author: JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALBERT PAGLIUCA et al., Defendants-Appellants.
    First District (4th Division)
    No. 82—157
    Opinion filed December 1, 1983.

      George P. Lynch, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE JIGANTI

delivered the opinion of the court:

After a jury trial, the defendants, Antonio Perez and Albert Pag-liuca, were found guilty of solicitation and conspiracy to commit the murder of Ramona Rodriguez. Perez was sentenced to an extended term of 50 years for solicitation and 14 years for conspiracy. The two sentences were to run concurrently, but they were to run consecutively to the 60 year sentence Perez was serving for another felony conviction. Pagliuca was sentenced to concurrent terms of 20 years for solicitation and seven years for conspiracy. On appeal, the code-fendants together and individually raise issues regarding reasonable doubt, jury instructions, sentencing, suppression of evidence, admissibility of evidence, jury selection and prosecutorial misconduct.

Both defendants initially contend that the State failed to prove them guilty beyond a reasonable doubt of solicitation to commit murder. At trial, Kenneth Middleton testified that in early November of 1979, both he and Perez were incarcerated together in Cook County jail and that during this period of time, he had several conversations with Perez. Perez told him that if Middleton was willing to arrange to kill a witness in a case pending against Perez, that he would help with bond money for Middleton’s release and that Perez would set Middleton up with a place to stay, a loaded gun, safe transport to Mexico and safekeeping once Middleton got there. Middleton then informed law enforcement officials of Perez’ offer and he arranged with the State’s Attorney to have a police officer pose as a “hit man” for Perez. After further discussions with Perez, Middleton reached an agreement with him wherein Middleton would provide the “hit man,” as previously arranged with the State’s Attorney, and Perez would supply the gun for the hit man. Middleton’s testimony went on to reveal that Perez made several phone calls to codefendant, Pagliuca, in which Perez requested Pagliuca to get a gun and deliver it to “Frankie C” (James Houtsma, who was the undercover police officer posing as the alleged hit man). Middleton testified that an additional call was made by Perez to Pagliuca to confirm the delivery of the gun. Officer Houtsma also testified for the State. He indicated that he met Pagliuca at a prearranged location and that Pagliuca handed him a paper bag containing a gun. Houtsma refused to take the bag unless Pagliuca would tell him what the gun was for and who he was supposed to “hit.” Houtsma further testified that Pagliuca then cooperated with him by providing the requested information. Houtsma then took the gun and returned to the police station. During the defense’s case in chief, codefendant Pagliuca took the stand. Pagliuca admitted giving the alleged hit man, Houtsma, the gun and also admitting revealing to Houtsma the purpose for the gun and the name and general whereabouts of the intended victim.

Perez contends that he obviously did not solicit James Houtsma to commit murder because he never had any contact with Houtsma. However, Perez does not address the issue as to his solicitation of Middleton. Perez did not address this issue because Middleton was not named as the person solicited in the indictment. Although not named in the indictment, Middleton was included along with Houtsma in the jury instructions, thereby effectively amending the indictment. This was done over Perez’ objection and the propriety of so doing forms the next issue on appeal. Perez asserts that he may have solicited somebody, but it certainly was not Houtsma. Pagliuca argues that regardless of his conduct he did not solicit anyone because the crime of solicitation to commit murder was completed when Perez requested Middleton to kill a witness.

The applicable statute in the instant case is set out in section 8 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 1) and provides as follows:

“A person commits solicitation when, with intent that an offense be committed, he commands, encourages or requests another to commit that offense.”

The offense of solicitation is complete when the principal offense is commanded, encouraged or requested with the intent that it be committed. (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. Harvey (1981), 95 Ill. App. 3d 992, 420 N.E.2d 645; People v. McCommon (1979), 79 Ill. App. 3d 853, 399 N.E.2d 224.) Also, the law is well settled that intent is a state of mind and may be inferred from the surrounding circumstances since every sane person is presumed to intend all the natural and probable consequences of his actions. People v. Koshiol (1970), 45 Ill. 2d 573, 578, 262 N.E.2d 449, cert, denied (1971), 401 U.S. 978, 28 L. Ed. 2d 329, 91 S. Ct. 1209.

In the instant matter, Perez clearly solicited Houtsma through Middleton to commit the offense of murder. Perez directly requested Middleton to arrange to kill a witness for him. Perez’ intent that the murder be committed can be inferred from his subsequent conduct in making specific arrangements with Pagliuca to deliver the gun to Houtsma. The entire sequence of events between the codefendants, Middleton and Houtsma must be viewed as a single transaction, one solicitation. Consequently, the evidence shows beyond a reasonable doubt that Perez solicited Houtsma and/or Middleton.

Contrary to Pagliuca’s contention that solicitation was com-

pleted when Perez requested Middleton to kill a witness, the solicitation to murder Ramona Rodriguez was a continuous act of encouraging and requesting another, that is Houtsma or Middleton to commit an offense. That offense was completed under these facts by Pagliuca delivering the gun to Houtsma, the alleged hit man, and informing Houtsma of the purpose of the gun and the identity of the victim. Therefore, the offense of solicitation to murder Ramona Rodriguez was an ongoing event that clearly included Pagliuca’s transaction with Houtsma.

To the extent Pagliuca alternatively argues that his conduct did not amount to solicitation, we find that Pagliuca’s actions similarly follow in the statutory definition of solicitation, “to encourage another to commit an offense.” When Pagliuca delivered the gun with the knowledge of its intended purpose, he “encouraged” Houtsma to commit murder. As applied in Koshiol, Pagliuca had the requisite intent as inferred from his actions and the surrounding circumstances. Accordingly, Pagliuca solicited another to commit a crime with the intent that it would be committed, and thus the trial court did not err in finding that the State met its burden of proving Pagliuca guilty beyond a reasonable doubt of solicitation to commit murder.

Both defendants contend that their constitutional rights to due process were violated because of the variance between the indictment and the jury instruction. As mentioned previously, the indictment charged the defendants with the solicitation only of Houtsma whereas the jury instruction provided that they could be found guilty of solicitation if the jury found that they solicited either Middleton or Houtsma. They both claim that they were greatly prejudiced and that this constituted reversible error.

From the outset of the trial, both defendants presented defenses that included a thorough consideration of Middleton. In opening statements, the defense introduced its characterization of Middleton as a professional criminal and a self-serving liar. During cross-examination, both defense counsel spent extensive time in developing facts that would impugn Middleton’s credibility as a witness. Finally, in closing arguments, Middleton was accused by the defendants of being the principal architect in the alleged solicitation and that his account of the story was a fabrication designed to keep him from spending the rest of his life in jail. The trial transcript was replete with remarks and questions involving Kenneth Middleton.

The law in Illinois is that any variance between the offense specified in the indictment and the offense described in jury instructions does not vitiate a conviction unless the variance is of such a character

as to mislead the defendants in their defense or expose them to double jeopardy. (People v. Rosochacki (1969), 41 Ill. 2d 483, 244 N.E.2d 136; People v. Foster (1982), 103 Ill. App. 3d 372, 431 N.E.2d 430.) The facts in the instant case reveal that the transactions involving the two codefendants, Middleton and Houtsma, are all inextricably linked. Perez dealt directly with Middleton while in jail. Middleton informed Perez of the availability of a third-party “hit man,” Houtsma, on the “outside.” Finally, Perez recruited Pagliuca to provide and deliver the gun to Houtsma. Each separate act was an integral part of the solicitation to murder Ramona Rodriguez.

Due to this closeness of all the parties, the defendants could not have reasonably believed that when they were indicted for the solicitation of Houtsma that it would not also be necessary to prepare in their defense an explanation for the transactions involving Middleton. Without the knowledge that Middleton would be named in the solicitation instruction to the jury, both defendants, by their thorough treatment of Middleton at all stages of the trial, demonstrated a full awareness of the significance of Middleton in preparing their defense.

The defendants were adequately apprised of the nature of the case and were not prejudiced in the preparation of the defense by the variance between the indictment and the jury instruction. As to the issue of exposure to double jeopardy, the defendants have admitted that they were not subject to such exposure. Therefore, we will not address that issue. Accordingly, we find that the trial court did not err in giving the instruction.

Both defendants additionally contend that the trial court invoked an illegal sentence as a result of improperly classifying the crime of solicitation. The defendants’ position is that the charge of solicitation to commit murder was at the time the commission of the crime occurred, an unclassified offense. Defendants further assert that any unclassified offense shall be considered for sentencing purposes a Class 4 felony. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—2.) The corresponding sentence for a Class 4 felony is not less than one year and not more than three years. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(7).) Accordingly, defendants maintain that the sentences received, 20 years for Pagliuca and 50 years for Perez, were invoked in total disregard of the maximum sentence mandated by the purported applicable statute.

The solicitation to commit murder occurred in November of 1979, and both defendants elected to be sentenced under the law in effect at the time of the commission of the crime. (Ill. Rev. Stat. 1979, ch. 38, par. 1008 — 2—4(b).) At that time, the law in effect for solicitation provided as follows:

“A person convicted of solicitation may be fined or imprisoned or both not to exceed the maximum provided for the offense solicited: Provided, however, the penalty shall not exceed the corresponding maximum limit provided by sub-paragraph (c) of Section 8 — 4 of this Act ***.” (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 1(b).)

Section 8 — 4(c)(2) (attempt) provided:

“(c) *** A person convicted of an attempt may be fined or imprisoned or both not to exceed the maximum provided for the offense attempted ***.
(1) the sentence for attempt to commit murder shall not exceed the sentence for a Class X felony.” (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 8 — 4(c)(1).)

In other words, section 8 — 1(b) states that the sentence for soliciting an offense is the same as a sentence under section 8 — 4(c) for attempting an offense.

Both defendants assert that because the language in section 8— 4(c) only provides for a maximum sentence (“shall not exceed”) and specifically fails to mandate a minimum term of imprisonment, the court is necessarily compelled to find that solicitation to commit murder is an unclassified offense. A similar argument already has been specifically rejected by this court in People v. Musial (1980), 90 Ill. App. 3d 930, 414 N.E.2d 61, and People v. Calvert (1980), 82 Ill. App. 3d 350, 402 N.E.2d 638. Both courts held that attempt murder was not an unclassified offense but rather a Class 1 felony. Although the above cases involved attempt murder rather than solicitation to commit murder, we have already demonstrated how the two offenses are statutorily equated for sentencing purposes. Therefore, solicitation to commit murder is a Class X felony (amended from a Class 1 felony).

The sentence for a Class X felony is not less than six and not more than 30 years. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(aX3).) Pagliuca was sentenced to 20 years for solicitation to commit murder. Since solicitation to commit murder is a Class X felony, Pagliuca’s sentence was well within the statutory limit. Perez was sentenced to an extended term of 50 years’ imprisonment. Since Perez has been convicted of two Class X felonies within the previous 10 years, he was properly sentenced to an extended term of 50 years’ imprisonment for solicitation to commit murder. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 5—3.2(b)(1), 1005 — 8—2(a)(2).) Accordingly, the trial court did not invoke illegal sentences on the defendants.

In a related sentencing issue, defendant Pagliuca contends that the sentences imposed by the court were excessive and constituted an abuse of discretion. Pagliuca was found guilty of both conspiracy and solicitation to commit murder and was sentenced to seven years and 20 years respectively.

The length of sentence to be imposed upon the convicted defendant is a matter that lies within the sound discretion of the trial court, and absent an abuse of discretion, a sentence will not be disturbed on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) In the instant case, the evidence conclusively showed that Pagliuca conspired with Perez to murder a witness, Ramona Rodriguez, and that Pagliuca solicited James Houtsma to murder Rodriguez. The sentence for conviction of conspiracy to commit murder, a Class 2 felony (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 2(c)), is not less than three years and not more than seven years. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — -8—1(a)(5).) Therefore, Pagliuca’s seven-year sentence was within the statutory limit. As previously discussed, Pagliuca’s 20-year sentence for solicitation to commit murder was also well within the statutory limit. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(3).) Therefore, the trial court did not impose excessive sentences constituting abuse of its discretion.

The defendant, Perez, next contends that his right to due process was violated when the trial court refused to instruct the jury on his entrapment defense. The defendant asserts that even though he did not take the stand to testify, the entrapment defense was still raised through evidence presented in Middleton’s testimony.

Perez contends that Middleton’s testimony reveals that Perez requested Middleton to arrange a murder for him. It further reveals that Middleton, in a coordinated effort with the State aided Perez in developing the scheme to murder Rodriguez by providing Perez with the idea of using a hit man, “selling” him on the method of eliminating the witness, arranging for an undercover officer to pose as the alleged hit man and coordinating the “fake hit” of Rodriguez. The defendant asserts that these cumulative actions of the State served to induce him to engage in criminal conduct that he otherwise would not have engaged in.

The general rule in Illinois regarding entrapment defenses states that in order to raise the issue of entrapment a defendant must admit that there was a crime committed and that he committed it, but was entrapped into doing so. (People v. Arriaga (1981), 92 Ill. App. 3d 951, 416 N.E.2d 418.) A failure to make such admission will preclude the defendant from claiming the jury should have been instructed regarding entrapment. (People v. Swimley (1978), 57 Ill. App. 3d 116, 372 N.E.2d 887, cert, denied (1978), 439 U.S. 911, 58 L. Ed. 2d 257, 99 S. Ct. 281.) The line of cases following these principles have all addressed the entrapment defense issue wherein the defendant takes the stand to testify.

In the instant case, Perez pled not guilty to the crimes charged, did not testify and did not present any evidence of facts inconsistent with his entrapment defense. The standard to be applied in this situation raises questions regarding the application of the established rule as stated above. Because it appears that Illinois has never directly responded to an entrapment defense wherein a defendant did not testify, a brief discussion of the various positions taken by the courts and their corresponding rationales would be instructive.

The holding in a majority of jurisdictions, including Illinois, is that a defendant may not deny commission of the crime and at the same time claim entrapment. (People v. Fleming (1971), 50 Ill. 2d 141, 277 N.E.2d 872; Annot., 5 A.L.R.4th 1128, 1135 (1981) (this annotation cites 24 States that maintain the majority position).) The rationale for this position is based on what has been referred to as the “inconsistency theory.” This theory focuses on the factual inconsistency of taking the stand to deny committing the predicate acts while contemporaneously making a claim of being entrapped into committing those same acts. It forces the defendant to make an election between admitting the deed and relying on the defense or denying the deed and waiving the defense. (United States v. Annese (1st Cir. 1980), 631 F.2d 1041, 1046.) While Illinois has never specifically labeled its holding “inconsistency theory” nor expressed its rationale in such definite terms, the Illinois courts have still reached the same conclusion based on the same underlying rationale. People v. Moran (1941), 378 Ill. 461, 38 N.E.2d 760, affirming People v. Parker (1941), 310 Ill. App. 307, 34 N.E.2d 110, cert, denied (1942), 316 U.S. 665, 86 L. Ed. 1741, 62 S. Ct. 945; see Groot, The Serpent Beguiled Me and I (Without Scienter) Did Eat — Denial of Crime and the Entrapment Defense, 1973 U. Ill. L.F. 254.

In contrast, a number of jurisdictions have held that a defendant may take the stand and deny the alleged criminal acts while also asserting a defense of entrapment. (People v. Perez (1965), 62 Cal. 2d 769, 401 P.2d 934, 44 Cal. Rptr. 326; State v. Harrington (La. 1976), 332 So. 2d 764; People v. D'Angelo (1977), 401 Mich. 167, 257 N.W.2d 655; State v. Branam (1978), 161 N.J. Super. 53, 390 A.2d 1186, aff’d (1979), 79 N.J. 301, 399 A.2d 299; People v. Johnston (1975), 47 App. Div. 2d 897, 366 N.Y.S.2d 198; State v. McBride (1979), 287 Or. 315, 599 P.2d 449.) This position corresponds with the law in other criminal areas, which allows the defendant in a criminal prosecution to assert inconsistent defenses. (People v. DeRosa (1941), 378 Ill. 557, 39 N.E.2d 1 (self-defense and misadventure); People v. Jersky (1941), 377 Ill. 261, 36 N.E.2d 347 (self-defense and misadventure); People v. Smith (1970), 121 Ill. App. 2d 105, 257 N.E.2d 261 (denial and voluntary manslaughter); see 21 Am. Jur. 2d Criminal Law sec. 191 (1981).) The rationale for the minority entrapment position is based on the belief that a criminal defendant should be accorded every reasonable protection in defending himself against governmental prosecution, and that the primary function of entrapment is to safeguard the integrity of the law enforcement and prosecution process. United States v. Demma (9th Cir. 1975), 523 E2d 981, 985 (en banc).

A significant variation on the two preceding positions involves a situation, as in the instant case, where the defendant has chosen not to testify. The courts that have addressed this issue have held that an entrapment defense is available to a defendant who pleads not guilty, who chooses not to testify and who does not introduce any evidence inconsistent with the defense of entrapment. (United States v. Goressel (5th Cir. 1971), 440 F.2d 602, cert, denied (1971), 403 U.S. 933, 29 L. Ed. 2d 713, 91 S. Ct. 2263; United States v. Valencia (2d Cir. 1980), 645 F.2d 1158; United States v. Demma (9th Cir. 1975), 523 F.2d 981 (en banc); Norman v. State (Tex. Crim. App. 1979), 588 S.W.2d 340, cert, denied (1980), 446 U.S. 909, 64 L. Ed. 2d 261, 100 S. Ct. 1836.) The rationale for this position is that when a defendant does not testify or introduce any evidence inconsistent with the entrapment defense, no inconsistencies appear in the record and therefore there is no contravention of the “inconsistency theory.”

We find that this position does not conflict with the Illinois standard for entrapment. Therefore we hold that a defendant who does not take the stand or offer testimony inconsistent with his assertion of entrapment is entitled to raise a defense of entrapment if the record contains some evidence that an entrapment has occurred.

The defense of entrapment is an affirmative defense and in order to raise it the defendant must present some evidence of entrapment. (People v. Fisher (1979), 74 Ill. App. 3d 330, 392 N.E.2d 975.) However as a practical matter, it has been observed that it will be difficult for a defendant to point to evidence of entrapment without taking the stand. (United States v. Demma (9th Cir. 1975), 523 F.2d 981, 985 (en banc).) In Illinois, it is well established that “entrapment can exist only when the criminal intent originates in the mind of the entrapping officer, and if such intent arose in the mind of the accused there is no entrapment, though officers may afford an opportunity for the commission of the offense and use artifice and strategem to apprehend one actually engaged in a criminal enterprise.” People v. Outten (1958), 13 Ill. 2d 21, 23,147 N.E.2d 284, 285-86.

In the instant case, the record fails to support the defendant’s assertion that there was some evidence of entrapment. The evidence reveals that Perez requested Middleton to murder a witness in a pending trial against him. Even though the State legitimately provided opportunities for Perez to further his idea to murder Rodriguez, the fact that the intent to murder her originated with Perez compels this court to find that no entrapment existed. Accordingly, Perez is not entitled to a jury instruction regarding a defense of entrapment and the trial court was correct in so holding.

Perez additionally contends that his constitutional rights to counsel and due process were violated when the court failed to sustain his motion to suppress evidence. Perez asserts that at all relevant times, he was represented by counsel and that the State deliberately elicited statements from him in direct contravention of his sixth amendment right to counsel. Perez further asserts that as a result of this constitutional violation, said statements were inadmissible at trial and that their admission was reversible error.

In October and November of 1979, while Perez was incarcerated in Cook County jail awaiting trial for charges of rape and armed robbery, he was represented by counsel. Contemporaneously, Middleton and Perez were involved in implementing a plan to murder a witness in Perez’ pending trial. At the instant trial, with the help of Middleton’s testimony regarding his conversations with Perez, the defendant was convicted of solicitation and conspiracy to murder Ramona Rodriguez.

It is well established that a defendant’s sixth amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. (Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S! Ct. 1877; People v. Earl (1979), 78 Ill. App. 3d 188, 397 N.E.2d 97.) The court in Kirby v. Illinois (1972), 406 U.S. 682, 688, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1881, held that formal charges, preliminary hearing, indictment, information or arraignment were ways of initiating adversary judicial proceedings. Once the sixth amendment right to counsel attaches, .defendant’s statements deliberately elicited by a government agent in the absence of counsel, violates that sixth amendment right. (Massiah v. United States (1964), 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199.) The court in Massiah made it clear, however, that it was entirely proper to continue the investigation of the suspected criminal activities of the defendant even though he had already been indicted. (Massiah v. United States (1964), 377 U.S. 201, 207, 12 L. Ed. 2d 246, 251, 84 S. Ct. 1199, 1207.) As cited in United States v. Moschiano (7th Cir. 1982), 695 F.2d 236, 240-41:

“It is equally clear that Massiah offers no immunity from liability for uncounselled, post-indictment statements that involve criminal acts or constitute criminal acts in themselves. Such statements, even though deliberately elicited by government agents after indictment and in the absence of counsel, may form the basis for a separate or superseding indictment and may be offered to prove such additional charges. Hoff a v. U.S., 385 U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966).”

Even though Perez was represented by counsel and his sixth amendment right had attached as a result of the indictment for rape and' armed robbery, the information deliberately elicited from Perez by Middleton did not violate Perez’ sixth amendment right to counsel. The statements elicited concerning the plan to murder Ramona Rodriguez constituted criminal acts in themselves and did form the basis for a separate indictment. Therefore, based on United States v. Mos-chiano (7th Cir. 1982), 695 F.2d 236, as it interpreted Massiah, the State did not violate Perez’ sixth amendment right to counsel, and the trial court properly denied Perez’ motion to suppress statements he made in relation to the solicitation and conspiracy to murder Ramona Rodriguez.

Both defendants also contend that their constitutional rights to due process were violated by the State’s persistent reference to unrelated crimes or criminal conduct. Specifically, the defendants allege that they suffered grave prejudice when the State elicited testimony, despite the court’s alleged earlier granting of defendant’s motion in limine to preclude such testimony, which reveals that Perez and Pagliuca had dealt with a narcotics dealer before; that Perez talked about bombing a particular location; that Middleton had saved the lives of two witnesses; that there had been an unrelated hit and a phony abduction; and that the State’s witnesses made numerous references to the bomb and arson unit and the gang crimes unit.

Initially, it is relevant to note that the trial court did not sustain defendant’s motion in limine to preclude any direct or indirect reference to unrelated criminal conduct during the trial. Rather, the court reserved its ruling because the court did not have all the evidence before it at that time. The court indicated it would make its determinations on any reference to unrelated criminal conduct as the trial progressed.

Two additional matters that can be considered before addressing the substance of defendant’s alleged violations are the purported reference to Perez’ talk of bombing a particular location and the numerous references to specific police units. As to the bombing, the defendants have failed to indicate where in the record such a reference was made in front of the jury. Said reference to a bombing was elicited from Middleton during the suppression hearing, however, this testimony was clearly not heard by the jury. Accordingly, the defendant’s claim of prejudice as to this reference is without merit. Moreover, the references made to the bomb and arson unit and the gang crime unit were used as identification of the officers’ assignment and did not raise inferences so clearly as to prejudice the defendants. Therefore, defendants’ contention of prejudice regarding the police units also fails.

In a case strikingly similar to the instant matter, the defendant in People v. Cramer (1978), 64 Ill. App. 3d 688, 381 N.E.2d 827, was charged with conspiracy and solicitation to commit murder. In Cramer, the court held that testimony of the defendant’s co-conspirator concerning a loan to him from defendant secured by marijuana was properly admitted as relevant to the course of the developing conspiracy, rather than being wholly extraneous to the relation between the parties. The standard used by the Cramer court was whether the evidence was clearly intertwined with the negotiation and progress of the conspiracy and did not concern independent and wholly unrelated conduct clearly apart from the offense charged. People v. Cramer (1978), 64 Ill. App. 3d 688, 695, 381 N.E.2d 827, 832.

In the instant case, Middleton’s testimony concerning the narcotics dealer can be readily applied to the principle espoused in Cramer. The fact that Middleton would have had his bond money provided through the aid of a “dope dealer Perez and Pagliuca knew from the neighborhood” is clearly intertwined with the negotiation and progress of the conspiracy. Middleton was solicited by Perez to kill a witness in return for bond money for Middleton’s release and safe passage out of the country. How Middleton was to be paid is relevant to the acts constituting the perpetration of the conspiracy. Likewise, Middleton’s testimony concerning his saving the lives of two witnesses, the unrelated hit and the phony abduction were not independent and wholly unrelated conduct clearly apart from the offense charged, conspiracy to commit murder. The jury was privy to all the evidence presented at trial and thus was fully aware of the State’s plan and all of its details. The evidence showed that only one witness’ life was saved and that the State arranged for the rumor of an abduction and an unrelated hit in furtherance of their efforts to arrest the defendants for the commission of the crime charged. Each of the above statements made at trial, which are now raised on appeal as being prejudicial to the defendants, was relevant to the course of the developing conspiracy.

As to the testimony concerning the narcotics dealer and the two witnesses’ lives being saved, assuming the trial court was correct in sustaining the defendant’s objections, the trial court then promptly instructed the jury to disregard that testimony and thus cured any possible prejudice that may have resulted. (People v. Wilson (1972), 51 Ill. 2d 302, 281 N.E.2d 626.) Accordingly, the defendant’s constitutional rights to due process were not violated by references to other crimes or criminal conduct.

Both defendants further contend that they were deprived of their right to due process when the State withheld material information from the defense concerning promises made to the State’s main witness. The defendants allege that as a result of the State’s failure to inform the defense that (1) Middleton had been charged with armed violence and unlawful restraint; (2) that Middleton received $150 cash from the State; (3) that Middleton had his bond lowered; (4) and that Middleton received credit against his sentence for the time he spent in the witness quarters, the jury was unable to accurately evaluate Middleton’s credibility. Consequently, the jury resolved the case differently than had they known the true nature of Middleton’s deal.

A violation of due process occurs when a prosecutor, regardless of motive, suppresses evidence material to the question of the defendant’s guilt or innocence after there has been a request for its production. (Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.) To prove that there has been a violation it must be shown that the evidence was suppressed following a request for it by the defendant and that the evidence was favorable to the defendant and material to either guilt or punishment. (Moore v. Illinois (1972), 408 U.S. 786, 33 L. Ed. 2d 706, 92 S. Ct. 2562; People v. Nichols (1976), 63 Ill. 2d 443, 349 N.E.2d 40.) Materiality in a constitutional sense is not the mere possibility that the undisclosed information might have helped the defense or affected the outcome of the trial. Rather, the omitted evidence is material if, when one evaluates it in the context of the entire record it creates a reasonable doubt of defendant’s guilt. United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392; People v. Smith (1982), 111 Ill. App. 3d 895, 444 N.E.2d 801.

In the instant case, the record reveals that although counsel for the defendants were not specifically aware of the charges of armed violence and unlawful restraint, the jury was fully apprised of all the facts of the armed robbery. Likewise, while unaware of the $150, the jury was aware of the fact that Middleton had a new suit from “unknown” sources. Additionally, the record demonstrates that the jury was clearly aware of the fact that Middleton had spent two years in the witness quarters and that as a result of that time spent there, Middleton would walk out a free man at the conclusion of the trial. The only fact the jury was not informed of was that Middleton had his bond reduced. When the nondisclosures referred to by the defendants are taken cumulatively, and evaluated in the context of the entire record, they fail to create a reasonable doubt of defendants’ guilt. Accordingly, we find that the defendants received a fair trial.

Finally, both defendants contend that their constitutional rights to trial by jury and rights to due process were violated by the systematic exclusion by the prosecutor of blacks and Hispanics from the jury. Even if we assume that the defendants’ contention is correct, the Illinois Supreme Court’s recent decision in People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220, is dispositive of this issue. In Williams, the court held that a prosecutor may constitutionally exercise peremptory challenges to eliminate blacks from the jury if no distinctive groups within the community have systematically been excluded from the jury pool. In the instant case, the defendants make no argument that certain groups within the community have been systematically excluded from the jury pool. Therefore, under Williams, we need not reach the merits of this issue.

Based on the foregoing reasons we affirm the trial court’s decision.

JOHNSON and LINN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE ROMITI JUSTICE JIGANTI,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUDITH A. HALPRIN, Defendant-Appellant.
    First District (4th Division)
    No. 81—1869
    Opinion filed December 1, 1983.
    JIGANTI, J., dissenting.
    Frank Oliver, of Northfield, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and LuAnn Rodi, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

The defendant, Judith Halprin, an attorney, appeals from an order of the circuit court of Cook County, finding her in contempt of court and fining her $1,000 for making certain statements in the presence of prospective jurors during voir dire examination. In this appeal, defendant contends that the trial court erred in finding her in contempt because of the vagueness of the court’s rulings concerning what statements were prohibited and because she was entitled to make such statements and objections in order to properly represent her client.

On July 15, 1981, defendant and two assistant State’s Attorneys appeared before Judge Arthur Cieslik regarding pretrial motions in the matter of Wayne Davis (No. 80-C-4507). Defendant represented Wayne Davis. At that time, defendant made a motion in limine to exclude the State’s prospective witnesses, who were the victims of other rapes allegedly perpetrated by Wayne Davis. After hearing the arguments of counsel, the trial court denied defendant’s motion and directed defendant to proceed with any other matters she had prior to jury selection. However, defendant refused to accept this ruling and proceeded to bring the matter up more than 20 times. Defendant also informed the court that it was not in a position to make such a ruling. Defendant then refused to proceed to her next motion despite numerous requests by the court.

After again attempting to continue with the proceedings, the following colloquy took place:

“MS. HALPRIN: I am renewing at this time my motion ***.
* * *
THE COURT: Request denied I heard the arguments on it before.
MS. HALPRIN: There is argument on it.
THE COURT: Your request is denied. Proceed. I deny it, any further comments will not be allowed and any further comment with reference with that situation existing whereby you will be in contempt of this Court, proceed.”

In response, defendant replied that she felt intimidated and asked the court to eliminate the aura of intimidation by removing the threat of contempt; however, the court denied this motion, stating that it felt that counsel was contemptuous of the court. The court further stated that “[a]ny other extracurricular statements heretofore made not probative to the matter before this Court can be cited in contempt by you by me.” Defendant responded that she intended no disrespect for the court.

Defendant then made two oral motions, which were denied by the trial court, before the prospective jurors were brought into the courtroom. However, immediately prior to the jury being ushered in, the court informed the prosecutors and defendant that any questions concerning an individual juror were to be submitted in writing unless they were very brief or for the purposes of clarification. Defendant objected to this practice in the following manner:

“MS. HALPRIN: Exclusive conduct [sic] the voir dire by the Court and the granting of peremptory challenges to the State are over the objections of the defendant. We’d have a motion that we were prepared to argue upon that voir dire. We are not allowed to argue.
THE COURT: Your motion was ruled on and I will stand on my ruling. Okay, would you bring the jury in?”

The prospective jurors were sworn, and the trial court informed them that the indictment charged Wayne Davis with the offense of rape. The court then commenced the voir dire examination of each prospective juror seeking such information as residence, prior courtroom experience, marital status, employment, family relationships and their employment, whether the juror had been victimized by crime or the accused, possible prejudice due to the nature of the charge, the ability to give both sides a fair trial, and the relationship of the juror and his family to law enforcement authorities.

At this point the State exercised its first peremptory challenge, and defendant then made the following objection in front of the prospective jurors:

“MS. HALPRIN: Judge, I am going to object at this point to the State exercising peremptory challenges and would like to be heard on that issue.”

A sidebar was then held in chambers where defendant again argued the unconstitutionality of the State’s use of peremptory challenges. While in chambers, defendant argued that defendant Wayne Davis should be present for the sidebar. However, the court denied the request. Defendant persisted in her objection:

“MS. HALPRIN: I believe that he’s entitled to be present.
THE COURT: He’s not. This is a sidebar proceeding, it’s a discretionary matter of the Court and I refuse to have him present.
MS. HALPRIN: Based on what happened I am moving that he be present.”

However, the trial court again denied this request, and voir dire was then resumed.

After a panel of jurors was examined and the prosecution accepted that panel, defendant responded to the court’s inquiry as to her acceptance of the panel as follows:

“MS. HALPRIN: Your Honor, I will move at this time that either this entire panel be dismissed or that further questioning of the panel be conducted pursuant to Chapter 78 of the Illinois Revised Statute which is the chapter dealing with jurors.
I do not think that they have been questioned—
THE COURT: Your request is denied.”

Defendant again moved to question the prospective jurors concerning their qualifications as being of fair character, integrity, sound judgment and who understand the English language. She then stated that she had no idea whether the prospective jurors were of fair character and approved integrity. The court responded, “You never will.” Defendant then asked for a mistrial on the grounds that the court would not permit her to ask a series of questions to the jurors. The court denied this motion as well as defendant’s request to question the jurors. After making this motion five more times, defendant stated that she would not be able to choose the jury. Defendant then said that the court would have to choose the jury because she could not. In response, the court stated:

“I will instruct you to make a determination on whether or not you accept this panel and if you fail to do so I will assume that you are accepting them as tendered to you.”

Defendant then denied that she was accepting the panel. In response, the court stated, “Then I will find you in contempt if you fail to do so because you are impeding the trial of this case.” Defendant replied that this was the second time she had been threatened by the court. However, the court then said that it was not a threat but a fact. After further discussion, the following colloquy occurred:

“MS. HALPRIN: I am not in a position to either accept or reject this panel. Mr. Davis had some questions that have occurred to him.
THE COURT: You are his attorney, you must resolve those questions and I am asking for a question from you.
MS. HALPRIN: I am not attempting to resolve them for him.
THE COURT: I will give you a minute or two, go ahead and resolve those problems.
(After a moment.)
MS. HALPRIN: I have explained to him as best I can what your ruling has been. He was left with some questions as am I to the sufficiency of the voir dire that you conducted and would therefore ***.
THE COURT: You have a right to exercise whatever chai-lenges you do so. I am asking you to do so at this particular time.
MS. HALPRIN: I would like to do that on some further information.”

After defendant refused to proceed with the acceptance or rejection of the panel, a recess was held. The following colloquy took place in chambers:

“THE COURT: The Court advises defense Counsel that the defendant is not necessary for the hearing that is being conducted by this Court at this particular time. The Court advises and admonishes the defendant’s attorney not to make any comments with reference to any matters involving law, matters that as — have no concern to the jury.
If you have any motions to be submitted, they are to be submitted upon the basis of a sidebar. And no comments are to be allowed and any further comments in front of this jury in any way to pollute this jury will result in this defense attorney being found in contempt of this Court period. Thank you, let’s go back out there.
MS. HALPRIN: Judge, wait a minute.
THE COURT: You heard what I said.
MS. HALPRIN: I don’t understand the ruling at all and I don’t know whether I can make objections.”

The court then further explained its ruling to defendant:

“THE COURT: *** [T]he ruling that I establish is that this attorney representing the defendant [Wayne Davis] herein is precluded from raising any questions which are of no consequence as far as the jury is concerned and that those questions are to be discussed on sidebar discussions period.”

Defendant then made a motion to withdraw as Davis’ counsel, which was denied, as was defendant’s motion for dismissal. At this point, defendant asked for a sidebar and stated to the court that, although she found it virtually impossible to make a rational decision, defendant as a “wild guess” wished to excuse one of the jurors tendered to the defense.

The trial judge then addressed the jury and apologized for any confusion. The judge indicated that he would strive to conduct himself in the highest traditions of his office and, because of this, he would not be intimidated by anybody; however, the trial judge concluded by stating that he was not making inferences about anyone. In a sidebar, defendant complained that, since she was the only individual in court to have made remarks, the court had created an inference which would be prejudicial to Davis. Defendant then requested that the panel be discharged. However, this request was denied.

Following the voir dire of another prospective juror, defendant again complained that the examination of the juror was inadequate. However, the trial court ruled that this particular juror was qualified. In response, defendant replied that upon totally inadequate information she would accept the panel. Further voir dire continued and the panel was tendered to defendant. Defendant then stated, “Judge, again based on your prior ruling limited information available to us we have no challenge.” In response, the court stated, “Okay.”

The examination of prospective jurors proceeded again until the State exercised two peremptory challenges. Defendant then renewed her earlier motion. The court replied that it understood the motion and stated that his ruling would be the same. The court then stated that some of the individuals, who had been excused, came within the purview of the defense motion. In response, defendant stated: “Judge, I have absolutely no interest in people that have excused themselves.” At a sidebar requested by the prosecution, the assistant State’s Attorneys complained that they had shown restraint but that defendant was making statements about the State’s conduct before the prospective jurors. The court then stated: “Miss Halprin one more outburst by you and I will declare a mistrial and you will be found in contempt of this Court.” Defendant then persisted in speaking in response to the prosecutor’s statement and again the trial court warned her that one more outburst would result in contempt.

Voir dire examination then continued with the State accepting the panel. At this time, defendant questioned some of the inquiries made by the court to a particular prospective juror. In response the court stated that he was satisfied with the questions and asked the defendant for challenges. The following colloquy then occurred:

“MS. HALPRIN: Then with our apologies to the jury based on our necessarily limited information Mr. Davis will excuse Mr. Keane and Mr. Weinstein.
THE COURT: You are excused, I am going to have a side bar. You are excused.”

Out of the presence of the jury the court then found this statement to be in direct violation of its previous warnings, and therefore, held defendant to be in contempt of court. Defendant then asked for the basis of this contempt and the trial court responded: “For your outburst in court when you were instructed not to make any comments with reference to the jurors in there.” The court went on to state:

“I have warned you repeatedly, you seem to ignore my warnings. You are fully well aware of restrictions that I imposed upon you.
There is no question in my mind that you knew exactly what I told you. You also knew or should have known as a trial attorney what if any comments you are entitled to make to a jury.”

Thereafter, the trial court allowed defendant’s previous motion to withdraw as counsel for Mr. Davis. This was made over Davis’ objections. After a hearing, the trial court fined defendant $1,000.

As stated above, defendant argues on appeal that her statements in front of the jury were justified as performance by counsel of necessary obligations to her client in that this was the only way she could make an intelligent use of her peremptory challenges. Defendant also maintains that the court’s prior ruling as to her statements in front of the jury was totally vague, and therefore, could not be complied with.

A trial court is vested with inherent power to enforce its order and preserve its dignity by the use of contempt proceedings. (People v. Javara,s (1972), 51 Ill. 2d 296, 299, 281 N.E.2d 670.) Direct contempt of court is defined as conduct calculated to embarrass, hinder or obstruct the court in its administration of justice or to derogate from its authority or dignity or bring the administration of law into disrepute. People v. Miller (1972), 51 Ill. 2d 76, 78, 281 N.E.2d 292.

In People ex rel. Woodward v. Oliver (1975), 25 Ill. App. 3d 66, 322 N.E.2d 240, an attorney disobeyed a court order not to discuss the trial court’s evidentiary ruling during final argument. Because of this, the trial court found that attorney in direct contempt. This court affirmed, holding that open disobedience of a court order was, in itself, sufficient to support a finding of contempt. 25 Ill. App. 3d 66, 76.

We are of the opinion that defendant’s actions and statements were in direct contempt of court. We base this conclusion on the following facts: Initially, defendant erroneously claimed in front of the prospective jury that, unless she was able to conduct the voir dire in hpr own manner, she would be incapable of selecting a jury. After the court specifically informed defendant that additional questions concerning the jury selection would have to be written unless asked only for clarification, defendant continued to argue in the prospective jurors’ presence regarding her statutory right to question them. Defendant also repeated on numerous occasions in the venire’s presence that the court’s questions were inadequate and that no rational decision could be made by her. This statement was made directly after the court had indicated that contempt sanctions might be imposed on defendant if she did not make up her mind whether or not she was going to accept that panel. Thereafter, defendant did accept the panel with the exception of one person but stated:

“Again with the totally inadequate information and in a totally uninformed challenge or process of voir dire challenge we will accept this panel.”

Defendant then continued to comment in front of the prospective jurors that because of limited information available to her she would not challenge the voir dire selection by the court. In response to such comments, the trial court informed defendant on several occasions that she had made a record for appeal concerning voir dire and that, because of this, no further, similar comments were to be made by her in front of the venire. Immediately after this warning, defendant again stated that based on her limited information she would excuse two jurors. For this reason, we feel that the trial court then properly held her in direct contempt of court since she openly disobeyed the court’s order.

It is also our opinion that defendant cannot use the theory of defense advocacy in order to justify her repeated objections. As indicated above, the trial court stated to defendant on numerous occasions that she had made an adequate record for an appeal in this matter regarding the voir dire examination, and that, because of this, further, similar questions in front of the prospective jurors would be held to be contemptuous. Nonetheless, defendant continued to make the same statements in front of the prospective jury members rather than making them in a sidebar conference or by putting them in written form. Accordingly, the trial court properly held defendant in contempt of court.

Defendant calls attention to the following comment she made prior to being held in contempt: “Judge, again based upon your prior ruling limited [sic] information available to us we have no challenge.” Defendant argues that, since this comment did not merit a warning of contempt, the trial court’s ruling on her final contemptuous remark was the result of her being poorly guided by the standards imposed upon her by the court. However, the report of proceedings in this matter indicates that defendant constantly maintained that she misunderstood even the most simple ruling. Moreover, the record also demonstrates that defendant ignored the rulings of the court on numerous occasions. Defendant’s last remark, which resulted in the contempt citation, wilfully violated a direct order which had been made to her only moments before. Defendant’s actions were not only contemptuous of the court’s rulings, but hindered the court in its attempt to conduct voir dire examination.

In further support of our conclusion, we must point out that, even if defendant believed the trial court’s order to be improper, she was obliged to obey it. (See Schallau v. City of Northlake (1979), 82 Ill. App. 3d 456, 467, 403 N.E.2d 266.) Nor do we feel that People v. Bernard (1979), 75 Ill. App. 3d 786, 394 N.E.2d 819, cited by defendant, is applicable to the present situation. Bernard involved the question of whether or not the restrictive order by the trial court lacked clarity and specificity. Here, defendant was clearly informed of what she was not to comment on before the prospective jurors; however, she constantly violated that order, refusing to recognize the authority of the trial judge.

However, the fine of $1,000 is excessive and must be reduced. (County of McLean v. Kickapoo Creek, Inc. (1972), 51 Ill. 2d 353, 282 N.E.2d 720; Harvey v. Carponelli (1983), 117 Ill. App. 3d 448.) In both County of McLean and Harvey the court held that where the penalty imposed exceeds six months’ incarceration or a fine in excess of $500 the record must reflect that the contemnor was offered a jury trial or knowingly and understandably waived that right in open court.

The record here does not disclose that plaintiff waived her right to a jury trial and therefore the court could not under County of McLean and Harvey impose a fine exceeding $500.

Furthermore, while we agree that defendant’s actions and statements were in direct contempt of court, we do not believe her conduct was so egregious as to warrant more than a minimum fine.

For the foregoing reason we affirm the trial court’s order of contempt but reduce the fine to $100.

LINN, J., concurs.

JUSTICE JIGANTI,

dissenting:

“MS. HALPRIN: Judge, again based on your prior ruling limited [sic] information available to us we have no challenge.
THE COURT: Okay.”

Later on in the proceedings:

“MS. HALPRIN: Then with our apologies to the jury based on our necessarily limited information, Mr. Davis will excuse Mr. Keane and Mr. Weinstein.
* * *
THE COURT: This court finds the attorney for the defense herein in contempt of court in violation of the restrictions heretofore imposed and accordingly proper sanctions will be imposed upon a determination at this court what sanctions are to be imposed.”

Contempt of court should be made of sterner stuff.

The written order of contempt entered almost three months after this occurrence cites those two statements as wilful violations of “orders” of the court. There was in fact only one order in the proceedings leading to the finding of contempt. Earlier in the day the court stated:

“The court advises and admonishes the defendant’s attorney not to make any comments with reference to any matters involving law, matters that as — have no concern to the jury.
If you have any motions to be submitted, they are to be submitted upon the basis of a side bar. And no comments are to be allowed and any further comments in front of this jury in any way to pollute this jury will result in this defense attorney being found in contempt of this court period. Thank you, let’s go back out there.”

The mandate of the court must be clear and the disobedience wilful before there properly may be a finding of contempt. (People v. Wilcox (1955), 5 Ill. 2d 222, 228, 125 N.E.2d 453, 456.) A party should not be put in peril of a contempt citation unless the order is definite, clear and concise in its terms. (City of Kankakee v. New York Central R.R. Co. (1944), 387 Ill. 109, 55 N.E.2d 87; see O’Leary v. Allphin (1976), 64 Ill. 2d 500, 514, 356 N.E.2d 551.) In considering the clear mandate and the proof of wilful disobedience, the court must constantly keep in mind the fact that contempt is a drastic remedy and individual liberties must be protected from abuse of the inherent power of the court to proceed with this remedy. Wilcox; People v. Loughran (1954), 2 Ill. 2d 258, 118 N.E.2d 310.

In my judgment the admonition that the trial court gave, an admonition that trial courts very frequently give, is quite general. The first statement found to be contemptuous, Halprin’s acceptance of the jury panel “based on your prior ruling limited information available to us ***,” was not even considered by the court to be contemptuous because after Halprin made the statement the court merely responded “Okay.” It was only three months later when a written order was entered that Halprin was informed that this comment was contemptuous. The second comment found to be contemptuous was her apology to the jury when she excused two jurors “based on our necessarily limited information, ***.” In my estimation those two statements are very nearly identical. It was this second statement that drew the court’s ire. Halprin was exercising the delicate responsibility of excusing jurors without either offending the two jurors being excused or offending the remaining jurors. The general admonition that Haiprin was not to “pollute the jury” or to make any comments to the jury about matters “involving law” was not a clear mandate to Haiprin that the statements that she did make would be considered wilfully disobedient.

The majority opinion alludes to proceedings that are not at issue in the specific proceedings on contempt. Haiprin was vigorous and persistent in her defense of her client, which was her right. (In re Dellinger (7th Cir. 1972), 461 F.2d 389; United States ex rel. Robson v. Oliver (7th Cir. 1972), 470 F.2d 10.) Indeed the proceedings in the trial court were not edifying. When she said that she did not have an idea whether the prospective jurors were of fair character and improved integrity, the court made a personal comment directed at her, “you never will.” Halprin was threatened with contempt very early in the proceedings and periodically thereafter. The court made a rather extended statement to the jury to the effect that “it [the court] will not be intimidated by anybody.” The obvious reference was to Haiprin and her vigorous defense. However, those matters have little to do with the issue at hand. Haiprin was found to be in contempt of court on July 15, 1981. The written order was entered on October 5, 1981. That order found two statements to be contemptuous. They were contemptuous because Haiprin wilfully refused to comply with the general order of the court that she was not to make any comments to the jury concerning law nor was she in any way to “pollute this jury.” I do not believe, as I previously stated, that the order was clear enough nor do I believe that the record shows that she was wilfully disobedient.


author: JUSTICE BARRY

text:
    THE PEOPLE ex rel. VERLA D. THOMPSON, Mercer County Treasurer and Ex-Officio County Collector, Plaintiff-Appellant and Cross-Appellee, v. FLORENCE ANDERSON et al., Defendants-Appellees and Cross-Appellants.
    Third District
    No. 82—0598
    Opinion filed November 29, 1983.

      David E. Zwicker, State’s Attorney, of Aledo (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for appellant.
    John R. Lewarne, of Rock Island, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

This appeal involves 1979 property tax objections filed by certain taxpayers challenging the validity of township multipliers adopted by the Mercer County Board of Review. These objections were first disposed of by an agreed order, but after the trial court allowed a motion by the State’s Attorney to vacate that order, a hearing was held, and the court ruled that the multipliers were invalid. The State has appealed from that ruling.

, We believe the determinative issue in this case is whether the trial court properly vacated the order which had been entered upon agreement of the parties. In order to understand that issue, however, it is necessary to set forth the events which led to the filing of tax objections in the first place.

On August 8, 1979, all individual property assessments for Mercer County were published as is statutorily required for each quadrennial assessment year. The publication notice stated that the published valuations were subject to equalization by the State of Illinois and to revision by the Mercer County Board of Review. In mid-October of 1979 the county supervisor of assessments, Earl Kissler, received a notification from the State that a tentative county-wide multiplier of 1.4860 had been proposed for Mercer County for 1979. In order to forestall adoption of this county-wide multiplier, the board of review proceeded to compute township multipliers. (In May of 1980 the Department of Revenue certified a multiplier of 1.0554 for Mercer County for the year 1979.)

The board of review during late October of 1979 published notices of the proposed township multipliers and of hearings where taxpayers would have an opportunity to voice objections. According to the record on appeal, at least 300 taxpayers attended one of those hearings. After the hearings were held, the board of review met on November 30, 1979, and adopted the multipliers as proposed. The action of the board establishing township multipliers was subsequently published on December 26 and 27, 1979, but the resulting upward revisions of the assessed valuation of each individual parcel of property were not published.

Sixty-nine persons filed objections to taxes in the cause filed by the county collector to collect delinquent taxes. Those objections sought refunds of real property taxes previously paid under protest and included allegations of several errors by taxing officials. Stated briefly, those objections asserted that each dwelling was assessed without regard to factors that would depreciate its value, that each parcel was assessed at a higher percentage of fair cash value than other property, that no notice of change in assessment had been mailed to objectors, that the publication of the quadrennial assessment was misleading and failed to inform them of the level of assessment or of the possibility that the board of review would attempt to equalize the assessments, that the publication of the board of review’s notice of proposed increase in assessment was misleading, and that the method and procedures used to arrive at assessed values as listed on objectors’ tax bills were illegal. Some objectors also claimed, inter alia, that their real property was being taxed doubly, that lesser grades of land had been arbitrarily valued by use of a percentage increase rather than on productivity, that Mercer County assessments were excessive as compared to other counties, that the persons performing assessments were not qualified, that the multipliers were not uniform among townships, were illegally applied, and that tax bills failed to reflect assessed values before application of multipliers.

These objections were filed dining October of 1980, and on November 26, 1980, a “Compromise Agreement” was entered into between counsel for the objectors and the Mercer County State’s Attorney, John D. Sloan. According to testimony adduced at subsequent hearings, Sloan did not notify the county collector or the treasurer of any other taxing units that he was involved in negotiations with the tax objectors, although he did ask the county supervisor of assessments for information concerning board of review actions.

The compromise agreement stated that it was agreed that the county-wide multiplier on farm land be declared null and void and that a refund be awarded representing the difference between the actual tax paid and the corrected tax based upon the assessed valuation times the applicable tax rate. The agreement further stated that each parcel of nonfarm land was valued by methods that were illegal and “contrary to the provisions of Chapter 120, par. 589.1, Illinois Revised Statutes” which requires analysis of 25 property transfers or appraisals when determining a multiplier and which further limits the increase in the aggregate assessment for a township to 25% in one year. It was agreed that all nonfarm landowners were entitled to a refund of those taxes representing the difference between the actual taxes paid and the amount that should have been paid upon the listed assessed value times the State multiplier, less any exemption, times the tax rate. Attached to the agreement were exhibits setting forth the computations of refund in accordance with the formulae agreed to by the parties. Circuit Judge Jay Hanson entered an order approving the compromise agreement and directing the county collector to pay to each objecting taxpayer the amount of refund shown on the exhibits. These exhibits had been prepared by the taxpayers and submitted to the State’s Attorney for his approval.

John Sloan’s term of office as State’s Attorney ended on December 1, 1980, and David Zwicker then assumed that office. The county board of supervisors met December 2 and requested the new State’s Attorney to see if the compromise agreement could be vacated, and thereafter the State’s Attorney filed the motion to vacate the compromise agreement and order, requesting the court to grant a rehearing and to grant leave for all Mercer County tax levying units to intervene. The motion to vacate asserted errors in the calculation of refunds, stated that section 108a of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 589.1) did not take effect until January 1, 1980, and asserted numerous other errors of law and fact.

After an extensive hearing on the- motion, Judge Hanson entered an order vacating the compromise agreement and ordering a hearing on the objections. The court based its ruling upon the fact that the a'greement was entered into by State’s Attorney Sloan without notice to or consent of county officials or other taxing bodies involved. In its written opinion, the trial court stated that the State’s Attorney has an attorney-client relationship with the county board and that an absence of notice to the county officials “smacks of simple lack of due process and fairness.” The court did not consider the other issues raised in the motion to vacate.

Subsequently a hearing on the objections was held before Judge David DeDoncker and an order was entered invalidating the township multipliers and directing that tax refunds be computed using the assessed valuations as originally published on August 8, 1979, to which should be applied the State multiplier and any exemptions.

The State has appealed from Judge DeDoncker’s order, claiming that the township multipliers were adopted in conformity with statutory requirements and should have been upheld. As indicated above, we do not reach that question because we have concluded that Judge Hanson erred in vacating the compromise agreement and order; thus, eliminating the need for a hearing before Judge DeDoncker.

In his opinion deciding that the agreement should be vacated, Judge Hanson, in addition to expressly finding that the State’s Attorney has an attorney-client relationship with the county board, found that the statutory authority to enter into compromise agreements “necessarily implies the consent of those people he represents as an attorney, including all of the people of Mercer County, but specifically the County Board and other county officials who would have the burden of carrying out the agreement. ***. Even if not technically required, such a total absence of notice to the County officials involved, when they were opposed to such action, or to other taxing bodies when they may be involved, smacks of simple lack of due process and fairness.” We do not agree.

Section 194 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 675) sets forth the procedure for objecting to taxes, and contains the requirements for notices, as follows:

“The county clerk shall, within 30 days from the last day for the filing of objections, notify the duly elected or appointed custodian of funds for each tax levying unit, whose tax monies may be affected by such objection, that such objection has been filed. *** The State’s Attorney shall also notify such custodian and the county clerk in writing of the date, time and place of any hearing before the court to be held upon such objection or amended objection not later than 4 days prior to the hearing thereon.”

The State’s Attorney’s authority to compromise tax objections is contained in section 194a of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 675a):

“Upon the filing of an objection under Section 194 ***, the court must, unless the matter has been sooner disposed of, within 90 days after such filing hold a conference between the objector * * * and the State’s Attorney. If no agreement is reached at the conference, the court must, upon the demand of either the taxpayer or the State’s Attorney, set the matter for hearing within 90 days of the demand. Compromise agreements on tax objections reached by conference between the objector *** and the State’s Attorney shall be filed with the court, and the State’s Attorney shall prepare an order covering the settlement and file same with the clerk of the court within 15 days following said conference.”

From these provisions, it seems clear that the State’s Attorney has authority to negotiate and enter into compromise agreements with objectors in order to dispose of tax objections by settlement. Compromise agreements do not require formal hearings before the court, but rather culminate in an order being entered. Only where a compromise is not reached and a hearing is held must the State’s Attorney give a notice of the hearing to the custodians of all the taxing units involved. In the case at bar, State’s Attorney John Sloan did not omit any statutory requirements when he negotiated the compromise agreement and arranged for entry of an order incorporating the agreement without prior notice to any county officials or officials of other taxing units. In the absence of a hearing, no notice was required.

Parenthetically, we would observe that it might have been better practice for the State’s Attorney to inform the concerned public officials of the proposed settlement, but it would be unrealistic to require the officers of all affected taxing units to agree or consent to a compromise worked out by the State’s Attorney. It was, we think, for the purpose of expediting the disposition of tax objections that the legislature did not require notice in advance of compromise agreements.

The duties of the State’s Attorney are specified by statute to include the duty “[t]o commence and prosecute all actions and proceedings brought by any county officer in his official capacity.” (Ill. Rev. Stat. 1981, ch. 14, par. 5(3).) This cause is an application for judgment brought by the county collector, and pursuant to the above-quoted statute, it was the duty of the State’s Attorney to commence and prosecute this action. A similar provision is contained in the statute defining the statutory duties of the Attorney General of the State. In section 4 of “An Act in regard to attorneys general and state’s attorneys” (Ill. Rev. Stat. 1981, ch. 14, par. 4), the duties of the Attorney General include “[t]o institute and prosecute all actions and proceedings in favor of or for the use of the state, which may be necessary in the execution of the duties of any state officer.”

The Attorney General has been held to be the chief legal officer of the State with the duty of acting as legal adviser to and legal representative of State agencies and officers. In Environmental Protection Agency v. Pollution Control Board (1977), 69 Ill. 2d 394, 372 N.E.2d 50, the Illinois Supreme Court said:

“It seems to us that if the Attorney General is to have the unqualified role of chief legal officer of the State, he or she must be able to direct the legal affairs of the State and its agencies. Only in this way will the Attorney General properly serve the State and the public interest.” (69 Ill. 2d 394, 401-02, 372 N.E.2d 50, 53.)

The court concluded that the Attorney General could properly represent two State agencies even though they were opposing parties because only in that way can he or she serve the broader interests of the State. See also People ex rel. Scott v. Briceland (1976), 65 Ill. 2d 485, 359 N.E.2d 149.

Our courts have held that the State’s Attorney is a part of the executive branch of government vested with the discretionary powers of an executive officer (People v. Stinger (1974), 22 Ill. App. 3d 371, 317 N.E.2d 340), and it has been said, “The sanctity of prosecutorial discretion should not be cavalierly discarded.” (People v. Thompson (1980), 88 Ill. App. 3d 375, 379, 410 N.E.2d 600, 603.) We believe that the executive powers of the State’s Attorney as the legal representative of county government correspond to those of the Attorney General as the chief legal officer of the State. (See Ashton v. Cook County (1943), 384 Ill. 287, 51 N.E.2d 101.) In an action like the one before us, where multiple units of government have an interest in the outcome and where the county collector is the petitioning party, the public interest is best served by recognizing the authority of the State’s Attorney to control this litigation on behalf of the collector, and all other taxing bodies affected. In other words, this was not an ordinary attorney-client situation, and the county board was not the “client” in any event. The State’s Attorney as an elected public official had a duty to conduct this litigation and had express authority to enter into a compromise agreement without the approval of any of the taxing units that might ultimately be affected. To the extent the trial court ruled to the contrary, that ruling was erroneous.

We also believe the trial court overlooked the contractual nature of the agreement between the State’s Attorney and the objectors. The general rule has been stated as follows: “Once the parties have entered into an agreement settling a disputed claim, neither party will, in the absence of any element of fraud or bad faith, be permitted to repudiate it.” (15A Am. Jur. 2d Compromise & Settlement sec. 7 (1976).) This rule would bar the State’s Attorney (both Sloan and his successor) from seeking to vacate the agreement on the grounds that a better result should have been reached, or for any other reason short of fraud or bad faith. As we have indicated above, the tax objections filed in this cause contained numerous allegations of errors and illegalities. They were, in effect, overruled as a part of the compromise. Interestingly, after a full hearing on the objections before Judge DeDoncker, the court reached virtually the same result as was attained in the compromise agreement. Thus, with the advantage of hindsight, we can see that the compromise was reasonable.

During the hearing before Judge Hanson on the motion to vacate, a witness (who is now the supervisor of assessments for Mercer County) testified on behalf of the taxpayers that she did the computations of refunds for the order that was entered on the compromise agreement, and she admitted that she erroneously applied the “owner occupied exemption” in several instances because she lacked the correct figures for the previous year’s assessment. That exemption should be applied only when the assessed valuation increases from one year to the next. By eliminating the township multiplier, the increases were also eliminated. Since neither side disputes that an error was made in the computation of refund, this would be an appropriate case for the court to permit a reformation of the compromise agreement so as to comply with the reasonable expectations of the parties. (See 15A Am. Jur. 2d Compromise & Settlement sec. 43 (1976).) We accordingly hold that this cause should be remanded with directions to recompute the refunds provided in the compromise order by eliminating the wrongfully applied exemptions.

The objectors have also cross-appealed from an order entered by Judge Michael Brinn on October 27, 1981, which denied reimbursement of a $10 filing fee charged by the circuit clerk against 68 of the tax objectors. The objectors contend that only one filing fee should be charged for all 69 objectors where the same allegations are contained in the pleadings filed. The statute provides that a $10 fee shall be charged “[flor each paper containing one or more tax objections, and filed by a taxpayer ***.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 25, par. 27.1(m).) This statute had previously required a $10 filing fee for “each tax bill objected to” but was amended by Public Act 81 — 331, effective August 30, 1979, for the express purpose of preventing an entire subdivision from joining in one tax proceedings while paying only one filing fee. We take judicial notice of the fact that each tax bill will have to be recomputed, that separate refund checks will have to be prepared for each taxpayer, and other processing corrections made. The paperwork involved in processing tax objections fully justifies the imposition of a separate filing fee of $10 for each taxpayer. We affirm Judge Brinn’s order.

We do not reach the other issues argued on appeal since they relate to Judge DeDoncker’s rulings after the motion to vacate was granted by Judge Hanson.

For the reasons indicated, we reverse the May 7, 1981, order of the circuit court of Mercer County that vacated the compromise agreement and the order of July 21, 1982, in favor of the tax objectors after the hearing on the merits.

We affirm the order denying a refund of filing fees. We reinstate the order approving the compromise agreement and remand this cause for recomputation of tax refunds in accordance with this opinion.

Reversed in part; affirmed in part; and remanded with directions.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT FEAGANS, Defendant-Appellant.
    Fourth District
    No. 4—82—0605
    Opinion filed November 23, 1983.
    Rehearing denied January 9, 1984.

      Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

Robert Feagans appeals from his convictions and sentencing, following a jury trial, for murder and armed robbery. He received a six-year term of imprisonment on the armed robbery conviction and a 60-year term on the murder conviction. On appeal, he asserts as grounds for reversal (1) that the trial court erred in refusing the tendered instruction of the defense on voluntary intoxication and (2) that it also erred in admitting into evidence certain allegedly prejudicial color slides of the victim’s body. The defense also argues that the armed robbery conviction must be vacated as it is a lesser included offense of the murder conviction. Concerning sentencing, the only issues raised focus on whether the court abused its discretion in sentencing Feagans to an extended term on the murder count.

The record reveals the following facts. On March 18, 1982, 42-year-old Charles Cummings, an employee of Precision Products in Springfield, cashed his payroll check at a grocery store there. He then stopped for a couple of drinks at a bar. Later in the evening he went to Pete and Bud’s Lounge for more drinks. He sat at the bar. Shortly after Cummings arrived, the defendant Robert Feagans, his brother Leslie, and David Landers entered the tavern. The three played pool and drank at Pete and Bud’s. After a while, either the defendant or Landers struck up a conversation with Cummings, who eventually bought several “rounds” of drinks for the three men. When they decided to go to another tavern, Cummings accompanied them. At the next tavern, the Porthole, they again played pool and Cummings bought more beer. When a disturbance began, they left. They may have left either in one or two vehicles, as the record is unclear on this point.

In any event, by the time the four arrived at the next tavern, the Runway Tavern, they were all riding in Landers’ auto and were all “pretty well” intoxicated, according to the bartender there. Cummings had to be held up by two of the men. When the bartender refused to serve them, Leslie Feagans bought a six-pack and they went to the car. According to a statement given by defendant to police at the end of April, which was admitted into evidence during the State’s case, it was after they left the Runway Tavern that Landers suggested that they “roll” (rob) Cummings. The defendant stated that he was against the idea, but Landers indicated that Cummings would not be hurt and would be released after the robbery. They continued to ride around in Landers’ auto, with the defendant and Cummings in the back seat and Landers, with Leslie Feagans, in the front seat. They continued driving and drinking for about an hour. Landers drove north on Route 29 out of Springfield, and then turned around and headed back into town.

During the return ride, Landers again stated his desire to rob Cummings. The defendant, in his statement, said that he told Landers to do what he wanted, but he and his brother wouldn’t help at all. Landers then threatened them. At this point, Landers gave Leslie Feagans a stick, from under the seat, and told Leslie to hit Cummings. When Leslie said no, Landers passed the stick to the defendant, who also refused to hit Cummings. Landers then told Cummings to remove his clothing, which he did. Landers went through the pockets of Cummings’ clothing, finding approximately $3. Cummings put his clothes back on. At some point hereabouts, Landers threatened to kill Cummings, because he could “identify them.” The defendant told police that he protested, telling Landers to keep him and his brother out of it. Landers, according to the defendant, threatened them if they wouldn’t help. Leslie Feagans then stuck a pipe in Cummings’ mouth and the defendant tore up his shirt and tied Cummings’ hands and feet. These actions were taken, according to defendant, in response to Landers’ threats and direction. The defendant stated that he tried to make his knots loose, so that Cummings could walk home.

About one-half mile before the Route 29 bridge over the Sanga-mon River, Landers indicated that he was going to throw Cummings into the river. The victim was nervous and well intoxicated. No attempt was made by him to defend himself. Landers threatened the defendant Robert Feagans against making any attempt to help Cummings. At this time Leslie Feagans had almost passed out, from his intoxication. At the bridge, Landers pulled over and stopped the car, with the passenger side toward the water. He opened the door and pulled Cummings out. The defendant, in his statement to police, stated that he wanted to help Cummings, but was afraid of Landers. Landers picked up Cummings, hit him on the back of his head and then threw him over the bridge railing into the river. The defendant stated that while this sobered him up quickly, it was too late for him to take any action.

On the return ride to Springfield, Landers disposed of the remainder of Cummings’ clothing and dropped the defendant and his brother at Robert Feagans’ truck. They then drove to his brother’s home and spent the night.

Other State’s evidence supplemented, and at times contradicted, the defendant’s statement to police concerning the robbery and murder. Larry Chronister, who lived with the defendant’s ex-wife in the same trailer park as defendant, testified that the defendant visited his ex-wife on March 19 or 20, asking her to cut and dye his hair, so he wouldn’t be recognized. In conversations with Chronister on the 20th of March the defendant asked how long a weighted body would take to surface and float in the river. According to Chronister, during the conversation the defendant admitted that he had killed someone, saying he had thrown someone off a bridge into the river a couple of days earlier. Also testifying was Leslie Feagans’ wife, Donna, who stated that the defendant told Leslie to shut up on March 19, when he was talking with her. The defendant also told her that he tied a man’s hands and that Landers had thrown him over, without further elaboration. He told her it didn’t bother him.

In his statement to police, the defendant stated that Landers threatened to kill him and his brother if they said anything about the murder. Authorities began searching the river for Cummings in late April, with no initial success. On April 29, 1982, the defendant voluntarily accompanied detectives to the station for questioning. There he gave them an oral statement and the written one.

Wayne Franklin, a boyfriend of the defendant’s sister, also testified to conversations he had with the defendant around the time of the killing. During the conversations the defendant admitted the events of the night of the murder, indicating at first that he was an innocent bystander, with Leslie and Landers the participants. Later he admitted to Franklin that Leslie had passed out and he had tied Cummings up, while both he and Landers had thrown Cummings into the river.

Cummings’ body was found on May 2, 1982, near the Route 29 Sangamon River Bridge. The body was photographed where it was found by two fishermen. The body still had trousers on and one sock. A pants pocket was turned out, and strips of cloth tied to the neck, right ankle and left wrist. The defendant was arrested on May 2, 1982, and charged with armed robbery, murder and felony murder.

The only other State’s witness at trial was the pathologist who performed the autopsy. He stated that he found three $20 bills in the sock on the body. The body was in a state of severe decomposition. There were no external wounds found and no evidence of trauma. A blood sample from the lungs indicated an alcohol content of .29, and the pathologist could not specify the content at the time of the death. The pathologist testified that he removed the ties from the body. Photographic evidence of the body, being colored slides, was admitted over defense objection that it was highly inflammatory and prejudicial, with little probative value.

The only witness for the defense was the defendant himself. Pertinent additional information set forth in his testimony included the fact that he had not met Landers before that fateful night, Landers having just gotten out of prison. The defendant stated that he could not recall who took the money from Cummings, but testified that he did not receive any of it. He also testified, consistent with his statement to the police, that he attempted to convince Landers to release Cummings unharmed, but was unsuccessful. Although at first stating that he didn’t realize Landers’ intentions, on cross-examination he admitted that he knew something was going to happen and someone might be killed. He repeated that Landers had threatened both him and his brother if they did not help him and follow his directions. He admitted tying Cummings’ hands and feet, but stated that he made the knots loose. He further stated that he did not get out of the car at the. bridge and Landers had tossed Cummings over the side. In most other substantial respects, his testimony was consistent with the statement he had given to police in late April. The defendant denied telling Chronister that he had thrown a man into the river, and contradicted Franklin’s recollection of their conversation.

During the jury instruction conference, the trial court rejected a defense instruction based upon the defense of voluntary intoxication. The court found that there was no evidence that the defendant was incapable of acting knowingly, which was a requisite element of the intoxication defense. Ill. Rev. Stat. 1981, ch. 38, par. 6 — 3(a).

After deliberating for slightly more than three hours, the jury returned guilty verdicts for both murder and armed robbery. The pre-sentence report indicated three prior misdemeanor convictions, with no juvenile history. The defendant was married to his second wife, at the time of the hearing, with a child by each wife. He had auto mechanic skills.

The trial court imposed a sentence of six years’ imprisonment on the armed robbery charge, but an extended term of 60 years on the murder conviction. In commenting upon the latter, the trial judge emphasized the heinous and senseless nature of the murder. Sentences were made to run concurrently. This appeal followed.

As a question on appeal is raised with respect to unequal treatment of the three men in sentencing, it is noted that David Landers was convicted, after a jury trial, of the murder and armed robbery and sentenced to an extended term of 65 years, to run concurrently with a 10-year term on the armed robbery charge. His appeal is pending. Leslie Feagans was tried before a jury and convicted of murder and armed robbery, receiving a 35-year term and a 10-year term, respectively. (People v. Feagans (1983), 118 Ill. App. 3d 991.)

The first issue raised by the defendant is whether the trial court erred in refusing to instruct the jury on the defense of voluntary intoxication. We find no error with the instructions. A defendant is entitled to have the jury instructed on his theory of defense, where the defense has a foundation in the evidence, however slight. (People v. Stombaugh (1972), 52 Ill. 2d 130, 284 N.E.2d 640.) The defense of voluntary intoxication is available where there is evidence of both intoxication and a resultant negation of the existence of the requisite mental state for the crime charged. (Ill. Rev. Stat. 1981, ch. 38, par. 6 — 3(a).) In the case at bar, while there was evidence of the defendant’s intoxication, there was no evidence supporting a finding that his intoxication was so extreme as to suspend all reason, or to render him incapable of acting knowingly. (People v. Moon (1982), 107 Ill. App. 3d 568, 437 N.E.2d 823.) As in the Moon case, here the defendant’s own statements, both that given to police and his trial testimony, belie any contention that the intoxication was sufficient to negate the mental state requirements for murder, armed robbery, and accountability under the felony murder count. The defendant’s own account of the night of the murder establishes his capabilities, despite the intoxication, to act knowingly and intentionally, without significant impairment of reasoning. There was no evidence indicating otherwise presented to the jury. The defense argues, incorrectly, that the evidence of intoxication, coupled with the State’s duty to prove a mental state, requires giving the instruction on voluntary intoxication. It is only where there is evidence that the intoxication negated a requisite mental state that the instruction is to be given, and the defense points to no such evidence. We find the court correctly disallowed the defendant’s tendered instruction based upon voluntary intoxication.

The next issue is whether the trial court abused its discretion in permitting the pathologist’s testimony to be illustrated through the showing of color slides of the victim’s body. It is contended that the slide evidence was highly inflammatory and prejudicial, as it displayed the gruesome appearance of the decomposed body. As was noted in People v. Hicks (1981), 101 Ill. App. 3d 238, 242, 427 N.E.2d 1328:

“The trial court has discretion to admit photographs in a criminal prosecution. The court should balance the probative value of the photos against their prejudicial effect. The decision of the trial court will not be reversed absent an abuse of discretion. [Citation.] Trial courts have discretion to admit a photograph if it is probative, even if the photo is also gruesome. [Citation.] In the case at bar, the photographs corroborated and aided the testimony of the pathologist. Therefore, the trial court did not abuse its discretion in the admission of the photographs into evidence. [Citation.]”

The slides here objected to were close-ups of the corpse, all but one depicting the knots of clothing on the victim that were used to bind his hands and feet, as well as gag him. Another focused upon the pants with the pocket turned out. These photos were illustrative and corroborative of the previous testimony by the pathologist. In addition, they focused upon the results of the defendant’s activity in binding the victim. This activity, and how it was done, was a principal focus of the State’s accountability theory, and was discussed by the defendant in his written police statement, entered into evidence. It was probative of that activity and the manner in which the defendant carried it out. Trial courts must approach potentially prejudicial photos with caution, and deny admission where they have little probative value. (See People v. Coleman (1983), 116 Ill. App. 3d 28, 451 N.E.2d 973.) As noted, the decision is initially within the discretion of the trial court, and a number of courts have permitted photographs, albeit gruesome, where they corroborate and explain a pathologist’s testimony on probative matters. (People v. Hicks; People v. Owens (1976), 65 Ill. 2d 83, 90, 357 N.E.2d 465.) The State, in the Coleman case, could not point to any probative value of the photographs on the issues of identity and cause of death. Moreover, the court there declined to determine whether introduction of the photographs, by themselves, would have constituted reversible error. In the instant case, they had probative value and were supplemental to and illustrative of the pathologist’s testimony on material questions. The trial court determined that their prejudicial effect did not outweigh their probative value, and we find no abuse of discretion in that ruling.

The third issue raised by the defense is whether the defendant’s armed robbery conviction must be reversed and vacated because armed robbery is a lesser included offense of felony murder. We address the issue over the State’s contention that it was waived by defense counsel’s failure to include it in his post-trial motion. The jury was given an instruction containing both the murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(2)) and felony murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(3)) theories, as well as a separate instruction for armed robbery. In addition to the guilty verdict on armed robbery, the jury returned a general verdict finding the defendant guilty of murder, without specifying either murder or felony murder as its basis. The defense position is that since the verdict was ambiguous, the ambiguity must be resolved in favor of the defendant and the jury should be held to have found the defendant guilty of the lesser offense of felony murder. Under the defense argument, since the armed robbery was the basis of the felony murder conviction, it should be vacated as a lesser included offense. (People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823; People v. Abrams (1982), 109 Ill. App. 3d 901, 441 N.E.2d 352.) The main weakness with this argument is its assumptions concerning the effects of a general verdict. While ambiguities in a criminal statute must, under settled principles, be construed in favor of a criminal defendant (People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627), that is not the case with a jury’s verdict. It is established that where the jury renders a general verdict, it is presumed to be based on any good charge to which the proof is applicable. (People v. Lymore (1962), 25 Ill. 2d 305, 307-08, 185 N.E.2d 158; People v. Brown (1980), 83 Ill. App. 3d 261, 403 N.E.2d 1324.) Thus, the general verdict (which form was not objected to by defense counsel, according to the record) of guilty for murder was sufficient, on the facts, for conviction of both the 9 — 1(a)(2) theory or the 9 — 1(a)(3) felony murder. Had the court entered convictions for both, however, the 9 — 1(a)(3) conviction would have to be vacated, as the lesser offense. (People v. Martin (1983), 112 Ill. App. 3d 486, 504-05, 445 N.E.2d 795; People v. Bone (1982), 103 Ill. App. 3d 1066, 1068-69, 432 N.E.2d 329. See also People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) The trial court properly did not enter convictions on both the knowing murder and felony murder counts, thereby avoiding error. It entered a single conviction for murder. In light of the requirements of the above cases, it must be concluded that the conviction entered by the court was for the greater murder charge, the section 9 — 1(a)(2) knowing murder. Since armed robbery is not a lesser included offense of that murder conviction, the armed robbery conviction need not be vacated.

The final issue is whether the court erred in imposing an excessive extended-term sentence of 60 years on the defendant for the murder conviction and whether there is an unconstitutional disparity in sentencing among the participants. We find no error. It is firmly established that sentencing is -within the discretion of the trial court. The court, in entering the extended term, noted it was based upon the fact that the crime was accompanied by exceptionally brutal and heinous behavior, indicative of wanton cruelty. That finding is supported in the evidence. It is clear that the defendant actively participated in binding the hands and feet of the victim and that he knew of, and possibly participated in, the ultimate action in throwing the victim off the bridge. As to any disparity between the defendant’s sentence and his brother’s, such is justified on the basis of the defendant’s admittedly more active role in the crimes. By the defendant’s statement, and according to his brother’s as well, Leslie Feagans had passed out during the actual removal of Cummings from the car and his being thrown into the river. It is firmly established that there is no unconstitutional disparity where the disparity in treatment is warranted by differences in the nature and extent of the concerned defendants’ participation in the offense. (People v. Godinez (1982), 91 Ill. 2d 47, 55, 434 N.E.2d 1121.) That is true in the instant case.

For the reasons stated, the judgments of conviction for murder and for armed robbery are affirmed.

Affirmed.

SCOTT and BARRY, JJ., concur.