text:
    GLORIA SIKORSKI, Petitioner-Appellee, v. BRUNO SIKORSKI, Respondent-Appellant.
    First District (4th Division)
    No. 83—453
    Opinion filed September 27, 1984.
    Paul R. Jenen, of Wheeling, for appellant.
    Kaufman, Litwin & Zurla, of Chicago (Stuart Litwin, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Respondent, Bruno Sikorski, appeals a decision of the trial court requiring him to pay attorney fees in the amount of $21,667.50. He raises the following issues for review: (1) whether the trial court had jurisdiction to award petitioner fees for work performed by her counsel prior to the commencement of her 1979 action; (2) whether the trial court abused its discretion in awarding petitioner’s counsel $21,667.50 in attorney fees; and (3) whether the trial court erred in denying his amended motion to vacate.

We reverse and remand.

On January 10, 1979, Gloria Sikorski filed a petition for dissolution of marriage from respondent. On March 6, 1981, a judgment for dissolution was entered. All issues were resolved except for the payment of fees for petitioner’s attorney and for a sequestrator. Martin Tuchow, her attorney, filed a petition for attorney fees pursuant to section 508 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 508), asking a total amount of $38,556.25. The case was set for hearing on November 19, 1981, but it was continued until January 1982. There is a dispute as to whether the date was January 12 or January 15, 1982.

On January 12, 1982, a hearing was held on Tuchow’s petition for fees. Respondent was not present. Tuchow testified that a divorce petition was filed on behalf of his client in 1977. He proceeded with the case even though it had been dismissed, because he received no such notice. In 1979, when Tuchow learned of the dismissal, he filed another divorce petition.

Tuchow presented to the court an exhibit purporting to be a loan application made by respondent to a savings and loan association. On the application, respondent reported that his gross monthly income was $2,900. Tuchow stated that respondent had an airplane and a van and traveled frequently. Tuchow testified that Mrs. Sikorski’s monthly income was $720 and that she was the sole support of her children. Tuchow’s hourly rate was $125 for office time and $150 for court time. The number of office hours totaled 145 and the number of court hours totaled 115 in the case.

Tuchow also testified that respondent paid three of his seven attorneys a total of $14,500 in fees. According to Tuchow, respondent told his ex-wife that his tactic would be to fire his lawyer, then select a new one to prolong the proceedings. Tuchow defended about 29 petitions in the case.

The trial judge stated that it was “clear” that respondent had sufficient resources to pay his ex-wife’s attorney fees and that he was responsible for the “incredible” number of court appearances. The court approved 123V2 hours of office time at an hourly rate of $110, and 61 hours of court time at a rate of $132.50. The judge stated that he could not award fees for the 1977 case, which was dismissed, but that he knew from his personal experience that work on the earlier case “significantly reduced the amount of court time that otherwise would have been involved in a ’79 proceeding.” The court allowed a higher hourly rate than the appellate court might approve because the 1977 and 1979 cases were related and “it would be absolutely unfair *** to permit Mr. Sikorski to get away with murder as far as the reasonable procedure of a case through the court system [is concerned].”

On February 17, 1982, respondent made a “motion to vacate any order, if any entered on or about January 15, 1982.” At a hearing on October 28, 1982, Charles Fleck, formerly the presiding judge of the domestic relations division of the circuit court, testified that he heard motions on the Sikorski case for three years. Fleck brought his trial book for January 1982. The Sikorski case was scheduled for a hearing on fees at 2 p.m. on January 12, 1982. Respondent did not appear. According to Fleck’s book, January 15, 1982, was a holiday, the birthday of Martin Luther King, Jr. Tuchow also testified that at the November hearing the case was set for a January 12 hearing on his petition for fees.

Respondent testified that at the November hearing he was not represented by an attorney, and that he was told that the next court date would be January 15, 1982. He told his friend, Ann Jordan, who accompanied him to court, that the next date was January 15. On that date, he and Jordan came to the building, but it was closed. Jordan corroborated respondent’s testimony. Respondent stated that he never received written notice of the January hearing date. Respondent was given leave to file an amended motion to vacate, but at a February 15, 1983, hearing, the amended motion to vacate was denied. Respondent appeals.

The threshold issue in this case is whether the trial court improperly denied respondent’s amended petition to vacate the order requiring him to pay petitioner’s attorney fees. The applicable law is stated in sections 2 — 1203 and 2 — 1301 of the Code of Civil Procedure. Section 2 — 1203(a) provides as follows:

“In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.” (Ill. Rev. Stat. 1981, ch. 110, par. 2-1203(a).)

Section 2 — 1301(e) provides as follows:

“The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” Ill. Rev. Stat. 1981, ch. 110, par. 2—1301(e).

The standard governing the trial court’s consideration of a motion to vacate a default is whether or not substantial justice is being done between the litigants and whether it is reasonable under the circumstances to compel the other party to go to trial on the merits. (Patrick v. Burgess-Norton Manufacturing Co. (1976), 63 Ill. 2d 524, 527, 349 N.E.2d 52, 56.) The existence of a meritorious defense and due diligence are factors in determining substantial justice. Courts are liberal in setting aside defaults, but relief is not automatic. Plantaric v. Michaels (1981), 98 Ill. App. 3d 154, 157, 424 N.E.2d 64, 66.

In our opinion, the trial court abused its discretion in refusing to vacate the order for attorney fees. Respondent testified that he thought the next court date was January 15 rather than January 12, and that he came to the court building on January 15. No written notice or memorandum of the proper date appears in the record. Respondent filed a motion to vacate when he learned of the default. At the hearing on January 12, 1982, Tuchow was the sole witness, and his testimony with respect to the financial status of the parties and respondent’s motivation was hearsay. We do not believe that substantial justice occurred between the parties. It is not unreasonable to compel petitioner to have a hearing on the merits of who should pay her attorney fees.

Accordingly, the judgment of the circuit court is reversed and the cause is remanded for hearing.

Reversed and remanded.

JIGANTI and ROMITI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    PATRICIA McGINTY, Plaintiff-Appellant, v. NORBERT NISSEN et al., Defendants-Appellees.
    First District (3rd Division)
    No. 82—1164
    Opinion filed September 28, 1984.
    Ronald Kirk Goulding, of Chicago, for appellant.
    Robert E. Jones, of Wheaton, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Patricia McGinty, sought damages resulting from a fall she sustained when, while employed as a babysitter for the children of defendants, Norbert and Carol Nissen, she attempted to rescue defendants’ two-year-old child as he ran toward an open and steep stairway in defendants’ home. The court dismissed plaintiff’s complaint with prejudice for failure to state a cause of action. Plaintiff appeals. We affirm.

In her amended complaint, plaintiff alleged that defendants owned a residence where she was invited as a babysitter for defendants’ three minor children. An open and steep stairway which lacked a gate or protective device extended from the first floor to the second floor. Plaintiff alleged that the stairway caused a condition that was hazardous to infants, including defendants’ child, when infants were on the second floor landing near the stairway. Further, plaintiff alleged that defendants knew or should have known that the unprotected stairway involved a reasonably foreseeable risk of harm to infants and that defendants foresaw or should have foreseen that children, including their two-year-old, would likely be near the unprotected stairway landing. Plaintiff alleged that the expense or inconvenience of remedying the condition of the stairway landing would have been slight compared to the risk of harm to children.

Plaintiff further alleged that on August 22, 1978, defendants’ two-year-old child, while on the second floor landing, close to the unprotected stairway, began to run toward the stairway and was placed in a position of imminent peril because of the condition of the stairway. The child did not appreciate the risk of danger. Plaintiff then attempted to rescue defendants’ two-year-old child and, as a result; tripped on the blanket the child was dragging behind him, fell and was seriously injured.

Defendants moved to dismiss plaintiff’s amended complaint for failure to state a cause of action. The court granted defendants’ motion with prejudice. The court stated that the duty to someone injured in the course of attempting a rescue is defined by the duty to the person sought to be rescued, and the court indicated that the rescue doctrine does not apply where the defendant’s conduct is not negligent or a tortious wrong. Further, the court indicated that defendants did not have a duty under the circumstances here, for parents do not have a duty “to totally babyproof a house at the risk of liability to the child or to the homemaker.”

Plaintiff argues that the court erred in dismissing her complaint since she stated a cause of action under the rescue doctrine. We disagree.

The rescue doctrine arises when a plaintiff brings an action based on negligence against a defendant whose negligence has placed a third party in a position of peril. (Seibutis v. Smith (1980), 83 Ill. App. 3d 1010, 1016, 404 N.E.2d 950, 954.) If a plaintiff is injured in an attempt to rescue a third party, the rescue doctrine permits him to negate the presumption that his intentional act of rescue is the superseding cause of his injuries, thereby allowing him to prove that the defendant’s negligence was the proximate cause of his injuries and to negate the presumption that he was guilty of contributory negligence by voluntarily assuming a known risk of harm in the rescue attempt. (Seibutis v. Smith (1980), 83 Ill. App. 3d 1010, 1016, 404 N.E.2d 950, 954.) The effect of the rescue doctrine is to extend for the benefit of the rescuer the liability which the defendant may have toward the person he has placed in peril. (Brady v. Chicago & Northwestern R.R. Co. (1954), 265 Wis. 618, 626-27, 62 N.W.2d 415, 419-20.) Therefore, a defendant cannot be liable under the rescue doctrine unless his conduct is negligent. (See Ingram v. Jackson (1917), 206 Ill. App. 466, 472-73.) Thus, in order to state a cause of action under the rescue doctrine, plaintiff here must set forth facts which could prove that defendants, through their negligence, endangered the safety of their child and that plaintiff’s injuries were sustained in an attempt to save the child from injury. See National Dairy Products Corp. v. Freschi (Mo. App. 1965), 393 S.W.2d 48, 57.

Plaintiff alleged that defendants allowed an unguarded, steep stairway, a hazard which endangered the safety of their child, to exist in their home. Plaintiff asserts, with reference to the Kahn doctrine (see Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836), that defendants had a duty to remedy this hazardous condition existing on their premises and that under the rescue doctrine, the failure to do so was the proximate cause of plaintiff’s injuries. We believe, however, that as a matter of law, the existence of the unguarded stairway in defendants’ home does not constitute negligence on the part of defendants which would support a recovery by plaintiff under the rescue doctrine.

Negligence involves the breach of a duty owed to the plaintiff by the defendant. In considering the negligence of a defendant in the context of the rescue doctrine where a third party is involved, we must consider the duty owed to the rescued party by the defendant. Here, therefore, we must consider the duty owed to the child by the child’s parents under the facts set forth in the amended complaint.

The existence of a legal duty depends not only upon the reasonable foreseeability of injury, but also upon the likelihood of injury from the existence of the particular conditions, the magnitude of the burden of guarding against the injury, the consequences of placing the burden upon the defendant, public policy and social requirements. (See Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 261-62, 433 N.E.2d 1350, 1361.) The existence of a duty under particular facts is a question of law. Brooks v. Dean Berenz Asphalt Co. (1967), 83 Ill. App. 2d 258, 262, 227 N.E.2d 100, 102.

Parents are chargeable with the exercise of ordinary care in the protection of their minor children. (West Chicago Street R.R. Co. v. Liderman (1900), 187 Ill. 463, 472, 58 N.E. 367, 369.) We believe that under the facts alleged here, the parental duty of ordinary care did not extend to the erection of a gate or barricade at the top of the stairway. To require parents to install gates at the tops of the stairways in their residences at the risk of liability to those who would attempt to prevent children from falling down the stairs would be to hold parents to a duty of extraordinary care. (See Smith v. Goldman (1977), 53 Ill. App. 3d 632, 635, 368 N.E.2d 1052, 1054.) A young child’s falling down a steep stairway may be reasonably foreseeable, with significant likelihood of injury. However, a duty to install gates or protective devices at the tops of steep stairways would be an intrusive burden on parents, one which is not warranted by public policy and social requirements. Thus, we believe defendants had no duty to put a gate or barricade at the top of their steep stairway. (See Wall v. McGavock (1971), 132 Ill. App. 2d 231, 233-34, 267 N.E.2d 765, 767-68.) Since defendants’ negligence is a prerequisite to plaintiff’s recovery under the rescue doctrine, we conclude that plaintiff failed to state a cause of action under the rescue doctrine, and the court properly dismissed her amended complaint.

In addition to a rescue doctrine theory based upon a duty owed to the child by the parents, plaintiff asserts that under the rescue doctrine defendants owed a separate and independent duty to her as a rescuer which will support her cause of action. In support of this assertion plaintiff refers to cases in which a defendant placed himself in danger, was rescued and was held liable for the resulting injuries to the rescuer on the basis of an independent duty owed to the rescuer. We believe, however, that in such cases the defendant’s liability is still grounded in his own negligent conduct, for the defendant’s negligence must induce the rescue. We also believe that when a third party is involved, the duty in question is the duty owed to the rescued party by the defendant. In addition, we note that Illinois courts have yet to expand the rescue doctrine to situations where a defendant placed himself in danger. (See Seibutis v. Smith (1980), 83 Ill. App. 3d 1010, 1016, 404 N.E.2d 950, 954.) In Ingram v. Jackson (1917), 206 Ill. App. 466, the court stated that under the rescue doctrine, no liability rests on a defendant unless the defendant has been negligent in placing the rescued person in peril or in failing to avoid injury after discovering peril. Thus, we do not believe that an independent duty owed to a rescuer will support plaintiff’s rescue doctrine action against defendants.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

McNAMARA and WHITE, JJ., concur.

       In a proposed second amended complaint which she was not granted leave to file, as the court determined that it, too, failed to state a cause of action, plaintiff alleged that she was hired as a homemaker.


author: JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY SMITH, Defendant-Appellant.
    First District (2nd Division)
    No. 82—1773
    Opinion filed September 18, 1984.
    Rehearing denied October 17, 1984.

      Steven Clark and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Robert W. Bertucci, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE STAMOS

delivered the opinion of the court:

Defendant Gregory Smith was charged by indictment with murder, attempted murder, burglary, aggravated battery, home invasion, and two counts of armed violence predicated on murder and attempted murder, respectively. Following a jury trial, defendant was convicted on all counts, and judgment was entered accordingly. Defendant was sentenced to concurrent terms of 60 years' imprisonment for murder, 10 years for attempted murder, 7 years for burglary, 10 years for home invasion, and 10 years for armed violence. Defendant appeals.

Regina Tatton resided in a two-story home at 7042 South Bell in Chicago. Tatton’s niece, Marian Hyllen, and Hyllen’s adult son, Edward Boyle, resided with Tatton. On the night of March 26, 1981, Tat-ton, Hyllen, and Boyle were asleep in their respective upstairs bedrooms; Boyle closest to the stairway, Tatton furthest from the stairs and Hyllen in between. At about 1:20 a.m. on March 27, Tatton was fatally stabbed by an intruder.

Hyllen testified that she woke up and started into Tatton’s bedroom when she heard Tatton scream. Before she entered the bedroom, Hyllen saw Boyle run out of Tatton’s room and down the stairway and she heard Boyle scream, “Greg, you S.O.B.” Hyllen entered Tatton’s bedroom and again heard Boyle scream, “Greg, you S.O.B.” Boyle then came back upstairs to Tatton’s room and said to Hyllen, “That’s okay, ma, I know where to get Greg.”

Officer Stanley Wonsowicz and his partner arrived at Tatton’s home at about 1:25 a.m. on March 27. Boyle met Wonsowicz at the door and Wonsowicz noticed that Boyle was bleeding. Boyle told the officer not to worry about him but rather attend to his aunt, who was upstairs. Officer Wonsowicz proceeded with Boyle up to Tatton’s bedroom. The officer observed Tatton lying on her back while bleeding from her chest. Boyle was standing in the bedroom doorway. Over defense counsel’s objection, Wonsowicz was permitted to testify that Boyle said, “I can’t believe Greg Smith did it.” The officer then took Boyle downstairs to question him about the stabbing.

Once downstairs, Boyle told the officer that he was awakened by Tatton’s scream and he went to his doorway, where he saw Gregory Smith run out of Tatton’s bedroom. Boyle told the officer that he fought with Smith and that Smith cut Boyle’s back and finger. Boyle pointed to a pair of shoes lying on the kitchen floor and stated that they belonged to Smith. Wonsowicz also testified that Boyle said to him, “Why don’t you get that sonofabitch [sic] Greg.” Boyle stated that Smith had been wearing red pants and no shoes.

Edward Boyle died prior to Smith’s trial.

The police subsequently went to Smith’s home where his mother, Mrs. Henrietta Smith, permitted them to search. No evidence was discovered. Defendant was subsequently arrested and taken to the police station for questioning. Initially, Smith said he did not know anything about Regina Tatton’s death. When Officer James Higgins told Smith that Boyle had seen Smith come out of Tatton’s home, Smith said that he had been there but only as a lookout. Higgins then told Smith that Boyle said that he had struggled with Smith, and Smith responded that he had not gone upstairs and that Johnny Tuck had planned everything. At this point, the police stopped questioning Smith and sought to locate Tuck.

Johnny Tuck testified that on March 26 at 4:30 p.m., he was smoking marijuana and drinking wine in front of his house with Gregory Smith. Tuck testified that Smith said he had a key to Edward Boyle’s house and knew where some old coins were. Smith asked Tuck to go with him to Boyle’s house, but Tuck refused.

Tuck admitted having fought with Smith on several earlier occasions. There was also evidence that Tuck had assaulted one of Smith’s sisters and that Mrs. Smith had filed a criminal complaint against Tuck.

After talking with Tuck, an assistant State’s Attorney spoke with Smith and told him that Tuck was not verifying Smith’s story. Smith then confessed to stabbing Tatton. He said he was out of work and needed money and knew that Tatton kept money in a purse next to her bed.

Lawrence Hale and his mother Rosemary testified in Smith’s defense. They testified that Smith slept at their home on the night of March 26/27 and that at the time Regina Tatton was stabbed, Smith was watching television with Lawrence.

Henrietta Smith testified in her son’s defense. Defense counsel attempted to elicit from her the substance of a conversation she had with Edward Boyle after Regina Tatton’s death. The State objected to this line of questioning on hearsay grounds, and a sidebar conference ensued. In the conference, defense counsel stated that if allowed to testify, Mrs. Smith would state that Edward Boyle said that he did not know whom he saw coming out of Tatton’s room. Defense counsel also stated that Mrs. Smith had a tape recording of Boyle’s statement. The court sustained the State’s hearsay objection and prevented defense counsel from questioning Mrs. Smith concerning the tape.

Following the close of the evidence, the jury returned guilty verdicts on all counts. Smith waived a jury for purposes of the death penalty hearing. The trial court, after hearing evidence, denied Smith’s motion for a new trial and found that the death penalty was not warranted. The court proceeded to sentence Smith to concurrent prison terms of 60 years for murder, 10 years for attempted murder, 7 years for burglary, 10 years for home invasion, and 10 years for armed violence. The court also found that the aggravated battery count was merged into the attempted murder conviction. Smith then instituted this appeal.

Defendant first contends that the trial court erred by admitting the hearsay testimony of Officer Wonsowicz. Officers Wonsowicz and Tamberlin were the first to arrive on the scene after the stabbings. Officer Wonsowicz testified that upon arriving at the scene, he met Edward Boyle. Boyle’s back was bleeding, and he appeared to be in great pain. Boyle said to Wonsowicz, “Don’t worry about me, my aunt is upstairs.” Boyle and the officers then ran up the stairs to Regina Tat-ton’s bedroom. The officers entered the room where Tatton lay face up with a large amount of blood coming from her chest. Boyle, who was standing just outside the bedroom door, yelled, “I can’t believe that Greg Smith did it.” Officer Wonsowicz took Boyle downstairs to the kitchen area, where Boyle explained that he had been lying in bed asleep when he heard a scream, jumped out of bed and went to his bedroom doorway, where he saw Greg Smith running out of Tatton’s bedroom. Boyle also told Wonsowicz that he struggled with Smith and that Smith cut Boyle’s back and finger. Boyle pointed to some shoes in the kitchen and said they belonged to Smith. Boyle asked Wonsowicz, “Why don’t you get that sonofabitch [sic] Greg.” Wonsowicz also testified that Boyle told him that Smith was wearing red pants and no shoes.

Defense counsel objected on hearsay grounds each time Wonsowicz testified as to what Boyle told him. At one point, defense counsel insisted that Boyle’s statements were not spontaneous declarations, to which the court replied:

“THE COURT: I didn’t say it was a spontaneous declaration, I said Boyle’s statement to the police about the event was admissible. I didn’t say it was admissible on the basis of spontaneous declaration.
MR. DRAPER: Under what theory?
THE COURT: I’m saying it is admissible on the basis that this is a declaration of a witness to the event as to what he saw happen.
MR. DRAPER: Which is hearsay, obviously.
THE COURT: Well, of course.
MR. DRAPER: For those reasons, since it is not without any particular exception-
THE COURT: Your objection is overruled.”

The court was mistaken as to the basis for admitting Boyle’s statements to Officer Wonsowicz. There is no exception to the hearsay rule which allows admission of “a declaration of a witness to the event as to what he saw happen.” If admissible, the foregoing statements must come under the hearsay exception commonly referred to as spontaneous exclamations.

To qualify under the spontaneous declaration exception to the hearsay rule, a statement must (1) be made in response to an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) be made without time to fabricate; and (3) relate to the circumstances of the occurrence. (People v. Poland (1961), 22 Ill. 2d 175, 181, 174 N.E.2d 804.) Defendant does not contend that Boyle’s statements do not relate to the circumstances of the stabbing. Rather, defendant contends that the statements were not spontaneous, but were made after sufficient time had passed for Boyle to regain his composure.

In support of his contention defendant points to the fact that prior to the officers’ arrival, Boyle had the presence of mind to ask his mother if she had called for an ambulance. Defendant also notes that Boyle immediately told the police upon their arrival not to worry about him. While these statements might indicate that Boyle was calm and had overcome the shock of the stabbing, it could also have been a reflexive reaction on his part to an emergency situation. In any event, the spontaneity of a statement is to be judged from the totality of the circumstances surrounding the event. See People v. Chatman (1982), 110 Ill. App. 3d 19, 26, 441 N.E.2d 1292.

In the instant case, Regina Tatton was stabbed at approximately 1:20 a.m. By 1:25 a.m. the police had arrived. Sometime during the five minutes before the police arrived, Boyle struggled with Tatton’s assailant, who stabbed Boyle in the back and nearly cut off the tip of one of his fingers. When Boyle met the police at 1:25 a.m., his back and finger were bleeding and he appeared to Officer Wonsowicz to be in great pain.

Boyle and the police immediately ran up to Tatton’s bedroom, where they observed her lying on her back with a large amount of blood coming from her chest. In response to this scene, Boyle exclaimed, “I can’t believe that Greg Smith did it.” Under the circumstances, this statement qualifies as a spontaneous declaration. The interval of time between Regina Tatton’s stabbing and Boyle’s statement was about five minutes. This fact alone clearly does not negate the spontaneity of the statement. (See, e.g., People v. Chatman (1982), 110 Ill. App. 3d 19, 26, 441 N.E.2d 1292 (18 hours); People v. Wilson (1980), 87 Ill. App. 3d 693, 702, 409 N.E.2d 344 (15-20 mins.); In re Hatfield (1979), 72 Ill. App. 3d 249, 257, 390 N.E.2d 453 (5 mins.).) Moreover, the elapsed time, while material in determining spontaneity, is not controlling; the entirety of the circumstances must be examined to determine if there was an opportunity for reflection and invention. (People v. Chatman (1982), 110 Ill. App. 3d 19, 26, 441 N.E.2d 1292.) Among the circumstances to be considered is the declarant’s mental state at the time of the statement. (See, e.g., People v. Wilson (1980), 87 Ill. App. 3d 693, 702, 409 N.E.2d 344 (injured/crying); In re Hatfield (1979), 72 Ill. App. 3d 249, 257, 390 N.E.2d 453 (“very, very” nervous and upset).) In the instant case, Boyle had just been stabbed in the back and finger and he appeared to be in great pain. It also appears from the evidence that when he went to Tatton’s bedroom with the officers he was getting a good look at his aunt for the first time since the stabbing. In response to seeing his aunt bleeding heavily from the chest, Boyle stated his disbelief that Greg Smith would do such a thing. Under these circumstances, Boyle’s statement clearly qualifies as a spontaneous declaration.

Boyle’s subsequent statements are not equally supportable.

After his statement outside Tatton’s bedroom, Officer Wonsowicz took Boyle down to the kitchen, where Boyle described the events subsequent to Tatton’s stabbing. The record does not indicate that Boyle’s statements in the kitchen were in response to questioning, but the circumstances indicate that some of Boyle’s statements must have been in response to Officer Wonsowicz’s queries. The fact that statements are made in response to queries does not automatically negate their spontaneity but it is a factor to be considered. (See In re Hatfield (1979), 72 Ill. App. 3d 249, 257, 390 N.E.2d 453.) The circumstance which would appear to prevent Boyle’s statements in the kitchen from qualifying as spontaneous declarations is the manner in which they were presented. Boyle described for Officer Wonsowicz what he was doing at the time Tatton was attacked, and he set out his actions following the attack step-by-step. In order to convey this information to Wonsowicz, it would be necessary for Boyle to reflect upon the events that transpired and organize them in his mind. At this point, Boyle has been removed from the gruesome scene in his aunt’s bedroom, and he is no longer reacting to a startling occurrence. Under these circumstances, we find that Boyle’s statements in the kitchen do not qualify as spontaneous declarations.

The fact that the “kitchen statements” were improperly admitted does not, however, constitute reversible error. Hearsay statements which are erroneously admitted are harmless beyond a reasonable doubt where the statements relate evidence which is merely cumulative of other evidence which was properly admitted. (See People v. Sanchez (1982), 105 Ill. App. 3d 488, 492, 434 N.E.2d 395.) In the instant case, the evidence contained in Boyle’s kitchen statements implicating defendant was merely cumulative. Boyle had already identified Smith as the assailant by his utterance outside Tatton’s bedroom. Moreover, Marian Hyllen had previously testified as to statements made by Boyle after the stabbing which named Smith as the assailant. Defendant does not contest the propriety of the admission of Hyllen’s hearsay testimony. Thus, although Boyles’ kitchen statements should have been excluded, their admission is harmless error beyond a reasonable doubt and did not, therefore, serve to deny defendant a fair trial.

Defendant attempts to make an issue of the trial court’s statement that Boyle’s statements were not being admitted as spontaneous declarations. But the fact that a trial court gives an erroneous basis for a correct decision does not preclude this court from affirming the trial court’s decision. Because of our finding that Boyle’s statement outside Tatton’s bedroom was a spontaneous declaration, the trial court’s decision to admit that statement was correct.

Defendant next contends that the trial court erred when it excluded evidence that Edward Boyle stated that he was not sure who had killed Regina Tatton. On direct examination, Henrietta Smith, defendant’s mother, was testifying as to a conversation she had with Edward Boyle soon after the attack on Tatton. The State objected on hearsay grounds and defense counsel requested a sidebar conference. In the conference, defense counsel stated that Henrietta Smith, if allowed to testify, would state that Edward Boyle told her that he was not sure whom he saw in Regina Tatton’s apartment on the night of the attack. Defense counsel submitted that Boyle’s statement to Mrs. Smith should be admitted as a declaration against interest. The court rejected this argument and sustained the State’s objection. The State then made a motion in limine to exclude any reference to a tape recording Mrs. Smith allegedly made of her conversation with Boyle. The court did not grant the motion, but it excluded a subsequent attempt by defense counsel to question Mrs. Smith concerning the tape. On appeal, defendant contends that Edward Boyle’s statement to Mrs. Smith constituted a prior inconsistent statement and should have been admitted for the purpose of impeaching Boyle’s statements identifying defendant as the assailant. The State characterizes Mrs. Smith’s proposed testimony as inadmissible hearsay.

In the instant case, the court is confronted with the issue of the admissibility of the statements of an absent declarant. Edward Boyle, who was present at the scene of the crime, died prior to trial. At trial, Boyle’s statements that defendant was the assailant were admitted into evidence. Under these circumstances, Mrs. Smith should have been permitted to testify that Boyle told her he was not sure who attacked Regina Tatton.

Where a statement of an absent declarant is properly admitted into evidence under one of the hearsay exceptions, the opposing party may impeach such statement with a prior inconsistent statement by the declarant. See Commonwealth v. Sellon (1980), 380 Mass. 220, 224-25 n.6, 402 N.E.2d 1329, 1334 n.6; Fed. R. Evid. 806; see also Dunn v. People (1898), 172 Ill. 582, 591, 50 N.E.137; People v. Conway (1971), 3 Ill. App. 3d 69, 73, 278 N.E.2d 852.

In response to the State’s objection, defense counsel argued that Boyle’s prior inconsistent statements should be admitted as a declaration against interest. This argument was erroneous, but it does not impair defendant’s right to raise this contention of error on appeal. The basis for the State’s objection to Mrs. Smith’s testimony was hearsay. However, a prior inconsistent statement submitted for the purpose of impeaching a declarant is not hearsay because it is not being submitted to prove the truth of the matter asserted. (See People v. Collins (1971), 49 Ill. 2d 179, 194, 274 N.E.2d 77.) We find that the trial court erred by excluding Mrs. Smith’s testimony.

Defendant next contends that in closing argument, the prosecutor improperly commented on defendant’s failure to testify. The State characterizes the complained-of comments as a proper response to defense counsel’s closing argument. The comments in issue are as follows:

“DEFENSE COUNSEL: Gregory Smith’s testimony was not his own. There is no mystery, it is no new thing that people force confessions. Due to his condition, he wasn’t able to come forward with his own story and tell you his story through his own mouth but you ladies and gentlemen must utilize not only your experiences in life but your own common sense that a man who is an Assistant State’s Attorney will tear up one set of notes, set it in another longhand fashion another set of notes and then type up some other notes and never, ever shows them to the individual who supposedly says it for the purpose of verifying whether it is accurate.”
“PROSECUTION: At the very end of his argument he says Gregory Smith could not tell you out of his own mouth because of his condition. What condition? Gregory Smith did not testify in this case, his choice; but it was not because of any condition. He did not testify because he could not stand up under cross examination.
MR. DRAPER: Objection to that.
THE COURT: Overruled.
MR. O’CONNOR: Because he is a murderer.
MR. DRAPER: Objection.
MR. O’CONNOR: He already once said—
MR. DRAPER: Objection to these continual prejudicial remarks which are unfounded.
THE COURT: Overruled.
MR. O’CONNOR: He already once said what occurred. He told Assistant State’s Attorney Sherwin and two police officers. Gregory Smith was afraid to get up there and see what would happen if questions were asked.
MR. DRAPER: Objection.
THE COURT: Overruled.
MR. O’CONNOR: Mr. Draper gave you an explanation as to why he didn’t testify. That is the explanation, he could not testify because he would have to lie and he would get caught.
MR. DRAPER: Objection, Judge.
THE COURT: Overruled.”

It is clearly improper for the prosecution to comment on a defendant’s failure to testify at trial. (Griffin v. California (1965), 380 U.S. 609, 615, 14 L. Ed. 2d 106, 110, 85 S. Ct. 1229, 1233; People v. Burton (1969), 44 Ill. 2d 53, 56, 254 N.E.2d 527.) If, however, defense counsel comments on defendant’s failure to testify and offers an explanation for this failure, the defense has thereby invited the prosecution to refute defense counsel’s explanation for defendant’s failure to take the stand. (See People v. Ivery (1979), 72 Ill. App. 3d 158, 161, 390 N.E.2d 608; People v. Conner (1976), 42 Ill. App. 3d 234, 239, 355 N.E.2d 662; People v. Carruthers (1974), 18 Ill. App. 3d 255, 266-67, 309 N.E.2d 659; see also People v. Eddington (1983), 117 Ill. App. 3d 953, 963, 453 N.E.2d 1383; People v. Hasting (1978), 56 Ill. App. 3d 724, 726, 372 N.E.2d 702.) In Conner, defense counsel in closing argument commented on his failure to call defendant to testify. Defense counsel stated that the reason defendant did not testify was because “ ‘the State doesn’t have a case against [defendant].’ ” (People v. Conner (1976), 42 Ill. App. 3d 234, 237.) In rebuttal, the prosecutor stated that the reason defendant did not testify was because “[t]he inconsistencies were building up and building up. They didn’t dare put him on [the witness stand].” (42 Ill. App. 3d 234, 237.) The court in Conner ruled that “ ‘defendant may not predicate error on a response by the prosecutor which he himself provoked.’ ” (People v. Conner (1976), 42 Ill. App. 3d 234, 239, quoting People v. Carruthers (1974), 18 Ill. App. 3d 255, 267, 309 N.E.2d 659.) The court also held that the prosecutor had not exceeded the bounds of proper rebuttal because he had merely “responded to counsel’s remarks and presented to the jury an alternative inference to be drawn from defendant’s silence.” People v. Conner (1976), 42 Ill. App. 3d 234, 239.

In the instant case, defense counsel attempted to do more than explain defendant’s failure to testify; he attempted to provide the jury with the substance of what defendant would have testified to had he been able. Defense counsel argued that:

“[Defendant’s] testimony was not his own. There is no mystery, it is no new thing that people force confessions. *** an Assistant State’s Attorney will tear up one set of notes, set it in another longhand fashion another set of notes and then type up some other notes and never, ever shows them to the individual who supposedly says it for the purpose of verifying whether it is accurate.”

In this statement, defense counsel implied that defendant’s confession had been wrongfully coerced and that the signed confession in the State’s possession was not the statement given by defendant to his interrogators. Defense counsel also implied that but for a “condition” that prevented defendant from testifying, he would have told the jury about the details of the coercion and the particulars of the actual statement which he gave to the police.

In response to defense counsel’s statement, the prosecution argued that defendant did not testify because “he could not stand up under cross examination,” because he “was afraid to get up [on the stand] and see what would happen if questions were asked,” and because “he would have to lie and he would get caught.” All three of these explanations are ways of saying the same thing; they merely explain that defendant did not testify because of the strength of the State’s case. Under the cases cited above, this is clearly a proper rebuttal to defense counsel’s comments. It may be that the prosecutor overstepped the bounds of proper rebuttal by repeatedly hammering away at his explanation for defendant’s failure to testify. But in light of the overwhelming weight of evidence of defendant’s guilt, any error which resulted from the prosecutor’s overzealousness would appear to be harmless beyond a reasonable doubt. See People v. Lawson (1980), 86 Ill. App. 3d 376, 407 N.E.2d 899.

Defendant’s next contention concerns the instructions tendered to the jury by the court. One count of the indictment charged defendant with the murder of Regina Tatton. Accordingly, the jury received the following murder instructions:

“A person commits the offense of murder when he kills an individual without lawful justification if, in performing the acts which cause the death,
he intends to kill or do great bodily harm to that individual; or
he knows that such acts will cause death to that individual; or
he knows that such acts create a strong probability of death or great bodily harm to that individual; or
he is committing the the [sic] offense of burglary.”
“To sustain the charge of murder, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of Regina Tatton; and
Second: That when the defendant did so, he intended to kill or do great bodily harm to Regina Tatton; or he knew that his act would cause death or great bodily harm to Regina Tatton; or he knew that his acts created a strong probability of death or great bodily harm to Regina Tatton; or he was committing the offense of burglary.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

Naturally, the crime of attempt must have an underlying offense as its subject. In the instant case, the underlying offense is murder. The jury had previously received a murder instruction and the trial court apparently believed that that instruction was sufficient for purposes of the attempted murder count. But attempt is a specific intent crime, and the murder instruction tendered by the court provided that defendant could be guilty of murder even if he did not possess the specific intent to kill. The tendering of such instructions under the circumstances presented here has been held to be error. See People v. Harris (1978), 72 Ill. 2d 16, 23-28, 377 N.E.2d 28.

However, the trial court’s failure to properly instruct the jury was not objected to at trial and was not raised in defendant’s post-trial motion. Under the general rule of waiver, defendant has thereby waived the issue on appeal. We acknowledge that an exception to the waiver rule exists where there is “grave error” or where the evidence is closely balanced and fundamental fairness requires that the jury be properly instructed. (See People v. Roberts (1979), 75 Ill. 2d 1, 14, 387 N.E.2d 331.) In Roberts, however, our supreme court was confronted with the precise issue presented in the instant case and held that the over-broad murder instruction did not constitute “grave error.” (75 Ill. 2d 1, 14.) Neither does it appear that the evidence is closely balanced. Defendant attacked Edward Boyle after stabbing Regina Tatton to death. Boyle saw defendant leave Tatton’s room, and defendant was thereby apprised that Boyle could identify defendant as Tatton’s assailant. The weapon used by defendant in his struggle with Boyle was a butcher knife. Defendant used this knife to stab Boyle three times in the upper body, causing a cut six inches long, a deep laceration six to eight inches long, and another cut 10 inches long. Defendant also severed part of Boyle’s finger. Under these circumstances it is difficult to say that the evidence was closely balanced on the issue of defendant’s state of mind during his attack on Boyle. The evidence was clearly sufficient to allow the jury to infer the specific intent to kill. Accordingly, we find that defendant has waived the issue of the erroneous jury instructions. See People v. Hasty (1983), 120 Ill. App. 3d 173, 175-76, 457 N.E.2d 1039; People v. McClure (1979), 80 Ill. App. 3d 10, 16-17, 398 N.E.2d 1233; People v. Lewis (1979), 75 Ill. App. 3d 259, 285, 393 N.E.2d 1098; People v. Gore (1979), 72 Ill. App. 3d 171, 172-73, 390 N.E.2d 925; see also People v. Roberts (1979), 75 Ill. 2d 1, 7-16, 387 N.E.2d 331.

Defendant next contends that the trial court’s imposition of an extended-term sentence was improper. The State argues that because defendant’s conduct was brutal and heinous, an extended-term sentence is warranted. Defendant argues that the provision under which the court imposed sentence was not in effect at the time of the crime and that, therefore, this court should reduce his sentence sua sponte.

The trial court in the instant case sentenced defendant, on June 18, 1982, to an extended term of 60 years for the murder of Regina Tatton. The normal range of sentences for murder is 20 to 40 years. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—1(a)(1).) The extended-term sentencing statute in effect at the time of sentencing was section 5— 8 — 2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—2). In imposing sentence, the court emphasized the fact that defendant’s victim was a “senior citizen” (the victim was 81). Thus, it appears that the court imposed the extended sentence on the basis of a provision which allows for an extended term if the victim was 60 years of age or older. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3.2(b)(3)(ii).) This provision was not in effect at the time of the commission of the crime.

Regina Tatton was murdered on March 27, 1981. The extended-term sentencing statute in effect at that time was section 5 — 8 — 2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—2). That statute does not provide for the imposition of an extended term if the murder victim was 60 years of age or older, although it provides for an extended term if the murder involved brutal or heinous behavior. (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2(b)(2).) The normal range of sentences for murder at the time of Regina Tatton’s death was 20 to 40 years. Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(1).

Because the sentencing alternatives available at the time of sentencing differed from those available at the time of the offense, defendant was entitled to be informed that the two sentencing schemes existed and to choose under which one sentence should be imposed. (See Ill. Rev. Stat. 1981, ch. 38, par. 1008—2—4(b); People v. Fuller (1980), 91 Ill. App. 3d 922, 930, 415 N.E.2d 502.) Defendant was not, however, informed of the existence of sentencing alternatives and was not, therefore, afforded his statutory right to select one of the two applicable sentencing schemes. Accordingly, defendant’s sentence is vacated, and this cause is remanded for resentencing.

Defendant next contends that judgment was improperly entered on his armed violence conviction. Defendant was indicted for armed violence predicated on murder and armed violence predicated on attempted murder. The jury, however, was provided with only one armed violence verdict form, which failed to specify an underlying felony. Thus, the jury’s finding of guilty on the armed violence count may have been predicated on murder, attempted murder or both. In any event, the armed violence conviction should be vacated. Under People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, convictions for both armed violence and the predicate felony cannot stand where both convictions are based on the same act. Where such convictions result, judgment should be entered on only the most serious class of felony. (91 Ill. 2d 164, 170.) In the instant case, armed violence is a less serious offense than murder and equally as serious as attempted murder. (Compare Ill. Rev. Stat. 1981, ch. 38, par. 33A—3(a), with pars. 8—4(c)(1) and 1005—5—1(b).) Accordingly, the armed violence conviction must be vacated.

Defendant’s final contention concerns the questioning of prospective jurors regarding their attitudes toward the death penalty. This questioning was conducted pursuant to and in conformance with the Supreme Court’s decision in Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. Under Witherspoon, in a capital case, a prospective juror should be excluded if his attitude toward the death penalty would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath. In the instant case, the jury venire was “Witherspooned” and, as a result, several prospective jurors were excluded. Defendant contends that Witherspooning the jury venire resulted in a jury which was biased in favor of prosecution and which failed to represent a fair cross-section of the community. Our supreme court rejected the “conviction-prone jury” argument in People v. Lewis (1981), 88 Ill. 2d 129, 147, 430 N.E.2d 1346, cert, denied (1982), 456 U.S. 1011, 73 L. Ed 2d 1308, 102 S. Ct. 2307. The court reaffirmed its holding in Lewis in People v. Tiller (1982), 94 Ill. 2d 303, 321-22, 447 N.E.2d 174, and People v. Free (1983), 94 Ill. 2d 378, 401, 447 N.E.2d 218. The court has also rejected the argument that Witherspooning results in an unrepresentative jury. (See People v. Free (1983), 94 Ill. 2d 378, 401-02, 447 N.E.2d 218.) Defendant submits, however, that the decision in Grigsby v. Mabry (E. D. Ark. 1983), 569 F. Supp. 1273, warrants a reversal of the law as set forth by the highest court in that State. In Grigsby, the court found Witherspooning to be unconstitutional because it produced a conviction-prone jury. In support of its decision, the court in Grigsby cited numerous studies purporting to prove that Witherspooning did produce conviction-prone juries. But these studies were all available to our supreme court at the time that Lewis, Tiller and Free were decided, and presumably the court was aware of their existence but unpersuaded. In any event, in light of our supreme court’s clear pronouncements on the issues raised by defendant, we refuse to follow the holding in Grigsby.

For the reasons expressed herein, we affirm the judgment of the circuit court. We find that, based upon the weight of the evidence, any error which was committed by the trial court was harmless beyond a reasonable doubt.

The judgment of the circuit court is affirmed in part, reversed in part, and remanded with directions.

Affirmed in part, reversed in part, and remanded.

HARTMAN, P.J., and DOWNING, J., concur.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BENNY BRIDGES (Impleaded), Defendant-Appellant.
    First District (2nd Division)
    No. 82—3087
    Opinion filed September 18, 1984.
    Steven Clark and Scott Graham, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and William G. Lacy, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Following a bench trial, defendant was convicted of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18—2), unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10—3), aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12—4), burglary (Ill. Rev. Stat. 1970, ch. 38, par. 19—1) and robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18—1). Defendant appeals, but he does not contest his convictions for burglary and robbery.

Defendant was tried jointly with codefendant William Link (whose case is not before us). Andrew Bullen testified for the State: On September 29, 1981, he was a student at the University of Chicago, living in an apartment at 5341 South Kimbark, Chicago, with John Egan. During the early morning on that day, Bullen awoke when he felt a pillow being held over his face. He then saw Egan thrown on his bed. When Bullen tried to free himself, he felt an “intense pain” in his head near his left eye. He heard glass shatter and felt blood on his head. He heard codefendant Link say, “Don’t move or I will kill you.” Two men began to ransack the room. Link then picked up a bayonet belonging to Bullen and pressed it against Bullen and then Egan. Link threatened to “poke” Bullen.

After a few minutes, the two victims were tied together and the two assailants left. Bullen testified that a stereo, money, some watches and the bayonet were missing from the apartment. He identified defendants as the two men who robbed him.

John Egan testified: On the date in question, he also awoke with a pillow pushed over his head. He felt a hard object pressing into his back. He was told not to move or he would be killed. His room had been ransacked. He was blindfolded and taken into Bullen’s room and pushed on top of Bullen.

Chicago police officer Thomas Zapolisky testified to the defendants’ arrest, which occurred within several hours after the crime near the crime scene.

Assistant State’s Attorney John Cooney testified to his interrogation of defendant Bridges during which defendant admitted that he and Link had planned and carried out the burglary.

Defendant alone testified in his behalf. He stated that Link had previously lived in the apartment then inhabited by the victims, and Bridges went along with Link’s suggestion to return to the apartment and retrieve some of Link’s possessions. Bridges admitted that upon arriving at the apartment, he and Link tied up the victims and took various pieces of property. Link smashed a bottle on the head of one of the victims. Bridges, however, denied using or seeing anyone use a bayonet.

The court found defendant guilty as aforesaid, from which defendant appeals.

Defendant first contends that the court should have found him guilty only of robbery, not of armed robbery, because “there was no evidence that a dangerous weapon was used.” Defendant contends that victim John Egan denied seeing or hearing anything with reference to a bayonet. Defendant contends that this variance in evidence raises a reasonable doubt as to the defendant’s use of a weapon and therefore requests that his conviction for armed robbery be reversed.

In our opinion, defendant’s contention must be rejected. The court’s specific finding that a bayonet was used as a dangerous weapon is supported by Bullen’s testimony. Because Egan testified that he was blindfolded during the incident, we do not believe his failure to observe the bayonet supports defendant’s position. It is the duty of the trial court to determine the credibility of witnesses and to weigh the evidence. (People v. Chapman (1981), 94 Ill. App. 3d 602, 418 N.E.2d 995.) The court’s decision here is supported by the evidence and therefore must be upheld.

Defendant next contends that the count of the information charging him with the armed robbery of Bullen “was defective where it failed to specify the weapon allegedly used.” Defendant contends he was prejudiced not only because the information failed to specify the weapon used but because defendant “was led to believe” that a bottle, and not a bayonet, was the alleged dangerous weapon. Defendant notes that the complaint for a preliminary examination on the aggravated battery charge alleged that the charge was based on the use of a bottle; that the complaint for preliminary examination against Link as to the armed robbery alleged the use of a bottle; that the only mention of a weapon in the police reports refers to a broken bottle and the State’s discovery answer lists a “broken bottle,” but not a bayonet. Further, during opening statements, the State mentioned that the armed robbery was committed with a broken bottle and did not refer to a bayonet.

While defendant concedes that the specific weapon allegedly used is “not normally a material element of the charge,” here defendant alleges he was misled as to this element of the armed robbery charge and, therefore, he was not afforded the opportunity to properly defend himself. He argues that at trial he only contested the two Class X charges (home invasion and armed robbery) and that he was successful to the extent that the court found him not guilty of home invasion and specifically found that the broken bottle would not suffice as a deadly weapon for purposes of the armed robbery. Defendant argues that under these circumstances, the information was void, and his conviction for armed robbery based on the use of a bayonet violated his due process.

In our opinion, defendant’s argument cannot be sustained. When, as here, a defendant files a motion for arrest of judgment on the ground that the charging instrument fails to specify the elements of the charge, it is sufficient that the charging instrument “give notice of the elements of a charge and particularize it sufficiently with allegations of the essential facts to enable the accused to prepare a defense which, if successful, would bar further prosecutions for the same offense.” (People v. Smith (1984), 99 Ill. 2d 467, 471, 459 N.E.2d 1357.) We believe defendant’s argument that the information charging armed robbery is insufficient because it did not specify the weapon allegedly used is incorrect. Illinois law does not require the State to specify the weapon in the information. (People v. Catlett (1974), 20 Ill. App. 3d 832, 314 N.E.2d 346; People v. Thompson (1974), 18 Ill. App. 3d 613, 310 N.E.2d 504.) Nor do we believe that the other circumstances occurring below can be determined to have caused defendant to have been “misled” as to the dangerous weapon used; if defendant required more specificity, his recourse was to move for a bill of particulars. See People v. Lee (1978), 57 Ill. App. 3d 927, 373 N.E.2d 744.

Defendant’s next contention is that his convictions for unlawful restraint and aggravated battery must be vacated because they were allegedly based on the same act as those underlying his convictions for robbery and armed robbery. Without citation to authority, defendant concludes that here only three criminal acts occurred: “the entry (burglary), the taking of property from Egan (robbery) and the taking of property from Bullen (armed robbery).” According to defendant the other two crimes, unlawful restraint and aggravated battery, were “incidental” to the robberies.

The State responds that defendant has waived this argument by failing to raise it below. Even if we consider it, the State maintains that the evidence shows that the two crimes challenged are neither lesser included offenses of the other convictions nor based on the same physical acts as the other crimes. According to the State, the unlawful restraint occurred when the victims were tied up, and the aggravated battery occurred when Link struck Bullen with the bottle.

In our opinion, defendant’s contention must be rejected. The defendant suffers prejudice only when more than one conviction is carved from a single physical act. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) Here defendant has been convicted of offenses arising from separate physical acts and composed of different elements. The convictions were proper.

The final contentions raised relate to defendant’s sentencing. Defendant first contends that his five-year sentence for unlawful restraint must be reduced because the maximum allowable for that offense is three years. (Ill. Rev. Stat. 1981, ch. 38, pars. 10—3, 1005—8—1(a)(7).) Defendant also contends that his sentences on the convictions other than armed robbery should be reduced because the trial court, in sentencing defendant for the most serious offense, the Class X armed robbery, specifically stated that defendant should receive the “minimum” term as to that charge.

The State responds that the case must be remanded for resentencing on all charges except armed robbery because “no final judgment exists as to those convictions.”

The State is correct insofar as the reports of proceedings in the record reveal only that the court imposed the six-year sentence on the armed robbery conviction. However, the common law record includes the court’s “order of sentence and commitment to the Illinois Department of Corrections,” which is signed by the trial judge and provides:

“On 11-22-82 Judge Theodore M. Swain sentenced the deft, to six (6) years on Counts 1 (arm. robb.); 2 (lesser included robb); and 6 (burg.); and five (5) years on Counts 3 (aggr. Batt.) and 4 + 5 (unlawful restraint) all concurrent.”

The clerk’s docket sheet reflects only the armed robbery sentence. Because no transcript reflects the court’s imposition of sentences for the charges other than the armed robbery, and because the common law record is not entirely clear, we believe it the prudent course to remand for imposition of sentences on the convictions other than the armed robbery. We observe that defendant is correct in contending that the maximum sentence for unlawful restraint is, in fact, three years.

In sum, we affirm defendant’s convictions as well as the six-year sentence imposed on the armed robbery charge; we remand for imposition of sentences on the remaining convictions.

Affirmed in part and remanded.

HARTMAN, P.J., and STAMOS, J., concur.


author: PRESIDING JUSTICE ALLOY JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SALLY ESTES, Defendant-Appellant.
    Third District
    No. 3—83—0453
    Opinion filed September 13, 1984.

      HEIPLE, J., dissenting.
    Robert J. Agostinelli and Jean Herigodt, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Following a jury trial in the circuit court of Will County, the defendant, Sally Estes, was convicted of the offense of voluntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9—2). Subsequently, she was sentenced to a term of four years’ probation with the condition that she serve a term of six months in the Will County jail.

On appeal, the defendant raises three issues: (1) whether the State proved beyond a reasonable doubt that she did not act in self defense; (2) whether the prosecutor’s remarks during closing argument deprived her of a fair trial; and (3) whether the trial court erred in refusing to give the second paragraph of the circumstantial evidence jury instruction.

Prior to considering the issues raised by the defendant, it is necessary to review the relevant facts. The victim in the instant case was Floyd Estes, the defendant’s husband, a 6-foot-tall, 200-pound crane operator. He and the defendant were married February 23, 1980.

Witnesses for the State included Josephine Prock, who had known the defendant between 25 and 30 years. She testified that at approximately 11 on the morning of January 22, 1982, she received a telephone call from the defendant. During that phone conversation, the defendant told her that Floyd had come home and started a fight with her and then left, and that she was scared and wanted to leave. Mrs. Prock testified that she told the defendant that she could not get her until 5 p.m. because she would not have a car until then, but that the defendant should leave her home and go to a neighbor’s or to a restaurant and she would come and get her. According to the witness, the defendant “sounded scared” at the time of the call.

Josephine Prock further testified that she received another telephone call from the defendant, later that day, between 1 and 1:15 p.m. At this time the defendant told her that she was still nervous but that she had gotten the green car started and she was going to leave. According to Mrs. Prock, at this time the defendant was “nervous and scared.” She thought that the defendant was coming to her house.

Finally, Josephine Prock testified regarding a third telephone call, which she made to defendant, between 2:30 and 3 p.m. that same day. She said that a police officer answered but that the defendant was eventually put on the line.

Other witnesses for the State included Frank Lyons, Wilmington police chief, who testified that on the date in question he had received a call from the defendant stating that she had just shot her husband and requesting assistance. Chief Lyons was the first on the scene. Chief Lyons testified that the defendant told him that her husband had come home, seen tracks in the driveway, and accused her of having an affair. An argument ensued and he choked her, pulled her hair, and knocked her glasses off. On cross-examination, he described the defendant’s emotional condition as “emotional hyper” and indicated that in his written report he had used the term “hysterical.”

Also testifying was Ronald Pruss, Will County deputy sheriff. Deputy Sheriff Pruss’ testimony laid the foundation for the introduction into evidence of the tape of the telephone call made by the defendant to the police. Much of the taped conversation is rather confused; however, it contains this statement by the defendant: “He was trying to kill me. Oh no. Call my mother. Call my mother. Please, call my mother.”

Deputy Sheriff Pruss testified concerning the physical evidence at the scene as well. He indicated that a pair of glasses with very thick lenses belonging to the defendant, with strands of hair attached to the earpieces, were found on top of the stove in the kitchen. He also identified photographs of the defendant, taken on January 22, 1982, showing redness or abrasions around the cheek, nose, and neck and left hand.

Finally, James Fetzner, investigator for the Will County Sheriff’s Department, testified for the State. He testified that after he and another investigator arrived at the defendant’s home, he conducted an interrogation of the defendant, the transcript of which was admitted into evidence. According to Investigator Fetzner, he advised the defendant of her rights and she agreed to an interview, but she refused to sign the written form because she could not read it without her glasses.

Investigator Fetzner further testified that the defendant told him that her husband had arrived home at 9:45 or 9:50 on the morning in question. While they were drinking and talking, her husband accused the defendant of having an affair because there were tire tracks in the driveway. After making these accusations, her husband shoved her and pulled her hair and then left. According to Fetzner, the defendant also told him that later that day her husband returned when she was in the other car and leaving. She told her husband that she was going to get cigarettes, then got her car stuck, and she returned to the house. According to Fetzner, the defendant said that, once in the house, her husband started on her family again, knocked her glasses off, and she shot him. Investigator Fetzner indicated on cross-examination that his testimony was a “more or less edited version” of what the defendant had said during the interview.

Also, on cross-examination, Investigator Fetzner testified that the defendant had told him that she was afraid of her husband and that on Thanksgiving, when they had another argument, he had knocked her down, breaking her tailbone. According to Fetzner, the defendant described the pain from her broken tailbone as the worst she had ever had and stated that she continued to have pain from the injury. At the time of this incident, the defendant’s husband took her to the hospital, but told her that he had a gun in his pocket and threatened to harm her again if she told anyone how it happened. Fetzner also indicated that his partner had recovered a loaded gun from the victim’s car. He described the victim as “stocky,” weighing approximately 200 pounds.

The taped interview, which was played for the jury, revealed that on prior occasions, the defendant’s husband had “taken a belt” to her, leaving bruises which were still there, and kicked her in the stomach. She had previously left him. She also stated that she loved her husband and that he sometimes gave her a “hard time” and was “very jealous.”

Also on cross-examination, the following quotation, from interview transcript, was read by the investigator to the jury:

“Yeah, and he hated that, I was in fear the rest is dashes. I couldn’t do anything right, I guess and he pulled back up and he came, as I came in before he did and he started on me and he started on my family like he usually did. I wanted to stop him. He wouldn’t stop and he was coming for me again and the last time he came for me, I wound up in the hospital with a broken talk [sic] bone and I had the gun in my pocket because when I came in the house I got the gun and I put it in my pocket and I just wanted to scare him.”

The taped interview revealed that the defendant was describing the events which occurred after she had begun heading north in her car and met her husband heading south in his. He pulled in front of her, she got out and said that she was going for cigarettes, then tried to back her car up and slid and got stuck.

Additionally, Investigator Fetzner identified a pair of torn jeans as-those that the defendant was wearing on the day in question.

For the defense, Mark Surman testified that he was a neighbor of Sally and Floyd Estes. He described the victim as a stout man who, when he was not drinking, was “not a bad guy” but who was “unruly” when he was drinking. Surman further indicated that he could not get along with Floyd Estes when he was drinking and that he “just got away from him.” Surman testified that, on the day in question, the defendant came over to his house without her glasses on, wearing a pair of torn jeans with part of her back end sticking out, and asked for his help. According to the witness, the defendant’s neck seemed to be “blood shot” or bruised and her hair was “all bushed out,” not the way she normally looked.

Mary Vaira also testified as a witness for the defense. She indicated that she and the defendant had taken a nurse’s aid training course together. She described the victim as “very boisterous” and “very obnoxious” when he had been drinking. She testified that on December 5, 1981, she and her husband had gone to the home of the defendant. According to the witness, Floyd Estes appeared to be drinking and very abusive and the defendant was acting very nervous and scared. During the course of the visit, Floyd Estes told the witness that he supposed that the defendant had opened her big mouth and told her that he had broken her tailbone.

The defendant also testified at trial. According to the defendant, on Thanksgiving Day, 1981, she was at home making turkey dinner when the defendant, who had been drinking and was in a bad mood, left. He returned a few hours later and informed her that he was tired of her big mouth, her lies and her family and friends and that they were going to get a divorce. He then became violent, ripped her blouse off, pushed her around, and pushed her onto the kitchen floor. She suffered a broken tailbone as a result.

On the way to the hospital, Floyd Estes took a gun out of a Kleenex box in his car, put it in his pocket, and told defendant that if she said anything to anyone about what had happened he would kill her. At the hospital, the defendant told the emergency room personnel that she had slipped and fallen on grease. Her injury caused a sharp stabbing pain and required her to miss work between three and four weeks. Three days after her injury, she was hospitalized for three days.

The defendant further testified that on January 22, 1982, her husband returned home from work between 9:45 and 10 a.m. He walked in the house with a can of beer in his hand and was complaining about the hedge in front of their house and the tracks in the snow. According to the defendant, her husband accused her of having someone at the house. She attempted to calm him down, denying that anyone had been there, but he would not believe her and it got worse. According to the defendant, her husband called her a lot of names and then came at her and they started to physically fight.

The defendant testified that her husband got her down on the kitchen floor, pulled her hair, and tried to choke her, 'twisting her neck with his hands. The defendant managed to get away from him and he left, still yelling. She stated that she was in pain, very frightened, and extremely upset. According to the defendant, she knew that she had to leave but was not able to handle a car in the state she was in, so she called Josephine Frock.

Later, she scraped the car window and started driving north. Her husband approached in his car and blocked her so that she could not get by him on either side. She attempted to back the car around but it became stuck. According to the defendant, at this point she knew she was “in trouble” and went back into the house. She then went into the bedroom and got a gun from under the mattress, kept there for protection because her husband worked nights. She put it in her coat pocket and went into the kitchen.

According to the defendant, her husband came into the kitchen and started yelling about the car and calling her names. She was afraid of him and thought that he may have brought the gun in from the car. They struggled and he slapped her face, knocking her glasses off. He got her down on the floor again and she got away from him, went and sat down in a chair by the door, apd begged him to leave her alone.

The defendant testified that her husband came after her and she pulled out the gun and shot him. According to the defendant, she was hysterical and in pain, and feared that he could kill her. Specifically, she was afraid that he had come in with a gun, or that he would choke her or break her neck.

She put the gun down and “fell on” her husband, then called the police. Afterward, she ran next door, asking her neighbor, Mark Surman, to help. He returned to her house with her and the police arrived.

Additionally, it was stipulated by the parties that the defendant’s vision was 20/20 in both eyes with her glasses and 20/400 without them. It was also stipulated that an optometrist would testify that the defendant could see movement but not distinguish the features of a full-grown man three feet away, without her glasses. It was also stipulated that at noon on January 23, 1982, a blood specimen taken from the body of Floyd Estes had an ethanol count of .139% and the urine, .220%. Finally, it was stipulated that the physician who had examined Sally Estes on Thanksgiving Day, 1981, would testify that she had a fractured coccyx (tailbone).'

On rebuttal, Josephine Frock testified for the State that in December 1981 the defendant wrestled with her 16-year-old son but that he did not wrestle back because of her broken tailbone and that, later that same day, the defendant danced at the V.F.W. On cross-examination, Mrs. Frock admitted that she no longer saw the defendant because her husband had filed a lawsuit against her.

Turning now to the issues raised by the defendant, we shall consider the alleged error as to jury instructions first. With respect to this issue, it is the defendant’s contention that the State produced no direct evidence to meet its burden of disproving the defendant’s claim of self-defense.

It is well established that both paragraphs' of the circumstantial-evidence jury instruction should be given only when all the evidence is entirely circumstantial. (People v. Minish (1974), 19 Ill. App. 3d 603, 312 N.E.2d 49; Illinois Pattern Jury Instruction, Criminal, No. 3.02 (1968).) We do not find sufficient merit in the defendant’s contention to warrant a lengthy discussion, but simply rule that the trial court correctly refused defendant’s request to give both paragraphs of the circumstantial-evidence jury instruction, because the defendant’s testimony constituted direct evidence in the instant case.

We consider next the question of whether certain remarks of the prosecutor made during closing argument operated to deny the defendant a fair trial. We find considerably more merit to this contention of the defendant and rule that those remarks, taken together, constituted substantial prejudice to the defendant, the ultimate result of which was the denial of her right to a fair trial.

In reaching this conclusion, we address first the argument of the State that the defendant has waived this issue by failing to object at trial and by failing to make the objection with sufficient specificity in her post-trial motion. While we agree with the State that only one objection was interposed by the defense during closing argument and that the statement of the issue in the post-trial motion was too general, we elect to consider the issue under the doctrine of plain error. People v. Crossno (1981), 93 Ill. App. 3d 808, 824, 417 N.E.2d 817, 838.

In raising this issue, defendant attacks several different aspects of the prosecutor’s closing argument. One error, according to the defendant, occurred when the prosecutor argued to the jury that the defendant failed to retreat. A review of the record reveals that not only did the prosecutor raise the question of retreat in closing argument but he also questioned the defendant, on cross-examination, as to whether she had attempted to leave. Placing the suggestion before the jury that the defendant had a duty to retreat is a clear misstatement of Illinois law and could well have substantially influenced the determination of the jury. The accurate statement of the law on this point is that a nonaggressor is not required to retreat from a place where he has a right to be and may use force likely to cause death or serious bodily harm if he reasonably believes that he himself is in danger of death or great bodily harm. People v. Moore (1976), 43 Ill. App. 3d 521, 526-28, 357 N.E.2d 566, 570-71.

The defendant also urges as error the prosecutor’s statement to the jury during closing argument that the defendant’s prior experiences, including her broken tailbone and being threatened with a gun, did not “count.” We agree with the defendant that this is not a correct statement of Illinois law. Both the evidence of the violent disposition of the deceased and threats directed at the defendant by the deceased have been held to have probative value in establishing that the defendant reasonably believed that the use of force likely to cause death or great bodily harm was necessary to prevent the killing or infliction of great bodily harm upon the defendant. People v. Shipp (1977), 52 Ill. App. 3d 470, 367 N.E.2d 966, 970.

In addition to these misstatements of Illinois law, the defendant also raises the injection of inflammatory and irrelevant remarks into the prosecutor’s closing argument as sources of error. Specifically, in his rebuttal argument, the prosecutor stated:

"And another thing that we have to get up front is what are we talking about in this case. We are talking about a situation where a woman has killed her husband. We are talking about a situation where she’s shot him in the chest with a gun and the defendant wants you to justify the taking — her taking of a human life, she wants you to condone her for it. She wants you to resolve [sic] her and find her not guilty. She wants you to tell her that she has a right to take a life.”

Here, the prosecutor’s suggestion to the jury that a finding that the defendant had acted legally in self-defense was equivalent to morally condoning the act was clearly prejudicial and outside of the bounds of fair comment. It is well established that it is improper for a prosecutor to say anything in argument the only effect of which is to arouse the prejudice and passion of the jury against the defendant without shedding any light on the paramount question presented to the jury. People v. Crossno (1981), 93 Ill. App. 3d 808, 821, 417 N.E.2d 827, 838; People v. Lurry (1979), 77 Ill. App. 3d 108, 114, 395 N.E.2d 1234, 1238.

The defendant also argues that the prosecutor improperly injected into his closing argument irrelevant comments about the crime of murder, i.e., “Well, one thing we know and I want you to keep in mind first of all is that Mrs. Estes is not charged with murder.” According to the defendant, the prosecutor made this irrelevant observation to suggest to the jury that the defendant had already been given a break by being charged with a lesser offense. We agree with the defendant that an obvious purpose for this irrelevant comment would be to minimize the significance of finding the defendant guilty of the crime charged.

The test for determining whether the remarks of the prosecutor in closing argument constitute reversible error is whether those comments were such that, without their having been made, the jury might have reached a different result. (People v. Barnes (1983), 117 Ill. App. 3d 965, 978, 453 N.E.2d 1371, 1382.) Furthermore, although a single error alone might be considered harmless, the combined effect of the several errors is not harmless. In the instant case we find that, taken together, the prejudicial effect of the errors discussed above to be substantial.

As a final point within this issue, the defendant contends that the prosecutor improperly expressed his own opinion on the ultimate issue of the case. Although we agree that the prosecutor improperly expressed his personal belief with regard to the guilt or innocence of the defendant (People v. Pearson (1972), 2 Ill. App. 3d 861, 277 N.E.2d 544; People v. Bitakis (1972), 8 Ill. App. 3d 103, 108, 289 N.E.2d 256, 260), we do not find the error in the comments complained of to be of the same magnitude of those discussed above. While in no way condoning the prosecutor’s expression of his personal opinion as to the ultimate issue in the case, we nonetheless decline to find that it had the same measure of seriousness as those remarks discussed above.

Finally, we turn to the third issue raised by the defendant: whether the State proved beyond a reasonable doubt that the defendant did not act in self-defense. With respect to this issue, we note initially that self-defense is an affirmative defense and, once it has been raised, the State has the burden of disproving it beyond a reasonable doubt. (People v. Lester (1981), 102 Ill. App. 3d 761, 766, 430 N.E.2d 358, 362.) The test to be applied is whether the facts and circumstances would induce a reasonable apprehension of serious bodily harm in light of the defendant’s perception of the situation at the time he employed force against his aggressor. People v. Moore (1976), 43 Ill. App. 3d 521, 527, 357 N.E.2d 566, 570.

Although whether a killing is justified under the law of self-defense is always a question of fact to be determined by the trier of fact and will not be lightly set aside, a court of review has a duty to carefully review the evidence and to reverse the conviction of the defendant when the evidence is so unsatisfactory as to raise a serious doubt as to the defendant’s guilt. (People v. Reeves (1977), 47 Ill. App. 3d 406, 410, 362 N.E.2d 9, 13.) The defendant need only to have subjectively believed that she was in danger of losing her life or suffering great bodily harm to be justified in using deadly force, and where she claims that she acted in self-defense, it is sufficient to acquit her if all of the evidence in the case, taken together, creates a reasonable doubt as to her guilt. People v. Goodman (1979), 77 Ill. App. 3d 569, 574-75, 396 N.E.2d 274, 278.

To the defendant’s charge that the State failed to prove beyond a reasonable doubt that the defendant did not act in self-defense, the State responds with several arguments. One argument made by the State is that, because the decedent was not armed, the defendant’s use of deadly force was not justified. A related point of dispute is whether the defendant knew that the deceased was not armed.

With respect to this issue, we agree with the defendant that the law does not require that the aggressor be armed in order that the use of a deadly weapon in self-defense be justified. (People v. White (1980), 87 Ill. App 3d 321, 323, 409 N.E.2d 73, 75; People v. Lester (1981), 102 Ill. App. 3d 761, 767, 430 N.E.2d 358, 362.) Where it is clear that the aggressor is capable of inflicting serious bodily harm on the defendant without the use of a deadly weapon, and it appears that he intends to, then it is not necessary that the aggressor be armed for the defendant to employ deadly force in self-defense. In the instant case, the deceased had previously inflicted serious bodily harm on the defendant without the use of a weapon.

As to whether or not the defendant knew that the deceased was not armed, the State argues that, because the deceased did not have a coat on, he could not have concealed a weapon on his person. The defendant responds that there are other ways to conceal a weapon on a person when that weapon is of a size which can be kept in a Kleenex box.

With respect to this question, it appears to be undisputed that, without her glasses, the defendant’s vision was extremely limited. We also note that a loaded weapon was in fact found in the car from which the deceased exited, the same weapon with which he had previously threatened the defendant after breaking her tailbone.

Next the State argues that the defendant could have fended off the assault by threatening to shoot her husband or by warning him. Thus, the State argues, the defendant’s belief that the use of force in self-defense was necessary was unreasonable. The defendant admits that she did not warn or threaten the deceased; she testified that she did, however, go sit down in a chair and beg him to leave her alone. It was only when he came after her again that she shot him. Further, the evidence indicates that the shooting took place at extremely close range.

With respect to this question, we find the observations of the court in People v. White (1980), 87 Ill. App. 3d 321, 409 N.E.2d 73, to be particularly instructive. That court observed:

“When one is threatened by a person who carried out his threats on a previous occasion, he does not have much time to reason out his response or judge precisely how much force is necessary to repel the threatened attack. While it is true he cannot take the law into his own hands, we must bear in mind that a person placed in such a position is not in a contest governed by established rules enforced by an on-the-scene umpire. [Citation.] Consequently, the law does not charge a person, when he has reasonable grounds to believe himself in apparent danger of losing his life or suffering great bodily injury, to use inerrable judgment. It would be unreasonable to require such an exacting decision to be made in the space of a few seconds while one is fearful and under great stress. [Citation.]
The question in a case such as this is whether on the basis of quickly unfolding events the defendant’s response was reasonable under the exigencies that existed at the moment. In this regard, the right of self-defense arises before the first blood is drawn. [Citation.]” (People v. White (1980), 87 Ill. App. 3d 321, 323, 409 N.E.2d 73, 75.)

The White court reversed the defendant’s conviction for voluntary manslaughter, following a bench trial, finding that the State had failed to prove beyond a reasonable doubt that the defendant was not acting in self-defense at the time he shot the victim.

Additionally, the State argues that, because a burned-out cigarette was found near the deceased’s hand by the police, it is possible to infer that he was holding a cigarette at the time he was shot and that smoking a cigarette was not consistent with the attack on the defendant. In response, the defendant points to her testimony at trial regarding her husband’s habit of putting down his cigarette on the stove or countertop in the kitchen and forgetting it, so that it rolled on the floor and burned itself out.

The State further argues that the defendant’s credibility regarding the intensity of the struggle which took place in the kitchen is questionable because only a sugar bowl was broken. The defendant responds that most of the fight took place on the floor.

Finally, the State points out that the evidence of the defendant’s physical injuries shows marks only on one side of her throat. The defendant responds, relying on forensic experts for authority, that marks on one side of the throat are not inconsistent with choking and that it is wholly possible for choking not to leave any marks at all.

We conclude that these arguments made by the State as to the physical evidence are not sufficiently convincing to elevate the State’s proof that the defendant did not act in self-defense to the status of beyond a reasonable doubt. In general, those arguments may be fairly characterized as speculative and even the argument regarding the cigarette found near the deceased, which we regard as the least unconvincing, cannot be accurately described as disproving the defendant’s testimony that she acted in self-defense beyond a reasonable doubt.

As we indicated previously, where the record on appeal leaves a grave and substantial doubt as to the guilt of the defendant, the judgment of the trial court will be reversed. (People v. Shipp (1977), 52 Ill. App. 3d 470, 475, 367 N.E.2d 966, 970.) In the instant case, under the circumstances, considering all the evidence, we cannot say that the defendant’s belief that she was in danger of death or great bodily harm was unreasonable beyond a reasonable doubt.

During the pendency of this appeal, the defendant sought and was granted leave to file a supplemental brief raising the following issue: whether the trial court abused its discretion by denying her request to supplement the court’s voir dire with a question pertaining to the State’s burden of proving its case beyond a reasonable doubt.

In her brief, the defendant principally relies on our supreme court’s recent decision in People v. Zehr (1984), 103 Ill. 2d 472, in which the trial court’s refusal to ask, on voir dire, certain questions tendered by defense counsel was held to be error. According to the defendant, the questions refused by the trial court in Zehr, like the question refused in the instant case, “probed the jurors’ bias or prejudice regarding the defendant’s presumption of innocence and the State’s burden of proving guilt beyond a reasonable doubt.”

At issue in this case is defense counsel’s request that the court question each juror individually to assure that he or she would adhere to the principle that the State carries the burden of proving the defendant guilty beyond a reasonable doubt. In Zehr, these questions were found to have been erroneously refused by the trial court:

“l..If at the close of all the evidence and after you have heard arguments of counsel you believe that the State has failed to sustain the burden of proof and has failed to prove the defendant guilty beyond a reasonable doubt, would you have any hesitation whatsoever in returning a verdict of Not Guilty?
2. If the defendant, Mr. Zehr, decides not to testify in his own behalf, would you hold it against him?
3. Do you understand that the defendant is presumed innocent and does not have to offer any evidence in his own behalf, but must be proven guilty beyond a reasonable doubt by the State?”

In contrast, in the instant case no similar questions were submitted. Rather, at the court’s invitation to counsel to submit additional questions, defense counsel merely suggested:

“Your Honor, there is only one question that I was under the impression that would be asked and that is that there is specifically charged with the burden of proof beyond a reasonable doubt and that they would decide —

In reply to this rather generalized statement of concern expressed by defense counsel, the court indicated that the jury would be informed of the basic principles which apply in criminal cases, including the requirement that the State prove its case beyond a reasonable doubt, at the time it was sworn. This concern was again reiterated by defense counsel as follows:

“Although again, I would respectfully request of the court if they could, if here again if the court could just briefly assure that each individual juror will go along with the reasonable doubt standard.”

On the basis of these rather vague oral suggestions, we decline to find in the instant case a violation of the rule announced in Zehr. Supreme Court Rule 234 governs this question and places within the trial court’s discretion the use of supplementary questions submitted by counsel for use on voir dire. (94 Ill. 2d R. 234.) To find that the court has committed error here, where no question was actually submitted, in our opinion pushes the Zehr rule too far.

Rule 234 delineates the duty of the trial court to “manage” the voir dire examination. For us to rule that the court erred in refusing to allow a question which was not actually submitted would be to transform the duty of the trial court into an unreasonable burden.

Nor does the only reported appellate court case applying the Zehr rule suggest a different result. In People v. Britz (1984),_Ill. App. 3d_, defense counsel had submitted a list of 50 questions for the court’s consideration with respect to voir dire. Among these 50 questions were three which the Britz court found to be virtually identical to those proposed in Zehr. In Britz, the trial court’s refusal to propose these questions was found to be reversible error. In the instant case, we find that the question was not adequately raised by defense counsel. It is obvious, however, that, had questions similar to those in Zehr and Britz been presented to the court for use on voir dire, they should have been included.

No other issues having been raised by the defendant, the judgment of the circuit court of Will County is reversed.

Reversed.

SCOTT, J., concurs.

JUSTICE HEIPLE,

dissenting:

I respectfully dissent from the majority of the court.

The evidence adduced at trial reveals a situation where reasonable men might disagree as to what defendant believed when she shot her husband, and whether that belief was reasonable. Questions of this sort are particularly within the province of the jury. (People v. Aguero (1980), 87 Ill. App. 3d 358, 408 N.E.2d 1092.) Consequently, I am most reluctant to substitute my assessment of the record on appeal for the judgment of those who had the opportunity to observe the testimony of live witnesses. It is with this reluctance in mind that an analysis of the evidence is undertaken.

It is clear that defendant’s fear of physical harm from her husband was quite reasonable. He had beaten her earlier that day. It was this fear that motivated defendant to get a loaded gun from the house. Defendant’s husband proceeded to verbally and physically abuse her after entering the house. Defendant, obviously frightened, sat down in a chair near the back door. As her husband approached, she shot and killed him.

The scenario revealed by this evidence is one from which one could easily infer that defendant’s fear of death or serious bodily harm was in fact reasonable. However, there is enough in the record to justify the conclusion that a reasonable doubt might not have necessarily arisen from the conflicting inferences. First, while abuse had occurred, the victim had never caused serious bodily harm to defendant. There was evidence of a fractured coccyx as a result of a fight, but the victim had merely pushed defendant down. Second, defendant went into the house, obtained a loaded gun, concealed it, and did not attempt to reveal its existence in order to repel her oncoming husband. A reasonable inference would be that defendant was lying in wait for an opportunity to use the gun as a response to an attempted beating. This form of “calculated self-defense” cannot logically be said to be a product of fear of death or serious bodily injury. Finally, the only account of the encounter came from defendant. It is quite conceivable that the jury simply did not believe either the factual account of defendant or that her testimony that she reasonably feared death or serious bodily injury. Matters of credibility are particularly within the province of the jury, especially those involving state of mind. Thus, I cannot agree that the evidence fails as a matter of law to establish guilt beyond a reasonable doubt.

The majority’s citation of People v. White (1980), 87 Ill. App. 3d 324, 409 N.E.2d 73, is not persuasive. While we agree that one who is confronted with a person who has carried out his threats previously is entitled to a certain latitude of freedom in responding to subsequent threats, the cases are sufficiently factually dissimilar to justify distinction. There, the victim had previously attacked and cut the defendant with a knife. Furthermore, defendant knew victim to be extremely hostile due to an earlier incident involving an accidental discharge of defendant’s gun resulting in some tile fragments striking the victim. The defendant was in his own home when the victim intruded. Finally, events there occurred rather suddenly so that opportunity for reasonable assessment of possible danger was impossible. Here the most salient, uncontroverted fact in evidence is that defendant retrieved and concealed a loaded gun. Her allegedly reasonable belief that her husband was armed was unfounded and disbelieved by the jury. Thus, we believe that a reversal on the authority of White is not justified.

The court also finds that the prosecutor’s argument to the jury constituted reversible error. Keeping in mind the standard that improper argument justified reversal only when the statements result in substantial prejudice or serve no purpose other than to inflame the jury (People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746), an analysis reveals that no reversible error was committed. The statements cited by the majority were all clearly examples of improper argument. However, in a case such as this, it is doubtful that any substantial prejudice resulted. The issue in the case (whether defendant’s belief that she was in danger of serious bodily harm or death was reasonable under the circumstances) is straightforward enough that attempts by the prosecutor to inject irrelevant or distracting matter could not sway the jurors from the fundamental question before them. It is my opinion that the jurors resolved this question in favor of the People without regard to the improper argument of counsel.

I agree that the second paragraph of the circumstantial evidence instruction was properly refused.