text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT EARL WILSON, Defendant-Appellant.
    First District (4th Division)
    No. 81—172
    Opinion filed December 29, 1983.

      Steven Clark and Bradley S. Bridge, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Stoioff, and Lawrence R. Stasica, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Following a jury trial defendant Robert Earl Wilson was convicted of rape and deviate sexual assault and was sentenced to concurrent extended-term sentences of 45 years. On appeal defendant contends: (1) the trial court denied him his right to present a defense by denying his attorney continuances necessary for trial preparation and by improperly quashing subpoenas for critical defense witnesses;

(2) improper argument by the prosecutor and certain rulings by the trial court during final argument deprived defendant of a fair trial; (3) the trial court erred by improperly instructing the jury on the presumption of innocence in its initial comments to them, by repeatedly telling the jury it wanted a verdict by the court’s vacation day, and by making comments tending to favor the prosecution; (4) defendant was improperly found fit for trial based on stipulated testimony; (5) the prosecutor improperly utilized the fact that defendant initially remained silent after his arrest; (6) the trial court erred in refusing to accept defendant’s guilty plea because defendant said he was not guilty; (7) defendant’s extended-term sentences were imposed for improper reasons.

We reverse and remand for a new trial.

At trial Kay A. testified that at about 1 a.m. on March 23, 1979, she was walking home from work when the defendant approached and grabbed her by the throat. She sprayed him with Mace but he pulled her to the ground and began choking her and poking her in the eyes. She again sprayed him with Mace and was able to flee, screaming, for about 100 yards before he caught her and threw her to the ground. The defendant again choked her and put his finger in her eyes. He told her to shut up and dragged her into an alley and up some stairs to an apartment landing. He repeatedly demanded that she disrobe but she refused. As he began to forcibly disrobe her a car came down the alley so he forced her down to a basement vestibule. There he forced her to disrobe further, subjected her to an act of cunnilingus, told her she was going to perform fellatio on him, and then forced her to have sexual intercourse with him. While this latter act was taking place a policeman arrived and ordered defendant to “freeze.” Defendant was arrested at gunpoint and Kay was taken first to the police station and then to the hospital.

Officer Ronald Keith testified that he arrested defendant at the scene. When Keith arrived defendant was on top of a woman and their clothes were in disarray. When the officer announced his office and told the defendant to stop the defendant got up and put his hands in the air. Keith observed scratches on the woman’s neck and saw that one eye was bruised. Her blouse had been ripped open and she was nude from the waist down. The nurse who examined Kay at the hospital emergency room testified that Kay had bruises on her face and back.

The defendant presented the testimony of Dr. Basil Sklan, a psychiatrist at the Chester Mental Health Center’s Maximum Security Hospital. As we will set out in detail later in this opinion the defense was precluded by the court from presenting the testimony of other psychiatrists and a psychologist who had examined the defendant, although the written report of the psychologist was introduced into evidence by stipulation.

Dr. Sklan first interviewed the defendant on June 1, 1979. The defendant described hallucinations he had experienced a week before. He told Sklan that his sister, who had died in infancy years earlier, often spoke to him and told him to do things. He also said that he could not control some of the things he did. During the interview defendant exhibited a bland affect, appearing to express no feelings. At that time it was Sklan’s opinion that defendant suffered from paranoic psychosis. According to Sklan the defendant was at the Chester facility from May 31, 1979, to July 1980. During that period he was given Haldol, a drug used to suppress psychosis, three times a day. Sklan also testified that the defendant had told him he was currently still receiving that medication twice a day at the time of trial.

Sklan was aware that Dr. Jewett Goldsmith, a psychiatrist at the Illinois State Psychiatric Institute, had also examined the defendant and had concluded that defendant was a chronic paranoid schizophrenic. Sklan also was aware that defendant had previously been at Chester in 1976 and at that time had been diagnosed as schizophrenic. According to Sklan it was a reasonable conclusion that defendant had been schizophrenic and a paranoid psychotic since at least 1976 and remained so at the time of trial. It was also his opinion, based on a reasonable degree of medical certainty, that defendant was insane on the day of the occurrence and was at that time unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

On cross-examination Sklan admitted that he did not know any of the details of the occurrence. He based his opinion on his interview with the defendant and on the reports of the other specialists who had seen the defendant. Sklan conceded that in none of the other reports he had seen was defendant declared to be legally insane on the date of the occurrence but he also stated that some of the other doctors were not specifically asked to determine sanity as of that time. Sklan testified that a Dr. Vallabhaneni was defendant’s primary psychiatrist at Chester. Sklan also testified that one of the reports that he relied on was that of Dr. Janice S. Friedman, a psychologist. In her report of October 27, 1980, she concluded that defendant was schizophrenic. Sklan also relied on the observations of Drs. Reifman, Kaplan, Goldsmith, and Vallabhaneni, who all agreed with his conclusion about defendant’s schizophrenic condition. However Sklan conceded that Dr. Bogen and Dr. Reifman had both expressed doubts about defendant’s credibility.

Linda Miller, an assistant State’s Attorney, testified for the defendant that she spoke to defendant at the police station after his arrest. He told her that his younger sister, who had been dead for 10 years, had told him to “take” the victim sexually and because his sister had told him to do this he had complied, even though he knew it was wrong. On cross-examination Miller testified over defense objection that it was her opinion that defendant was not insane because he was able to appreciate the criminality of his conduct. On redirect examination she stated that she did not know whether the defendant could conform his conduct to the law, although she “had no reason to expect otherwise.”

Defendant’s mother testified that she had experienced problems with the defendant since he was three years old. Defendant would tell her that his sister, who had died in infancy, would talk to him and tell him to do things. On one occasion he broke all the windows in the house, telling her later that he did not know why he did it. He had many difficulties in school and only attended high school for three days. In her opinion the defendant was at times unable to control himself and unable to distinguish right from wrong.

Defendant’s grandmother also testified that he had spoken of hearing his dead sister talking to him. She too believed that he could not always control himself or distinguish right from wrong. At times he would act like his mind had “gone off.”

The report of Dr. Janice Friedman was read into the record by stipulation. She examined the defendant October 27, 1980, conducting an interview and giving the the Rorschach test and the thematic appreciation test. It appeared to her that defendant was trying to reveal nothing in the tests she administered. From her interview she concluded that he was at the command of voices, primarily that of his sister. That voice bid him to perform various antisocial acts. She concluded that defendant was schizophrenic and should be hospitalized and medicated.

In rebuttal the State called two psychiatrists. Dr. Robert Reifman, a board-certified psychiatrist and director of the Psychiatric Institute of the circuit court of Cook County, testified that he first examined the defendant June 22, 1976, in order to determine his fitness for an unrelated trial. At that time the defendant told him he was hearing the voice of his dead sister. He also learned that the defendant had threatened to kill himself if he was sent to a mental hospital. Reif-man’s diagnosis at that time was that defendant was a schizo-affective type. Reifman explained that defendant had the schizophrenic symptoms of hallucinations and the inability to fully appreciate reality and was also very depressed. Reifman determined at that time that as the result of this mental disease the defendant was unable to cooperate with his counsel and therefore was unfit for trial. The prosecution also elicited from Reifman over defense objection the information that defendant had ultimately pled guilty to the then-pending charge of armed robbery.

Reifman again examined the defendant in August of 1980. This time the examination was to determine defendant’s fitness for trial in this cause and to determine the defendant’s sanity at the time of the alleged offenses. The defendant was guarded and suspicious. He told Reifman that his dead sister’s voice told him to “take” the victim and that he raped her in response to that voice. He claimed not to remember the facts of the rape and his arrest. However according to Reif-man this claim was contradicted by the fact that the defendant had told another doctor at the Psychiatric Institute about the occurrence, depicting the intercourse as voluntary. Reifman stated that he had some doubts as to defendant's credibility in claiming to hear voices. At the time of the examination he was unable to come to a conclusion as to the defendant’s sanity at the time of the occurrence. He did find that defendant still suffered from a schizophrenic reaction, schizo-affective type. However the defendant was being treated with thorazine and Reifman found at that time that his condition was sufficiently in remission as to permit him to go to trial. Reifman found that the defendant was not psychotic at the time of the interview; he did still have a mental disease but was in a lucid interval.

The prosecutor asked Reifman a hypothetical question about the sanity of an individual who had committed the acts ascribed to the defendant. This hypothetical question included the fact that the individual cooperated with the police, giving them basic booking information, but then refused to make any statement after being told his rights. The individual subsequently told an assistant State’s Attorney that he attacked the victim on his dead sister’s instructions, even though he knew it was wrong. Reifman’s opinion was that this hypothetical individual was able to appreciate the criminality of his actions and was able to conform his conduct to the requirements of the law.

The prosecution’s hypothetical question had not included any information about the hypothetical man’s past mental history. In cross-examination the defense elicited from Reifman the fact that in examining the defendant he was aware of previous diagnoses of defendant’s schizophrenia by Drs. Kaplan, Bogen, Sklan, and Val-labhaneni. Reifman was then asked whether the additional fact that the hypothetical man in the prosecution’s question had in the past suffered from schizophrenia would make a difference in his opinion. Reif-man responded that though he would still be inclined to find the person sane this information would weaken his conclusion and he would be more hesitant in saying the person was sane.

Also testifying for the prosecution was Dr. Gilbert Bogen, a board-certified psychiatrist with the Psychiatric Institute. Bogen first examined the defendant on April 26, 1979. At that time the defendant was hesitant, expressed fear and agitation, and talked of suicide, saying he heard a voice telling him to kill himself. Bogen diagnosed defendant than as acutely psychotic, suffering from a schizophrenic disorder, paranoid type, and in need of mental treatment.

On August 7, 1979, Bogen examined the defendant again. Defendant told him he had been arrested while having consensual sexual intercourse with a woman who accused him of rape when the police arrived. Defendant still talked of suicide and stated that he heard his sister’s voice. He thought the staff at Chester was lying to him. Bo-gen believed that defendant was still psychotic and unfit for trial. He also believed that defendant should be placed on antipsychotic medication.

On March 20, 1980, Bogen examined the defendant and found him fit for trial. He still believed the defendant was suffering from schizophrenia but stated that the disease was in remission with medication.

On July 14, 1980, Bogen again examined the defendant. He continued to diagnose the defendant as having a schizophrenic disorder, paranoid type, in remission. Defendant claimed to have no recollection of the offense but Bogen questioned his credibility. He again found the defendant fit for trial but could reach no conclusion as to the defendant’s sanity at the time of the alleged offense.

When given a hypothetical question which included what Bogen knew of defendant’s background and the facts of the occurrence and defendant’s arrest, Bogen concluded that the person in the hypothetical question was sane. He conceded that he was aware of most of this information on July 14, 1980, when he had been unable to determine whether defendant was sane at the time of the occurrence. However he cited two facts in the hypothetical question, previously unknown to him, which he said enabled him to render an opinion: the fact that the man moved to a more secluded area when car lights appeared, and the fact that the man told the victim to shut up when she screamed.

I

We first consider defendant’s contention that the trial court denied him his right to present a defense by denying his attorney’s request for continuances and by quashing subpoenas for critical defense witnesses.

The defendant was found to be unfit to stand trial on May 29, 1979. He was not adjudicated as fit for trial until a hearing before the trial judge on October 2, 1980. Defendant’s trial counsel first represented defendant in this cause on July 18, 1980, before Judge Harry Schreier, when she informed the court that defendant would not cooperate with her and she did not consider him yet fit for trial. Following the October restoration hearing defense counsel obtained several continuances until November 13, 1980, a Thursday. On that date she informed the court that she was not ready for trial, that the doctors who were to testify for the defendant on the issue of sanity were not in Chicago and still had to be subpoenaed. She told the court that the names of these witnesses were Dr. Vallabhaneni, Dr. Sklan, Dr. Tabi-lon, and Dr. Janice Friedman. Counsel also informed the court that she had not yet discussed with defendant whether he would request a jury, she had not yet interviewed the complaining witness, and had not seen any of the State’s physical evidence. The court noted that the case was one of the oldest on its call and it had been set for trial the last time it was continued. On those grounds the court denied the motion for a continuance. After counsel had conferred with defendant she announced that he would be requesting a jury trial. Voir dire of the venire commenced that afternoon.

The next day, Friday, defense counsel informed the court that she had learned the Department of Mental Health intended to contest on Monday her subpoenas of their doctors. She requested that the court issue a writ of habeas corpus ad testificandum requiring the Department to produce the doctors as material and necessary witnesses. The court held that due diligence was not exercised in preparing the case, noted that it would take eight hours for the doctors to arrive from Chester in southern Illinois, and denied the petition. Defense counsel indicated that the doctors could testify Monday, Wednesday or Thursday of the next week, but the court stated: “I am going to proceed. I am going on vacation Thursday. I intend to have this case disposed of prior to the time I leave on my vacation.” The trial then commenced.

The following Monday, November 17, prior to the testimony of the State’s last witness, an attorney from the Department of Mental Health appeared and moved to quash the subpoenas of Dr. Val-labhaneni and Dr. Tabilon. Both he and defense counsel informed the court that the doctors had been personally served. The court granted the motion, again referring to the eight-hour travel time, and stating that the request for the witnesses was unreasonable and untimely. Because Dr. Sklan, another Department doctor, had voluntarily appeared the motion to quash was not directed toward his subpoena.

After Dr. Sklan testified that afternoon the trial judge informed the jury that no testimony would be heard on Wednesday because of a funeral the judge had to attend. In response to a juror’s question about the chance that the trial would continue until Friday the court responded:

“None at all, none at all. It will be completed by Thursday. If I have to work these people here to midnight on Thursday, I am going to do it because I don’t feel I want to spend that much time of my vacation over here because it’s something that could be adjusted but I don’t think it’s necessary. I want to give them enough time and sufficient time so they are not pressured into anything and give you folks enough time to make any deliberations on how much time you want to resolve the issue without too much difficulty. So, as I indicated, I am going to adjourn until tomorrow ***.’’

After the jury was dismissed for the day defense counsel asked that the subpoena of Dr. Vallabhaneni be reinstated, stating her belief that he could be in court by Thursday if not Tuesday. The court denied the request and stated that if another subpoena were presented it would also deny that as not timely.

The next day, Tuesday, November 18, defense counsel again requested reinstatement of the subpoena of Dr. Vallabhaneni. She informed the court that he was the doctor who had spent the most time with the defendant at Chester and that he had diagnosed the defendant as schizophrenic. The court again denied the request.

Later during the proceedings on Tuesday defense counsel informed the court that Dr. Friedman, who had accepted a subpoena for that day, would be unable to come because of an attempted suicide, apparently by one of her patients. Counsel told the court that Dr. Friedman would be able to appear at 1 p.m. Thursday, the next scheduled trial day. The court responded:

“No. Absolutely, Nine o’clock Thursday morning. Let the record show Thursday morning is my vacation date, a date I had planned to go on my vacation. I agreed to come back here only because of the fact something arose of an emergency nature in my family. I indicated I would continue this matter to give you people time to present your case yesterday, and I further indicated to the jury what the tentative programs and plans of operation were with reference to this court. *** I will begin the trial promptly on Thursday morning at nine o’clock. I will not consider any continuances or any delay in the postponement.”

As we have noted, Dr. Friedman did not testify but on Thursday morning her report was submitted by way of stipulation.

Also on Thursday morning defense counsel told the court that the Department of Mental Health was prepared to allow Dr. Vallabhaneni to testify and that he would be available “next week.” The court denied counsel’s request for a continuance on that ground. Defense counsel also told the court that another defense witness, Dr. Jewett Goldsmith, was on vacation and would not be available to testify until December 5. Counsel stated that she had attempted to contact Goldsmith the previous Friday and again on Monday, November 17. According to counsel Dr. Goldsmith had diagnosed the defendant as a person with chronic paranoid schizophrenia. The court denied a continuance to that date, and the prosecution refused to stipulate that Dr. Goldsmith would have testified as to that condition.

In essence defendant contends that as the result of these actions by the trial court defendant’s right to present a defense was so impaired as to prejudice his right to a fair trial. The State contends that the court properly exercised its discretion and that defendant was not prejudiced. In reviewing the court’s exercise of discretion in such matters the courts will examine the diligence of the defendant’s attempts to obtain the witnesses, whether their testimony would be material to the case and might have affected the outcome, and whether defendant’s right to a fair trial has been prejudiced. People v. Robinson (1973), 13 Ill. App. 3d 506, 301 N.E.2d 55; People v. Timms (1978), 59 Ill. App. 3d 129, 375 N.E.2d 1321.

On the question of materiality and possible prejudice, it is clear that the issue of defendant’s sanity at the time of the occurrence was closely contested at trial. All three psychiatrists who testified agreed that defendant suffered from schizophrenia. Dr. Sklan’s opinion was that defendant was legally insane at the time of the occurrence. Dr. Reifman reached the opposite conclusion on the basis of a hypothetical question which omitted the fact of defendant’s mental illness. When asked to include this fact in his evaluation he expressed some hesitancy in adhering to his opinion of sanity, although he was still inclined to find the person sane. Dr. Bogen, on the basis of a hypothetical question which included the facts of the occurrence and the defendant’s mental illness, was more definitive in his determination that the person was sane, but he conceded that when he had previously evaluated the defendant and was aware of virtually all the same facts he had been unable to reach a conclusion as to defendant’s sanity at the time of the occurrence. Given this record it is clear that defendant was prejudiced in not being able to present to the jury the material testimony of Dr. Vallabhaneni, Dr. Tabilon, and Dr. Friedman, who all had agreed that defendant suffered from schizophrenia. The jury was informed of the bare fact of those conclusions by means of stipulation and references by witnesses. But defendant was denied the considerable impact of their live testimony, especially in the case of Dr. Vallabhaneni, who had been defendant’s main psychiatrist at Chester. Defendant was also deprived of the opportunity to ask them the same hypothetical question which had enabled the State to elicit from its psychiatrists an opinion on sanity which those witnesses had previously been unable to reach despite having evaluated the defendant in person.

Against these considerations we must weigh the trial court’s stated reasons for denying defendant’s requests for continuances and for quashing defendant’s subpoenas. The court asserted that the cause was one of the oldest on its call, and that counsel had not been diligent in her efforts to obtain the presence of desired witnesses. But in fact defendant had been judicially determined to be unfit for trial only two months after the occurrence and was presumed to remain unfit until his restoration hearing almost 16 months later on October 2, 1980. As late as July 18, 1980, defense counsel informed the court that defendant was not cooperating with her. Thus when the trial court denied defendant a continuance on November 13, 1980, counsel had had little more than five weeks to prepare for trial since the time defendant was found fit for trial. Furthermore, even assuming that the trial court’s denial of a continuance was a proper exercise of discretion, we find no justification for the court’s quashing of the subpoenas of Dr. Vallabhaneni and Dr. Tabilon subsequently issued by defense counsel. Contrary to the State’s assertion on appeal the record clearly establishes that these subpoenas were properly served on the doctors: the attorney for the Department of Mental Health conceded this fact at the hearing on the motion to quash. Moreover the asserted hardship on the doctors or on Chester was outweighed by defendant’s interest in obtaining the testimony of the doctors who had treated him and who had diagnosed his schizophrenia. It is noteworthy that even when the Department indicated that it would permit Dr. Vallabhaneni to testify the court refused to continue the trial for the short period that would have been necessary. It would appear that the trial court’s determination of this matter may have been influenced in part by the court’s concern with preventing a delay in its planned vacation. For these reasons we agree with the defendant’s contention that the trial court abused its discretion in barring defendant from obtaining this testimony. And in this cause, where a close question was presented on the key issue of the defendant’s sanity at the time of the occurrence, we cannot say that the exclusion of defendant’s expert witnesses might not have affected the determination of his guilt by the jury. For that reason we find that this was reversible error. People v. Timms (1978), 59 Ill. App. 3d 129, 375 N.E.2d 1321.

II

Although we would reverse and remand on this ground alone, our decision to do so is also supported by what occurred during final argument to the jury. In closing argument the prosecution repeatedly argued to the jury, over defense objection, that if defendant were found not guilty by reason of insanity he would automatically be released. When defense counsel objected on the ground that the defendant’s release would not be automatic the court overruled this objection but stated that defense counsel would also have an opportunity to comment on what might happen in the event of an acquittal. However when in her final argument defense counsel attempted to inform the jury that the defendant could be found in need of mental treatment upon acquittal, the State’s objection was sustained. The court stated that it was proper for the State to comment on the fact the defendant would be released if acquitted but warned of possible sanctions if defense counsel persisted in her argument. The initial comments of the prosecutor were improper. (People v. Brown (1982), 104 Ill. App. 3d 1110, 433 N.E.2d 1081; People v. Etten (1975), 29 Ill. App. 3d 842, 331 N.E.2d 270, cert, denied (1976), 425 U.S. 994, 48 L. Ed. 2d 818, 96 S. Ct. 2207; People v. Hering (1975), 27 Ill. App. 3d 936, 327 N.E.2d 583.) In fact, if defendant had been found not guilty by reason of insanity a hearing would have been required to determine if he was in need of mental treatment. (Ill. Rev. Stat. 1979, ch. 38, pars. 115— 3(b), 1005 — 2—4(a).) The trial court’s action in initially overruling defense counsel’s objection and then preventing her from attempting to correct the false impression created by the prosecutor’s argument constituted error.

The prosecutor also commented to the jury, over defense objection, that Dr. Sklan was the only psychiatrist they heard testify who concluded defendant was insane at the time of the occurrence. He then noted that Sklan was not defendant’s primary psychiatrist and that the jury did not hear from defendant’s primary psychiatrist. Of course what was not revealed to the jury was that defense counsel had been prevented by court rulings from presenting the testimony of other expert witnesses. In particular her subpoena of Dr. Vallabhaneni, defendant’s primary psychiatrist, had been quashed at the urging of the prosecution. Under these circumstances the argument of the prosecution was improper and unprofessional. People v. Ellison (1980), 89 Ill. App. 3d 1, 411 N.E.2d 350.

The prosecution repeatedly referred to the defense case as being a smoke screen, an argument that has been held by the court to be improper. (People v. Young (1981), 97 Ill. App. 3d 319, 422 N.E.2d 1158.) Moreover the prosecution suggested to the jury that an insanity defense was not proper in a rape case, specifically stating that such a defense had never before been presented in a rape case. Defense counsel’s objection to this argument was overruled by the court. This comment was clearly an incorrect statement of the law and it

was grossly improper. People v. Heflin (1978), 71 Ill. 2d 525, 376 N.E.2d 1367, cert, denied (1979), 439 U.S. 1074, 59 L. Ed. 2d 41, 99 S. Ct. 848.

In attacking the defendant’s claim of insanity the prosecution directed the jury’s attention to the defendant’s apparently normal behavior during the trial. But when defense counsel attempted to rebut this inference by suggesting that defendant had been under medication during trial the trial court sustained the prosecution’s objection and instructed the jury at length that nothing in the record supported this argument and thus it should be disregarded. In fact Dr. Sklan had testified that an antipsychotic drug had previously been given to the defendant three times a day and that defendant had told him he was still taking this medication at the time of trial.

All of these errors during final argument tended to improperly cast doubt on defendant’s insanity defense. Thus they added to the prejudicial impact of the trial court’s rulings with respect to the defendant’s expert witnesses. Based on all of these errors we find that defendant was denied a fair trial and thus his convictions must be reversed and the cause remanded for a new trial. Because of our disposition of these issues we need not reach the remainder of defendant’s contentions on appeal.

Defendant’s convictions are reversed and the cause is remanded for a new trial.

Reversed and remanded.

LINN and JOHNSON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK C. ALERTE, JR., Defendant-Appellant.
    First District (3rd Division)
    No. 81—389
    Opinion filed December 30, 1983.

      James J. Doherty, Public Defender, of Chicago (Ronald P. Alwin, Kathleen M. O’Leary, and Kathleen McGinnis, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Anthony John Calabrese, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a jury trial, defendant, Frank C. Alerte, Jr., was found guilty of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1) and sentenced to 30 years in the Illinois State Penitentiary. On appeal defendant argues that (1) the State failed to prove beyond a reasonable doubt that he was sane at the time of the stabbing, (2) the prosecutors’ arguments to the jury deprived him of a fair trial, (3) the court erred in refusing to instruct the jury on the consequences of a verdict of not guilty by reason of insanity and (4) the court erred in denying his request for a bifurcated trial or separate juries on the issues of guilt and sanity. We affirm.

The evidence showed that at approximately 6:45 p.m. on January 12, 1980, two men ran across a field toward the dormitory of a local university. The pair then stood near the entrance of the dorm. One of them supported the other, who was leaning against the wall. A student who passed by asked what was going on and one of the men, who was identified as defendant, said something like, “he’s just drunk, he’ll get over it.” Defendant pulled the other man toward nearby bushes and laid him down. The student noticed that the man on the ground, the victim, had a cut on his neck, and the student called the university security. When another student asked defendant to help carry the victim inside, defendant, who was coherent and rather calm, said that maybe they shouldn’t move him because they might hurt him. Shortly thereafter, defendant was seen walking quickly from the dorm with his left hand pushing something that appeared to be a weapon into his pants pocket. The victim died of multiple stab wounds of the chest and back.

Later that night, Chicago police officers picked up defendant at his parents’ home. On the way to the police station, defendant stated that he had been with the victim until 7 that evening, and defendant conversed about his position as manager of the university’s tennis team. According to the assistant State’s Attorney who questioned defendant that night, defendant responded in a coherent and intelligent manner, relating events of the day in great detail. An officer who also questioned defendant testified that defendant said that he had been with the victim that day and that they had watched TV and played ping pong at the dormitory until 6 or 6:30 p.m. The victim was walking defendant to the el station when the victim said he forgot something at the dorm and went back. Defendant waited 10 or 15 minutes, then walked back to the dorm and saw the victim leaning against the door. Defendant tried to hold him up. Defendant stayed until a group of people came. He then went home.

According to defendant’s mother, defendant had behavior problems which resulted in referrals to psychologists and child psychiatrists, expulsion from various schools and periods of hospitalization. She recalled specific incidents when defendant struck a student with a rock, hit a neighbor’s son with a hammer, ran away from home, set fire to his house, attacked a young man on a train platform and struck a co-worker over the head with an iron pipe. His mother described defendant just before and after two of these incidents as a different person, extremely quiet, with a certain staring expression. A woman who took care of defendant’s brother testified that once when she reprimanded defendant for teasing his brother, defendant responded by dropping grapes down her back. Then, when she went to phone defendant’s father, defendant stuck a knife in her back. The woman also testified that she thought defendant was not well but she did not think he was crazy. Several other witnesses testified about incidents when defendant behaved violently or aggressively and seemed like a different person, his facial expression completely changed, his strength doubled, showing no remorse and offering no explanation. One of defendant’s former teachers testified that defendant seemed to turn on those classmates he liked best.'

The university’s tennis coach and a tennis instructor testified to the apparently normal relationship between the victim and defendant during the two days before the occurrence. A university student testified that on the afternoon of January 12, 1980, he was playing ping pong with the victim in the dormitory. He saw defendant standing, then pacing, outside with an envelope or papers in his hand. Defendant walked in and sat down without saying hello and began looking through the papers with a pensive expression, as if he had something on his mind. The student then left.

Dr. Fredric A. Gibbs, an expert in the field of epilepsy and electroencephalography, testified that he first met defendant in 1965. At that time, Gibbs administered and read defendant’s EEG, which was abnormal, revealing a type of seizure activity in part of the brain. Gibbs stated that this type of abnormality does not produce convulsions, but 2% of the people with this abnormality have rage attacks during which they cannot control their actions or exercise normal judgment. Based on defendant’s EEG and history, Gibbs believed defendant suffered from this condition. A 1969 EEG of defendant showed some improvement, but on that day defendant suddenly grabbed Gibbs’ necktie and, with a display of unusual strength, started dragging Gibbs toward an open window. A friend of Gibbs’ who was present grabbed defendant and helped quiet him down. Gibbs believes that this incident was a rage attack. According to Gibbs, epileptics and people who have rage attacks can have normal EEG’s. Following a normal EEG of defendant in 1977, Gibbs referred defendant to Dr. Frank Lorimer.

Dr. Lorimer testified that he is a psychiatrist who had examined defendant on three occasions since the occurrence. He concluded, on the basis of those examinations, an interview with defendant’s family, and defendant’s medical records, that defendant best classifies diagnostically as having organic brain syndrome, nonpsychotic with epilepsy. According to Lorimer, defendant’s form of epilepsy is limbic epilepsy, a category of epilepsy now gaining medical recognition, which is characterized by rage attacks and blackouts. Normal EEG’s would not be contrary to a diagnosis of epilepsy. Lorimer also testified that on January 12, 1980, defendant’s condition of organic brain syndrome was in a psychotic phase because defendant was in a distinct rage attack at that time. Further, Lorimer testified that defendant was then unable to appreciate the criminality of his behavior or conform to the requirements of the law.

In rebuttal, Dr. John Hughes, a specialist in electroencephalography and epileptology, testified that he reviewed EEG’s of defendant and found four early EEG’s to be somewhat abnormal and 10 subsequent EEG’s, including one considered abnormal by Gibbs, to be normal. According to Hughes, the pattern that Gibbs considered abnormal represented only drowsiness, not an abnormality. Hughes believes that it is impossible for an epileptic to have such a series of EEG’s. Hughes also testified that Lorimer’s diagnosis of organic brain syndrome nonpsychotic with epilepsy does not appear in the manual containing acceptable diagnoses in the field of psychiatry. Further, Hughes testified that limbic epilepsy is not a term that is commonly understood and agreed upon by the world neurological community. Psychomotor seizures that fall under the classification of partial seizures with complex symptomatology are the closest things to limbic epilepsy which are medically recognized. In response to a hypothetical question, Hughes testified that activities such as those of defendant on January 12, 1980, could not have been the result of a psychomotor seizure since they were clearly directed and purposive.

Dr. Robert Reifman, a psychiatrist, testified that on the basis of his personal interviews with defendant and his examination of defendant’s medical records, he concluded that defendant did not suffer from any mental disease or defect on January 12, 1980, and that defendant could appreciate the criminality of his conduct and was capable of conforming his conduct to the requirements of the law. Reif-man diagnosed defendant as having a narcissistic personality, a diagnosis which is consistent with problems in school and violent episodes. Reifman also testified that Gibbs, having read an EEG which Reifman administered to defendant, wrote a letter which stated that the activity manifested in the EEG is not associated with mild or severe behavior disturbance.

The jury found defendant guilty of murder.

Defendant first contends that the State did not prove beyond a reasonable doubt that he was sane at the time of the stabbing. Specifically, defendant argues that the State did not prove beyond a reasonable doubt that the stabbing was not the result of defendant’s particular kind of epilepsy, a mental disease or defect which manifests itself in violent rage attacks during which defendant neither knows what he is doing nor has the capacity to control his conduct. We disagree.

Once a defendant introduces sufficient evidence to create a reasonable doubt as to his sanity at the time of the offense, the burden of going forward with the evidence on that issue shifts to the State. (See People v. Foster (1979), 76 Ill. 2d 365, 378-79, 392 N.E.2d 6, 12. But see Pub. Act 83 — 288 (1983 Ill. Laws 1713 — 14), amending Ill. Rev. Stat. 1981, ch. 38, pars. 3 — 2, 6 — 2 (which, effective January 1, 1984, changes the burden of proof when the affirmative defense of insanity is raised).) Whether the State has met its burden of proving beyond a reasonable doubt that the defendant was sane at the time is a question of fact. The fact-finder’s decision will not be disturbed on review unless it is so improbable or unsatisfactory as to create a reasonable doubt of the defendant’s sanity or is so palpably erroneous as to suggest that it is based upon passion or prejudice. People v. Clark (1981), 102 Ill. App. 3d 414, 418, 429 N.E.2d 1255, 1258.

Here, the record reveals that the jury’s decision as to defendant’s sanity was not improbable, unsatisfactory or palpably erroneous. Both State and defense experts testified that some of defendant’s EEC’s were abnormal and some were normal. The experts drew conflicting conclusions from their readings of one of the 1980 EEC’s. Gibbs considered the EEC abnormal, while Hughes considered the pattern to be the result of drowsiness, not abnormality. The experts disagreed with regard to the significance of the normal EEC’s. Lorimer believed that normal EEC’s would not be contrary to a diagnosis of epilepsy, yet Hughes believed it impossible for an epileptic to have such a series of EEC’s. Further, the experts disagreed in their diagnosis of defendant. Lorimer diagnosed defendant as' having organic brain syndrome, with limbic epilepsy, which was in a psychotic phase at the time of the victim’s death, a diagnosis which is not among the possible diagnoses which appear in the diagnostic and statistical manual of the American Psychiatric Association. Reifman diagnosed defendant as having a narcissistic personality, not a mental disease or defect. Either condition could account for defendant’s actions on January 12, 1980, and on the other occasions when he behaved violently. It is within the discretion of the trier of fact to accept one expert’s opinion over another’s on the question of insanity so as to resolve contradictions. (See People v. Clark (1981), 102 Ill. App. 3d 414, 421, 429 N.E.2d 1255, 1260.) We believe that the State’s expert testimony, xyhich the jury apparently chose to accept, together with the uncon-flicting testimony regarding defendant’s calm and coherent behavior shortly before and after the victim’s death, sufficiently support the jury’s determination that defendant was sane at the time of the crime.

Next, defendant argues that the prosecutors’ improper and prejudicial remarks to the jury deprived him of a fair trial. The remarks were made during closing and rebuttal arguments, which were presented by different prosecutors. Defendant maintains that as a whole the prosecutors’ arguments manifested a deliberate attempt to prejudice and inflame the jury and to divert the jurors’ attention from the issue of defendant’s sanity. Defendant specifies various remarks which he contends were improper, including: (1) remarks about the family of the victim, (2) remarks about defendant’s parents, (3) a plea for sympathy for the victim, (4) statements that the defense was a fraud, (5) attacks on the integrity of defense counsel, (6) expressions of the prosecutors’ personal opinions, (7) suggestions that defendant’s motives related to homosexuality and (8) remarks about the results of a not-guilty verdict. We have examined the record carefully and, while we believe that some of the prosecutors’ remarks were improper, we do not believe that the remarks constituted a material factor in the conviction or resulted in substantial prejudice to defendant.

Defendant argues that no reasonable and fair-minded juror could react rationally and dispassionately to the prosecutors’ references to the family of the victim during closing argument and rebuttal. We note that these comments passed without objection by defendant, and they were not specified in defendant’s motion for a new trial. Therefore, any error is waived. Moreover, while it is improper for a prosecutor to refer to the family of a murder victim either by evidence or argument (see People v. Starks (1983), 116 Ill. App. 3d 384, 389, 451 N.E.2d 1298, 1302), every mention of a deceased’s family does not necessarily, in and of itself, entitle the defendant to a new trial. (See People v. Bartall (1983), 98 Ill. 2d 294, 322, 456 N.E.2d 59.) Common sense tells us that murder victims do not live in a vacuum and in most cases leave family members behind. (People v. Free (1983), 94 Ill. 2d 378, 415, 447 N.E.2d 218, 236.) Here, the jury heard the victim’s mother testify regarding her son’s life and death. We do not believe that the prosecutors’ remarks emphasized the loss to the family to the extent that the jury would, on the basis of those remarks, disregard any evidence which might be favorable to defendant. Thus, we do not believe that the jury’s verdict would have been different had the remarks not been made. Since the jury heard sufficient evidence to find that defendant was sane and that he was guilty beyond a reasonable doubt, we believe any error would have been harmless.

Defendant also complains of what he characterizes as devastating personal attacks on his family by the prosecutors which constituted expressions of the prosecutors’ personal opinions and argument of matters unsupported by the evidence. Specifically, the prosecutor in rebuttal argued that “[tjhere should be two more chairs seated right next to that guy [defendant], and that’s for his parents. They should be on trial here, too, because it was them, along with him, that caused the death of [the victim] ***.” The court ruled that this was fair comment. The prosecutor further stated:

“You heard all about his [defendant’s] life. Thank God you did, because you know how not to raise your kids. *** We have learned that if you raise your kids like [defendant’s parents] did, they’re going to kill somebody some day. If you give them everything they want, if you don’t want to deal with their problems, *** if you want to just send them to other people, some day you may have a killer on your hands.”

The court overruled defendant’s objection to these remarks. The State maintains that these and other references to defendant’s parents’ childrearing practices were proper expressions of the evidence which showed that defendant’s parents spoiled him and did not discipline him properly, and of the reasonable inference from the evidence that the cause of defendant’s violent behavior was not organic but social. We believe that the evidence did provide some basis for these remarks and that the jury’s verdict was not affected by the remarks.

Defendant also points to the prosecutor’s plea for sympathy for the victim as an example of an improper and prejudicial remark. Although defendant objected to this part of the argument, the record does not indicate that the court ruled on the objection. While we believe that a plea for sympathy for the victim is improper, we do not believe that the remark here was a factor in defendant’s conviction.

Next, defendant argues that he was prejudiced by the prosecutor’s comments that the jury should not be “hoodwinked by somebody’s past medical history” and that “it’s a fraud what they are doing.” Defendant did not object to either comment, so any error is waived. Regardless of waiver, we do not believe that these comments affected the jury’s verdict under the circumstances in this case.

Defendant further argues that he was prejudiced by the prosecutor’s improper attacks on the integrity of defense counsel, specifically, the prosecutor’s statement that defense counsel took the case for money. We believe that defendant’s objection to this comment was properly overruled. While it is improper for a prosecutor to suggest that the only reason defense counsel represented a defendant was to receive a fee (People v. Williams (1981), 99 Ill. App. 3d 919, 924, 425 N.E.2d 1321, 1325), the prosecutor’s comment here was made during

rebuttal in direct response to defense counsel’s comment that “the trial and this system does let the truth come out, and that’s what I swore I would do. That was the only way I would take this case.” Comments by the prosecutor which might ordinarily be improper may be proper in rebuttal when they are an invited reply to improper comments by defense counsel in his own closing argument. See People v. Sutton (1977), 45 Ill. App. 3d 739, 742, 359 N.E.2d 1132,1134.

Defendant also contends that the prosecutors improperly and prejudicially expressed their personal opinions about defendant and a defense witness and about the insanity defense in general, and verbally abused defense counsel. Some of these comments were made without objection and objections to others were overruled. Although we believe that some of the comments were impermissible expressions of the personal feelings and experiences of the prosecutors, we do not believe that they were the kind of direct expressions of the prosecutors’ personal opinions as to defendant’s guilt or the witness’ credibility which would require a new trial. See People v. Monroe (1977), 66 Ill. 2d 317, 323-24, 362 N.E.2d 295, 298.

Next, defendant argues that the prosecutor improperly and prejudicially implied that the murder here was motivated by defendant’s homosexuality when there was no evidence of homosexuality at trial. The court overruled defendant’s objection to the following:

“[Assistant State’s Attorney]: You know that he played tennis at the [tennis club], and who paid? Who paid for [the victim’s] tennis? Him [defendant]. Now, you can draw any inference you want from that, too, and I’ll tell you something else, and [the other assistant State’s Attorney] already told you that we don’t have to prove a motive, because I cannot get inside that man’s vicious mind and tell you what happened when he and [the victim] left [the dormitory] and he decided something about [the victim], something that [the victim] said or something that he wanted to do that [the victim] wouldn’t go along with — .”

A further reference to which defendant points was made without objection and was not mentioned in defendant’s motion for a new trial. While we do not approve of the prosecutor’s comments, we do not believe that the verdict would have been different had the comments not been made.

Finally, defendant contends that the prosecutors prejudiced defendant by making improper comments which suggested that defendant would “skate,” “get a slap on the wrist” or “walk out of this courtroom and *** scoff at all of us” if found not guilty by reason of insanity. Defendant maintains that these comments actually misrepresented the result of a not-guilty-by-reason-of-insanity verdict in Illinois, and they could only make a juror strongly inclined to convict out of fear that defendant would be set free. We agree that these remarks were improper since the jury is not to consider the consequences of its verdict. (See People v. Meeker (1980), 86 Ill. App. 3d 162, 170, 407 N.E.2d 1058, 1065.) However, since the prosecutors did not directly call upon the jury to convict defendant even though it might believe defendant insane, we do not believe that the comments here constituted the type of violation which requires a new trial. (See United States v. Jackson (7th Cir. 1976), 542 F.2d 403, 411-12.) Although defendant contends that this is a close case on the issue of insanity, we do not agree. The record reveals a substantial basis for supporting the verdict. Thus, we do not believe that the jury’s verdict would have been different had the comments not been made.

While it is clear that some of the prosecutors’ remarks in this case were improper, we have carefully examined the whole record, and we are convinced that they did not prevent defendant from receiving a fair trial. However, we do not condone the misconduct here simply because we have concluded that the misconduct did not deny defendant a fair trial. See People v. Starks (1983), 116 Ill. App. 3d 384, 396, 451 N.E.2d 1298, 1306.

Next, defendant contends that the court erred in refusing to instruct the jury on the consequences of a verdict of not guilty by reason of insanity. During the instruction conference, defendant tendered an instruction containing language taken verbatim from the statute which sets forth the procedures to be followed after acquittal by reason of insanity. (See Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 2—4(a), (b).) The court refused the instruction and stated that it did not think that defendant was entitled to such an instruction under current law. We believe that the court properly refused the instruction.

In People v. Meeker (1980), 86 Ill. App. 3d 162, 407 N.E.2d 1058, this court declined to adopt as a general rule of law a requirement that the jury be given an instruction which relates the consequences of a verdict of not guilty by reason of insanity. The Meeker court noted that the vast majority of jurisdictions do not permit such an instruction because of the general rule that the jury is to consider only its verdict and not the consequences of its verdict. (86 Ill. App. 3d 162, 170, 407 N.E.2d 1058, 1065.) However, the Meeker court did not decide whether special circumstances in a given case might warrant such an instruction, and, as an example of the recognition of special circumstances, the Meeker court cited an Indiana case in which the prosecutor argued to the jury that the defendant would be set free if found not guilty by reason of insanity. 86 Ill. App. 3d 162, 171, 407 N.E.2d 1058, 1066, citing Malo v. State (1977), 266 Ind. 157, 361 N.E.2d 1201.

More recently, in People v. Hebein (1982), 111 Ill. App. 3d 830, 444 N.E.2d 782, the court considered the applicability of a special circumstances exception requiring an instruction regarding the consequences .of a verdict of not guilty by reason of insanity. The Hebein court noted that in Indiana, the exception has been narrowly construed to apply only where there is a direct comment on the consequences of a verdict of not guilty by reason of insanity. (111 Ill. App. 3d 830, 838, 444 N.E.2d 782, 789.) Thus, the Hebein court determined that even if it were to adopt the exception, the narrow parameters of the exception would not encompass the situation in that case. (111 Ill. App. 3d 830, 839, 444 N.E.2d 782, 790.) Further, the Hebein court noted that the failure to give the instruction even where there are special circumstances would be harmless error unless there is a reasonable possibility that the error might have contributed to the jury’s finding. Ill Ill. App. 3d 830, 839-40, 444 N.E.2d 782, 790.

Here, defendant contends that special circumstances existed because the prosecutor argued as follows:

“[Assistant State’s Attorney]: *** You decide. Are we going to let Frank Alert skate? Are we going to let him get a slap on the wrist again and walk out of this courtroom and—
[Defense counsel]: Objection.
[Assistant State’s Attorney]: (Continuing) — and scoff at all of us?
The Court: Punishment is left up to me.
[Assistant State’s Attorney]: *** We are going to slap him on the wrist and let him walk out because of somebody like Frank Lorimer?”

We do not believe that the prosecutor’s comments were the kind of comments on the consequences of the not-guilty-by-reason-of-insanity verdict which would require an instruction on the consequences. Furthermore, the jury heard the court remark that punishment is left up to the court. Under the circumstances, we believe that any error in this regard was harmless.

Finally, defendant argues that the court erred in denying his request for a bifurcated trial or separate juries on the issues of guilt and sanity. Defendant contends that he was prejudiced on the question of guilt or innocence because the evidence supporting his insanity defense necessarily included evidence of his previous violent acts from which the jury would conclude that defendant stabbed the victim to death. We disagree.

As defendant acknowledges, a bifurcated trial is neither constitutionally mandated nor statutorily authorized. (See People v. Robinson (1981), 102 Ill. App. 3d 884, 889-90, 429 N.E.2d 1356, 1361.) Defendant argues, however, that bifurcated proceedings are not statutorily prohibited, and the court may exercise its supervisory power and allow bifurcated proceedings in order to avoid prejudice. While we recognize the conflicts inherent in deciding guilt or innocence on the merits where the insanity defense is raised in the same proceeding (see People v. Robinson (1981), 102 Ill. App. 3d 884, 890, 429 N.E.2d 1356, 1361), we note that in this case defendant raised no defense on the merits. Defendant contends, however, that there are two criteria for the court to consider in determining whether to allow bifurcated proceedings: (1) whether the defendant raised an independent affirmative defense in addition to insanity and (2) whether the prosecution’s proof of the commission of the act is weak. Since defendant did not raise an independent affirmative defense, he points to the absence of any eyewitnesses and the apparent absence of any motive, and he argues that in this case the prosecution evidence was weak. We disagree. Although no one actually saw defendant stab the victim, there was substantial circumstantial evidence of defendant’s guilt. We conclude that the court did not err in denying defendant’s request for a bifurcated trial or separate juries.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

McNAMARA, P.J., and McGILLICUDDY, J., concur.


author: JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES HENRY THURMAN, Defendant-Appellant.
    First District (2nd Division)
    No. 82—1128
    Opinion filed December 27, 1983.

      Marshall A. Levin, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Harry J. Devereux, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE STAMOS

delivered the opinion of the court:

Defendant Charles Henry Thurman was charged under a six-count indictment with murder, armed violence predicated on murder, voluntary manslaughter, armed violence predicated on voluntary manslaughter, involuntary manslaughter, and armed violence predicated on involuntary manslaughter, for the killing of Opheous Beck. Defendant was tried before a jury which initially returned only a finding of not guilty as to murder. The trial court informed the jury that there were five other charges upon which verdicts must be returned, and the jury was sent back for further deliberations. Upon returning, the jury found defendant not guilty of voluntary manslaughter and armed violence predicated on voluntary manslaughter, and it found defendant guilty of involuntary manslaughter and armed violence predicated on involuntary manslaughter. The jury did not return a verdict on the armed violence predicated on murder count. The court entered judgment of conviction on the verdict concerning armed violence predicated on involuntary manslaughter only and defendant was sentenced to 13 years’ imprisonment. Defendant appeals.

The facts pertinent to this appeal are as follows:

The defendant is the owner of a bar called Big C’s in Chicago. At about 3 a.m. on October 3, 1981, Opheous Beck, the victim, was in defendant’s bar and was intoxicated. Defendant was working in the bar at that time.

Charles Small was also in defendant’s bar at 3 a.m. Small testified that he thought Beck was intoxicated. Beck was fighting with customers in the bar, and Small saw defendant engage in a verbal exchange with Beck. At about 5 a.m., Small saw Beck on the floor and Small and Lavon Rufus Nelson carried Beck out of the bar. Small then saw defendant come out of the bar and tell Beck never to come back. Beck began waving his arms and threatening to kill defendant and blow up his bar. Small then saw defendant draw the pistol he was carrying and shoot Beck in the forehead at close range. Beck was unarmed and did not touch defendant prior to the shooting.

Small’s testimony was essentially corroborated by Lavon Rufus Nelson. Nelson testified that he helped Small carry Beck out of the bar and that defendant followed them outside. Nelson heard defendant tell Beck not to return to the bar, and he heard Beck threaten to kill defendant and to blow up his bar. Nelson did not see defendant draw his gun but he did see defendant fire the gun into Beck’s forehead.

Defendant denied that Nelson was at the bar at the time of the shooting. Defendant testified that it was he, not Nelson, who helped carry Beck out of the bar. Defendant admitted carrying a gun and firing it at Beck, but he contends that he fired at Beck because Beck was attacking him.

Following deliberations, the jury returned with a verdict of not guilty of murder. The judge informed them that there were five other charges for which verdicts must be returned, and the foreman responded that it was their understanding that they had only one “paper” to return. The court then asked the foreman if he thought that the jury could reach verdicts as to the remaining charges and the foreman responded that he did not think so. The court asked if it could be of assistance in helping the jury to come to a decision and the foreman responded that there were some questions that the jury would like to have answered. The court then asked that the jury step out in order that he be allowed to discuss the matter with counsel for both sides.

Out of the presence of the jury, counsel for defendant stated to the court that it was his opinion that when the jury had returned a verdict of not guilty of murder, they had actually intended to acquit the defendant of all charges against him. The trial court rejected this contention by pointing out that the foreman had said “not guilty of murder” and concluded that it would be unreasonable to extend the finding of not guilty to any other charge besides murder.

The court called the jury back and it asked the foreman if they understood that there were five other charges pending. The foreman responded that they now understood that but that he did not know if they would be able to reach verdicts on the remaining charges. The foreman stated that they had taken four other ballots on the remaining charges without reaching a unanimous decision. The court questioned several other jurors as to whether they felt it was possible to reach a decision on the remaining charges. One of the jurors stated that their difficulty in reaching a decision was because “sufficient evidence wasn’t there.” The court again asked if it could be of assistance in reaching a decision and one of the jurors said that they had some questions. The judge responded that the questions should be reduced to writing and sent to him and, if proper to do so, he would answer the questions. The court explained to the jury that in order to acquit defendant on all charges, the jury must sign the not guilty forms for each charge. The court then sent the jury back for further deliberations.

Upon returning, the jury found defendant not guilty of voluntary manslaughter and armed violence predicated on voluntary manslaughter and guilty of involuntary manslaughter and armed violence predicated on involuntary manslaughter. The jury returned no verdict on the charge of armed violence predicated on murder. After polling the jurors, the court sentenced defendant to 13 years’ imprisonment. Defendant then instituted this appeal.

Defendant first contends that the jury’s verdict of “not guilty of murder” should have operated as a general verdict of acquittal and that the trial court erred when it orally informed the jury that they must return verdicts on all charges before them.

After the jury read its partial verdict and was sent out by the court, defense counsel argued that by rendering only a single verdict of “not guilty of murder,” the jury actually intended that the verdict apply to all six charges. The court rejected this argument noting that the jury had said “not guilty of murder.” (Emphasis added.) Defense counsel apparently accepted the court’s ruling by acknowledging that it was within the province of the court to so rule. Defense counsel did not object when the court informed the jury that they must return verdicts on all charges before them and did not raise the issue in his motion for a new trial. In his post-trial motion, defendant did argue that the jury’s verdict of “not guilty of murder” served as a general verdict of acquittal.

A verdict is to be reasonably construed and should not be disturbed unless there is doubt as to its meaning. (People v. Clark (1979), 71 Ill. App. 3d 381, 417, 389 N.E.2d 911.) We first note that the jury’s verdict of “not guilty of murder” is unambiguous. If the jury had intended to return a general verdict of acquittal, they would have omitted any reference to a specific charge. We find that the first verdict returned by the jury was not intended to operate as an acquittal of all charges against defendant. This finding is supported by the fact that the jury conducted four votes on the charges other than murder but was unable to reach a verdict on any of them. Thus, the jury did not find the defendant not guilty as to all charges but simply returned a verdict as to the only charge on which they were able to unanimously agree.

Defendant also objects to the manner in which the trial court dealt with the jury’s failure to return verdicts on all the charges. Upon learning that the jury had reached a verdict on only one charge, the trial court informed them that they must reach a verdict as to each and every charge before them. The court then directed the jury to resume deliberations. Defendant argues that the court’s statement that a verdict must be returned as to each charge was a misstatement of law and amounted to an improper oral instruction to the jury. The case law, however, directly refutes this argument.

When a jury fails to return verdicts on all the charges before them, it is clearly proper for the court to inform them that verdicts must be returned on all charges and send them back for further deliberations. (See People v. Wilson (1972), 51 Ill. 2d 302, 309, 281 N.E.2d 626; People v. Rollins (1982), 108 Ill. App. 3d 480, 486, 438 N.E.2d 1322; People v. Chisum (1975), 30 DI. App. 3d 546, 548, 333 N.E.2d 546.) Such actions clearly do not amount to improper oral instructions to the jury because the court is permitted to give brief explanatory remarks concerning the form of the verdict (People v. Bydalek (1942), 381 Ill. 330, 335, 45 N.E.2d 849), but in so doing, the court must be circumspect and careful so as not to influence the jury in its deliberations. Only when the court’s comments can be said to have impacted on the jury’s deliberations are they improper.

In the instant case, the trial court’s actions were clearly proper. By informing the jury of their duty to return verdicts on all charges and by sending the jury back for further deliberations, the court was acting in accordance with the law. (See, e.g., People v. Wilson (1972), 51 Ill. 2d 302, 309, 281 N.E.2d 626.) The court’s comments to the jury were neutral and could in no way be construed as favoring one verdict over another. Under these circumstances, we find that the trial court acted properly.

Even after being instructed by the court to return verdicts on all the charges before them, the jury ultimately failed to return a verdict on the charge of armed violence predicated on murder. This failure to return a verdict on one count does not affect the verdicts returned or the judgment entered. The result is simply that defendant may not be retried on that count. See People v. Bean (1975), 26 Ill. App. 3d 1090, 1096, 325 N.E.2d 679, affirmed (1976), 64 Ill. 2d 123, 355 N.E.2d 17.

Defendant next contends that the testimony of a State’s witness was “apparently not truthful” and “tainted” the testimony of the other eyewitness. From this, defendant apparently concludes that he was not proven guilty beyond a reasonable doubt. But it is clearly for the trier of fact to determine the credibility of the witnesses and to accept or reject as much of a witness’ testimony as it pleases. (People v. Beasley (1977), 54 Ill. App. 3d 109, 114, 369 N.E.2d 260.) A reviewing court will not substitute its judgment for that of the trier of fact on questions involving the credibility of the witnesses. (People v. Dunklin (1982), 104 Ill. App. 3d 685, 690, 432 N.E.2d 1323.) This contention, which involves only the credibility of a State’s witness, was implicitly resolved by the jury when they convicted defendant, and we refuse to disturb the jury’s decision.

Defendant next contends that Illinois’ armed violence statute is violative of the double jeopardy clauses contained in the Federal and State constitutions. Defendant failed to raise this issue in the trial court, and it may therefore be treated as waived. (People v. Denby (1981), 102 Ill. App. 3d 1141, 1146, 430 N.E.2d 507.) Defendant argues, however, that the waiver rule should be relaxed in this case because of a recent Supreme Court decision, Missouri v. Hunter (1983), 459 U.S. 359, 74 L. Ed. 535, 103 S. Ct. 673, which was decided after this appeal was instituted. After examining Hunter and the other case law on this issue, however, we find no basis for relaxing the waiver rule.

Defendant’s next contention concerns the trial court’s failure to include lack of justification as an element in the issues instruction on involuntary manslaughter. The State contends that defendant has waived this issue because of his failure to object to the instruction tendered to the jury and to raise the issue in his post-trial motion. Generally, these factors will result in a waiver of an issue on review. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 180-81, 415 N.E.2d 1027.) If, however, a reviewing court finds that the issue raised constitutes grave error or that the evidence is factually close, it may address the issue despite the failure to properly preserve it for review. (People v. Huckstead (1982), 91 Ill. 2d 536, 544, 440 N.E.2d 1248.) For the reasons which follow, we find that this issue constitutes plain error which requires our consideration.

Defendant contends that the issues instruction for involuntary manslaughter improperly omitted lack of legal justification as an element which the State had the burden of proving beyond a reasonable doubt. Lack of legal justification was included as a distinct element in the issues instructions for both murder and voluntary manslaughter. Defendant argues that the omission of this element from the issues instruction on the involuntary manslaughter count could very well have led the jury to believe that justification was not an issue as to that charge.

It is true that legal justification is not an element of the offense of involuntary manslaughter. (People v. Ortiz (1978), 65 Ill. App. 3d 525, 532, 382 N.E.2d 303.) However, once defendant has put on sufficient evidence to raise the issue of self-defense, the State has the burden of proving that defendant was not justified in using the force that he did. See 65 Ill. App. 3d 525, 532.

The Illinois Pattern Jury Instructions (IPI), Criminal (2d ed. 1981), provide that when an affirmative defense such as self-defense is raised, the elements or issues of that defense should be treated in two ways: “first, by definition following the definition of the crime with which the defendant is charged; second, in the same instruction with the issues or elements of the crime and the State’s burden of proof.” IPI Criminal, ch. 24 — 25.00, Introduction, at 548 (2d ed. 1981).

In the instant case, legal justification was included in the definitional instruction for involuntary manslaughter but not in the issues instruction. Thus, the jury did not receive a single instruction covering all of the issues involved in the involuntary manslaughter count. See IPI Criminal, ch. 24 — 25.00, Introduction, at 548 (2d ed. 1981).

The basic issue raised by defendant here has been addressed by Illinois courts on several occasions. A majority of the courts which have addressed this issue have held that the failure to include lack of justification as an element of the issues instruction for involuntary manslaughter entitles defendant to a new trial. (See, e.g., People v. Wells (1982), 110 Ill. App. 3d 700, 708-09, 442 N.E.2d 1341; People v. Ortiz (1978), 65 Ill. App. 3d 525, 531-33, 382 N.E.2d 303; People v. Singleton (1976), 41 Ill. App. 3d 665, 669, 354 N.E.2d 464; but see People v. Suerth (1981), 97 Ill. App. 3d 1005, 1010-11, 423 N.E.2d 1185.) In all these cases, lack of legal justification was omitted from both the issues and the definitional instructions for involuntary manslaughter. Here, however, lack of legal justification was included in the definitional instruction. The State argues that by including lack of justification in the definitional instruction, the jury was adequately informed as to all elements involved in the involuntary manslaughter count. We disagree.

The IPI Criminal notes the importance of presenting a jury with an instruction containing all of the issues involved in an offense. (See IPI Criminal, ch. 24 — 25.00, Introduction, at 548 (2d ed. 1981).) Only the issues instruction graphically sets out each element of an offense in checklist form. In a case such as this involving multiple counts, the inclusion of lack of justification as an element of the issues instruction on one offense, while omitting it from another, would lead a diligent jury to conclude that justification is not an element of the latter offense. The inclusion of lack of legal justification in the definitional instruction alone does not suffice because that instruction fails to inform the jury that the State bears the burden of proving that defendant was not justified in using the force that he did. See IPI Criminal No. 7.08 (2d ed. 1981); see also People v. Berry (1982), 111 Ill. App. 3d 487, 492, 444 N.E.2d 593.

In the instant case, the testimony at trial revealed that Opheous Beck, the victim, was intoxicated and had been fighting with customers in the bar prior to the shooting. There was also evidence that Beck and defendant had a heated verbal exchange before Beck was removed from the bar. The eyewitnesses testified that upon being removed from the bar, Beck began waving his arms and threatening to kill defendant and to blow up the bar. Defendant testified that in addition to the threats, Beck attacked him.

Based on the foregoing evidence, it is apparent that this case is factually close on the issue of whether the shooting occurred as a result of self-defense. (See People v. Berry (1982), 111 Ill. App. 3d 487, 493, 444 N.E.2d 593.) It is for this reason that we have elected to review this issue under the plain-error doctrine. We conclude that when legal justification is raised as a defense, it must be included as an element of both the definitional and issues instructions in order for the jury to be properly instructed. Accordingly, we reverse the conviction for armed violence predicated on involuntary manslaughter and remand this matter for a new trial. Because of our decision on this issue, we need not address defendant’s final contention.

We also have before us the State’s request that defendant be assessed the costs of prosecuting this appeal. Such an assessment is authorized following an appeal only when a conviction is affirmed. (See Ill. Rev. Stat. 1981, ch. 53, par. 8.) Because we have reversed defendant’s conviction in the instant case, it follows that we must deny the State’s request for costs.

For the reasons expressed herein, we find that the trial court did not err in its disposition of the incomplete verdict. The constitutional issue raised by defendant has been waived. Defendant’s conviction for armed violence predicated on involuntary manslaughter is reversed and this matter is remanded for a new trial on only the involuntary manslaughter and armed violence predicated on involuntary manslaughter counts.

Reversed and remanded for a new trial.

DOWNING, P.J., and BERLIN, J., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. ELLIOTT THORNTON, Respondent-Appellant.
    First District (1st Division)
    No. 83—215
    Opinion filed December 30, 1983.
    Paul Bradley and Ellen R. Domph, both of Chicago, for appellant.
    Richard M. Daley, State’s Atorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Kip R. Owen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Respondent Elliott Thornton appeals from an order of the circuit court finding respondent in direct criminal contempt of court for refusing to testify at the trial of a codefendant. Respondent was sentenced to a term of six months’ incarceration. The sole issue on appeal is whether respondent can be held in contempt of court for refusing to testify at a codefendant’s trial by invoking his fifth amendment right against self-incrimination.

Respondent’s brief reveals that in February 1982, respondent and Garnett Brooks were arrested and charged with murder, rape, aggravated kidnaping, armed robbery, concealing a homicidal death, armed violence and unlawful use of weapons. Prior to trial the cases of respondent and Brooks were severed and all charges except the murder, rape and aggravated kidnaping were nolled. The record discloses that in October 1982, respondent was tried and acquitted of all the charges against him and in January 1983, Brooks was tried and acquitted of all the charges against him. During the trial of Brooks, respondent was subpoenaed to testify as a State witness. Prior to trial, the court was informed that respondent would assert his fifth-amendment privilege when called to testify. Af^er hearing arguments from the State and from respondent’s counsel, the court denied respondent leave to take the fifth amendment. At trial, after respondent gave his name, the following occurred:

“[ASSISTANT STATE'S ATTORNEY]: Elliott Thornton, do you have facts and information — Do you know any facts and information durrounding [sic] the death of Patricia Sutton?
THE WITNESS: I refuse to answer that question that might incriminate me, on the Fifth Amendment.
THE COURT: Take the jury out, please. (Whereupon, the following proceedings were had outside of the presence and hearing of the jury:)
THE COURT: Mr. Thornton, the State asked you a question.
You were sworn under oath and you refused to answer the State’s question. Thereby, I will direct you, or order you to answer the State’s question.
Will you answer that question?
THE WITNESS: No.
THE COURT: If you do not, after being ordered, I will hold you in contempt of Court, and sentence you to a term in the House of Corrections. Do you understand that?
THE WITNESS: Yes.
THE COURT: Do you still refuse to answer the question, even though you have been ordered to do so?
THE WITNESS: Yeah.
THE COURT: I will hold you in contempt of court.
I sentence you to a term in the House of Corrections for a period of six months. Prepare the order.”

Respondent contends that he could not be found to be in contempt of court for invoking his fifth-amendment privilege and refusing to testify since he was not granted immunity from prosecution. Respondent relies on United States v. Burr (C.C. Va. 1807), 25 Fed. Cas. 38, and Hoffman v. United States (1951), 341 U.S. 479, 95 L. Ed. 1118, 71 S. Ct. 814, to support his contention that only respondent was able to determine whether or not the testimony sought would have incriminated him. Respondent claims that although he was acquitted of murder, rape and aggravated kidnaping, and could not therefore be prosecuted for those offenses, his testimony could be used in a subsequent criminal prosecution for other offenses to which double jeopardy did not attach. Respondent also rejects the argument that he is protected by the compulsory joinder provisions of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 3 — 3(b), 3 — 4(bXl)) which require that all offenses known to the prosecutor at the commencement of the prosecution be tried in a single proceeding. Respondent claims that had his testimony revealed offenses not known to the prosecutor at the commencement of the prosecution, respondent could have been prosecuted for those offenses and his testimony used against him. Respondent further claims that the statute would not protect him from prosecution for an offense that offended another sovereign. Additionally, respondent cites People v. Calloway (1966), 74 Ill. App. 2d 418, 221 N.E.2d 73, to support his contention that the several charges that were nolled prior to trial could be the basis of subsequent prosecution. In Calloway, the court found an exception to the compulsory joinder provisions where proof of facts required in one prosecution were different than the proof of facts required in another prosecution. Respondent argues therefore that because the offenses of which he was acquitted, and the ones which were nolled arose from a series of closely related acts which required different elements of proof, the nolled charges could be reinstated. Respondent finally cites the case of Pillsbury Co. v. Conboy (1983), 459 U.S. 248, 74 L. Ed. 2d 430 103 S. Ct. 608, in which the Supreme Court held that a witness who was not granted immunity for later testimony, which closely tracked his prior immunized testimony, would not be protected from subsequent prosecution and therefore the witness could not be compelled to testify over his assertion of his fifth-amendment privilege. Respondent argues that based on PiUsbury Co., he should have been allowed to assert the privilege even though double jeopardy barred subsequent prosecution for the offenses of which he was acquitted.

The State counters by asserting that respondent was properly

held in contempt of court for refusing to answer questions concerning the crimes of which respondent had been acquitted. Since respondent could not be prosecuted for those offenses (see Ill. Const. 1970, art. I, sec. 10; People v. Gray (1977), 69 Ill. 2d 44, 370 N.E.2d 797), or for lesser included offenses of the crimes of which he was acquitted (People v. Gray), respondent cannot claim the privilege. Furthermore, it is the State’s contention that the compulsory joinder provisions would bar prosecution for offenses which should have been charged in the first prosecution. The State argues that although the compulsory join-der provisions do not require that all possible offenses be charged, the result of trying only some of the known offenses would bar the State from prosecuting the other offenses. Therefore, the charges that were nolled before trial could not be brought against respondent in a subsequent prosecution. The State claims that since a witness cannot assert a fifth-amendment privilege where the testimony sought cannot be used as a basis for a criminal prosecution against the witness (Brown v. Walker (1896), 161 U.S. 591, 40 L. Ed. 819, 16 S. Ct. 644), the privilege was unavailable to respondent. In the alternative, the State argues that even if some of the questions asked of respondent could have implicated him in some other crime, the respondent’s blanket assertion of the fifth-amendment privilege was improper. The State contends that it is for the court to determine whether or not under the particular facts there is a real danger of incrimination. (People v. Mi-leris (1981), 103 Ill. App. 3d 589, 431 N.E.2d 1064.) In Mileris, the court found that the contemnor’s blanket assertion of the privilege, without more, would stymie the truth seeking function of the court by allowing anyone to claim the privilege if they thought they might be subjected to criminal prosecution. Therefore the State argues that the court was correct in directing respondent to answer questions concerning the charges for which he could no longer be prosecuted.

It is clear that the protection secured by asserting the fifth-amendment privilege must be confined to those instances where the witness has reasonable cause to suspect the possibility of subsequent prosecution from a direct answer. (People v. McLaren (1979), 77 Ill. App. 3d 368, 395 N.E.2d 1219.) The propriety of invoking the privilege is not for the witness alone to decide (In re Zisook (1981), 88 Ill. 2d 321, 430 N.E.2d 1037); it is for the court to determine whether the fear of incrimination is well founded. (In re Zisook.) The witness is not, however, required to demonstrate that a response would in fact incriminate him. (People v. McLaren (1979), 77 Ill. App. 3d 368, 395 N.E.2d 1219.) In People v. Schultz (1942), 380 Ill. 539, 544, 44 N.E.2d 601, 603, the court stated the following rule for determining whether a fifth-amendment privilege may be exercised:

“[I]t must appear from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is a reasonable ground to apprehend danger to the witness from his being compelled to answer.”

Thus, is must be perfectly clear under all of the circumstances that the answers cannot possibly have a tendency to incriminate the party claiming the privilege. People v. Schultz; People ex rel. Mathis v. Brown (1976), 44 Ill. App. 3d 783, 258 N.E.2d 1160.

In the instant case, respondent invoked the privilege in reply to a question which was clearly very broad in scope. Since respondent was initially charged with seven offenses, four of which were nolled, he could have reasonably feared that he would be incriminating himself by responding to the broad question which was posed. The State suggests two standards by which the trial court was to ascertain whether or not respondent’s fear of incrimination was reasonable: The compulsory joinder provisions of sections 3 — 3(b) and 3 — 4(b)(1) of the Criminal Code of 1961 and double jeopardy. However, we agree with respondent that neither standard suggested by the State would protect respondent from prosecution for offenses of which the State was unaware at the first prosecution. Moreover, in asserting that respondent should have been required to answer questions relating to the offenses of which he was acquitted, the State fails to offer any standard for determining what would constitute a good-faith effort in answering the State’s questions. Nor has the State responded to inquiry as to when respondent’s answers would open the door to such an extent as to bar assertion of the privilege. Furthermore, the record indicates that there was not an adequate hearing or determination on the issue as to the possibility of future prosecutions. As noted in Pillsbury Co. v. Conboy (1983), 459 U.S. 248, 262, 74 L. Ed. 2d 430, 443, 103 S. Ct. 608, 617, citing Maness v. Meyers (1975), 419 U.S. 449, 463, 42 L. Ed. 2d 574, 586, 95 S. Ct. 584, 593, “compelling a witness to testify in ‘reliance upon a later objection or motion to suppress would “let the cat out” with no assurance whatever of putting it back.’ ” It would not necessarily be conjecture to entertain respondent’s suggestion that the answers to the State’s questions, or explanations as to why they could not be answered, might directly or indirectly implicate respondent in other crimes. (See People v. McLaren.) Thus, under the facts and circumstances of this case, the State has failed to convince this court that the two tests proposed, or the authorities cited, are broad enough to preclude all future prosecutions. Further, the State has failed to convince us that respondent acted unreasonably in invoking the privilege. Nor has the State responded satisfactorily to respondent’s argument regarding possible prosecution by another sovereign. Accordingly, the judgment of the circuit court is reversed.

Judgment reversed.

BUCKLEY, P.J., and McGLOON, J., concur.