by Officer Dennis Harris of the Decatur police department.

Mark Greene also testified concerning the events occurring on April 23 and 24. He claimed that defendant wanted him to arrange a meeting with Ron Waller for the purpose of making a cocaine deal. Defendant was to deliver the drugs. Greene confirmed that he and defendant picked up Ron Waller at Waller’s residence shortly after 11 p.m. on April 23. The three of them left the house and drove in defendant’s car. Waller made a telephone call and then conversed with defendant. Waller was returned to his home and Greene and defendant went to Greene’s house where they remained until 12:45 a.m. They then met Donald Little near a park. A short while later, Greene and defendant arrived at Ron Waller’s house. They were soon joined by Little and Riley, who were in a separate automobile. Greene knocked at the door and was invited in by Rory Waller. Greene confirmed that while he was conversing with Rory, the others knocked at the door. Greene, however, testified that Rory gave him permission to allow defendant, Little, and Riley to enter. He claimed that he had difficulty with the door and that Rory assisted him in getting it open. Greene acknowledged that Little was armed with a submachine gun. He, however, claimed that Rory voluntarily assisted them in locating Dennis Hilderbrand’s home.

Greene admitted on cross-examination that home invasion charges that had been filed against him were later dropped. He had pleaded guilty to conspiracy pursuant to an agreement with the State that a recommendation of probation would be made to the court. He also testified that on the night in question he was under the influence of both cocaine and alcohol.

The State also presented certain physical evidence. Defendant’s car was searched and a box of Smith & Wesson cartridges was found in the back seat. The machine gun that Donald Little was carrying could have used the type of ammunition found in defendant’s automobile. In addition, a fingerprint lifted from defendant’s automobile matched a fingerprint taken from Dennis Hilderbrand.

Officers Dennis Harris and Michael Mowen testified on behalf of j defendant. Harris interviewed Rory Waller on April 24, 1982, concerning the instant offenses. At that time Waller described his assailants only as white males and not by name. He stated that he was unaware if drugs were involved in the incident. Michael Mowen interviewed Ron Waller on the same date. During this interview, Waller denied that he knew Dennis Hilderbrand.

The jury returned verdicts of guilty on all counts charged. Judgment was entered on the jury’s verdict.

The remaining codefendants, Andrew Riley and Donald Little, were tried before a separate jury on the same charges which were brought against defendant. Riley was acquitted on all charges. Little was acquitted on charges of home invasion, unlawful restraint, and armed violence. The jury was unable to reach a verdict on the charge of conspiracy filed against Little.

Defendant complains that he was not proved guilty of home invasion, armed violence, and unlawful restraint beyond a reasonable doubt. A transcript of Riley’s and Little’s trial was introduced into evidence at the hearing on defendant’s post-trial motion. Defendant notes that the principal witnesses for the State were the same in both cases. He urges that the evidence against him was identical to the evidence presented against Little and Riley. Citing People v. Stock (1974), 56 Ill. 2d 461, 309 N.E.2d 19, defendant notes that if the evidence against codefendants is identical, the acquittal of one defendant raises a reasonable doubt as to the guilt of the other defendant. Acrdingly, defendant urges that he is entitled to an acquittal.

We are unpersuaded. It should be noted initially that defend..nc has made no argument concerning reasonable doubt on his conviction for conspiracy. Therefore, that matter is waived under Supreme Court Rule 341(e)(7) (87 Ill. 2d R. 341(e)(7)). Moreover, we conclude that the acquittal of codefendants Little and Riley of charges of home invasion, armed violence, and unlawful restraint does not provide a basis for the reversal of defendant’s convictions for these offenses. As a general rule, the failure of a jury to convict a codefendant does not raise a reasonable doubt as to the guilt of other codefendants. (Stock; People v. Beasley (1976), 41 Ill. App. 3d 550, 353 N.E.2d 699.) It is only when the evidence as to each defendant is identical in every respect that the conviction of one defendant and the acquittal of another can be said to be so inconsistent as to require reversal on appeal. (Beasley.) We are aware of no case law in which a defendant’s conviction was reversed by a reviewing court as a result of a codefendant’s acquittal in a separate jury trial. We conclude that the rule relied upon by defendant has no application in such a situation. All trials are sui generis — no two may be presented in exactly the same manner. Here, all codefendants retained separate counsel. The cases were submitted to the respective juries on different instructions. Any number of trial factors may have differed, including the attitudes of the jurors and the relative credibility of the witnesses who testified.

Defendant refers us to the case of People v. Hill (1978), 65 Ill. App. 3d 879, 382 N.E.2d 881. In that case, this court was presented with a situation in which a defendant alleged that he was improperly convicted upon the same evidence which resulted in an acquittal for a separately tried codefendant. We denied the defendant’s request to supplement the record on appeal with a transcript of the codefendant’s trial. We determined from the record presented that the evidence in the separate trials was not identical.

Although Little’s and Riley’s trial transcript was made a part of defendant’s record on appeal, it is apparent, as in Hill, that the two trials were not the same. For example, in defendant’s trial the State introduced evidence that a fingerprint of Dennis Hilderbrand was found on defendant’s car. Similar evidence was not presented in the trial of Riley and Little. The fingerprint evidence clearly linked defendant with Hilderbrand and corroborated the State’s theory that the home invasion, armed violence, and unlawful restraint convictions stemmed from a drug deal between defendant and Hilderbrand which had fallen through. It is significant that defendant does not contest his conviction for conspiracy. Little and Riley were not convicted of this offense. Thus, even if the rule in Stock is applied, the evidep^ against the three codefendants cannot be regarded as identical. ifH

Defendant cites the case of People v. Perez (1980), 82 Ill. App. 3d 1007, 403 N.E.2d 688, for the proposition that the rule in Stock can be applied where the difference in evidence between the accused and coaccused is slight. However, in Perez, it is apparent that the appellate court regarded the evidence of defendant’s guilt to be insufficient to support his conviction as a matter of law. The evidence in this case does not suffer from a similar infirmity. If Rory Waller’s testimony is believed (and apparently the jury did and disbelieved Greene), defendant entered his home without permission. One of his cohorts displayed a weapon. Waller was compelled under threat of force to direct the group to Dennis Hilderbrand’s home.

Although it is true that inconsistencies appeared in the State’s case and the credibility of certain witnesses was called into question, the resolution of factual disputes and the assessment of the credibility of the witnesses are for the jury, and a reviewing court -will not reverse a conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to the defendant’s guilt remains. (People v. Williams (1982), 93 Ill. 2d 309, 444 N.E.2d 136.) We conclude that the evidence was sufficient to support defendant’s convictions.

Defendant, however, contends that his convictions for armed violence and unlawful restraint should be set aside because the conduct involved was not separate and distinct from the conduct that served as a basis for his home invasion conviction. The People concede that the conviction for unlawful restraint must be vacated. We accept the State’s concession. Unlawful restraint was alleged in the information to be the underlying felony supporting defendant’s conviction for armed violence. That offense requires the commission of any felony while armed with a dangerous weapon. (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2.) Thus, under the facts of this case, unlawful restraint was an included offense of armed violence. (See Ill. Rev. Stat. 1981, ch. 38, par. 2 — 9.) However, defendant is incorrect in his assertion that multiple convictions for home invasion and armed violence cannot stand. Although multiple convictions cannot be based upon the same act, separate convictions and sentences for multiple offenses are proper where the offenses are based on the commission of separate and distinct acts which are divisible from one another. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) In this case, defendant’s act of entering the home of Rory Waller while a codefendant was armed with a dangerous weapon was separate and distinct from his subsequent act of detaining him.

For all the foregoing reasons, defendant’s convictions for home invasion, armed violence, and conspiracy are affirmed. Defendant’s conviction for unlawful restraint is vacated.

Affirmed in part, vacated in part.

MILLS, P.J., and MILLER, J., concur.


source: Caselaw Access Project

author: JUSTICE VAN DEUSEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL RUCKHOLDT, Defendant-Appellant.
    Second District
    No. 83—655
    Opinion filed February 22, 1984.

      G. Joseph Weller and Kyle Wesendorf, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Theodore Floro, State’s Attorney, of Woodstock (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

After a bench trial, the defendant, Daniel Ruckholdt, was convicted of the offenses of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)) and theft under $300 (Ill. Rev. Stat. 1981, ch. 38, par. 16-l(a)). Both convictions were based on the theory that the defendant was legally accountable for the criminal actions of another (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2(c)). Thereafter, the court below imposed a three-year sentence for the burglary offense. The defendant appeals and raises a single assignment of error before this court: that he was not proved guilty beyond a reasonable doubt of the offense of burglary on an accountability theory.

In an information filed on February 24, 1983, the State charged Daniel Ruckholdt, Richard Selby, and David Grata with the January 12, 1983, burglary of a van and the theft of a gray metal toolbox from the van. The defendant pleaded not guilty to the charges and waived his right to a trial by jury. Subsequently, he filed motions to suppress certain statements he made to the police and the physical evidence which the police obtained from his motel room.

Pertinent to this appeal, Crystal Lake Detective Keith Nygren testified at the suppression hearing that during a conversation he and Detective Michael Tierney had with defendant at his motel room on January 28, the defendant stated that, while he did not enter the van in question, he stood nearby the vehicle and was handed a toolbox from the van, which he then placed in the trunk of Richard Selby’s car, and that later at the police station defendant admitted that he was present during the burglary. Detective Tierney’s testimony at the suppression hearing relative to the January 28 conversation in defendant’s motel room corroborated that of Nygren.

The trial court denied the motions to suppress, and the cause proceeded to a bench trial on June 3, 1983. The parties stipulated that on January 12, 1983, David Bruns did not give anyone authority to enter his van; that Bruns was the owner of a gray metal toolbox that had a value of less than $300; that David Bruns did not give anyone permission to take the toolbox; and that someone other than the defendant entered the van on January 12, 1983. The parties stipulated further that the testimony which Detectives Nygren and Tierney articulated at the suppression hearing would be incorporated as part of the trial record. At this juncture, the State rested its case.

Daniel Ruckholdt then testified that he, Richard Selby, and David Grata were riding around in Selby’s automobile on the date in question. The three of them exited the car in the parking lot of an apartment complex situated on Devonshire Lane in Crystal Lake in order to urinate. Selby’s car was parked next to a Ford van. After exiting the car, the defendant turned around and noticed that Grata was inside the van. Grata handed Ruckholdt a toolbox and told him to put it in the trunk of Selby’s car. The defendant placed the box in the trunk of the car with the knowledge that it did not belong to Mr. Grata. According to the defendant, the three individuals had no prior conversation about entering the van and did not plan a burglary. The defendant remarked that he did not know that Grata was going to enter the van and did not view Grata enter the vehicle; he did, however, see Grata pick up the toolbox from the floor of the van. The defendant also admitted knowing that the van did not belong to Grata. While he could not say for sure that Grata did not have permission to enter the van, the defendant “more or less” knew that Grata did not have permission to enter the subject vehicle. After the three of them entered Selby’s car, they departed the scene of the crime with the toolbox in the trunk of the automobile.

Following the arguments which both sides presented, the trial court found the defendant guilty of the offenses in question on the basis of an accountability theory and sentenced the defendant to a three-year term of imprisonment for burglary. Subsequently, the defendant filed a post-trial motion in which he alleged, among other matters, that the State failed to prove him guilty beyond a reasonable doubt of the charges in issue. The court below denied the motion after defense counsel argued that the defendant was not proved guilty beyond a reasonable doubt of burglary on an accountability theory. Thereafter, the defendant filed a timely notice of appeal on July 10, 1983.

The defendant’s sole contention on appeal is that the State did not prove beyond a reasonable doubt that he was legally accountable for the burglary of the Ford van. In particular, he asserts (1) that his testimony established that he was unaware of any plan to burglarize the van and (2) that he did not aid or abet the commission of the offense because it was completed before he was cognizant of its occurrence. Relying primarily on People v. Zierlion (1959), 16 Ill. 2d 217, he maintains that his act in placing the toolbox in the trunk of Richard Selby’s car makes him guilty of theft as an accessory after the fact, rather than legally accountable for the burglary.

As this court recognized in People v. Grice (1980), 87 Ill. App. 3d 718, cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714, the basic principles governing the area of the law dealing with the legal accountability are well settled. In order to demonstrate the defendant’s legal accountability for the offense of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)) under section 5 — 2(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2(c)), the prosecutor must establish beyond a reasonable doubt that the accused solicited, aided, abetted, agreed, or attempted to aid another person in the planning or commission of the offense; that such participation took place either before or during the perpetration of the crime; and that this participation was with the concurrent, specific intent to promote or facilitate the commission of the offense. While mere presence at the scene of the crime is not sufficient to demonstrate legal accountability for the commission of the offense, a person may aid or abet another without participating actively in the overt act. Of course, words of agreement are not essential to establish a common purpose to commit a crime because the common design can be inferred from the circumstances surrounding the perpetration of the unlawful conduct. In addition, although it is manifest that legal accountability for a crime is grounded on the accused’s assistance prior to or during the commission of the criminal act, the defendant’s conduct after the offense may raise an inference of prior or concurrent participation. People v. Grice (1980), 87 Ill. App. 3d 718, 724-25, and cases cited therein.

Continuing, the court in People v. Grice (1980), 87 Ill. App. 3d 718, acknowledged that mere presence at the scene of the crime does not render the accused culpable and that knowledge on the part of the defendant that a crime was being committed does not constitute aiding or abetting. However, the court also recognized that proof that the defendant was present during the perpetration of the offense, that he maintained a close affiliation with his companions after the commission of the crime, and that he failed to report the crime are all factors which the trier of fact may consider in determining the defendant’s legal accountability. Also, the trial court’s conclusion that the defendant is legally accountable for the unlawful conduct of another person will not be set aside on review unless the evidence is so improbable, unsatisfactory, or unreasonable that a reasonable doubt of the defendant’s guilt exists. People v. Grice (1980), 87 Ill. App. 3d 718, 725-26, and cases cited therein.

Relying on cases which have stated that the crime of burglary is complete when a person unlawfully enters a structure or vehicle with the intent to steal (People v. Figgers (1962), 23 Ill. 2d 516, 519; People v. Iannacco (1957), 11 Ill. 2d 55, 59; People v. Morris (1972), 7 Ill. App. 3d 1055, 1057), the defendant argues that the instant burglary was complete when Grata entered the Ford van with the intent to commit a theft. Accordingly, citing People v. Zierlion (1959), 16 Ill. 2d 217, 219, he concludes that, rather than being accountable for the crime of burglary, he was guilty of theft as an accessory after the fact.

While it is undoubtedly true, for purposes of determining whether a person has committed the elements of burglary, that the crime of burglary exists when unlawful entry was gained with the requisite intent, it does not follow that the crime of burglary terminates at the instant the defendant obtains unlawful entry with the intent to commit a felony or theft. See, e.g., People v. Hickman (1974), 59 Ill. 2d 89, 94, cert, denied (1975), 421 U.S. 913, 43 L. Ed. 2d 779, 95 S. Ct. 1571 (where the court apparently recognized that the period of time and the activities involved in escaping to a place of safety are part of the crime of burglary itself).

We find the defendant’s reliance on People v. Zierlion (1959), 16 Ill. 2d 217, to be misplaced, for in that case the defendant, who was not present at the time the safe was removed from the burglarized warehouse, helped the burglars move the safe some time after it had already been removed from the building. In Zierlion, there was no evidence that the defendant participated in the incident prior to being called upon to assist in moving the safe. By contrast, in the present case a reasonable inference which the trier of fact may have drawn from the evidence was that David Grata was still in the van at the time he handed the toolbox to the defendant. Thus, the defendant was assisting Grata during a burglary in progress, not after a completed offense. See, e.g., People v. Washington (1978), 63 Ill. App. 3d 1037, 1038-39.

The determination of the trier of fact in this case — that the defendant was legally accountable for the burglary — was clearly justified under the facts of this case. Here, the defendant was standing next to the burglarized van; saw Mr. Grata, who was inside the van, remove a toolbox from the floor of the vehicle; was handed the toolbox by Grata and then placed it in the trunk of Selby’s automobile with full knowledge that it did not belong to Grata; and finally departed the scene of the burglary in the car containing the toolbox. In addition, the defendant admitted that he knew the van did not belong to Grata and that he "more or less” was aware that Grata did not have permission to enter the van. It is well established that the trier of fact may draw inferences from the conduct of the defendant when determining whether the defendant participated in a common purpose to do an unlawful act. (People v. Bolla (1983), 114 Ill. App. 3d 442, 447-48; People v. Grice (1980), 87 Ill. App. 3d 718, 725-26, cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714.) Here, the trial court reasonably concluded, based on the totality of the evidence, that the defendant’s conduct at the scene of the crime and thereafter demonstrated that he was a participant in the burglary rather than an innocent bystander. See, e.g., People v. Grice (1980), 87 Ill. App. 3d 718, 726; People v. Washington (1978), 63 Ill. App. 3d 1037, 1038-39.

The judgment of the trial court is affirmed.

Affirmed.

HOPF and NASH, JJ., concur.


author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD HOFFER, Defendant-Appellant.
    Second District
    No. 82—888
    Opinion filed February 22, 1984.
    Randy K. Johnson, of Elgin, and John S. Biallis, of St. Charles, for appellant.
    Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of Elgin, for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Following a jury trial in the circuit court of Kane County verdicts were returned finding defendant guilty of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(1)), voluntary manslaughter (unreasonable belief) (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 2(b)), and involuntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a)), all in connection with the shooting death of Harold E. Peters. The trial court entered judgment on each of the verdicts, and defendant thereafter filed his timely post-trial motion asserting that the verdicts were inconsistent because of the different mental states involved in each offense. The trial court subsequently denied the motion, vacated the convictions for voluntary manslaughter and involuntary manslaughter, and retained the judgment for the conviction of murder, sentencing defendant to 20 years’ imprisonment.

Defendant appeals, contending that his constitutional rights to be free of double jeopardy (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10) were violated when the court entered a judgment and sentenced him upon a charge of which he was impliedly acquitted. On this basis, he seeks to have the murder conviction vacated and the involuntary manslaughter conviction reinstated. We will consider this issue as well as a related one which we perceive to be even more troublesome; i.e., whether the jury verdicts were inconsistent so as to require reduction of defendant’s offense or reversal of his conviction.

Harold Peters, referred to at trial as “Ed,” had been romantically involved with defendant’s sister, Catherine Einsiedel, and was the father of Einsiedel’s daughter, Shannon. Einsiedel had lived with Peters intermittently over the course of their three-year relationship, removing herself to defendant’s home when she and Peters fought. At the time of the homicide, Einsiedel had left Peters, and she and Shannon had been staying with defendant for three or four months. However, Einsiedel continued to maintain some relationship with Peters.

On the evening of May 18, 1982, Einsiedel received a visit from Tony Charbauski. While Charbauski and Einsiedel were upstairs in her bedroom, Peters came into the house, admitting himself through a window.. Peters went upstairs, and upon finding Einsiedel and Charbauski, became agitated and tried to get Charbauski to fight. As Charbauski was leaving the house, Peters threatened and attempted to kick him. When Peters came back inside the house, Einsiedel informed him that she wanted to end their relationship. As Peters left, he broke the dust cover of defendant’s stereo, told Einsiedel he would pay for the damage, and gave her some money.

Defendant returned home approximately one-half hour later. Defendant and Peters were close friends, and defendant was aware of the relationship and problems between Einsiedel and Peters. Defendant knew Peters possessed guns, was skilled in the use of firearms, and previously threatened or spoke of threatening people, including defendant, with guns. Defendant testified that Peters was much more violent when he had been drinking. When defendant arrived home on the night in question, Einsiedel told him of the incident with Peters. Defendant indicated that he was sick of such behavior by Peters. Peters had been calling or coming to the house two or three times per week, usually in an intoxicated state, in the middle of the night.

Defendant testified that he went to bed and had started to fall asleep when he heard Peters’ truck pull up. Defendant got up, feeling that he should be prepared if Peters attempted to break in, and told Einsiedel that Peters was there. Defendant, who testified that he was afraid for himself, Einsiedel, and Shannon, got his shotgun and went downstairs. When he opened the door, defendant found Peters outside, leaning against the porch rail. Peters was wearing only a tucked-in T-shirt and jeans, and was standing about five feet from defendant. After a brief conversation with defendant about the dust cover, Peters asked to talk to Einsiedel. According to defendant, Einsiedel, who had followed defendant downstairs, indicated that she did not want to speak with Peters, and defendant told Peters to leave. Peters, who defendant thought was intoxicated, became angry. Peters turned around and started walking down the steps, putting his hands up in the air, and making some remark about defendant shooting him. What occurred next is in conflict.

Einsiedel testified that as Peters turned around, she yelled at her brother not to shoot, the shotgun then went off and Peters fell to the ground. When asked what was the position of the gun as defendant shot Peters, the witness indicated it was in an “aim” position. According to Einsiedel, Peters had only a cigarette in his hand at the time, and his arms were raised up in the air. She testified that Peters fell about five feet from where he was originally standing on the porch. Einsiedel ran over to Peters; she did not see any weapons on or near him. Peters was pronounced dead by paramedics who arrived on the scene shortly thereafter. On cross-examination, Einsiedel stated she could not see Peters for a few seconds just prior to the shooting because she was looking at her brother and the gun. She stated for the month preceding the shooting Peters had carried a pocket knife in a holster on his belt.

Defendant testified that as Peters began walking down the porch steps, defendant got worried and removed the safety device from the shotgun. Immediately before the shot was fired, defendant heard his sister say, “Don.” Defendant started to turn towards her and she said, “Don’t shoot!” Defendant turned and looked back at Peters and saw him lower his hands and begin to turn around, a movement which made defendant think that Peters was going to get a gun. Defendant testified that at that time the shotgun was leaning against his shoulder and was pointing straight up into the air. Upon seeing Peters’ movement, defendant lowered the shotgun and began to pull it to his shoulder, at which time the gun discharged. Defendant stated he did not aim the gun. He stated that before the gun went off, Peters was facing him. An autopsy revealed that Peters had been shot once in the back.

The jury was instructed on murder, voluntary manslaughter, and involuntary manslaughter. The issues instructions on voluntary manslaughter required the jury to find that defendant believed, albeit unreasonably, that circumstances existed which justified his use of force. (Illinois Pattern Jury Instruction (IPI), Criminal, No. 27.01 (2d ed. 1981).) The issue of defendant’s belief was also submitted as part of the issues instruction for murder and required the jury to find that defendant did not believe justifying circumstances existed. (IPI Criminal No. 27.01 (1968).) Finally, the jury was instructed that by definition the offense of involuntary manslaughter was an unintentional one, although a lack of intent was not included as an issue in the issues instruction on that offense. (IPI Criminal Nos. 7.07, 7.08 (2d ed. 1981); Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a).) Guilty verdicts were returned on each of these charges, and defendant was sentenced only upon the greater offense of murder. The convictions for voluntary manslaughter and involuntary manslaughter were vacated.

Because of the constitutional ban against double jeopardy (U.S. Const., amends. V, XIV; 111. Const. 1970, art. I, sec. 10), multiple prosecutions or punishments for the same offense are barred. (111. Rev. Stat. 1981, ch. 38, par. 3 — 4(a); Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260.) As a corollary to this principle, the Criminal Code of 1961 provides that “[a] conviction of an included offense is an acquittal of the offense charged.” (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4(a).) It is well established that voluntary manslaughter and involuntary manslaughter are lesser included offenses of murder (People v. Fausz (1983), 95 Ill. 2d 535, 449 N.E.2d 78; People v. Arndt (1972), 50 Ill. 2d 390, 280 N.E.2d 230; People v. Ellis (1982), 107 Ill. App. 3d 603, 437 N.E.2d 409; People v. Cowen (1979), 68 Ill. App. 3d 437, 386 N.E.2d 435), and involuntary manslaughter is a lesser included offense of voluntary manslaughter. (People v. Towers (1974), 17 Ill. App. 3d 467, 308 N.E.2d 223.) Defendant therefore contends that his conviction of involuntary manslaughter operated as an acquittal of the charges of murder and voluntary manslaughter and that convicting and sentencing defendant for murder violated his constitutional right to be free from double jeopardy. We disagree.

This identical argument was considered and rejected by the court in People v. Kettler (1983), 112 Ill. App. 3d 1061, 1067, 446 N.E.2d 550. Noting that a jury may, and frequently does, return guilty verdicts upon both the charged offense and its lesser included offense (see People ex rel. Carey v. Scotillo (1981), 84 Ill. 2d 170, 417 N.E.2d 1356; People v. Bone (1982), 103 Ill. App. 3d 1066, 432 N.E.2d 329; People v. Burnette (1981), 97 Ill. App. 3d 1015, 423 N.E.2d 1193), the court concluded that section 3 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4(a)) applies only to those instances where the jury returns a verdict upon the lesser offense and is silent as to the charged offense. (People v. Kettler (1983), 112 Ill. App. 3d 1061, 1067, 446 N.E.2d 550; see also People v. Keith (1978), 66 Ill. App. 3d 93, 383 N.E.2d 655; People v. Roberts (1976), 36 Ill. App. 3d 811, 345 N.E.2d 132.) In this situation, the jury’s silence on the greater offense will be deemed an “implied acquittal” of that offense. Green v. United States (1957), 355 U.S. 184, 2 L. Ed. 2d 199, 78 S. Ct. 221.

We agree with the reasoning of the Kettler decision and accordingly find no “implied acquittal” of either murder or voluntary manslaughter in the instant case. Here, the jury was not silent on either of these offenses but, to the contrary, returned a specific finding of guilt on each of them. Under these circumstances, “the doctrine of ‘implied acquittal’ would be literally fictional.” People v. Kettler (1983), 112 Ill. App. 3d 1061, 1067, 446 N.E.2d 550; see also People v. Krogul (1983), 115 Ill. App. 3d 734, 737, 450 N.E.2d 20.

We reach this conclusion mindful of several recent cases which at first glance appear to support defendant’s position that the “implied acquittal” doctrine applies here. We find those cases distinguishable. In People v. Stuller (1979), 71 Ill. App. 3d 118, 389 N.E.2d 593, the jury was instructed on both murder and unreasonable belief voluntary manslaughter. The issues instruction for voluntary manslaughter required the jury to find that defendant believed circumstances existed which justified his actions. The issues instruction for murder, however, omitted the element required under these circumstances, that defendant did not believe justifying circumstances existed. (Stutter; see also People v. Vega (1982), 107 Ill. App. 3d 289, 437 N.E.2d 919.) The jury returned verdicts of guilty on both the murder and voluntary manslaughter charges. The trial judge vacated the voluntary manslaughter verdict and entered judgment on the murder conviction. On appeal, the murder conviction was reversed and the cause remanded to the circuit court with instructions to enter a finding of guilty of voluntary manslaughter and to impose an appropriate sentence. The appellate court reasoned that the specific finding on the voluntary-manslaughter count that defendant believed justifying circumstances existed, which finding was supported by sufficient evidence, negated the requisite intent for murder. We view the Stutter decision as limited to its facts and do not believe it stands for the broad proposition now advanced that conviction of a lesser included offense automatically negates the requisite intent for the greater inclusive offense. Rather, we consider the Stutter rationale to apply in those instances where the jury has made a specific factual finding, supported by the evidence, on an issue in the lesser included offense which was not considered by the jury in its deliberations on the greater inclusive offense, and where the specific finding has the effect of negating a requisite element of the greater offense.

People v. Fox (1983), 114 Ill. App. 3d 593, 449 N.E.2d 261, also relied upon by defendant, offers little guidance on the double jeopardy question presented here and does not contradict our interpretation of Stutter. (People v. Stuller (1979), 71 Ill. App. 3d 118, 389 N.E.2d 593.) In Fox the jury returned guilty verdicts on both murder and voluntary manslaughter. The trial court sentenced defendant only on the murder charges. Relying upon Stutter, the appellate court vacated the murder conviction, affirmed the voluntary manslaughter conviction, and remanded the cause for imposition of an appropriate sentence. In so doing, the court stated that the jury’s specific finding of provocation negated the requisite intent for murder and thus the conviction of voluntary manslaughter had the effect of an implied acquittal of the graver charge of murder. (People v. Fox (1983), 114 Ill. App. 3d 593, 595, 449 N.E.2d 261.) In reaching this conclusion, however, the court did not discuss the issues instruction given to the jury for murder and whether the jury was specifically requested to find that defendant did not act under provocation in order to sustain the charge. We therefore find the Fox case to be not uninstructive here.

In the case at bar the jury was instructed on murder, voluntary manslaughter and involuntary manslaughter. The issues instruction for involuntary manslaughter required the jury to find the mental state of recklessness in order to prove defendant guilty of that charge. (IPI Criminal No. 7.08 (2d ed. 1981); Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a).) “Recklessness” is defined as a “[conscious disregard of] a substantial and unjustifiable risk that circumstances exist or that a result will follow, *** and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 6.) Thus, a person charged with involuntary manslaughter is charged with consciously disregarding an unjustified risk that death or great bodily harm to another will result. In returning a guilty verdict on involuntary manslaughter, the jury specifically found that the mental state of recklessness existed here. This finding finds support in the record, since defendant testified to an accidental discharge of the gun. However, the jury also returned guilty verdicts on murder and voluntary manslaughter and thus also specifically found that defendant possessed the requisite mental state of either intent or knowledge. (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(a)(1), (2), 9 — 2(b).) Such a finding also finds ample support in the record.

Defendant argues that the guilty verdict on the involuntary manslaughter charge necessarily resulted in a finding that defendant’s act was unintentional (see People v. Wolski (1980), 83 Ill. App. 3d 17, 403 N.E.2d 528), and that this finding negates the requisite intent for voluntary manslaughter and murder. While it is true that by definition the offense of involuntary manslaughter occurs when one unintentionally kills another (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a)), it does not necessarily follow that a lack of intent is a necessary element of the offense. (See People v. Bolden (1978), 59 Ill. App. 3d 441, 447 n.2, 375 N.E.2d 898, stating in dictum that absence of intent is not an element of the offense; but contra, People v. Bonzi (1978), 65 Ill. App. 3d 927, 933, 382 N.E.2d 1300, suggesting that absence of intent is an element of the offense.) The only mental state required to sustain a conviction of involuntary manslaughter is that of recklessness (People v. Cates (1982), 111 Ill. App. 3d 681, 689, 444 N.E.2d 543), and a finding of recklessness does not, in our opinion, necessarily negate a finding of knowledge or intent. (See People v. Better (1975), 33 Ill. App. 3d 58, 66-67, 337 N.E.2d 272.) “Mental states of knowledge and recklessness are not susceptible to clear distinction.” (People v. Gross (1977), 52 Ill. App. 3d 765, 771, 367 N.E.2d 1028.) Nevertheless, because the jury is presumed to have considered the instructions as a whole (People v. Vega (1982), 107 Ill. App. 3d 289, 294, 437 N.E.2d 919), and because of defendant’s testimony on this issue, we agree that the verdict of guilty on this charge implies a finding of a lack of intent. Even so, it is clear that the jury was not silent on the intent issue when it returned the guilty verdicts on murder and voluntary manslaughter and, in fact, specifically found that the requisite intent for those crimes existed. Under these circumstances, we find little support for defendant’s position in the Stutter and Fox cases and accordingly find that the conviction of involuntary manslaughter did not amount to an implied acquittal of the murder and voluntary manslaughter offenses.

While we conclude that the doctrine of “implied acquittal” is not applicable here, we nevertheless must consider what effect, if any, the apparent inconsistency in the verdicts has on defendant’s conviction.

Traditionally, Elinois law provided that verdicts were not required to be logically consistent so long as they were legally consistent. (People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, cert, denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658; People v. Taylor (1976), 36 Ill. App. 3d 898, 344 N.E.2d 742.) Verdicts are legally inconsistent where they necessarily involve the conclusion that the same essential elements of each offense were found both to exist and not to exist. (People v. O’Malley (1982), 108 Ill. App. 3d 823, 439 N.E.2d 998; People v. Murray (1975), 34 Ill. App. 3d 521, 340 N.E.2d 186.) Logical inconsistency is present where the verdicts demonstrate both the acceptance and rejection of one party’s theory of the case. 34 Ill. App. 3d 521, 340 N.E.2d 186.

For some period of time legal thinking abounded that the supreme court in its ruling in People v. Dawson (1975), 60 Ill. 2d 278, 326 N.E.2d 755, cert, denied (1975), 423 U.S. 835, 46 L. Ed. 2d 54, 96 S. Ct. 61, had effectively overruled Hairston as to the invalidity of legally inconsistent verdicts. (People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, cert, denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658.) This reasoning was followed in certain appellate court decisions. (See People v. Harris (1982), 104 Ill. App. 3d 833, 433 N.E.2d 343; People v. Jimerson (1979), 69 Ill. App. 3d 403, 388 N.E.2d 10; People v. Murray (1975), 34 Ill. App. 3d 521, 340 N.E.2d 186; People v. O’Malley (1982), 108 Ill. App. 3d 823, 439 N.E.2d 998.) The supreme court in the recent case of People v. Frias (1983), 99 Ill. 2d 193, 198-99, 457 N.E.2d 1233, totally laid this legal theory to rest by specifically ruling that it had not in its Dawson decision overruled Hairston.

There is a further distinguishing feature between the case before us and Dawson and the cases that applied its rationale, that being in Dawson there was a conviction on one charge and an acquittal on others. (People v. Dawson (1975), 60 Ill. 2d 278, 326 N.E.2d 755, cert, denied (1975), 423 U.S. 835, 46 L. Ed. 2d 54, 96 S. Ct. 61.) Here, the defendant was convicted of every offense upon which the jury was instructed, obviously negating any theory of lenity, and in our opinion would have required reversal regardless of the interpretation of Dawson. However, the supreme court in Frias noted the circumstances of inconsistent verdicts where the defendant was found guilty of all charges, and stated:

“In People v. Hairston (1970), 46 Ill. 2d 348, 361, this court, while recognizing that legally inconsistent verdicts could not stand, held that where inconsistent verdicts of guilty are returned, a reversal and new trial on all counts must follow.” People v. Frias (1983), 99 Ill. 2d 193, 203, 457 N.E.2d 1233.

In a situation such as this one, we believe inconsistency in the verdicts implies confusion on the part of the trier of fact. In the present case, both types of inconsistency are suggested by the verdicts, as is evidenced by the elements of the offenses and the instructions to the jury.

The elements of the offense of murder are the killing of an individual without lawful justification, combined with the intent to kill or do great bodily harm or the knowledge that there is a strong probability of that result. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a).) Because self-defense may justify the use of force (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 1), self-defense is an affirmative defense to the charge of murder and, where raised by the defendant, must be disproved by the State to establish the offense. (People v. Pappas (1978), 66 Ill. App. 3d 360, 383 N.E.2d 1190, cert, denied (1979), 444 U.S. 843, 62 L. Ed. 2d 55, 100 S. Ct. 85; People v. Ortiz (1978), 65 Ill. App. 3d 525, 382 N.E.2d 303.) Where the defendant has intentionally or knowingly killed an individual, but acts with an unreasonable belief that the killing was justified, e.g., as self-defense, the offense committed is voluntary manslaughter, rather than murder. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 2(b); People v. Ellis (1982), 107 Ill. App. 3d 603, 437 N.E.2d 409; see People v. Fausz (1983), 95 Ill. 2d 535, 449 N.E.2d 78.) The jury was so instructed. Additionally, the jury was instructed that, to establish guilt of murder, the State was required to prove that defendant did not believe that circumstances existed which justified the use of force. This instructional element, formerly part of the standard instructions in cases where a self-defense claim was raised in a murder prosecution (IPI Criminal No. 27.01 (1968)), has been deleted from the form instructions for such cases. (IPI Criminal No. 27.01 (2d ed. 1981).) However, this instruction represents a correct statement of the law (People v. Vega (1982), 107 Ill. App. 3d 289, 437 N.E.2d 919), which is designed to make the jury aware of the distinction between the crimes of murder and voluntary manslaughter. People v. Stuller (1979), 71 Ill. App. 3d 118, 389 N.E.2d 593.

The jury’s verdict finding defendant guilty of voluntary manslaughter necessarily implies that the jury concluded that defendant believed, although unreasonably, that circumstances existed which justified his action. (People v. Goodwin (1981), 98 Ill. App. 3d 726, 424 N.E.2d 425; People v. Stuller (1979), 71 Ill. App. 3d 118, 389 N.E.2d 593; see People v. Fox (1983), 114 Ill. App. 3d 593, 449 N.E.2d 261 (voluntary manslaughter verdict implied finding of provocation).) This finding is both logically and legally inconsistent with the verdict that defendant was guilty of murder, which involved the determination, especially in light of the instructions given in the murder charge, that defendant did not believe that his conduct was justified.

There was evidence in support of voluntary manslaughter. Defendant knew Peters possessed guns, was skilled in the use of firearms, and previously threatened or spoke of threatening people, including defendant, with guns. Peters was intoxicated and had been belligerent toward others earlier that evening. Immediately before the shot was fired, defendant testified that he saw Peters lower his hands and begin to turn around, a movement which made defendant think that Peters was going to get a gun. Defendant had been afraid that Peters might try to harm him, Einsiedel, or Shannon. The unreasonableness of any belief by defendant that self-defense was necessary is demonstrated by the fact that Peters was unarmed, his mode of dress, a T-shirt and jeans, would have revealed any weapon that was present, Peters and defendant were separated by a distance of several feet, there had been no physical fight between them, and Peters had not threatened to get a weapon.

On the other hand, there was also ample evidence to establish an intentional killing without a belief that the homicide was justifiable. This was the trial court’s rationale for vacating the voluntary manslaughter and involuntary manslaughter convictions and allowing the murder conviction to stand. Although defendant denied the statement, his own sister testified that defendant stated that he was going to be ready for Peters when he returned, and told Peters that “I should blow you away.” Einsiedel testified that defendant had the shotgun in an aimed position. Peters was unarmed, which should have been apparent to defendant, as he had a full view of Peters’ body during their conversation and Peters was dressed in only a T-shirt and jeans. Peters was shot in the back, at a time when he was several feet from defendant and walking away from defendant. Just prior to being shot Peters had his back toward defendant and his arms in the air. The two men had not engaged in any physical fight. The safety device on defendant’s shotgun was off when police recovered the weapon. Defendant had taken the safety device off of the shotgun, which was loaded, when Peters began walking down the porch stairs. The gun was in proper working order. Thus, the evidence could be viewed as negating any claim that defendant believed he was acting in self-defense (see People v. Pappas (1978), 66 Ill. App. 3d 360, 383 N.E.2d 1190, cert, denied (1979), 444 U.S. 843, 62 L. Ed. 2d 55, 100 S. Ct. 85) or that the shooting was unintentional.

Another inconsistency is presented due to the verdict finding defendant guilty of involuntary manslaughter. As previously stated, involuntary manslaughter is committed when a person unintentionally kills an individual without lawful justification while recklessly performing acts which are likely to cause death or great bodily harm. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3.) The jury was instructed as to the intent requirements of murder and voluntary manslaughter and advised that the definition of involuntary manslaughter involved an unintentional act, although a lack of intent was not included as an issue in the issues instruction.

The distinction between these mental states suggests that the verdict finding defendant guilty of involuntary manslaughter is at least logically inconsistent with the guilty verdicts on the murder and voluntary manslaughter charges. While we believe, as previously stated, that a finding of recklessness does not necessarily negate a finding of knowledge (see People v. Better (1975), 33 Ill. App. 3d 58, 66-67, 337 N.E.2d 272), the jury’s apparent simultaneous finding of intent and lack of intent is inherently irreconcilable, especially since defendant fired only one shot directed at a single victim and therefore cannot be found to have had more than one mental state. See People v. Harris (1982), 104 Ill. App. 3d 833, 433 N.E.2d 343; People v. Roman (1981), 98 Ill. App. 3d 703, 424 N.E.2d 794; People v. Norris (1969), 118 Ill. App. 2d 406, 254 N.E.2d 304.

The three guilty verdicts returned here thus demonstrate that the jury determined that defendant did (voluntary manslaughter) and did not (murder) believe that his conduct was justified, and determined that defendant’s actions were intentional or knowing (murder, voluntary manslaughter) and unintentional (involuntary manslaughter). (See Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(a), 9 — 2(b), 9 — 3; People v. Cowen (1979), 68 Ill. App. 3d 437, 386 N.E.2d 435.) In our opinion, this confusion on the part of the trier of fact, as evidenced by legally and logically inconsistent verdicts, requires reversal and remandment to the trial court for a new trial. (People v. Frias (1983), 99 Ill. 2d 193, 203, 457 N.E.2d 1233.) Defendant notably has not challenged the sufficiency of the evidence against him.

We note that the inconsistent verdicts in this case may have stemmed, in part, from the statutory definitions of murder and involuntary manslaughter and from the recommended forms of verdict in Illinois Pattern Jury Instructions, Criminal (2d ed. 1981) on these two offenses. This problem is extensively discussed in two recent law review articles. (See Haddad, Allocation of Burdens in Murder-Volun tary Manslaughter Cases: An Affirmative Defense Approach, 59 Chi.Kent L. Rev. 23 (1982); O’Neill, “With Malice Toward None”: A Solution to an Illinois Homicide Quandary, 32 De Paul L. Rev. 107 (1982).) To avoid the result of inconsistent guilty verdicts being returned by a jury in murder-manslaughter cases some trial judges have utilized the number of verdict forms contained in the original edition of Illinois Pattern Jury Instructions, Criminal (1968), which recommends only three forms of verdict in a murder-manslaughter case, i.e. guilty of murder, guilty of voluntary manslaughter, and not guilty, and the jury is further instructed to select and sign only the one form reflecting their verdict. (See IPI Criminal No. 27.01, Sample Set of Instructions (1968).) In the case at bar, however, the trial judge gave six forms of verdicts to the jury, three guilty and three not guilty verdicts, as recommended in IPI Criminal No. 27.01, Sample Set of Instructions (2d ed. 1981). This approach may have contributed to the inconsistent verdicts obtained here.

For the foregoing reasons, the order vacating the convictions for voluntary manslaughter and involuntary manslaughter is set aside. The convictions for murder, voluntary manslaughter, and involuntary manslaughter are reversed and the cause remanded for a new trial.

Reversed and remanded.

REINHARD and VAN DEUSEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME “FATS” WHITE, Defendant-Appellant.
    Fourth District
    No. 4—83—0206
    Opinion filed February 21, 1984.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was charged by a multicount indictment in the circuit court of Champaign County with the offenses of murder, armed robbery, conspiracy to commit murder, and conspiracy to commit armed robbery, in violation of sections 9 — 1(a)(3), 18 — 2, 9 — 1(b)(5), and 8 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 9— 1(a)(3), 18 — 2, 9 — 1(b)(5), 8 — 2). The death penalty was sought under two of the murder counts. Also charged in the same indictment were defendant’s brothers, Derrick White and Michael Johnson, and one of defendant’s prostitutes, Bernice Caldwell. The record does not disclose when or how defendant’s case was severed from his codefendants (his first motion for severance was denied), but he was tried separately. A jury, impaneled for that purpose, found him guilty of murder and conspiracy to commit murder, but not guilty of armed robbery. Defendant waived a jury as to the death penalty aspect of the case and submitted the matter to the trial judge, who sentenced him to life imprisonment. This appeal followed.

All of the charges arose out of an incident which occurred in the early morning hours on August 6, 1982, at a rest area on Interstate Route 57 near Pesotum, Illinois. Waymond Jackson and Donald Stewart were shot and robbed at that time and place. Jackson died as a result. The general background of the matter revolves about the efforts of rival pimps and their prostitutes to control the rest area.

On appeal defendant raises a variety of issues: (1) reasonable doubt; (2) evidentiary errors; (3) selection of a “death qualified” jury; and (4) excessive sentence. The State’s case was largely circumstantial and hence subject to the infirmities inherent in all such cases. However, after a careful review of the entire record, we find no basis for upsetting the jury’s verdict nor the trial judge’s sentence.

The issues of reasonable doubt and admission of evidence are interrelated, and given the circumstantial nature of the case and the large number of witnesses who testified, it is difficult to piece together a coherent narrative of events. We start with the proposition, sustained by the record, that defendant was a pimp and that Bernice Caldwell, also known as Ebony Wells, was one of his prostitutes; and that the victim, Waymond Jackson, was also a pimp with his stable of prostitutes. Much of the State’s evidence related to events and statements made during the months and weeks prior to the homicide. During most of this period defendant was committed to the Department of Corrections in which he was serving a 364-day sentence for a traffic offense. He became a resident of the Urbana Community Correctional Center on October 31, 1981, and remained there until March 1, 1982. This is a work-release center housing felons and misdemeanants who are serving the last four to six months of their sentences. For reasons not stated in the record, defendant was transferred out of the center and ultimately released from the Department of Corrections on July 22,1982.

Initial evidence given by police officers established the discovery of two bodies on the ground in the rest area and two vehicles parked one behind the other. Several women were running about the area. Waymond Jackson was dead and Donald Stewart was suffering from a head injury. A police dispatch stated that suspects involved in the case were headed north on the interstate in a silver-colored, late model car. Other officers stopped such a car for a headlight violation. Allen Walker was driving and Doyle Johnson was a passenger. They were arrested for not having a firearm owner’s identification card when the officers observed a round of live ammunition on the rear floorboard of the car. An employee of a rental car agency in Champaign testified that on August 5, 1982, the day before the occurrence, she rented a 1980 silver Malibu to Bernice Caldwell. She identified a photograph of the car driven by Allen Walker as the one she rented to Caldwell.

Doyle Johnson fell asleep shortly after his arrest. At the time of his arrest, Johnson had in his possession $187. Walker possessed $154. It was stipulated that no gunshot residue was found on Walker’s or Johnson’s hands and that wearing gloves would prevent such residue from being deposited on the hands. The medical evidence established that Waymond Jackson died as a result of a shotgun wound to his head. Donald Stewart suffered trauma to his brain and was partially paralyzed on his right side as a result of a bullet wound to the left side of his head.

Doyle Johnson was the State’s principal witness. He acknowledged that he had been charged with the murder of Waymond Jackson, attempt (murder) of Donald Stewart, and conspiracy to commit murder. He had pleaded guilty to murder and attempt (murder) and as part of the plea agreement, 30 years’ imprisonment was imposed. A further part of the agreement was that he would first go to a Federal penitentiary on an unrelated offense and then to an Illinois minimum security institution. In return, he agreed to testify against defendant.

Johnson stated that he had had a conversation with defendant in Chicago at approximately 8:30 p.m. on August 5, 1982. Defendant stated to him that Bernice Caldwell had a conflict with a man in Champaign and that he could make some money. Defendant was also seen talking to Allen Walker. Thereafter, defendant, Caldwell, Walker, and Johnson drove to Champaign.

During the journey, defendant stated that he and Caldwell wanted the man with whom they had a conflict taken “out of the game” or killed. In return, Walker and Johnson were to be paid $1,000 each. Defendant told them that the man would probably be at the truck stop and described the blue and white Cadillac he would be driving.

Johnson fell asleep in the car 30 minutes after leaving Chicago. He claimed that he had not had much sleep and had used heroin, cocaine, and angel dust at about 4:30 that afternoon. Upon arriving in Champaign, the group entered a home Johnson had never seen before. Defendant and Bernice Caldwell went into a bedroom and shortly thereafter called for Johnson and Walker to join them. Defendant furnished them with two pairs of gloves, a sawed-off shotgun, and a .357 handgun, and told them to use a silver car that was parked in the garage. They took the weapons and began to drive to the truck stop. Johnson claimed that defendant and Caldwell followed behind until they approached the expressway leading to the truck stop.

Johnson and Walker drove up to a blue and white Cadillac parked at the truck stop; Walker, who was driving, stopped and asked for directions to Chicago. They left after obtaining directions but returned several minutes later. There was another car parked next to the Cadillac with women later identified as Shirley Bond, Angela Andujo, and Gabrie Davis, seated in both vehicles. Walker, armed with the sawed-off shotgun, ordered everyone to get out of the vehicles and grabbed Waymond Jackson; Johnson grabbed the other man, Donald Stewart. Walker ordered the men and women to lie face down on the pavement and then asked Jackson for his money. Stewart also gave Johnson his money. After Walker shot Jackson once in the head, Johnson fired two shots at Stewart with the .357 revolver.

After they had shot the two men, Walker and Johnson returned to their vehicle and drove away. They headed toward Chicago, where they were told to park the car. While traveling north, on Interstate 57, Johnson threw the guns and the gloves out of the window. Walker and Johnson were stopped by the police in De Witt County. They received no money for the shooting because they were not to be paid until after their job had been completed.

One of the defendant’s main arguments on appeal is the credibility of Doyle Johnson. Several things occurred following his arrest which cast reflections on it. He then told the police that Caldwell was working as a prostitute for Michael White, defendant’s brother, rather than defendant, and that Michael White and Bernice Caldwell were the ones who solicited him and Walker, not to commit murder, but to commit robbery. He also told them that Michael and Bernice had furnished the weapons and silver automobile. He admitted the shooting and claimed he intended to return to Chicago, there to split the proceeds of the robbery with Michael and Bernice. At trial he stated that he had made these statements implicating Michael rather than defendant because he and defendant had been close friends for 20 years; and that he hoped that defendant would help him find a lawyer to “come out of it okay.”

Johnson first implicated defendant in the crimes about five days before defendant’s trial and did not do so until after Allen Walker had been convicted of murder and sentenced to life imprisonment. He stated that there was no agreement between the State’s Attorney and himself at the time he stated defendant, rather than Michael, solicited him.

Another strange incident occurred while Johnson and the defendant were being held in jail, but in different sections thereof. Johnson wrote a note to defendant saying that when he and Allen Walker first went to jail they were both sick and high on drugs. The note also said that both Johnson and Walker knew that defendant had nothing to do with what happened at the rest stop. At trial, Johnson claimed that defendant was the author of the note, that he had simply copied it and sent it back to defendant in another part of the jail.

Testimony was received in the State’s case from a number of harlots. Angela Andujo testified that she worked as a prostitute for Waymond Jackson. Others in his coterie were Gabrie Davis, Shirley Bond, and Carmen Lucas. Andujo was present plying her trade in the rest stop on the night of August 5, 1982. Essentially, she echoed the story told by Doyle Johnson: a silver car arrived at about 4 a.m. containing two black men; they asked directions to Chicago and left; they returned and parked next to Waymond Jackson’s blue and white Cadillac; the driver got out and placed a shotgun next to Jackson’s head; there were some shots and then one big blast; the men got back into the car; Jackson had a gun in his car and it was thrown into a nearby field by Gabrie Davis.

The State sought to show that there was a preexisting hostility between Waymond Jackson on the one hand and defendant and Bernice Caldwell on the other, and that the hostility was over control, of the rest stop. Over defendant’s hearsay objection Andujo was permitted to testify that one or two weeks before Jackson was killed, Caldwell, who worked for defendant, had warned Andujo that she was not to go to the rest stop without defendant’s permission and that if she did work there, she would be required to give defendant one-half of her earnings. The trial court permitted the testimony on the basis that a conspiracy existed between defendant and Caldwell to control the rest stop and the testimony was probative of when it began. This will be discussed in greater detail later in this opinion. Andujo also stated that Derrick White, defendant’s brother, was running defendant’s prostitution business while defendant was in jail.

Shirley Bond, another of Jackson’s bawds, also witnessed the shootings. Her testimony largely paralleled that of Andujo. She also described an incident which occurred on the 14th or 15th of July 1982. Derrick White and Waymond Jackson were present in the rest stop; Derrick got out of his car and began yelling at Waymond; Waymond had a gun and cocked it; the police arrived and dispersed the crowd. Later everyone returned to the rest stop and a fight began between Carmen Lucas, one of Waymond’s prostitutes, and Bernice Caldwell. Lucas administered a beating to Caldwell. Bond also testified that she had heard both Waymond and Derrick upon previous occasions threaten that someone would die over the struggle for control of the area.

Gabrie Davis and Carmen Lucas also described the events of the early morning of August 6. Their testimony added nothing significantly new to what had already been said. Lucas confirmed that a few weeks prior to the shootings she had had a fight with Caldwell at the rest area. Caldwell ordered Lucas not to work there and approached with a razor; Lucas then sprayed her with Mace.

Donna Blakely and Jackie Manning were members of Derrick White’s stable. They also worked the rest stop. Blakely testified that Derrick was in a hospital in Champaign from August 4 to August 7, 1982. She was present at the fight between Waymond Jackson and Bernice Caldwell, who, she said, worked for defendant. According to Blakely, Jackson told Caldwell he was upset with her, slapped her, and then administered a beating. Caldwell responded by saying “wait till my man get out.” Blakely stated that a few nights later there was a fight between Carmen Lucas and Caldwell.

Eric Goff, a high school student and apparently a friend of Derrick White, testified that at Derrick’s request he took Blakely and Manning to visit him while he was in the hospital on the morning of August 6, 1982. (It will be remembered that the shootings took place about 4 a.m. on the same date.) Defendant and Bernice Caldwell were there. Goff overheard Derrick tell Blakely and Manning to tell the police that they had been at the rest area and had obtained a ride back to town by a trucker. He also told them that they had nothing to worry about. Derrick also asked Goff what he had heard, and he replied that he had heard that “two dudes got knocked off,” at which point Derrick winked, smiled and nodded his head. According to Goff, defendant was not in the hospital room at the time but was out in the lobby.

As to physical evidence, the police had collected a number of items at the rest stop and along the shoulder of the northbound lanes of Interstate 57. A .357 Magnum Tarsus handgun was found at the rest stop in the grass, apparently the weapon belonging to Waymond Jackson which Gabrie Davis had thrown out on the occasion of the shootings. About four miles north of the rest stop on the Interstate, the police located the stock of a .410 gauge shotgun, the butt portion of a .410 gauge shotgun, and a .357 Magnum handgun. Considerable expert testimony was received indicating that the guns found along the shoulder were the weapons used in the shootings.

The provenance of the weapons was then recounted by various witnesses. Michael Foster stated that he had borrowed a shotgun from a relative in Kentucky. In December 1982 he had loaned the gun to Eddie Pelmore. He identified those parts which had been found along the Interstate as coming from that gun. He also stated that when he loaned the gun to Pelmore, the barrel had not been sawed off.

Pelmore, who operated an auto body shop in Rantoul, was defendant’s employer during his stay at the work release center. He was also responsible for transporting defendant to and from work. He testified that in January 1982 he had had trouble with his truck while giving defendant a ride. He then left the truck at a residence on Cruising Lane in Champaign and at that time took the shotgun inside the residence for safekeeping. After going inside, he saw there Bernice Caldwell, whom he knew only as Ebony. She instructed him to place the gun under a bed in the house. Later he requested the return of the weapon, but Caldwell refused, saying that defendant had instructed her not to give it to anyone. Prior to Pelmore’s testimony, the defense moved in limine to exclude the testimony regarding defendant’s instruction to Caldwell as being hearsay and antedating any conspiracy. The trial court denied the motion.

Another witness testified that he had owned a .357 Magnum handgun which had been stolen from his car in August 1982. A second witness, who had been granted immunity in return for his testimony in this case, stated that he had stolen the gun and sold it to Bernice Caldwell for $100. The sale apparently took place at the Cruising Lane address; the witness stated that defendant was not present in the house at the time.

The supervisor of the work release center testified and confirmed much previous evidence: defendant became a resident of the center on October 31, 1981, remained there until March 1, 1982, and was ultimately released from the Department of Corrections on July 22, 1982. He stated that Eddie Pelmore was defendant’s employer, volunteer driver, and supervisor during his stay at the center.

An agent of the Illinois Department of Criminal Investigation and a team of officers executed a search warrant at the residence at 1609 Cruising Lane. The agent testified as to a number of items found there which tended to indicate that defendant had been a resident, although the house was unoccupied and had a for-sale sign in the yard at the time. He further' stated that defendant had been arrested in Benton Harbor, Michigan, on August 22, 1982, and that Bernice Caldwell had been arrested in Chicago on January 25, 1983.

Theresa Caldwell, Bernice Caldwell’s daughter, testified that in August 1982 she lived at 1609 Cruising Lane in Champaign. She heard about the shootings on 1-57 during the morning hours of August 6, 1982. The previous night her mother, defendant, and two other people were in the house; she did not hear them talking; she did not know how long it took to get from Chicago to Champaign by car; she saw her mother in the house on August 5 at approximately 10 p.m.

In broad outline, that was the State’s case. The defense presented several law enforcement officers.

Walter Wolfe, deputy sheriff for Champaign County, testified. During his interrogation of Gabrie Davis, Davis told him:

“The shooting was all over whose area the rest stop was, that Derrick White and Waymond Jackson had been arguing for some time over whose area it was, that Ebony and Carmen had gotten into a fight during this argument between Waymond and Derrick, and that Carmen had whipped Ebony in the rest area *** during this fight Derrick had told Waymond he would die here, and Waymond replied that he knew he would die in Champaign County because he was bom there.”

David Jackson, an Illinois State police officer, testified that Shirley Bond had told him at the rest area that the two suspects had robbed the girls of their purses and the men of their cash.

Michael Robb, who previously had testified for the State, testified that, during his interview of Shirley Bond, she had told him that on one occasion Derrick White had threatened Waymond Jackson and told him that Jackson’s women were making all the money and there was going to be a lot of “s-t” over this and that perhaps Waymond Jackson and his women would get “taken out.” Shirley Bond also said that Derrick White had stated “f— this bullshit, I kill anyone who f — - around in this truck stop.” According to Shirley Bond, Derrick White also told Waymond Jackson, “Nigger, you’re going to die here.”

Charles McGrew, a special agent with the Division of Criminal Investigation for the Department of Law Enforcement, testified that during his interview of Doyle Johnson following Johnson’s arrest, Doyle Johnson testified that he and Allen Walker were going back to Chicago to split the money with Bernice Caldwell and Michael Johnson.

As has been indicated, the jury returned verdicts of guilty of murder and conspiracy to commit murder and not guilty as to the armed robbery counts.

Defendant’s first issue is that of reasonable doubt. He maintains that the principal evidence against him came from Doyle Johnson, an accomplice, whose testimony was uncorroborated, impeached, and unworthy of belief. He points out the many weak, inconsistent, and bizarre elements in Johnson’s testimony which have been set out at length above: his first story of being approached by Michael White, rather than defendant; the note in the jail; the plea agreement in return for testimony; the statement that he was high on drugs and alcohol at the time of the murder. He also claims there was no corroboration of Johnson’s testimony; that while there might have been an escalating hostility among Waymond Jackson, Bernice Caldwell, and others, he was incarcerated during most of that time; that the only evidence to link him to the weapons was that of the discredited Doyle Johnson; that the only corroboration was what occurred during the murder itself and who did the shooting.

We disagree. It is true that there was much to undermine Johnson’s testimony, but this was thoroughly explored before the jury. While an accomplice’s testimony may have myriad infirmities, these go to the weight and not the admissibility of the evidence. People v. Sheridan (1977), 51 Ill. App. 3d 963, 367 N.E.2d 422.

In this case the jury was apprized fully of all matters bearing on Johnson’s credibility and chose to accept his version of the events leading up to the murder. We find no basis to set aside their finding.

As to corroboration, in our opinion it was adequate. Without detailing everything in the lengthy factual statement above, we would point out Theresa Caldwell’s testimony of seeing defendant, her mother, and two strangers in the house on the evening of August 5; defendant’s part in obtaining the shotgun and ordering it not be returned; the testimony of the prostitutes which largely paralleled that of Johnson; the physical evidence indicating that defendant had control of the premises at 1609 Cruising Lane. Even without corroboration, an accomplice’s testimony is not barred as a matter of law. People v. Johnson (1968), 93 Ill. App. 2d 184, 236 N.E.2d 388.

Defendant’s next issue concerns the admission of certain declarations which he claims were hearsay. The question resolves itself into an examination of the so-called “co-conspirator” exception to the hearsay rule.

To recapitulate briefly, the statements are: (1) Andujo’s statement that Caldwell told her one or two weeks before the murder that she was not to work the rest stop, and if she did, she would be required to give defendant one-half her earnings; (2) Blakely’s statement that after Waymond Jackson had administered a beating to her in July 1982, Caldwell said “wait till my man get out”; and (3) Caldwell’s statement to Pelmore that defendant had instructed her not to give the shotgun back to anyone.

Initially we note that item (2) was not objected to at trial and was not raised in defendant’s post-trial motion. We might therefore well consider the point waived. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) However, since all three statements concern the same basic question of law, and a novel one at that, in our discretion we decline to consider waiver and will deal with the issue on its merits.

The same is essentially true of item (3). It was subject to a motion in limine at the trial level, but not raised in the post-trial motion. As has been indicated, the trial court denied the motion in limine, apparently upon the prosecutor’s representation that he did not intend to introduce the statement for its truth but only to show that defendant had joint possession of the premises with Caldwell. Defense counsel expressed apprehension that the statement would be used by the prosecutor in closing argument, but the prosecutor assured him that he would not. This assurance was breached, however, when the prosecutor stated in closing argument:

“This man can get things done, and he did, particularly with respect to Waymond Jackson. Pelmore can’t get his gun back from Ebony. As I recall the evidence in the testimony, he indicated the reason he couldn’t was because Fats wouldn’t let her give the gun back.
* * *
We know that other witnesses have indicated the guns went to Ebony and Jerome. You remember Pelmore can’t even get his gun back.”

While we will not be understood as condoning the prosecutor’s violation of his word as an officer of the court, yet there was no objection to the statement by defense counsel, who, in fact, also used this evidence in his closing argument. We will consider the statement on its merits.

Defendant’s principal argument is that he was charged with conspiracy to commit murder; that any statements by a co-conspirator made prior to the genesis of the conspiracy are inadmissible hearsay; that in this case the conspiracy to commit murder did not arise until defendant and Caldwell made the trip to Chicago on August 5; therefore, all three statements having been made from one month to seven months prior were inadmissible. The theory has some plausibility, but it ignores the fact that any uncharged conspiracy may exist as the predicate for admissions and statements of co-conspirators. For example, in People v. Meagher (1979), 70 Ill. App. 3d 597, 388 N.E.2d 801, the specific charges were aggravated kidnaping and aggravated battery, but the court held admissible declarations by co-conspirators in an underlying, uncharged conspiracy. So also it was in People v. Jaffe (1978), 64 Ill. App. 3d 831, 381 N.E.2d 1018, where the specific charge was unlawful delivery of cannabis.

As to the fundamental rule in this area, an excellent statement is found in Meagher:

“The co-conspirator exception to the hearsay rule is well known. The acts and declarations of a co-conspirator in furtherance of the conspiracy are admissible against another who is a defendant, even when the acts and declarations are made out of the presence of the defendant. (People v. Jackson (1977), 49 Ill. App. 3d 1018, 364 N.E.2d 975.) No conspiracy need be charged and so long as a prima facie case of conspiracy has been shown by independent evidence, acts or declarations in furtherance of the conspiracy are admissible. See People v. Jackson (1977), 49 Ill. App. 3d 1018, 364 N.E.2d 975; People v. Morrow (1976), 40 Ill. App. 3d 1020, 353 N.E.2d 354.” People v. Meagher (1979), 70 Ill. App. 3d 597, 601, 388 N.E.2d 801, 803.

A further explication is found in Jaffe:

“The co-conspirator exception ‘allows acts and declarations of one co-conspirator to be admitted against another who is a defendant, even when the acts and declarations are made out of the presence of the defendant.’ (People v. Jackson (1977), 49 Ill. App. 3d 1018, 1020.) There is no need for the State to introduce evidence of verbal or written communication between alleged conspirators to establish a conspiracy, ‘where the acts themselves, subsequent to the alleged conspiracy, inferentially establish the existence of an agreement.’ (People v. Graham (1971), 1 Ill. App. 3d 749, 752.)” People v. Jaffe (1978), 64 Ill. App. 3d 831, 835, 381 N.E.2d 1018, 1021.

The element which is not clearly articulated in these authorities is that the uncharged conspiracy must be factually intertwined with the offense charged. This statement is found in the Federal courts whose rule is basically the same as the common law rule in Illinois. Federal Rule of Evidence 801(d)(2)(E) (28 U.S.C. sec. 801(d)(2)(E) (1976)) provides:

“(d) Statements which are not hearsay. A statement is not hearsay if—
* * *
(2) Admission by party-opponent. The statement is offered against a party and is *** (E) a statement by a coconspirator of a party during the course in furtherance of the conspiracy.”

The distinction was set forth in United States v. Lyles (2d Cir. 1979), 593 F.2d 182, 194-95:

“The case before us differs in two ways from the typical criminal case in which the government seeks to introduce a vicarious admission. First, in the usual vicarious admission situation, the conspiracy which is relied upon for Rule 801(d)(2)(E) purposes either is the very crime charged or is closely related to the crime charged. It is settled law that the conspiracy which serves as the vehicle for the introduction of a vicarious admission by a co-conspirator need not be charged in the indictment. United States v. Doulin, 538 F.2d 466, 471 (2d Cir.), cert, denied, 429 U.S. 895 (1976). See also United States v. Ruggiero, 472 F.2d 599, 607 (2d Cir.), cert, denied, 412 U.S. 939, 93 S. Ct. 2772, 37 L. Ed. 2d 398 (1973); United States v. Jones, 374 F.2d 414, 418 (2d Cir.), cert, denied, 389 U.S. 835, 88 S. Ct. 40, 19 L. Ed. 2d 95 (1967); United States v. Olweiss, 138 F.2d 798, 800 (2d Cir. 1943) (admission of such declarations ‘does not depend upon the indictment, but is merely an incident of the general principle of agency that the acts of any agent, within the scope of his authority, are competent against his principal’). However in each of the cited cases enunciating this principle the conspiracy introduced into evidence by the government, although not charged, was factually intertwined with the offense for which the defendant was being tried.
The second distinction between this case and the more usual vicarious admission case has to do with what the admission is introduced to prove. The typical vicarious admission situation involves government efforts to introduce against a criminal defendant a statement by an alleged agent or co-conspirator which tends directly to prove the commission of the crime charged. See, e.g., United States v. DeVaugn, supra, 579 F.2d 225; United Sites v. Pacelli, 491 F.2d 1108, 1115-17 (2d Cir.), cert, denied, 419 U.S. 826, 95 S. Ct. 43, 42 L. Ed. 2d 49 (1974); United States v. Calabro, supra, 449 F.2d 885; United States v. Rinaldi, 393 F.2d 97, 99 (2d Cir.), cert, denied, 393 U.S. 913, 95 S. Ct. 43, 42 L. Ed. 2d 49 (1968). Here, in contrast, the vicarious admission was offered to establish only the performance of a similar act, not the commission of the crime charged. We view this distinction as crucial.” (Accord, United States v. Kendall (7th Cir. 1981), 665 F.2d 126.)

However, a cautionary note was sounded in United States v. Cambindo Valencia (2d Cir. 1979), 609 F.2d 603, 641:

“We are aware of the line of cases that permits coconspirator hearsay to be admitted to prove substantive counts where no conspiracy has been charged. E.g., United States v. Doulin, 538 F.2d 466, 471 (2d Cir.), cert, denied, 429 U.S. 895, 97 S. Ct. 256, 50 L. Ed. 2d 178 (1976); United States v. Ruggiero, 472 F.2d 599, 607 (2d Cir.), cert, denied, 412 U.S. 939, 93 S. Ct. 2772, 37 L. Ed. 2d 398 (1973). One case involving an underlying conspiracy count cited these cases but, while pointing to ‘serious potential for prejudice in the form of confusion of issues,’ held that it was harmless error to admit as ‘similar act’ evidence the vicarious admissions of a coconspirator from a later conspiracy. United States v. Lyles, 593 F.2d 182, 194-96 (2d Cir.), cert, denied, 440 U.S. 972, 99 S. Ct. 1537, 59 L. Ed. 2d 789 (1979). Obviously, where one conspiracy is charged and proof as to others adduced, the potential for prejudice may increase, the less ‘factually intertwined,’ id. at 194, the hearsay declaration is with the offense for which the defendant is tried.”

In applying these principles to the instant case, we are of the opinion that all three declarations were properly admitted. The defendant does not seriously question that he was involved in a conspiracy to commit prostitution. There was ample evidence of threats and intimidation to control prostitution in the rest area over a long period of time. There was also evidence from nearly all of the prostitutes that defendant was Caldwell’s pimp and that Caldwell worked for him. The acts and declarations of the conspirators themselves may form the inferential basis of the existence of the conspiracy. (Jaffe.) Moreover, it appears clear beyond doubt that the prostitution conspiracy was factually intertwined most closely with the murder and the conspiracy to commit murder. The latter may very well be regarded as the culmination of the former. Events over a period of months moved toward their climax with all the inexorability of a Greek tragedy. No error was committed in the introduction of the three items of evidence described above.

As defendant’s next issue he raises the familiar question as to whether a death-qualified jury (as was the case here) is also a conviction-prone jury, and therefore amounts to a denial of a fair trial. The question was recently answered in the negative in People v. Hobson (1983), 117 Ill. App. 3d 191, 452 N.E.2d 771, which we find controlling here.

We note in passing that the defendant made no challenge to the array, as was the case in People v. Joyner (1982), 109 Ill. App. 3d 1083, 441 N.E.2d 1214. However, he apparently argues that the use of peremptory challenges by the prosecution to eliminate veniremen who voiced reservations about the death penalty is a corollary to a challenge to the array. This contention was specifically rejected by the supreme court in People v. Payne (1983), 99 Ill. 2d 135.

Defendant relies upon Grigsby v. Mabry (8th Cir. 1980), 637 F.2d 525. In that case the District Court found that there were studies which supported the defendant’s contention that death-qualified juries were also conviction-prone, and the circuit court held that the defendant was entitled to a hearing on the matter. However, in the instant case the record reveals only that the parties stipulated that certain evidence taken on the subject under a similar motion in the case of Allen Walker, the other accomplice from Chicago, might be considered by the trial court in this case. That testimony has not been made a part of the record in this case and we therefore decline to inquire into the matter further. Apparently it was rejected by the trial court and we have no basis upon which to review his actions.

Defendant’s final issue is that of disparate sentences. He was sentenced to life imprisonment; the record shows that Bernice Caldwell received 40 years’ imprisonment. Defendant also claims the sentences meted out to Allen Walker and Doyle Johnson are instructive. Walker received natural life imprisonment; Johnson received 20 years’ imprisonment. Johnson’s sentence has no basis for comparison. As we have indicated, it was an agreed sentence pursuant to a plea agreement. Lenity was extended in return for his testimony.

Since Walker received the same sentence as defendant, all that can remain is to compare those two to Caldwell. In our opinion defendant has failed to sustain his burden of establishing that similarly situated defendants received disparate sentences. People v. Broom (1977), 48 Ill. App. 3d 994, 363 N.E.2d 635.

Both defendant and Walker had extensive criminal records; Caldwell did not. Defendant was the chief mover and orchestrator of the murder; Walker actually pulled the trigger; Caldwell, while not innocent, played a lesser role. Defendant was the one who solicited Walker and Johnson; Caldwell’s participation was more passive.

Defendant argues section 5 — 8—1(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(1)), which provides in pertinent part:

“[I]f the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9 — 1 of the Criminal Code of 1961 are present, the court may sentence the defendant to a term of natural life imprisonment.”

He maintains that the trial court was swayed by the “exceptionally brutal or heinous behavior indicative of wanton cruelty” provision, and thus his sentence was based primarily on the offense itself and not on his background. Such an argument ignores the alternative provision of aggravating factors. One such factor found in section 9— 1(b)(5) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(b)(5)) is:

“5. the defendant *** procured another to commit the murder for money or anything of value.”

The judgment and sentence of the circuit court of Champaign County are affirmed.

Affirmed.

MILLS, P.J., and MILLER, J., concur.


author: PRESIDING JUSTICE MILLS

text:
    GREGORY W. SCHWEIGHART, Plaintiff-Appellee, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—83—0530
    Opinion filed February 6, 1984.
    John F. Bramfeld and Hurshal C. Tummelson, both of Phebus, Tummelson, Bryan & Knox, of Urbana, for appellant.
    Mary A. Perlstein and Guy C. Hall, both of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Uninsured motorist coverage.

Primary insurer paid.

Secondary insurer denied liability.

Summary judgment for insured:

We affirm.

Gregory Schweighart filed for declaratory judgment seeking a determination that he was entitled to coverage under the uninsured motorist endorsement of a policy issued by Country Mutual Insurance Company. After cross-motions for summary judgment, the trial court entered judgment for Schweighart.

Country Mutual appeals.

Schweighart was injured on August 16, 1978, when the motorcycle he was driving was struck by a car driven by an uninsured motorist. Subsequently, he filed a claim under the uninsured motorist endorsement of a First Financial Insurance Company policy in which he was the named insured. The policy was in full force at the time of the collision and provided for up to $10,000 in uninsured motorist coverage. Schweighart settled his claim with First Financial for $9,750 and released the company from any further liability in connection with the occurrence.

At the time of the accident Schweighart was an unemancipated minor residing in the home of his father. The father held a Country Mutual Insurance Company policy which provided uninsured motorist protection to his minor son as a relative residing with the named insured. After settling the claim under the First Financial policy, Schweighart filed a notice of claim under the uninsured motorist endorsement of the Country Mutual policy (which carried a $50,000 maximum limitation). Country Mutual denied coverage on grounds that Schweighart had not exhausted the limits of his primary insurance and, therefore, could not invoke the coverage provided pursuant to the Country Mutual policy. The pertinent provision in the Country Mutual policy provides as follows:

“With respect to bodily injury to an insured while occupying a vehicle not owned by the Named Insured, the insurance hereunder shall apply only as excess insurance over any similar insurance available for such occupant and this insurance shall then apply only in the amount by which the applicable Limit of Liability for this Section exceeds the sum of the applicable Limits of Liability of all such other insurance.”

On appeal, as in the trial court, Country Mutual maintains that the “other insurance” provision just quoted required Schweighart to obtain the full limit of liability under the First Financial policy before any Country Mutual coverage would become available. Country Mutual contends that no coverage was available to Schweighart under its policy because Schweighart settled with First Financial for less than the full limit of the primary policy. In response, Schweighart argues that Country Mutual is liable in the amount that the limit of liability under the Country Mutual policy exceeds the limit of liability under the First Financial policy, without regard to the amount he actually realized in connection with his claim under the First Financial policy. Schweighart’s position was adopted by the trial court in granting summary judgment.

The parties have not directed this court to any case in which the policy provision in issue has been construed in similar factual circumstances. The absence of any ambiguity in the provision, however, renders reference to external authority unnecessary to a disposition of this appeal. It is well established that if the provisions of an insurance policy are clear and unambiguous, there is no need for construction, and the provisions will be applied as written. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539; Winkler v. State Farm Mutual Automobile Insurance Co. (1976), 35 Ill. App. 3d 493, 341 N.E.2d 379.) An insurance policy is deemed ambiguous if it is subject to more than one reasonable interpretation. (State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 3d 250, 430 N.E.2d 641; Reserve Insurance Co. v. General Insurance Co. of America (1979), 77 Ill. App. 3d 272, 395 N.E.2d 933.) Country Mutual does not specifically allege any particular ambiguity in the policy, and we find the provisions of the policy to be abundantly clear. Absent ambiguity in the terms of the Country Mutual policy, no judicial construction is required, and the policy may be enforced as written.

The policy provision in issue does not — by its terms — require an insured to secure the full limits of a primary policy before the Country Mutual policy may be invoked. Nor does it contain any language to suggest such a limitation. Rather, the policy plainly states that the coverage shall apply “in the amount by which the applicable Limit of Liability of this Section [$50,000 under the Country Mutual policy] exceeds the sum of the applicable Limits of Liability of all other insurance [$10,000 under the First Financial policy].” Country Mutual’s position finds no support in the language of the policy. The provision defines the Country Mutual coverage in these circumstances as excess coverage applicable to losses in excess of the primary policy limit of liability. Under the terms of the policy, the details of a claimant’s settlement with the primary insurer are simply immaterial.

We find no error in the trial court’s determination that Schweighart is entitled to coverage under the Country Mutual policy to the extent that he sustained uncompensated damages in an amount greater than $10,000, but no greater than $50,000. The policy is clear and unambiguous on this point. Accordingly, we affirm.

Affirmed.

TRAPP and GREEN, JJ., concur.