author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISAIAH GREEN, Defendant-Appellant.
    Fourth District
    No. 4—83—0554
    Opinion filed July 12, 1984.

      Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant, Isaiah Green, together with John Pickens and Dennis Scott, were charged by information in the circuit court of Sangamon County with the offenses of murder and armed robbery in violation of sections 9 — 1(a)(1), 9 — 1(a)(2), 9 — 1(a)(3), and 18 — 2(a) of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, pars. 9-l(a)(l), 9-l(a)(2), 9 — 1(a)(3), 18 — 2(a).) Defendant’s case was severed from the others, and he was tried twice. The first trial ended with a hung jury and consequent mistrial. On the second trial, the jury returned general verdicts of guilty of murder and armed robbery. The trial court sentenced defendant to 15 years’ imprisonment for armed robbery and to an extended term of 60 years’ imprisonment for murder, the sentences to run concurrently.

On appeal defendant raises a variety of issues: (1) reasonable doubt, (2) double jeopardy, (3) evidentiary error in admitting prior consistent statements of Pickens and Scott, (4) plain error in the prosecutor’s closing argument, (5) excessive sentence, and (6) improperly constituted jury.

Since the question of reasonable doubt has been raised, some recital of the evidence produced at the second trial is necessary. Further facts will be developed as needed for an understanding of the other issues in connection with those issues.

The victim was Fritz Havrilka, the owner and operator of Fritz’s Wagon Wheel, a restaurant in Springfield. Pickens was a former employee of that establishment. At approximately 12:50 a.m. on December 12, 1982, Havrilka and the head waitress closed the restaurant and Havrilka got into his automobile to drive to his home in New Berlin, which is located about 8 to 10 miles west of Springfield. As was his custom, Havrilka took the night’s proceeds from the restaurant with him in a paper bag.

Shortly before 1 a.m. on December 12, 1982, Kay Skerston, Havrilka’s stepdaughter, and Mike Reichart, her boyfriend, were present in the kitchen of the Havrilka residence. Reichart and Sker-ston heard dogs barking outside. After the dogs had been barking for about five minutes, they heard five or six gunshots. They looked out of the window and saw a car sitting in the driveway. Its lights were off and the engine was running. Looking down the road, Skerston saw the taillights of a car driving away. The taillights were horizontal and appeared to belong to a large car. Skerston woke up her mother. Mrs. Havrilka called the sheriff’s department. When she made the phone call she looked at the clock. It was 1:10 a.m.

When police officers arrived at the scene, they found Havrilka’s body lying face-down in the driveway. An examination of the body showed that Havrilka had been shot five times with a .22-caliber weapon. The cause of death was a shot to the head which had probably been fired from a distance of six to eight inches. Four shots were fired into the body. Expert testimony established that the wounds were consistent with a factual setting in which Havrilka was shot once in the face, fell to the ground, and was shot four more times as the assailant stood over him.

Four .22-caliber casings were recovered at the crime scene. All four cartridge cases exhibited extractor and ejector marks, used in semiautomatic or automatic pistols or any type of weapon that has only one chamber, such as a rifle. An examination of the bullets recovered from Havrilka’s body established that the murder weapon could have been a Colt firearm.

Dennis Scott, an original codefendant, testified that on December 11, 1982, he spent the day with defendant and John Pickens. At about 8:30 p.m., they helped a friend, James Willie, set up equipment for a party in his apartment at the John Hay Homes in Springfield. At about 11:30 p.m., Scott, Pickens, and defendant left the party with Ruthie Scott. They drove around in Scott’s automobile until they ran out of gasoline. They went to defendant’s mother’s house at about 12. Mrs. Green lent Pickens three dollars to buy gasoline. The four drove to Tommy Harris’ house. Defendant went inside for about five minutes while the others waited in the car. Scott dropped Ruthie off and then drove with Pickens and defendant to Fritz’s Wagon Wheel to pick up Pickens’ paycheck. He was dismissed for failing to report for work.

Scott continued that he, Pickens, and defendant arrived at the Wagon Wheel just as Havrilka was pulling out. They followed. When Havrilka got outside of town, Scott began honking his horn and blinking the lights of the car. He pulled alongside of Havrilka, and Pickens asked Havrilka if he could have his job back. Havrilka told Pickens to come and see him on Monday morning. Pickens told Scott to continue to follow Havrilka. Scott followed Havrilka to his home and pulled into the driveway behind him.

Havrilka got out of his car and walked back to the passenger’s side of Scott’s car. Pickens grabbed Havrilka by his coat collar and held him as Green drew a gun and climbed out of the back seat. Scott backed out of the driveway, turned his car around, and moved 50 feet down the roadway. Meanwhile, Pickens, Havrilka, and defendant were engaged in a struggle next to Havrilka’s car. Defendant climbed into the car and emerged with a paper sack. Defendant and Pickens walked away. Havrilka followed, yelling, “Give me back my money.” Defendant turned and shot Havrilka once in the face. Havrilka fell to the ground; defendant shot four more rounds into the body.

Continuing, Scott testified that Pickens and defendant re-entered the car and the trio drove away. Scott and Pickens asked defendant why he had shot Havrilka. Defendant responded that Havrilka knew Pickens and could identify him. Scott drove back into Springfield and stopped at a gas station. They filled the car tank with gas, using $21 of the money from the paper sack. They then returned to the John Hay Homes. Sometime between 2 and 2:30 a.m., after dividing the proceeds of the robbery, they returned to the party at James Willie’s house, and stayed for about 21k hours when, at defendant’s insistence, they decided to drive to St. Louis.

In St. Louis, Scott sold his car to defendant. Defendant had paid Scott $150 on the car in August; while in St. Louis he paid him another $150 to close the deal. Scott and Pickens returned from St. Louis three or four days later by bus.

On cross-examination, Scott acknowledged that he owned two other cars besides the Cadillac which he drove on the night of the murder. Each of the other cars, a 1976 Chevrolet and a 1978 Buick Regal, had horizontal taillights, four to five inches wide. The Cadillac had vertical taillights which were only about two inches wide.

John Pickens, the other original codefendant, testified that in November and December 1982, he worked at the Wagon Wheel restaurant. On more than one occasion, he, Scott, and defendant had discussed plans to rob the restaurant. The last time they discussed such plans was on December 11 at about 6:30 p.m. According to the plan, Pickens was to drive; Scott and defendant were to go inside and rob Havrilka as he was closing the Wagon Wheel.

On the evening of December 11, Pickens, Scott, and defendant were present at James Willie’s while preparations were made for a party. Scott, Pickens, and defendant left the party with Ruthie Scott at about 10:05 p.m. They drove around in Scott’s Cadillac, Scott driving, and stopped by Tommy Harris’ house at a little after 12. Defendant went inside for about two or three minutes while the rest of the party waited in the car. After dropping Ruthie Scott off, they drove to the Wagon Wheel restaurant.

Pickens continued: they arrived at the Wagon Wheel restaurant at about 12:30 or 12:40 a.m., and Havrilka was pulling out just as they arrived. They followed Havrilka to his home and pulled into the driveway behind him.

Havrilka walked back to the passenger’s side of Scott’s car. Pick-ens asked Havrilka if he could have his job back. Havrilka told him to come in on Monday morning.

Pickens, further testifying, stated that defendant stuck a gun out the window and told Havrilka that it was a “stick-up.” Havrilka ran back towards his car. Pickens opened the car door and let defendant out of the back seat. Defendant followed Havrilka and struggled with him next to Havrilka’s car. Defendant took a paper bag out of Havrilka’s car. As defendant and Pickens walked away, Pickens slightly ahead of defendant, Pickens heard a shot. He turned around as Havrilka was falling to the ground. Defendant fired several more shots into Havrilka’s body. Pickens asked defendant why he had shot Havrilka. Defendant responded, “The man knew me.” Pickens claimed that he never touched Havrilka during the robbery.

Pickens and defendant re-entered Scott’s car. The car was parked at the end of the driveway, a little over 15 feet away from Havrilka’s car. They drove back into town, and, after filling the car with gasoline, they split up the proceeds of the robbery, about $1,700. Scott and Pickens each received about $450 to $500. Defendant received more because he shot Havrilka. They went by Tommy Harris’ house so that defendant could return the pistol which he had borrowed. Scott and Pickens each gave defendant $50 to pay Harris for the use of the weapon.

Pickens’ further testimony was that he, Scott, and defendant returned to the party at about 1:50 or 2 a.m. A dance contest was starting just as they returned. The winner of the contest was awarded a fifth of Yukon Jack Whiskey, and defendant bought the bottle for $10. He, Scott, and defendant left the party at about 2:30 or 3 a.m. to drive to St. Louis.

In St. Louis, defendant bought Scott’s Cadillac with money which he won as the three of them gambled together. Scott and Pickens re-tuned from St. Louis two days later by bus.

Vincent Cooper testified that he was at a party at James Willie’s on the morning of December 12, 1982. Cooper testified that Pickens told him that Pickens and defendant had robbed a man. Pickens also told him that defendant had killed the man. Cooper testified that he did not see John Pickens at James Willie’s party until 1:45 a.m. on December 12, 1982. Cooper shot dice with defendant at the party at about 3 a.m. and won $15 from him.

Tommy Harris testified that in December 1982 he lived at the John Hay Homes. Sometime in the latter part of November or first part of December 1982, Harris loaned defendant a .357 Magnum. Defendant never returned the gun. Harris eventually retrieved the weapon from defendant’s cousin or uncle. Harris stated that on the night James Willie gave a party, defendant came to the Metro, a tavern in Springfield, and asked to borrow the Magnum again. Harris refused to loan defendant the Magnum but told him he could loan him a .22-caliber Colt automatic pistol. Defendant agreed and went to Harris’ home to get the weapon. When defendant returned the gun, he paid Harris $100. Harris guessed defendant returned the gun two or three days later and did not think it was returned the same night he loaned it. On cross-examination, he admitted testifying at defendant’s first trial that he could not recall the specific date in December when he loaned defendant the gun.

Defendant, testifying on his own behalf, stated that he was not involved in either the robbery or the murder of Fritz Havrilka. He testified that he arrived at James Willie’s party at about 8:30 p.m. He went home at about 10 or 10:30 p.m. to change clothes and check on his son and was not gone more than about 20 minutes. There was a dance contest held at the party. Shortly before it began, defendant attempted to go to the liquor store. Sam Bailey was to drive Robert Joiner’s car. Joiner did not want defendant to drive the car since he did not have a license. They did not go because Sam Bailey realized that it was too late to go. The liquor store was closed. They returned to the party and the dance contest shortly thereafter. Defendant testified that the winner of the dance contest, Salina Cave, sold him a fifth of whiskey which she received as a prize from the contest. At about 2:30 or 3 a.m., defendant left the party. He, Pickens, and Scott drove together to East St. Louis. The three apparently continued their drive to St. Louis because defendant claimed that he gambled with Scott and Pickens there. With his winnings, he purchased Scott’s Cadillac. Defendant attested that Scott and Pickens were with him when he borrowed a gun from Tommy Harris sometime in December. Defendant persuaded Harris to loan him the weapon for protection because several men were threatening him with a gun.

On cross-examination, defendant admitted that he testified at his first trial that he went to sleep in the back seat of Scott’s car as soon as they left Springfield for St. Louis. He also acknowledged testifying previously that he borrowed the gun from Harris because someone had threatened him with a knife.

Salina Cave testified that the dance contest at James Willie’s party commenced at about 1:30 a.m. on December 12 and lasted approximately 30 minutes. She did not see defendant, Pickens, and Scott until after the dance contest ended. Cave received a bottle of Yukon Jack for winning the dance contest. Defendant offered to buy the liquor from her for $8.

Sam Bailey testified on behalf of defendant. Bailey was the doorman at James Willie’s party. At about 1:15, defendant asked Bailey to take him to the liquor store. They were to go in Robert Joiner’s car. Robert Joiner testified that he lent his car keys to defendant. Bailey testified that he and defendant walked out to Robert Joiner’s car, which was parked about 15 feet from the door to the party. Bailey looked at his watch and told defendant that there was no point in going to the liquor store because it was closed. Bailey testified that he and defendant returned to the party just before the dance contest started.

Defendant’s sister, Diane Green, testified on rebuttal that her sister reported defendant came home at midnight on December 11, 1982, to borrow $3 from his mother.

Ruthie Scott testified on rebuttal that defendant transported her to her cousin’s house in Dennis Scott’s Cadillac at about 10:45 p.m. on December 11, 1982. Defendant stopped at his mother’s house for about 15 minutes to get some money for gasoline. Scott, Pickens, and defendant left her at her mother’s house between midnight and 12:30 a.m. before they purchased gasoline.

Rebuttal witness Detective Tom Murphy testified that on December 22, 1982, defendant informed him that on the night of the party he walked to Alby’s Liquors by himself but returned because it was closed.

That was substantially all the evidence in the case. Defendant’s chief argument concerning reasonable doubt centers on the testimony of Scott and Pickens, his codefendants. He notes (1) that they were substantially rewarded for their testimony, and (2) that their stories are inconsistent and unbelievable.

The record does demonstrate that each of them entered pleas of guilty to the offense of armed robbery and each received a prison sentence of 15 years therefor. Murder charges against them were dismissed. Defendant contrasts this with his 15-year term for armed robbery and 60-year term for murder. However, the jury was thoroughly informed of the lenity which had been extended to Scott and Pickens and was instructed as to how to deal with the testimony of accomplices. Illinois Pattern Jury Instructions (IPI), Criminal, No. 3.17 (2d ed. 1981).

The principles governing the use of accomplice testimony are familiar. Uncorroborated testimony of an accomplice is competent but received with caution. (People v. West (1977), 54 Ill. App. 3d 903, 370 N.E.2d 265.) Infirmities in such testimony, such as hopes of leniency or reward, go to the credibility of the witness and his testimony, not to its admissibility. If the jury is satisfied by such testimony that the defendant is guilty beyond a reasonable doubt, then a reviewing court should not disturb the verdict unless it is plainly apparent that such a degree of proof is lacking. (People v. Sheridan (1977), 51 Ill. App. 3d 963, 367 N.E.2d 422; People v. Hansen (1963), 28 Ill. 2d 322, 192 N.E.2d 359.) Material corroboration of accomplice testimony is entitled to great weight. People v. Baker (1959), 16 Ill. 2d 364, 158 N.E.2d 1.

As we have already noted, the jury was informed of the status of Scott and Pickens and knew of the lenity which had been extended to them. Without rehashing all of their testimony set forth above, we find that it is largely parallel and corroborated by other evidence. Both testified that defendant was in their company almost constantly throughout December 11 and 12; their versions of the shooting parallel: that there was a single shot to Havrilka’s head and then additional rounds into his body after he fell to the ground. While there were minor discrepancies concerning times and locations both before and after the shooting, the immediate events at the time of the homicide were described consistently. Furthermore, the testimony of the pathologist and the firearms expert, which was received during the trial, concerning the number and location of the wounds, the type of weapon used, and the range from which it was fired, was entirely consistent with the testimony of the accomplices.

Most telling, however, was the testimony of Tommy Harris, who stated that he had loaned defendant a .22-caliber Colt automatic on the night of the party at James Willie’s house and received $100 from defendant for its use when he returned it. The firearms expert testified at trial that the bullets recovered from the body of Havrilka and at the scene more likely than not came from a Colt firearm.

We find no basis for disturbing the jury’s verdict on this record.

Defendant’s issue of double jeopardy arises out of events which occurred at his first trial. A jury was selected on May 16, 1983, and evidence commenced the next day, May 17, and continued through May 18. On May 19 the jury returned for closing arguments and instruction. The record does not reflect the hour at which they retired to consider a verdict. However, shortly before 5 p.m. on May 19 the trial court returned the jury into open court and the following colloquy took place:

“THE COURT: The Court wishes to inquire if you’re making any progress.
Without telling me how you stand, are you making progress?
FOREMAN OF THE JURY: I can’t tell you that we’re nearing — I feel that we’re making progress, but I can’t tell that we’re reaching — that we’re coming close to reaching a decision.
THE COURT: Do you think that if you have additional time you could reach a decision?
FOREMAN OF THE JURY: I think it’s entirely possible.
THE COURT: Do you have an indication of how much more time you’d like?
FOREMAN OF THE JURY: I can — I’m quite sure that it will be more than a couple of hours, but beyond that I can’t say and I can’t — I can’t predict what will happen after two hours.
THE COURT: But you feel that you are making sufficient progress, that more time may assist you in arriving at a verdict?
FOREMAN OF THE JURY: Yes.
THE COURT: All right, take the jury back.”

The jury was allowed to continue its deliberations until shortly before 8 p.m. When the jury was returned to the courtroom, the foreman stated that he believed they were making progress toward reaching a verdict. The court then gave them the Prim People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601) instruction.

The jurors were recalled to the courtroom a third time. The court determined that they had reached an impasse:

“THE COURT: Court’s in session. Mr. Foreman, since our last time out here have you made any more progress at all?
FOREMAN OF THE JURY: I would say that we’re making very slow progress.
THE COURT: Do you think if you had more time that you would be able to reach a verdict?
FOREMAN OF THE JURY: I think that if we have enough time I think it’s probable that we would be able to reach a verdict.
THE COURT: What are you talking about, ‘time?’
FOREMAN OF THE JURY: I-I can’t say. Right now-.
THE COURT: Don’t tell me in numbers.
FOREMAN OF THE JURY: Uh-yes. Uh-right now we’re all very fatigued from all the discussion and deliberation, and our thoughts and discussions are going very, very slowly.
It seems that we’ve been making some progress in the last few minutes — hour—.
THE COURT: But you are fatigued, aren’t you?
FOREMAN OF THE JURY: Yes.
THE COURT: It’s this Court’s opinion that you’ve had this case for approximately eleven hours, and it was a short trial, two-day trial, and I feel that because of fatigue setting in that it would be improper to let you continue discussing this case any more.
This Court’s going to declare a mistrial and discharge the jury.”

Defendant argues that the trial court was too hasty in declaring a mistrial; that the record indicates that the jury was about to reach a verdict; that no reason existed why, if the jury were fatigued, it could not be sequestered overnight and resume deliberations the next day.

The rule governing a declaration of mistrial by a court sua sponte was first laid down in United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165, and has been generally followed ever since. In that case the Supreme Court stated that a mistrial resulting from a hung jury did not bar retrial and that a court may not declare a mistrial without the consent of the defendant unless there is a manifest necessity for the act. The court cautioned that the trial judge should exercise sound discretion on the subject.

In the case at bar we are of the opinion that the matter has been waived by the defendant. He raised no objection at the time of the declaration of mistrial, and more significantly, he raised no objection at the start of the second trial. Defendant misconceives the nature of double jeopardy. The prohibition is not against double punishment, but against being put twice in jeopardy. (Ball v. United States (1896), 163 U.S. 662, 41 L. Ed. 300, 16 S. Ct. 1192.) It is thus incumbent that the question be raised before the second trial commences. It is at this time that jeopardy, if at all, will attach.

Even if the matter were to be considered on its merits, we could find no abuse of discretion by the trial judge. It is apparent that the jury was making little, if any, progress; the issue was straightforward-credibility. Compare People v. DeFrates (1946), 395 Ill. 439, 70 N.E.2d 591, where after 45 minutes of deliberation following a three-day trial, a mistrial was declared. The supreme court indicated that it thought the trial judge had acted hastily but refused to interfere with his discretion.

Defendant’s next issue concerns the admission into evidence of prior consistent statements made by his accomplices, Scott and Pickens. These were recounted by two detectives who took the statements from them on December 22, 1982. The statements were substantially parallel to their trial testimony.

The general rule is that a prior consistent statement may not be introduced to bolster the in-court testimony of a witness. (People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363.) There are some limited exceptions: (1) it may be introduced to refute a charge that the in-court testimony is of recent fabrication; or (2) if it is contended that the witness has a positive motive to testify falsely, it may be introduced to show that the witness told the same story when the motive did not exist. People v. Tidwell (1980), 88 Ill. App. 3d 808, 410 N.E.2d 1163.

Defendant’s contention is that the motive to testify falsely arose before the statements were made to the police. On December 22, when the statements were made, the investigation had centered upon Scott, Pickens, and defendant through information “leaked” to the police from the John Hay Homes, a housing project where they resided. We agree. At that time it must have been apparent to them that they were prime suspects and faced with criminal liability for armed robbery and murder. The motive to place the onus on defendant must have been present.

It follows that the statements were inadmissible and it was error to allow them in. However, it does not follow that the error was of such magnitude as to require reversal. It will be recalled that a statement to Vincent Cooper, a guest at the Willie party, was also made on the night of the homicide by Pickens. He told Cooper that defendant had robbed and killed a man. Clearly, no motive to falsify existed at that time, and the statement to Cooper was thus admissible. Defendant argues that the falsification arose immediately upon the homicide; that Scott and Pickens concocted the entire story at that time. The argument is purely speculative and self-serving.

Since the statement to Cooper was properly before the jury, the further statements to the police, although inadmissible, could have had little measurable impact on the verdict. We conclude that the admission of the prior consistent statements to the police was error, but harmless error.

Defendant next complains that numerous statements made by the prosecutor in his closing argument constitute plain error. Initially we note that this contention is raised for the first time on appeal. Generally, unless objection is made at the time and in the post-trial motion, error in closing argument is considered waived. (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.) An exception to the rule is that of plain error, but such error may be noticed for the first time on appeal only where the evidence is closely balanced and of such magnitude that the defendant was deprived of a fair trial. People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091.

We have examined with care the portions of the argument cited to us, and while we find most of them inappropriate and ill-advised, we do not find plain error. The most troublesome of them are the repeated statements that defendant was a liar. Some examples taken from the record are:

“Either this man [defendant] was at a party the whole time or he has tried to build an alibi to cover a murder he committed. There is no middle ground here. Either he’s a partier or he’s a murderer. He’s either telling you the truth or he isn’t.
* * *
So even-consider *** the way this man [defendant] lied to you, because he has been shown to be a liar time after time in his testimony.
Let’s look at the truth that you heard in here and let’s look at the lies he told you.
* * *
He lied about when he left the party and he lied about leaving the party.
* * *
Every time Isaiah Green tells a story of what happened that night he tells it different, because every time he tells it he gets caught in another lie. And every time he gets caught in another lie he sits up there and he tries to get out of it by saying, ‘You never asked me that,’ or T don’t recall that,’ or this or that.
It’s like if he sits up there and wriggles around he can make his lies become truth; he can catch the truth someplace in the air.
But he can’t because he’s a — he’s lying, and we’ve shown him to be a liar at every turn he takes.
* * *
I’d like to plant a concept with you and I’ll get back to it a little later.
It’s not original with me. It involves a term that really is not very often in my vocabulary, but I think it fits. It applies to human nature today as well as it did in 35 A.D. when the Roman statesman Marcus Quintillian said, ‘A liar should have a good memory. A liar should have a good memory.’
* * *
So he told us two completely different stories about even how he got his grub stake to get into the [dice] game.
A liar should have a good memory if .he’s going to get away with it.
* * *
Now, other telling points that I’d like you to consider is the matter of his statement that he didn’t leave that party from be-
fore 11:00 until after 1:00. If you believe that, he’s a party-goer. If you don’t believe that, he’s a murderer.
* * *
A few more telling points on the issue of truth. A liar should have a good memory.
‘Why did you get the gun the first time from Tommy Harris?’
‘Well,’ he says, ‘the first time he told us he said somebody was after him with a knife.’
Story B: ‘Because some guys were after me with a gun.’
‘Okay, how about the trip to East St. Louis? How’d that go?’
Okay, the first time he says, T went to sleep right when we left Springfield.’
Yesterday he tells us, ‘Well I drove down by Litchfield.’
‘What was the condition of your sobriety?’
He told Tom Murphy in December he was drunk. He told us yesterday he was sober.
* * *
A liar, Mr. Green, should have a good memory.
* * *
A liar should have a good memory. Fortunately, for justice in our community Isaiah Green does not have a good memory.”

While we will not be understood as condoning these remarks, they have some basis in the record. Defendant’s testimony was largely discredited by the State’s witnesses and he himself was impeached with his prior inconsistent statements. In this context, the instant case is distinguishable from People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880. In that case the prosecutor called the defendant a habitual criminal when it was undisputed that he had no criminal record and also stated that the judge knew that the defendant was guilty. No such flagrant allegations were made here.

Defendant’s remaining issues may be dealt with somewhat more summarily since they attempt to plough legal ground which is already well tilled. He claims that an extended term on the murder conviction was an abuse of discretion, arguing that there was nothing about this homicide to set it apart from any other. He also points to his age, 18, and his lack of prior convictions, arguing that the sentence ignores his potential for rehabilitation.

Under section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(2)), a trial court may impose an extended sentence if it finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. In People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, the supreme court stated that the statutory requirement did not demand torture or unnecessary pain upon the victim. The court stated:

“ ‘Heinous’ is defined by Webster’s Third New International Dictionary (unabridged) as ’hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal’; ‘brutal’ includes ‘grossly ruthless,’ ‘devoid of mercy or compassion: cruel and cold-blooded.’ ” 88 Ill. 2d 482, 501, 431 N.E.2d 344, 353.

We believe that the facts in the instant case fit within this definition. The defendant talked about the robbery only hours before the crime occurred and obtained a firearm in order to insure its success. As Havrilka lay on the ground, mortally wounded, the defendant fired off four more rounds into his body. He left Havrilka’s body in a place where his family was certain to view it in a gruesome state. He received an extra portion of the proceeds of the robbery for having been the trigger man. He committed the homicide only to obscure identification of himself as the robber — a most senseless and wanton act.

We find no basis for interfering with his sentence.

Finally, defendant argues that the prosecution’s use of peremptory challenges to exclude black jurors deprived him of equal protection and of a jury representing a fair cross-section of the community. Thirty-eight jurors, two of whom were black, were examined; six were peremptorily excused by the State, including the two blacks; one of the blacks was excused when she revealed that her sister had been charged with forgery in Marion County. The jury was all white, the defendant was black, the victim was white.

Defendant accepted 12 jurors without objection. Defense counsel made a short statement for the record which only summarized the composition of the panel and the peremptories used by the State, all as detailed above.

This issue has been adversely decided to the defendant by the supreme court in People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202, where the court held that the use of peremptory challenges to exclude black jurors does not offend equal protection unless it can be shown that there was a systematic and purposeful exclusion of blacks from the venires in case after case. There was no such showing in Payne and there has been none here. The argument is without merit.

For all the foregoing reasons, the judgment and sentence of the circuit court of Sangamon County is affirmed.

Affirmed.

MILLS, P.J., and GREEN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE OTIS ROSENBERGER, Defendant-Appellant.
    Fourth District
    No. 4—83—0214
    Opinion filed July 10, 1984.

      Anthony E. Novak, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Following a jury trial in the circuit court of Champaign County, defendant was convicted of murder and sentenced to an extended term of 60 years’ imprisonment. He now appeals his conviction and sentence, claiming that he was not proved guilty beyond a reasonable doubt, that the statute under which he was convicted is unconstitutional, that the trial court made several erroneous rulings during his trial, and that his sentence is excessive. We affirm.

On September 2, 1982, a Champaign County grand jury, in a six-count indictment, charged Wayne Rosenberger with the offense of murder in violation of section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1). The death penalty was requested. All six counts alleged that defendant had killed his 23-month-old son, Christopher, by repeatedly striking him about his head and body. The counts alleged various levels of criminal intent ranging from intent to kill or do great bodily harm to knowledge that such acts created a strong probability of great bodily harm or death.

Defendant subsequently filed a motion to exclude the death penalty alleging, in part, that the counts of his indictment which charged him with knowledge that his acts created a strong probability of great bodily harm or death are virtually indistinguishable from the offense of involuntary manslaughter as defined in section 9 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3). Defendant later orally moved to dismiss counts I through IV of the indictment on this basis also. The trial court denied both motions.

Before trial, the court informed counsel that the voir dire examination would be conducted solely by the court. Counsel were invited to submit to the court any questions which they might wish the court to ask. Defense counsel requested that the court question the veniremen regarding their possible acquaintance with witnesses listed in the State’s discovery disclosures as well as those listed by the defense. Defense counsel then offered to prepare such a list. The court suggested that both counsel work together on the list and that the witnesses included on the list not be identified as to which side they would be testifying for. The court further requested that the list not be overly extensive and that persons not likely to testify should not be included. Defense counsel thereafter submitted a list of 23 potential defense witnesses, and the prosecution submitted a list of six prosecution witnesses.

On February 14, 1983, one day before trial, defendant filed a motion to compel disclosure. He alleged therein that on February 4, 1983, defense counsel interviewed Investigator Walter Wolfe of the Champaign County sheriff’s department. During the interview Wolfe indicated that he had spoken to one of defendant’s neighbors on the day after the alleged murder, August 30, 1982. Wolfe stated that she refused to give her name but did say that she observed bruises on the victim prior to his alleged murder. Wolfe stated that he informed Champaign County State’s Attorney Thomas Difanis of this conversation. Defense counsel argued that the State’s Attorney had a duty to disclose this information as “material information which tends to negate the guilt of the accused.” Defanis informed the court that Wolfe had told him of the conversation; however, the only information that Wolfe gave him was that the neighbor was extremely uncooperative and that she may have attempted to call the Department of Children and Family Services (DCFS) on the morning of the child’s death. Defense counsel responded, “I was under the impression that Investigator Wolfe understood that she called DCFS because she saw injuries on the child that week. But if Investigator Wolfe did not inform that to the State’s Attorney, that’s fine. We’ll bring that out at trial.”

On February 10, 1983, a newspaper article appeared in the Cham-paign-Urbana News Gazette concerning the trial of Enrique Guerrero, Jr., completed that day in Urbana. Guerrero had been found innocent of murdering his six-month-old son. The article stated that evidence of previous injuries on the body of the victim was barred pursuant to a pretrial motion and that the prosecution felt that this could have made a significant difference in the jury’s verdict. The article further stated that the assistant State’s Attorney criticized “the system” for preventing the prosecution from presenting such evidence. The article further detailed the Guerrero trial and concluded by stating that “Wayne Otis Rosenberger, 21, formerly of rural Champaign, is scheduled to go on trial Monday for the murder of his 20-month-old son, Christopher.”

On February 14, 1983, prior to the commencement of jury selection, defense counsel moved for a continuance, alleging that his ability to receive a fair trial before an unbiased jury had been prejudiced by the newspaper article, particularly in light of the fact that there would be some jurors in the venire panel in this case who had served on the Guerrero jury.

The trial court denied the defendant’s motion, stating that the court would pursue extensive voir dire with any juror who would indicate that he had read anything about the case. The court subsequently allowed a challenge for cause for those jurors who had actually served on the Guerrero jury.

The trial began on February 15, 1983. Investigator Walter Wolfe of the Champaign County sheriff’s department testified that on August 30, 1982, he went to Burnham City Hospital in Champaign to observe the body of Christopher Rosenberger. Since the body was covered with numerous bruises and other injuries, he began an investigation of the death. Wolfe testified that he had an initial conversation with the defendant on the evening of August 30 in a store parking lot. He informed defendant of his Miranda rights and defendant agreed to speak with him. During the conversation, Lieutenant Roger Corray was present intermittently. Wolfe stated that the defendant initially said that on the morning of August 30 he had taken his girlfriend, Cathy Miller, to work. He returned to his residence at approximately 8 a.m. and fed Christopher his breakfast. He then heard Christopher crying outside and he went to the door and found that the child had fallen down the steps. He then picked Christopher up and took him into the shower and ran cold water on him. Defendant stated that he left the shower to get towels and then heard Christopher screaming and that Christopher had turned the hot water on himself, causing a burn on his chest.

At this point in the interview Wolfe expressed doubt and urged defendant to tell the truth. Defendant then said that after breakfast he and Christopher were seated on the living room couch and Christopher pulled two leaves off of a houseplant. Defendant then began hitting him with his hand. He stated that he was thinking about not having a job, not being able to pay his bills and that he had become angry. He stated that he hit Christopher too hard and that he hit him all over his body. Defendant said that at one point he knocked Christopher off of the couch. Christopher then staggered and began acting tired. Defendant said he felt sorry for Christopher and told him that he would buy him a toy. Christopher then staggered out onto the porch of the trailer and fell down three steps. Defendant then placed him in the shower, where he said Christopher turned the hot water on himself. Defendant stated that he could not wake Christopher so he left to get Cathy Miller. Following these statements, Wolfe allowed defendant to leave.

The next morning Wolfe and Corray again contacted defendant at the trailer where he lived. Defendant told them the same story initially. Wolfe again expressed doubt, stating that he did not believe Christopher got up after being knocked off of the couch. Defendant then admitted that Christopher was unconscious at that point.

Following a discussion about whether defendant should get an attorney, defendant asked to speak to Wolfe alone. He stated that he would tell the whole story if he would be allowed to attend his son’s funeral. He then told basically the same story, except that this time he said that as he was hitting Christopher, he fell out the door and down the porch steps. At that point, defendant said Christopher was unconscious and he took him into the shower and ran cold water over him. When this did not revive him, defendant poured a cup of very hot water on him, causing a burn on his chest. Defendant picked off the blistered skin, dressed the child and laid him on a bed. He then left to get Cathy Miller at her place of employment.

During cross-examination Wolfe testified that defendant told him that he went “wild” while hitting his son. Wolfe also stated that he had spoken to one of defendant’s neighbors, Zina Tabor, who told him that she had asked her mother or mother-in-law to call DCFS because Christopher had two black eyes on the weekend immediately preceding his death.

Lieutenant Roger Corray testified that he had accompanied Wolfe during his interviews with the defendant. However, he was not present during much of the interview in the store parking lot. He testified that he did hear defendant state that he felt bad because he had hit Christopher “too hard,” and that Christopher fell down the steps and then burned himself in the shower.

Corray testified that during the interview at the defendant’s trailer on the following day, defendant said that he was upset, he struck the child too hard, and knocked him to the floor. Corray remembered that defendant said that he hit the child on the back with his hand. Corray also testified that he did not hear all of the conversation inside of the trailer and that defendant later asked to speak to Wolfe alone.

The State then called Donald Deedrick, who testified that he saw Christopher on August 26, 1982, and that he appeared active and normal, although he had a bruise on his forehead.

At this point defense counsel objected and asked that the State be barred from calling further witnesses who were not listed as potential witnesses during the voir dire examination of prospective jurors. The objection was overruled.

The State then proceeded to call several witnesses who testified that Christopher was active and normal during the days before his death. Each witness did state that the child had two black eyes. The child’s maternal grandmother testified that he had received two black eyes as a result of a fall while he was in her care in late July 1982.

Prior to presenting the testimony of Angela Russell, Christopher’s mother, the State’s Attorney moved in limine that defendant be barred from making any inquiry regarding an investigation by DCFS into suspected child abuse of Christopher by Angela Russell in July 1982. The court allowed the motion only as to evidence of the actual investigation. Defendant was allowed to elicit testimony that certain witnesses thought Christopher’s appearance in July was serious enough to warrant a report to DCFS.

Angela Russell testified that she was Christopher Rosenberger’s mother and that she had never married the defendant. After Christopher was born in September 1980, she refused to let defendant visit the child. However, defendant was allowed to begin visiting Christopher in May 1982. Russell testified that she and Christopher lived with her sister and brother-in-law during 1982 and that she would bring Christopher to visit defendant on most weekends starting in May. Sometimes she would leave Christopher with his father overnight. Defendant lived in a trailer with Cathy Miller and her two daughters. She then recounted several bruises and bumps that Christopher had received from various falls in July and August.

Russell stated that after leaving Christopher with defendant on Friday, August 27, 1982, she visited defendant’s trailer on Saturday and Sunday too. She stated that Christopher appeared fine and looked normal at these times. She decided then to let Christopher stay with defendant the entire week since Christopher would be visiting his grandparents the next weekend. On Monday morning at approximately 11:30 Russell received a call from defendant at her place of employment. Defendant said Christopher had fallen out the front door and was unconscious. She told him to meet her at Burnham City Hospital, but he refused, saying that he was “too nervous.” Russell then drove to defendant’s trailer and found Christopher on the bed, cold and with no sign of life. She then put him in her car and drove him to the hospital, where he was subsequently pronounced dead on arrival. Russell stated that Christopher’s appearance on Monday morning was not like his appearance on Sunday night.

The State presented the testimony of Dr. Stanley Bobowski, a certified pathologist at Burnham City Hospital, who performed an autopsy and examination upon the body of Christopher Rosenberger on August 30, 1982. Dr. Bobowski estimated the age of a large purple bruise on the right side of the head to be one to three hours old at the time of death. He based this estimate upon the color of the bruise as well as his examination of the tissue and blood beneath the scalp. Dr. Bobowski also estimated that bruises on the scalp line and on the left cheek were also one to three hours old at the time of death. He further testified to the presence of a bruise in the middle of the back in the shape of a hand. He felt that this bruise, too, was inflicted within one to three hours of death. Dr. Bobowski stated that there was a large fresh burn over the chest and abdomen. By “sectioning” this burn and observing the tissue under a microscope, he was able to estimate that the burn occurred very near to the time of death. He also described a long, linear, red depression in the skin on Christopher’s chest and a similar mark on the neck. He estimated the marks were one to three hours old and he felt they could have been made by a rope burn or some very tight pressure, possibly tight clothing.

Dr. Bobowski also examined the internal organs. He found fresh hemorrhage on the left side of the brain, the small bowel, right rear abdomen, gall bladder, pancreas, adrenal gland, right kidney, and right diaphragm. He estimated the age of these internal hemorrhages to be from one to three hours old, based upon microscopic tissue examination.

Dr. Bobowski was of the opinion that most of these bruises and internal injuries were the result of blunt trauma and that the cause of death was traumatic shock from numerous injuries. He responded affirmatively when asked if it could be characterized as having been “beaten to death.”

Under cross-examination Dr. Bobowski testified that some bruises on Christopher’s face were over three days old. He also acknowledged that the linear marks could have been caused after death. He stated that there was no evidence of blood disorder or disease upon an examination of the liver and spleen. He also testified that there was no evidence of any broken bones, although he did not examine any X rays. While he felt that Christopher’s injuries could “possibly” have been caused by falling down some stairs, Dr. Bobowski was of the opinion that death was caused by multiple blows with a blunt object, hand, or foot.

Dr. Allen Baird, the emergency department director at Burnham City Hospital, examined the victim on August 30, 1982, at 12:10 p.m. in the emergency room. Based upon his personal examination and aided by photographs of the deceased at trial, Dr. Baird estimated that bruises on the right side of the head, the left hairline, the left forehead and cheek, the linear abrasions on the neck and chest, two handprint bruises on the back and bruising on the front of the abdomen were all less than one day old. He also noted several older bruises. He felt that the linear abrasion on the neck could have been caused by someone pulling on the victim’s clothing. However, he thought the linear abrasion on the chest could have been caused by a baseball bat or shoe. Dr. Baird felt that the bruises on the child’s back were caused by a vicious blow with an open hand using “tremendous force.” He stated that these injuries could not have been caused by falling down three steps.

Under cross-examination, Dr. Baird agreed that when dealing with child abuse cases, it is important to take X rays. However, he did not know if any X rays were made of this victim.

At the close of the State’s case, defendant indicated that he wished to call State’s Attorney Difanis as a witness to impeach the testimony of Walter Wolfe. The trial court refused to permit defendant to impeach Wolfe in this manner, especially since the matter involved was “totally collateral.”

Defendant called several witnesses who testified as to the victim’s condition during the weeks preceding his death. Most recalled the child’s black eyes and a bruise on his forehead. Some also testified that Christopher appeared tired and uncoordinated. Some remembered other facial bruises.

Peggy Watkins testified that she observed Angela Russell slap Christopher on one occasion. She also observed Christopher on July 26, 1982, and noted that he had two black eyes and multiple insect bites. As a result of these observations, Watkins made a report to DCFS. DCFS promised to investigate.

Zina Tabor testified that she lived in the trailer next to defendant’s trailer. She observed Christopher on August 27, 1982, noting a bump on his forehead and bruises on the right side of his face that appeared to be fading away. She eventually decided to call a child abuse “hotline” on the day of Christopher’s death, August 30, 1982.

Cathy Miller, defendant’s girlfriend who lived with him, testified that defendant had a very good relationship with his son. She stated that when Angela Russell brought Christopher to their trailer on Friday, August 27, 1982, he had two black eyes, a bruise on his forehead and bruises on his face and scalp. She testified that he appeared “sleepy” and uncoordinated on that weekend.

Miller testified that on Monday, while she was at work, she was contacted by the defendant at approximately 11:30 a.m. and she returned home. Her description of Christopher’s condition and the subsequent events were essentially consistent with the testimony of Angela Russell.

Miller acknowledged that she initially told the investigating officers that Christopher was with the defendant when he picked her up at her place of employment around 11:30 a.m. that day. She ultimately admitted that Christopher had been left in the trailer. Miller also acknowledged that she had informed the officers that when she left for work that morning, Christopher was “all right.” Miller denied, however, that she told the officers that the only marks on Christopher were two black eyes and a forehead bruise. She stated that she loved the defendant very much and planned to marry him.

Defendant then testified that he observed black eyes and facial bruises on Christopher on August 27, 1982. He also stated that the child appeared “sleepy” the entire weekend.

On Monday, August 30, 1982, defendant drove Cathy Miller to work and returned home, where he fed Christopher and watched television. At some point defendant noticed that the child had pulled two leaves off of a houseplant. Defendant then spanked him “on the butt” four or five times. He testified that Christopher fell down during the spanking. Defendant then felt bad about the spanking and told his son that he would buy him a present at the store. While preparing to go to the store, Christopher fell down the steps leading out of the trailer. Defendant observed the child at the bottom of the steps in a semiconscious state. He tried to get the child to talk but was unsuccessful, so he began “slapping him across the cheeks” in an effort to revive him. Defendant then put the child in the shower and ran cold water over him to revive him, and when that didn’t succeed he poured a cup of hot water on him. This caused a blister on his stomach and chest. Defendant then dried the child, picked off the blistered skin, dressed him in clothes and laid him on a bed. He then left to get Cathy Miller. When they returned, they called Angela Russell. Defendant said that he was afraid to take Christopher to the hospital because “they would accuse me of child abuse.”

Defendant admitted that he initially lied to the investigating officers about not hitting Christopher. He changed his story when confronted with the fact that there was a handprint on Christopher’s back. He also admitted that he initially told the investigators that Christopher had burned himself with hot shower water. He changed this story when confronted with evidence that the burn was too concentrated to have resulted from a shower.

Prior to the testimony of Dr. Lelyveld, a witness for the defense, the prosecutor objected to his use of a set of X rays that had been made of the deceased because they had not been disclosed to the prosecution until that morning. The X rays had been ordered by Dr. Baird on August 30, 1982, at Burnham City Hospital. They had apparently been forgotten by him; however, defense counsel had learned of their existence well before the trial started in February. Defense counsel stated that he intended to use the X rays to impeach Dr. Baird and Dr. Bobowski since neither bothered to view the X rays. Further, he argued that they were relevant in light of Dr. Baird’s testimony that the child had been stomped on or hit with a baseball bat. Defense counsel stated that the X rays were not disclosed two months earlier because he did not want to give the doctors a chance to go back and redo their jobs in an attempt to “tighten it up.” The trial court ruled that defendant would be barred from “active use of the x-rays.” An offer of proof was made by defense counsel.

Dr. Lelyveld, a specialist in pediatric medicine and a faculty member of the Northwestern University Medical School, testified as to the condition of Christopher’s body as depicted in photographs taken on August 30, 1982. He described bruises on the left cheek, lower jaw, the top of the head, and below the ear as being recent and anywhere from zero to five days old. He described many other bruises as being older than these, based on the color of the bruises depicted in the photographs.

Dr. Lelyveld testified that he could not be positive of the true coloration of the wounds because of possible inaccuracy of the photographic reproduction. He further testified that, without performing microscopic examination, one could not be more precise in aging a recent bruise than to say it occurred within the last three to five days.

Dr. Lelyveld testified that it was essential, in cases of suspected child abuse, to take X rays in order to determine whether any bones were broken. He felt that if an adult stomped on the chest of a child there would likely be broken ribs.

Based upon his examination of the photographs, Dr. Lelyveld felt that someone older than the child had to have struck the child many times over an extended period of time. However, he felt that it was unlikely that all of the recent bruises could have been caused by a fall down three steps.

The defendant also introduced the testimony of Dr. Daniel Pugh, a psychiatrist. Dr. Pugh reviewed various photographs depicting the body of the deceased. He described small marks over the buttocks, abdomen, and forearm as petechial hemorrhages indicating a weakness in the blood vessels, leukemia or interference of clotting factors in the blood. Dr. Pugh said that he could not rule out the possibility that something other than trauma caused or exacerbated the injuries on the deceased’s body.

Dr. Bobowski was called to testify again as a rebuttal witness. He testified that, based upon his examination of the liver and spleen, there was no evidence of leukemia and that the blood he examined appeared normal. However, Dr. Bobowski could not rule out the possibility of hemophilia.

Christopher Rosenberger’s family physician, Dr. Brunner, also testified. He stated that two complete blood counts performed on Christopher in November and December 1981 were “absolutely normal.”

Other rebuttal witnesses testified that Christopher appeared energetic and normal in August despite noticeable black eyes.

Investigator Gary Turner of the Champaign County sheriff’s department testified that Cathy Miller told him on August 30, 1982, that Christopher was in very good spirits and was very healthy that morning when she went to work.

Defense counsel objected to the testimony of June Henderson, a rebuttal witness. She was an investigator for DCFS, and defense counsel argued that the State would use her testimony to imply that Angela Russell was cleared of any wrongdoing in connection with the July report made by Peggy Watkins. Defense counsel contended that such testimony would violate the court’s earlier ruling in limine regarding the matter. The court allowed Henderson to testify but limited the testimony to her observation of Christopher’s appearance.

Henderson testified that when she saw Christopher on July 20, 1982, he was “probably one of the most vibrant healthy looking, happy little youngsters” that she had seen in a long time.

The jury subsequently found defendant guilty of murder and not guilty of involuntary manslaughter, on which they had been instructed as an included offense. Following further argument and deliberation, the jury stated that they could not unanimously find the existence of a statutory aggravating factor. Therefore, defendant was not eligible for the death penalty.

Defendant’s post-trial motion was denied, and a sentencing hearing was held. After reviewing a presentence report, various letters of character reference, and after hearing the statements of the defendant and his grandfather, the court sentenced him to an extended term of 60 years’ imprisonment.

Defendant first argues that his guilt was not established beyond a reasonable doubt. In our opinion the foregoing explication of the facts dooms that contention. Defendant points to the evidence of preexisting injuries, what he deems inconclusive expert evidence as to the cause of death, and the improbability of his alleged confession. He also claims that the jury’s verdicts of guilty as to murder but not guilty as to involuntary manslaughter are “inconsistent” and thus raise a reasonable doubt.

A jury’s verdict will not be reversed unless the evidence is so unsatisfactory or improbable as to raise a reasonable doubt as to the defendant’s guilt. (People v. Williams (1982), 93 Ill. 2d 309, 444 N.E.2d 136.) The resolution of factual disputes and the assessment of the credibility of witnesses is the function of the jury, and if a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, a reviewing court will not upset the conviction. Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.

Without vainly reiterating all of the evidence, it is plain to us that the child died as a result of a horrifying beating on the morning of August 30. There was evidence of some preexisting injuries, but there was no evidence that the condition of the body observed by the doctors on that date was the same as on the Friday preceding. Both Dr. Bobowski and Dr. Baird were firm in their beliefs, based upon close examination of the body, that the child had been beaten to death and that the injuries which they observed were from three hours to less than one day old. Dr. Lelyveld’s examination, on the other hand, was limited to examination of autopsy photographs, and he admitted that a variation in photographic technique would influence his opinion. He, too, agreed that recent bruises would be consistent with a beating on the morning of death and that it was unlikely that the injuries observed could have been caused by a fall down some steps. Dr. Pugh’s testimony concerning possible blood disorders sounds strange coming from a psychiatrist and was refuted by the other doctors on rebuttal.

Defendant’s theory that death was caused by trauma inflicted by others rings hollow in the extreme. He admitted to Wolfe and Corray that he struck the child “all over” and “too hard” on the morning on which it is undisputed he had sole custody. The fact that defendant himself testified that he was “too nervous” to take the child to the hospital suggests a guilty conscience. His other actions, including picking off the blistered skin, dressing a lifeless body, and his initial lies to police officers, also indicate a consciousness of guilt.

Nor do we believe that his confession was improbable. He argues that the statements made by Wolfe and Corray are inconsistent; that Wolfe quoted defendant as saying he hit the child “all over,” while Corray’s version was that he hit him only on the back. He also argues that it is odd that the confession was not reduced to writing by the officers and that there was no conversation between themselves concerning the case. These are collateral matters and in our opinion do not impinge upon the basic credibility of the officers’ testimony.

Defendant’s last reasonable doubt argument centers upon the jury verdicts. He maintains that the not-guilty verdict on the included offense of involuntary manslaughter raises a reasonable doubt as to his guilt of murder. The argument apparently is: not guilty of one form of homicide means not guilty of any form of homicide. Simply to state the proposition is to see its fallacy. It ignores totally the different mental states for the separate offenses. Involuntary manslaughter is homicide performed recklessly; murder is homicide performed intentionally or knowingly. The verdicts were consistent and do not reflect one upon the other.

Defendant’s guilt was established beyond a reasonable doubt, and we find no basis upon which to interfere with the jury’s verdict.

Defendant’s next contention concerns the constitutionality of the homicide statutes. He maintains that the distinction between murder and involuntary manslaughter is not sufficiently apparent to allow these statutes to be intelligently and uniformly applied and that the extreme difference in penalties calls for a sharper distinction in statutory language. From these premises he argues that he was denied equal protection. We disagree.

Specifically, defendant challenges the constitutionality of section 9 — 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(2)), which provides:

“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause death:
* * *
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another.”

He argues that there is not a sufficient distinction between this language and the offense of involuntary manslaughter as defined in section 9 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3), which provides:

“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individ-nal, and he performs them recklessly.”

A person acts recklessly “when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow.” (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 6.) Although he is unable to cite any direct authority for the proposition, defendant urges this court to hold that the murder statute is insufficiently distinct from the involuntary manslaughter statute to be constitutionally sound.

It is clear that the argument must fail. It is well established that statutes enjoy a presumption of constitutionality. (People v. Schwartz (1976), 64 Ill. 2d 275, 356 N.E.2d 8.) It is also apparent that, contrary to defendant’s contention, the courts of this state have long recognized the distinction between the offenses of murder and involuntary manslaughter. It is the difference between the mental states which distinguishes the two crimes. (People v. Gresham (1979), 78 Ill. App. 3d 1003, 398 N.E.2d 398; People v. Cowen (1979), 68 Ill. App. 3d 437, 386 N.E.2d 435.) Recklessness is a mental state which involves criminal liability of a degree below that of knowledge. (People v. Parr (1976), 35 Ill. App. 3d 539, 341 N.E.2d 439; see also People v. Mifflin (1984), 120 Ill. App. 3d 1072, 458 N.E.2d 1343.) The difference between a strong probability of death or great bodily harm and the mere likelihood of the same should be apparent to anyone, as well as the difference between knowledge and recklessness. Just how a more elaborate exegesis of these principles in the statute would be of assistance escapes us. The defendant was not denied equal protection, and the statute is not constitutionally infirm.

We turn next to a variety of allegations of error in the trial proceedings. Defendant maintains that these deprived him of a fair trial and warrant a new trial. We disagree and will deal with each of them briefly. ■

The first concerns the newspaper article about the Guerrero trial to which we have alluded above. Defendant moved for a continuance of his trial based upon the article because the same venire would be sitting on his case; he claimed that they would be more likely to convict him in order “to even the score.” The trial court denied the motion. At that stage of the proceedings it would have been pure speculation for the trial court to do anything else. On appeal defendant does not seriously contend that the denial was an abuse of discretion. People v. Pruden (1982), 110 Ill. App. 3d 250, 442 N.E.2d 284.

Rather, defendant argues here that the trial court failed adequately to question the prospective jurors about the article. The argument is improper. Defendant at no time requested the trial court to inquire specifically about the article, but insisted that a continuance was the only remedy. Arguments not raised below cannot be considered on review. Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 443 N.E.2d 575.

In any event, the trial court allowed challenges for cause as to any jurors who had actually sat on the Guerrero jury and defendant did not exhaust his peremptory challenges. No error occurred.

The second alleged trial error is that the court allowed the State to present seven witnesses in its case in chief and five in rebuttal who were not named in the list of witnesses read to the jury on voir dire.

As has been indicated above, at the suggestion of the court, counsel prepared a list of witnesses which was read to the prospective jurors in order to determine whether there existed any relationship. Defense named 23 possible witnesses while the State listed six.

As to the rebuttal witnesses, it is never possible to determine in advance of any trial who they may be until the defense evidence is heard. Failure to list them cannot be error.

As to the others presented in chief, we know of no rule of law which requires that the names of potential witnesses be presented to the venire on voir dire. It is simply a tactical decision on the part of counsel, although frequently followed. In the instant case, if defense counsel had had any reservations about the list prepared by the State, he could have supplemented his own list with State’s witnesses disclosed to him through discovery. While not unheard of, it still would be rather unusual for the State to try a homicide case with only six witnesses. It is of significance that there is no contention that any of the jurors ultimately chosen knew, or had any relationship to, the State’s witnesses. No error occurred.

The third contention of trial error concerns the exclusion by the trial court of certain X rays taken of the victim after death. It appears that Dr. Baird had ordered these but had forgotten about them. Defense counsel learned of them well in advance of trial but did not disclose them until Dr. Lelyveld was about to take the stand. He stated that he intended to use them to impeach Dr. Baird and Dr. Bobowski. In response to questioning by the trial court, defense counsel stated that he had not disclosed them because he did not want the doctors to go back and redo their jobs in an effort to “tighten it up.” The trial court barred the use of the X rays because of the blatancy of the discovery violation.

The record is clear that defendant was ordered by a pretrial discovery order to disclose any documents, photographs, or tangible objects which he intended to use as evidence or for impeachment. He was likewise ordered to disclose the results of physical examinations and scientific tests. There can be no question that defendant violated the order.

It is also apparent that the X rays were not under the control of the State. Dr. Baird ordered them but he never viewed them and gave no indication that he knew they had been taken. Dr. Bobowski did not know of their existence. Furthermore, neither doctor had any employment relationship with the State of Illinois or its investigative personnel.

Defendant next argues that the penalty was too severe. We disagree. It is specifically provided by Supreme Court Rule 415(g) (87 Ill. 2d R. 415(g)). In the light of the blatancy and timing of defendant’s actions, we believe that the trial court acted properly.

Defendant’s fourth complaint of trial error is the refusal of the trial court to allow him to call the State’s Attorney of Champaign County as a witness for the purpose of impeaching Investigator Wolfe’s testimony. It will be remembered that Wolfe told defense counsel that he had had a conversation with a neighbor of the defendant a day or two after the murder and that he had reported the conversation to the State’s Attorney. At the motion hearing on the matter, the State’s Attorney told the court that Wolfe had reported the conversation, but the only information he had was that the neighbor was extremely uncooperative and may have called DCFS on the morning of the murder. Defense counsel stated that he understood that the neighbor had called DCFS because she had seen injuries on the child earlier in the weekend and that if Wolfe did not so inform the State’s Attorney, he would bring it out at trial.

At trial Wolfe testified only that he had told the State’s Attorney about the neighbor, having seen the injuries. It was apparently this statement which defense counsel sought to impeach.

Although a prosecuting attorney is generally competent to be a witness, courts are reluctant to allow an attorney to appear in the same case as both an advocate and a witness. (People v. Gendron (1968), 41 Ill. 2d 351, 243 N.E.2d 208, cert, denied (1969), 396 U.S. 889, 24 L. Ed. 2d 164, 90 S. Ct. 179.) Accordingly, “the trial court has wide discretion in refusing to permit attorneys to testify at a trial wherein they also serve as advocates.” (People v. King (1977), 66 Ill. 2d 551, 559, 363 N.E.2d 838, 841.) There is no abuse of discretion in the court’s refusal where the testimony of the prosecuting attorney is not necessary for the presentation of a defense. People v. Gendron (1968), 41 Ill. 2d 351, 243 N.E.2d 208.

We agree with the trial court that the proposed impeachment was on a collateral matter and therefore the court did not abuse its discretion in refusing to let defendant call his adversary counsel. The only thing which might have been established is that the full content of a conversation between two men which had occurred more than six months before was not brought out. Many witnesses testified to preexisting injuries. Moreover, defendant was permitted to attack Wolfe’s credibility throughout the trial. The impeachment value of the State’s Attorney’s testimony would be very questionable in any event. No error occurred.

The fifth assignment of error by the defendant is that June Henderson of DCFS was permitted to testify when the trial court had ruled in limine that evidence of the actual investigation by DCFS in July 1982, a month before Christopher’s death, would be barred. Defendant overlooks the fact that he was permitted to call Peggy Watkins as a witness and elicit from her that she called DCFS because of Christopher’s physical condition. Henderson was called in rebuttal to testify as to her observations of Christopher’s physical appearance (“one of the most vibrant healthy looking, happy little youngsters”) in rebuttal to defendant’s witnesses. No error occurred.

Lastly, defendant complains that his extended term of 60 years is improper and that this court should reduce his sentence. He points out that he had no prior juvenile nor adult criminal record and possesses a larger likelihood of rehabilitation. He argues that the trial court ignored these elements of mitigation.

We do not agree. The trial court carefully considered these matters, as the record shows. The court stated that it had considered a term of life imprisonment and a full extended term of 80 years, yet elected the lesser number. The savage beating of a helpless infant, one’s own flesh and blood, which results in death must surely contain a degree of brutality incomprehensible to any civilized human being. The need to protect the public from one capable of such an act is paramount.

Reviewing courts will not tinker with sentences except under exceptional circumstances (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541), none of which are present here.

For all the foregoing reasons, the judgment and sentence of the circuit court of Champaign County are affirmed.

Affirmed.

TRAPP and GREEN, JJ., concur.


author: JUSTICE WEBBER PRESIDING JUSTICE MILLS,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HAROLD YANTIS, Defendant-Appellant.
    Fourth District
    No. 4-83-0737
    Opinion filed July 10, 1984.
    MILLS, P.J., dissenting.
    Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Chris E. Freese, State’s Attorney, of Sullivan (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

On February 10, 1982, pursuant to a plea agreement, defendant pleaded guilty in the circuit court of Moultrie County to the offense of deceptive practices in violation of section 17 — l(B)(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 17 — l(B)(d)). He was sentenced to a six-month period of probation conditioned upon payment of restitution, court costs, and a fine which, together, totaled over $800.

On August 3, 1982, the State filed a petition to extend probation, alleging that defendant had not complied with the monetary conditions of his probation. The circuit court subsequently extended the defendant’s probation for a period of one year and reaffirmed the original monetary conditions.

On August 9, 1983, the State filed a petition to revoke probation, again alleging that defendant had failed to pay any restitution, costs or fine as required by the court’s initial order. The defendant filed an affidavit claiming indigency, and the court appointed the public defender to represent him. A hearing on the petition to revoke probation was scheduled for October 17, 1983. On that date defendant’s counsel presented her oral motion to withdraw as counsel because of lack of communication with the defendant. The court denied counsel’s motion and continued the hearing on the petition to revoke until October 24,1983.

At the hearing the State requested the court to take judicial notice of defendant’s file, which showed that no payments had been made. The State then called the defendant as its only witness. Defendant testified that, since February 1982, he had worked 91/2 months for a detective agency, three weeks at a stone quarry, and four weeks for a truck company. He also collected unemployment compensation over the course of several months. In August 1982 he filed for bankruptcy and paid an attorney $250 to represent him in the proceedings. Defendant testified that this $250 was part of $2,500 he had received one month earlier as his share of a divorce settlement. He further testified that he was presently living with a woman who paid for all of their living expenses because he had no available money and no employment. He acknowledged that he had not made any payments pursuant to the court’s probation order. On the basis of this testimony, the trial court ruled that the defendant had violated the terms of his probation in that he wilfully failed to pay the restitution, costs, and fine.

The court sentenced defendant to a further one-year period of probation on the condition that he serve 60 days in the county jail. The court also reaffirmed its original probation condition that required defendant to pay restitution, fine and all current costs. Defendant filed his timely notice of appeal on October 31,1983.

On appeal defendant raises two arguments: (1) that the trial court had a duty to admonish him concerning his fifth amendment right against self-incrimination, and (2) that his counsel was ineffective in allowing him to testify as the State’s sole witness when only his testimony demonstrated a wilful failure to pay.

A preliminary inquiry must be made as to whether the fifth amendment privilege exists at a probation revocation hearing. Our research has revealed no direct Illinois authority on the point. In People v. Roberson (1964), 30 Ill. 2d 168, 195 N.E.2d 722, the defendant was called to testify by his own counsel at a bench trial. On appeal he claimed that the trial court should have admonished him as to his right of silence. The supreme court indicated that a different result might ensue if the defendant had appeared pro se, but held that the defendant’s voluntary testimony at the request of his own counsel waived any constitutional privilege, saying:

“In the defendant’s brief, it is conceded that no case has been found in which it had been held that a defendant represented by counsel must be advised by the court of his right to refuse to testify.” 30 Ill. 2d 168, 170, 195 N.E.2d 722, 723.

We find two implications in this decision: (1) the undoubted existence of the privilege at trial, and more significantly (2) that the control of the privilege in the case of a represented defendant, that is, whether to assert or to waive, is in the hands of counsel, not of the trial court.

More recent Federal authority indicates that the privilege exists at the penalty phase of a criminal proceeding. In Estelle v. Smith (1981), 451 U.S. 454, 462-63, 68 L. Ed. 2d 359, 369, 101 S. Ct. 1866, 1873, the United States Supreme Court said:

“We can discern no basis to distinguish between the guilt and penalty phases of respondent’s capital murder trial so far as the protection of the Fifth Amendment privilege is concerned. Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental constitutional guarantees. [Citations.] Any effort by the State to compel respondent to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment.”

The evidence in Estelle was that of a psychiatrist to whom the defendant had spoken. It is thus even more removed than the direct evidence of the defendant himself in the instant case.

We are persuaded that the fifth amendment privilege against self-incrimination exists at revocation of probation hearings. We are further persuaded that defense counsel must control both the assertion and the waiver of the privilege, even though the privilege is personal to the defendant. A good example of the proper procedure is found in People v. Hartley (1974), 22 Ill. App. 3d 108, 109, 317 N.E.2d 57, 58, where the court said:

“The colloquy of record shows that out of the presence of the jury Holman’s counsel requested that the court advise of the privilege against self-incrimination. He then asserted the claim of privilege.”

In sum, we are of the opinion that there is no duty on a trial court to admonish a defendant of his privilege when he is represented by counsel. The case is obviously different when the defendant appears pro se. (People v. Roberson (1964), 30 Ill. 2d 168, 195 N.E.2d 722.) An example of the latter situation appears in People v. Slaten (1972), 5 Ill. App. 3d 405, 283 N.E.2d 12, where the defendant dismissed his appointed counsel and voluntarily took the stand after the State’s evidence had been completed. The appellate court held that it would have been “the better practice” for the trial court to admonish the defendant, but found no error when the substance of defendant’s testimony was, “ T ain’t sayin’ nothin’.’ ” 5 Ill. App. 3d 405, 409, 283 N.E.2d 12, 15.

We turn next to the question whether counsel in the instant case fulfilled her duty. We think not.

Section 5 — 6—4(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 6—4(d)) provides that probation will not be revoked because of a defendant’s failure to comply with financial obligations imposed by the sentence “unless such failure is due to his wilful refusal to pay.” It is incumbent upon the State to prove that a defendant failed to comply with the financial conditions of the probation and that such failure was wilful. (People v. Harder (1975), 59 Ill. 2d 563, 322 N.E.2d 470; People v. Nowman (1980), 87 Ill. App. 3d 42, 409 N.E.2d 95.) In the present case the State met this burden by requesting the court to take judicial notice of the clerk’s file which showed the nonpayment and by eliciting testimony from the defendant which showed that he had the ability to make the payments.

The record is barren of any effort by defense counsel to interpose any kind of defense or objection to the defendant’s testimony. Certainly nonpayment could be established by judicial notice of the court records, but the crucial element, wilfulness, was established out of the defendant’s own mouth. It is comparable to the State’s calling the defendant at a homicide trial and asking, “Did you shoot X?” All parties appeared to treat the matter as a civil proceeding where the opposite party may be called under section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1102). We are unaware of any authority which holds that civil rules apply to probation revocation proceedings, except for the lesser burden of proof. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 6—4(c).) The proceeding is still criminal and the defendant cannot be called to testify against himself. Estelle v. Smith (1981), 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866.

In Illinois the competency of counsel is tested by two elements: (1) whether counsel’s actions produced substantial prejudice to the defendant, and (2) whether the result of the hearing would have been different without incompetent action. People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.

Although the record is silent as to counsel’s motivations in this case, the State argues that allowing the defendant to testify was a tactical decision and as such should not be subject to criticism. However, we can perceive no tactical advantage for the defendant. It is apparent that without his testimony no proof of wilfulness existed. Whether the State could have produced other such evidence is purely speculative. We must take the record as we find it, and it reveals no rationale on the part of defense counsel for allowing the testimony and further reveals no effort on the part of the State to obtain, or the ability to obtain, other evidence of wilfulness.

Also, it cannot be gainsaid that defendant suffered prejudice. His probation was revoked and a jail term was imposed. None of this could have happened without his testimony, which laid the basis for the court’s finding of wilfulness.

We appreciate Justice Mills’ concerns as voiced in his dissent. However, we do not believe that People v. Tempel (1971), 131 Ill. App. 2d 955, 268 N.E.2d 875, cited in that dissent, is in conflict. There counsel, as a tactical decision, entered into a stipulation of violation, or as the court described it, an “evidentiary stipulation.” This indicated a calculated decision on the part of counsel, as the colloquy recited in that opinion shows. No such basis is found in the instant case. If counsel had made any tactical decision here, it is shrouded in silence.

Nor do we quarrel with Strickland v. Washington (1984), 466 U.S._, 80 L. Ed. 2d 674, 104 S. Ct. 2052. In that case the record affirmatively showed various actions by defense counsel in seeking to build a case for his client and preventing the State from cross-examining him. None of that is present here. Even by applying the Strickland standard, we would reach the same result.

Because the defendant was denied the effective assistance of counsel at his sentencing hearing, the judgment of the circuit court of Moultrie County revoking probation and reimposing probation conditioned upon a 60-day jail sentence is vacated and the cause is remanded to that court for a new revocation hearing.

Vacated and remanded with directions.

TRAPP, J., concurs.

PRESIDING JUSTICE MILLS,

dissenting:

This is not incompetence of counsel per se!

If so, this court has gone 180 degrees.

In People v. Tempel (1971), 131 Ill. App. 2d 955, 268 N.E.2d 875, the defendant’s attorney first admitted the probation violation and then declined to submit evidence of mitigation. We held in that case that the defendant was not denied effective assistance of counsel and further stated, “We cannot as a matter of supposition determine that the defendant might have had a defense, might not have violated his probation, might have had matters that could have been presented in mitigation, and that might have warranted a lesser sentence even if the violation was shown by evidence.” 131 Ill. App. 2d 955, 960, 268 N.E.2d 875, 878.

The majority here would now “suppose” that, in the absence of defendant’s testimony, the State was incapable of proving a matter as elementary as the income and expenses of a man on probation.

The majority’s attempted distinction of Tempel is a mere gossamer web. The stipulation in that case had precisely the same effect as the defendant’s testimony here; it provided the basis for the revocation of probation and without it the record would not support the judgment. While the majority makes much of the fact that it cannot perceive a tactical advantage in defense counsel’s conduct here, it is silent as to the tactical advantage obtained by the stipulation in Tem-pel. If Yantis’ counsel had made an “evidentiary stipulation” as to his income and expenses, I wonder whether the majority would have considered that a “calculated decision” and effective assistance of counsel.

The latest pronouncement of the United States Supreme Court is that the inquiry on a claim of ineffectiveness of counsel is whether counsel’s assistance was reasonable under all of the circumstances when viewed as of the time of counsel’s conduct. (Strickland v. Washington (1984), 466 U.S. _, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) In the present case, defense counsel allowed defendant to testify about his income and expenses. At the time, this testimony must have appeared rather harmless. Defense counsel might have allowed it as a convenience to the court in the hope of lenient treatment, since the State certainly could have established defendant’s income and expenses through more circuitous and time consuming evidence. But hindsight always has 20/20 vision.

Upon reviewing a claim of ineffectiveness of counsel, the court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ***.” Strickland v. Washington (1984), 466 U.S. _, _, 80 L. Ed. 2d 674, 694-95, 104 S. Ct. 2052, 2065-66.) Under the circumstances of this case, I am not persuaded that defendant has overcome this presumption when defense counsel’s conduct is viewed as of the time he allowed defendant to testify.

Even if the conduct was professionally unreasonable, the defendant must affirmatively prove prejudice. (Strickland v. Washington (1984), 466 U.S. _, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984), 466 U.S. _,_, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.) The majority, by erasing defendant’s testimony from the record and looking at what is left, concludes that the result would have been different if defendant had not testified. If we were dealing only with a question of whether the evidence supported the judgment, I would agree that our review should be confined to the record and that we should not concern ourselves with what might have been. However, we are dealing with questions of attorney incompetence, of assistance reasonable under all of the circumstances at the time of the assistance, and of the reasonable probability of a different result. For this reason, I believe it is appropriate to consider the likelihood of defendant prevailing if he had not testified.

In People v. Greer (1980), 79 Ill. 2d 103, 121, 402 N.E.2d 203, 212, the supreme court said, “*** we do not believe that the Constitution requires a new trial for every defendant whose counsel errs at trial, particularly in the absence of a demonstration that the outcome of a new trial would probably be different.” (Emphasis added.) In our case, defendant has not demonstrated that the outcome of a new trial would be different. The evidence introduced through defendant’s testimony was not inadmissible and will not be upon retrial. Again, all that defendant testified to was his income and expenses. I find it incredible to assume that the State will not be able to prove this, without defendant’s testimony, on remand.

The rule established by the majority seems to be that it is incompetence per se for defense counsel to allow a defendant to testify where that testimony provides the only evidence of an element of the offense-regardless of whether the State could have proved the matter without defendant’s testimony. I cannot buy it.

The Supreme Court warned in Strickland: “Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.” Strickland v. Washington (1984), 466 U.S. _, _, 80 L. Ed. 2d 674, 695, 104 S. Ct. 2052, 2066.

There will certainly be a great dampening of the ardor in a district where an attorney may be found incompetent for merely allowing his client to testify of his income at a probation revocation hearing.

I must dissent.