author: JUSTICE RIZZI

text:
    SENTRY INSURANCE, Plaintiff-Appellee, v. DAVID A. HOGAN et al., Defendants.—(Jacqueline A. Beaver, Adm’r of the Estate of Kathleen A. Gerval, Deceased, et al., Defendants-Appellants.)
    First District (3rd Division)
    No. 81—439
    Opinion filed December 30, 1982.
    Coghlan, Joyce and Nellis and Richard W. Hall, both of Chicago (Thomas J. Joyce and Thomas C. Nyhan, of counsel), for appellants. .

      Garbutt and Jacobson Associates, of Chicago (Jerome J. Jacobson and Michael D. Johnson, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Sentry Insurance, sought a declaratory judgment that it did not insure David Hogan’s 1968 Chevrolet as of October 9, 1978, when the vehicle was involved in an accident which resulted in the death of Kathleen Cerval and serious injuries to Dana Cerval. The circuit court found that “the policy language contained in the Sentry policy operates to exclude coverage of Mr. Hogan’s vehicle,” and it granted plaintiff’s motion for summary judgment. Defendant Jacqueline A. Beaver, administrator of the estate of Kathleen A. Cerval and guardian of the estate of Dana Cerval, appeals. We reverse and remand.

The facts of this case are undisputed. In April 1978, Hogan purchased an inoperable 1968 Chevrolet with the intention to make it operable. Hogan did not purchase insurance for this car. In August 1978, Hogan purchased a 1967 Caprice for which he immediately obtained liability coverage from plaintiff, without informing plaintiff that he also owned a 1968 Chevrolet which at that time did not have an engine in it. Hogan’s policy with plaintiff provided:

“We insure the car described on the declarations page and any car you replace it with. We’ll also insure any additional car you acquire if we insure, under this insurance, all cars you own. But the replacement or addition is insured only if you notify us within 30 days of its acquisition.” (Emphasis in original.)

Over the Labor Day weekend of 1978, Hogan’s Caprice broke down. Hogan did not notify plaintiff that he then junked the Caprice. Subsequently, Hogan worked on his 1968 Chevrolet. On October 9, 1978, Hogan put a battery into his 1968 Chevrolet and took the car for a test drive to get gasoline. On the way home from the gas station, Hogan was involved in the accident which led to this litigation.

The issue here is whether Hogan’s 1968 Chevrolet was insured by plaintiff as of October 9, 1978. Defendant argues that the 1968 Chevrolet is either a replacement car or an additional car which falls within the extended coverage provision of Hogan’s policy. Plaintiff contends (1) that the 1968 Chevrolet is not a replacement car because it was acquired before the commencement of the policy period, (2) that neither Hogan nor plaintiff intended that the 1968 Chevrolet be covered and (3) that the 1968 Chevrolet is not an additional car because Hogan did not insure all of his cars with plaintiff.

We believe that the first clause of the insurance policy plainly provides for the insurance of any car which replaces the named vehicle. No limits on the time of acquisition are expressed or implied in this provision. Nevertheless, plaintiff claims that in order for a vehicle to be covered as a replacement, it must be acquired after the commencement of the policy period. In support of its position, plaintiff apparently relies on a subsequent clause in the policy which provides for extended coverage only if the insured notifies the company within 30 days of the acquisition of the replacement. Plaintiff contends that making an inoperable automobile operable, as Hogan did here, is not an acquisition for the purposes of the extended coverage provision of the policy.

We agree with plaintiff that to make an automobile operable is not within the plain, ordinary meaning of “acquisition.” However, to use this restriction to limit coverage here, as plaintiff suggests, would be inconsistent with the previous clause in the policy which plainly covers any car which replaces the named car. If an insurance contract contains inconsistent or conflicting clauses, the clause which affords the greater or more inclusive benefit for the insured will govern. (Iowa National Mutual Insurance Co. v. Fidelity & Casualty Co. (1965), 62 Ill. App. 2d 297, 303-04, 210 N.E.2d 622, 625.) We believe that the cases which plaintiff cites in support of its position are inapposite, for they discuss the meaning of “acquires ownership” and “newly acquired automobile” and do not do so in conjunction with the meaning of “replacement.” Further, since the terms of the policy in this case plainly and unambiguously provide that any car may be a replacement, we need not consider any test for determining what is a replacement vehicle (see, e.g., United Farm Bureau Mutual Insurance Co. v. Elder (1981), 86 Ill. 2d 339, 343, 427 N.E.2d 127, 129). Thus, we conclude that in the policy at issue here, the broad replacement clause prevails over any limitation which might be implied by the notice clause, and therefore, Hogan’s 1968 Chevrolet was insured as of October 9, 1978. Moreover, the result wpuld be the same even if the issue were viewed as one of ambiguity rather than inconsistency, for ambiguous language is also to be construed in favor of the insured, not in favor of the insurance company which drafted the insurance policy. See Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 379, 400 N.E.2d 921, 922.

Plaintiff also maintains that the parties did not intend that two cars be insured for the payment of one premium. However, we find no merit in this contention because the intent of the parties was not circumvented in this case. Hogan never had both cars in operation at the same time. Thus, plaintiff was never exposed to multiple or unintended risks, but rather, plaintiffs risk was exactly that which it explicitly undertook in extending coverage to any car which replaced the named car. Until receiving notice, plaintiff would never learn when any replacement car became operable. Plaintiff’s risk was no greater than it would have been if Hogan had replaced his Caprice with a used but newly acquired 1968 Chevrolet that someone else repaired, a situation where coverage would have been provided under plaintiff’s interpretation of the policy.

Since we conclude that Hogan’s 1968 Chevrolet is a replacement car within the terms of the policy, we need not address the arguments relating to whether the 1968 Chevrolet was an additional car within the terms of the policy. Accordingly, the summary judgment is reversed, and the case is remanded for further proceedings.

Reversed and remanded.

WHITE, P.J., and McGILLICUDDY, J., concur.


source: Caselaw Access Project

author: JUSTICE ROMITI

license: Public Domain

text:
    BRUNO PRESKI, d/b/a Plaza Excavating Contractors, Plaintiff-Appellant and Counterdefendant-Cross-Appellee, v. WARCHOL CONSTRUCTION COMPANY, INC., Defendant-Appellee and Counterplaintiff-Cross-Appellant.
    First District (4th Division)
    No. 81—2973
    Opinion filed December 30, 1982.

      Michael J. Wall, of Rothschild, Barry & Myers, of Chicago, for appellant.
    Louis C. Warchol, of Chicago, for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

After the completion of a construction project, both contractor and subcontractor sued each other. The contractor sued for the cost of completion of work not performed by the subcontractor, and the subcontractor sued for certain sums unpaid and for extras. The trial court found that the subcontractor had breached the subcontract and also denied sub silentio the subcontractor’s claims. It also refused to grant the contractor the full amount sought, finding that certain claimed expenditures were unproven. Both sides have appealed. We affirm in part, reverse in part and remand for trial.

In 1973 Warchol (hereinafter called contractor) entered into a construction contract with the Capitol Development Board of the State of Illinois. Thereafter contractor entered into a subcontract with Plaza Excavating Contractors (hereinafter called subcontractor). The subcontract provided that for the sum of $113,500 the “subcontractor shall furnish and install the following described work in accordance with the contract between the Owner and the General Contractor and the Drawings and Specifications titled” followed by the typed provision:

“The DAVEA CENTER, ***, as per drawings T, L, Cl to C5, 1 to 23, PS-1, FS-1M, FS1-V, FS-1E, SI to S10, PI to P13, HI to H15, ME1 to ME3, LC1 to LC8, El to E12, SE1 to SE9 all dated 3/23/73 and specifications. Addendum #1 dated 4/2/73, Addendum #2 dated 4/11/73 and Addendum #3 dated 4/18/73 all as prepared by Daverman Associates, Inc., Architect and Engineers.
EARTHWORK complete, including grabbing, tree removal, demolition, stripping, cut and fill work, excavating, trenching, backfilling (within the building and exterior sidewalks with granular fill), 4” minimum sand under slab, grading, removal of spoil, construct access road (stone excluded), retention pond, accessories and auxiliary work.
Work to be done in accordance with job schedule requirements.
Site to be rough graded and trenching started within 3 weeks.
Furnish excavating equipment for ground breaking ceremony.
If Warchol Construction Company authorizes in writing the following alternate work, same to be included for their respective prices:
Alternate G-ll (spreading of top soil) ...............$19,800.00
Alternate G-6...................................................$l,675.00[sic]
Alternate G-7...................................................$ 1,900.00
Alternate G-8...................................................$ 375.00
EXCLUSIONS
NO SHEETING, SHORING OR PUMPING
NO HAND LABOR
NO FROST RIPPING
NO ENGINEERING OR LAYOUT WORK
NO SOILS TESTING”

The subcontractor completed much of the work and was paid $96,300. In 1974 the contractor demanded that the subcontractor spread the topsoil which had been removed and stored in a mound. The subcontractor claiming this fell within alternate G-ll of the specifications refused to do so unless paid $19,800. The contractor took subcontractor’s claimed interpretation of the specifications first to the architect and then to arbitration; both ruled that the placement of topsoil was part of the base bid and not part of alternate G-ll. Capitol and contractor were parties to these proceedings; subcontractor was not. However, the evidence indicates that the subcontractor did attend the arbitration hearing and testified there. Contractor acquiesced in the findings and demanded that subcontractor perform. Subcontractor refused to return to the job and other subcontractors were hired.

The trial court, after hearing all of the evidence, found that the subcontractor had been paid $96,300 of the $113,500 contract price, leaving $17,200 unpaid. Certain work could not be done by subcontractor for various reasons beyond its control; this included completion of cutting and grading a retention pool, the backfilling of certain curbs, and the furnishing and compacting of sand for various sidewalks. The amount which would have been paid for the work if done would have been $8,272. The evidence also showed that subcontractor failed to complete other work, but as to some of its work the amount spent by contractor to have the work completed by others was insufficiently shown. It was established that $1,534 was spent for debris and the removal and the cutting of a loading dock and $12,022.05 to complete the grading and spreading of the topsoil, which work the court agreed was not the fine grading falling under G-ll. The court awarded the contractor $4,628.05, the difference between the total amount of proved expenses incurred by the contractor and the total amount unpaid under the contract.

I

The subcontractor’s defense is based on the premise the the words “spreading of top soil” controls the rights of the parties. It is, however, improper to take words of a contract out of context or read only one provision alone. Rather a contract must be read as a whole and all parts construed together. (White v. White (1978), 62 Ill. App. 3d 375, 378 N.E.2d 1255.) Furthermore, in light of the specific adoption in the subcontract of the drawings and specifications provisions of the prime contract, those provisions become as much a part of the subcontract as if they were expressly written in it. (City of Lake View v. MacRitchie (1890), 134 Ill. 203, 25 N.E. 663; Intaglio Service Corp. v. J. L. Williams & Co. (1981), 95 Ill. App. 3d 708, 420 N.E.2d 634; Heifner v. Board of Education (1975), 32 Ill. App. 3d 83, 335 N.E.2d 600.) They cannot be ignored.

Grading is defined in the specifications which are a part of the contract. The one doing the grading was required to “redistribute the stockpiled topsoil and/or additional topsoil as required to the final contours shown on the plot plan at the direction of the Engineer.” This, as the architect correctly ruled, was precisely what was demanded here. Accordingly, the subcontractor was obligated by the clear language of the basic subcontract to spread the stockpiled topsoil, and when it did not do so it breached its contract.

The existence of the alternate G-ll in the contract does not change .this result. The first listed alternate does not read “spreading of top soil” but “G-ll (spreading of top soil).” The meaning of G-ll, just as G-6, G-7 and G-8, must be determined from the specifications. Alternate G-ll is defined as consisting “of providing labor and materials for fine grading, and seeding of the site as shown on the drawings ***.” Read together with the rest of the contract it is clear, as the trial court ruled, that there is no conflict between the terms and that the alternate related to lawns, seeding and grading and not to the work demanded here which is covered by the term grading. Had the subcontractor wished to exclude respreading to grade from the agreement, it could have added respreading to the exclusions expressly listed in the contract. Subcontractor’s reliance on a printed provision in the contract that if any part of the agreement was in disagreement with specifications, drawings or owner’s contract, the agreement would govern, is inapplicable both because there is no disagreement and because under the circumstances the specifications are part of “the agreement.”

Furthermore, if the terms “grading” and “G-ll (spreading of top soil)” should both be considered to refer to spreading of the piled soil, then the contract must be considered ambiguous and parol evidence would be admissible. The testimony of the parties at trial establishes that in adding the phrase “(spreading of top soil)” they merely wanted to limit the subcontractor’s obligations under G-ll. Contractor’s president testified, without contradiction, that about a week before entering into the subcontract the parties met and discussed the specifications. Subcontractor had a copy of the specifications book, and a complete set of plans and drawings. They discussed the earthwork in detail, including grading and the section on the redistribution of the stockpiled topsoil. Subcontractor had no objection to doing this work. However, while it was willing to do the fine grading involved in alternate G-ll, it could not do the seeding or the work related to the seeding. The words “(spreading of top soil)” were put in the contract to meet these objections. Subcontractor’s witness admitted that it had the relevant specifications before bidding and that when bidding on the G-ll, it did not plan to do the seeding but only the spreading of the topsoil. Yet there is no express exclusion of seeding in the subcontract. So it would appear the words “spreading of top soil” were inserted to limit the work under G-ll.

II

The subcontractor’s next contention is that it was entitled to more money because contractor in its affidavit to the owner in October 1975 listed subcontractor on the seventh line and allegedly made a request for payment of $111,000 (the copy of this affidavit in the record is illegible in many places and it is impossible to decipher the heading of the column in question). Subcontractor contends that it is entitled to an additional $10,700. Subcontractor bases the claim purely on the affidavit; it does not enumerate any work done and not paid for. Furthermore, subcontractor’s own witness testified without contradiction that these affidavits are not a true test of what has actually been done and it customarily may be up to 20% in error. In addition, it appears that the listing on the affidavit of subcontractor’s work includes “top soil, in grading by others.”

The trial court determined that of the $17,200 remaining on the subcontract, the subcontractor was not entitled to $8,272. This finding is supported by the record and has not been disputed by the subcontractor on appeal. The rest was set off against the contractor’s larger recovery. Thus, the subcontractor’s contention here is irrelevant.

Ill

Subcontractor next complains that the trial court erred in failing to award $7,618.70 for certain alternates (G-6, G-7, G-8) and extras allegedly done. The trial court did not rule on this claim and the subcontractor did not below file any objection to this failure. But even assuming that this denial sub silentio is reviewable, we conclude that the evidence does not mandate a finding for the subcontractor.

Subcontractor’s witness testified that as far as he knew the three alternates were done. He was requested by contractor’s job superintendent to do the alternates. This request was made in July 1974; the subcontractor was still on the job all that time although the witness admitted they did not work “to any extent” in 1974. The request was made at the job site. He did not believe the alternates were authorized in writing although the contract required the authorization to be in writing. Likewise the alleged requests for extras were merely made by the on-site job superintendent who signed work tickets. There were no formal change orders. The contract provided that no changes in the terms of the agreement should be made unless authorized in writing by the president of contractor. Contractor’s president testified that there were no extras on the job. He did not authorize any change orders and no proposals were accepted. He indicated that the work shown on the two work tickets introduced in evidence by subcontractor related to work which had to be redone because rejected and was not an extra. He testified, and this testimony was supported by a letter sent by the architect to the subcontractor, that alternates G-6 and G-7 were never accepted and made a part of the contract. He also testified that while alternate G-8 was accepted, this acceptance was rescinded. No alternates were accepted or work done. Furthermore, subcontractor did no work on the site in 1974. Contractor’s general superintendent also testified that subcontractor did no work on the site in the first nine months of 1974.

From the evidence, the trial court could reasonably conclude that no alternates or extras were done and that none were authorized in writing as required by the contract. Subcontractor contends that the contractual requirements as to written consent may be waived. This is true, but there was no evidence in the record showing contractor either waived these requirements or should be estopped from relying on them. That subcontractor was aware of the necessity of written consent is shown by the fact that various written proposals were submitted and not accepted.

IV

Finally, subcontractor contends that the whole case must be reversed because the trial court erred in its conclusions on two minor points in that:

(1) its conclusion that the subcontractor had an excuse for not backfilling the curbs is unsupported by the evidence; and

(2) its conclusion that subcontractor did not compact sand under various sidewalks is unsupported by any evidence in the record.

It may be true, as subcontractor contends, that the trial court erred in finding the subcontractor had an excuse for not backfilling the curbs. But the subcontractor was not injured by this finding. If, as subcontractor concedes, the breach was not excused, then the amount of damages awarded against the subcontractor should have been greater. The subcontractor’s witness did testify it had furnished and compacted all the sand “as far as he could recall.” But contractor’s general superintendent testified that no sand had been supplied because it was not at the proper grade. The credibility of the witnesses is for the trial court to decide.

The frivolous character of subcontractor’s contention is, however, manifest from the fact that even if the contentions were correct, they could not justify a reversal of the total verdict and a new trial. At most, they might justify a reduction of the amount of damages by the amount due from compacting the sand reduced by the amount due contractor for subcontractor’s admittedly unjustified failure to backfill the curbs. Subcontractor never sought this remedy.

V

Contractor in its counterclaim sought to recover $8,203 paid to another subcontractor, Rock Road Construction Company (Rock Road), to complete certain work in preparation and grading of unfinished lots and an access road which subcontractor had left unfinished. The trial court found that subcontractor had failed to complete this contracted-for work and that contractor was obliged to secure other subcontractors to complete the work but that, in certain respects, the record is not adequate for the court to determine what specific expenses were incurred, or the specific nature of the work done by Rock Road. Contractor appeals from the trial court’s refusal to admit into evidence, except as proof certain payments were made, daily report sheets required by contractor. These daily reports were prepared by Rock Road and immediately verified by contractor, who then keep them as part of its records. It is contractor’s position that since these records showed the precise work being done, the records, coupled with the substantiating evidence of both of contractor’s witnesses, including the testimony of its president that a fair, usual and customary charge for Rock Road’s services in completing subcontractor’s work was $8,203 which was paid, established a prima facie case. Contractor further contends that since this evidence was admittedly unrebutted by subcontractor, it entitled contractor to an additional award of $8,203. Contractor does not contend that its president’s testimony alone established a prima facie case so we do not rule on that question.

Contractor’s general superintendent testified that it arranged for Rock Road to complete subcontractor’s preparation of grading work on areas to be paved on a time and material basis. A verification procedure was set up. Daily tickets were signed in the field for the amount of work done on that specific day. Each of the tickets indicated what work was done on that particular day. They show the work done, the people involved in the work, the occupation, the rate for the hours worked, and the total amount plus rental of equipment per hour. Each ticket was then verified by someone from contractor, who reviewed them and then signed them after making any necessary corrections. These are the only records which verified what work Rock Road had done. Contractor would keep, as a normal course of its business, a copy of these tickets to verify Rock Road’s billing. Subcontractor objected to the introduction of the tickets on the basis they were not business records; the preparer was not in the courtroom; and the witness was not the one who verified them. The court admitted them only to show the amount billed but not as evidence of the work done.

Witnesses testified Rock Road graded parking lots, service roads and courtyards. They were paid $8,203 in addition to that paid under their own paving contract.

Contractor’s president testified, without objection, that $8,203 was a reasonable figure and the fair, usual and customary value of the excavating work done by Rock Road in completing subcontractor’s contract. It did this work and was paid $8,203 for it. The additional payments made to Rock Road were for additional work done by Rock Road and not charged back against subcontractor. Subcontractor introduced no evidence in contradiction.

It was established in Consumers Construction Co. v. County of Cook (1971), 1 Ill. App. 3d 1087, 275 N.E.2d 696, that daily progress reports prepared by a contractor may be introduced into evidence by him as business records. It follows that the daily reports here were admissible and should have been admitted unless the fact that while the reports were verified by the contractor, they were not prepared by the contractor takes them out of the business records rule.

Supreme Court Rule 236(a) (73 Ill. 2d R. 236(a)) provides:

“Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility. The term ‘business,’ as used in this rule, includes business, profession, occupation, and calling of every kind.”

Nothing in the rule requires that the custodian be the preparer of the records or that they can only be introduced into evidence by the preparer. To the contrary, the purpose of the rule is to liberalize the rules of evidence pertaining to regular business records and to eliminate the need for the preparer’s testimony. (73 Ill. 2d R. 236(a), Committee Comments.) As the comments note, all that is required is that the custodian of the records or someone familiar with the business and its mode of operation testify at trial as to the manner in which the record was prepared. The general superintendent did that here.

The basic modern approach to the competency of evidence starts from the premise that all evidence is competent until the reverse is shown. (Consumers Construction Co. v. County of Cook (1971), 1 Ill. App. 3d 1087, 275 N.E.2d 696.) It is true as it was in Consumers that

“[t]he proof shows that these documents were kept in the ordinary course of business in performance of the contract. They were made pursuant to a specific requirement of the contract. This qualified them for admission as business records within the scope of Rule 236 of the Supreme Court of Illinois.” 1 Ill. App. 3d 1087, 1091, 275 N.E.2d 696, 698.

While some cases, reading into the act limitations not set forth, would require the custodian to be the preparer of the records, the better rule is to the contrary. (See, for example, Kaufman & Broad Homes, Inc. v. Allied Homes, Inc. (1980), 86 Ill. App. 3d 498, 408 N.E.2d 91; Berlinger’s, Inc. v. Beefs Finest, Inc. (1978), 57 Ill. App. 3d 319, 372 N.E.2d 1043.) The accuracy of the records does not depend on whether its preparer is the custodian but whether they were, as here, prepared in the regular course of business under such circumstances as to call for accuracy in the making of the records.

Kaufman is directly in point. In that case plaintiff was seeking to recover 30% of the expenditures of the joint venture. To do so it had to show the amount paid and that these expenditures were for the joint venture. Over objection, it introduced into evidence invoices sent to it and its cancelled checks or copies of the checks in payment of these invoices. The court in upholding these exhibits as proper evidence of the amount spent for the joint venture stated:

“The rule regarding admission of business records (Ill. Rev. Stat. 1977, ch. 110A, par. 236) was adopted to eliminate restrictive rules which resulted in ‘a mass of technicalities which serve[d] no useful purpose in getting at the truth’ (5 Wigmore, Evidence 346, 361 (3d ed. 1940)). It was felt that the business of this great commercial country is transacted on records kept in the usual course of business and such evidence ought to be competent in a court of justice. (People v. Small (1925), 319 Ill. 437, 150 N.E. 435.) To that end, Rule 236 provides that:
‘Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any *** transaction *** shall be admissible as evidence of the *** transaction ***, if made in the regular course of any business.’ (Ill. Rev. Stat. 1977, ch. 110A, par. 236.)
If the plaintiff had maintained a cash disbursements journal, and a clerk had made an entry in that journal recording the payment of an invoice, noting among other information the check number, check amount, date, payee, invoice number, goods or services invoiced, and trade discounts taken, no issue of whether Rule 236 applied would have been raised. The straightforward language of the rule would have forestalled such a challenge. But here, because the duplicate copy of the check and the invoice — from which data for such journal entries would be transcribed — are themselves retained as the record of the transaction, it is argued that Rule 236 does not apply. Because the plaintiff’s method of recording cash disbursements eliminates the potential for transcribing error and thus is more reliable than a journal entry, we are urged to hold that the 35 exhibits are not business records. To do so would unreasonably elevate form above substance. The plaintiff’s accounting records as admitted into evidence by the circuit court record in the usual and ordinary course of business its cash disbursements [sic].” 86 Ill. App. 3d 498, 503-04, 408 N.E.2d 91, 95.

The same is true here. The contractor could have copied the daily tickets after the verification or entered the information in some journal and clearly the record would have been admissible (Consumers Construction Co. v. County of Cook (1971), 1 Ill. App. 3d 1087, 275 N.E.2d 696), since entries made on the basis of memoranda made by another are admissible (People v. Wells (1967), 80 Ill. App. 2d 187, 224 N.E.2d 288) and under the supreme court rule lack of personal knowledge by its entrant or maker goes to the weight but not to the admissibility of the record. As in Kaufman, contractor’s method of keeping its record of work done eliminated the potential for transcribing error and thus is more reliable than a journal entry. For us to refuse to admit the tickets into evidence when a journal would be admissible would be, as in Kaufman, to “unreasonably elevate form above substance.”

Nevertheless, we will not direct the trial court to increase its verdict to contractor by $8,203 as requested by contractor since the subcontractor may have relied on the court’s refusal to admit the records as proof of work done in deciding not to put on any rebutting evidence. Rather, we affirm the judgment of the trial court in favor of the contractor and against the subcontractor, but reverse the trial court’s denial of any damages for the work done by Rock Road and remand for retrial on the issue of damages for this work only.

Affirmed in part; reversed in part; and remanded for a new trial.

JIGANTI and LINN, JJ., concur.


author: JUSTICE LINN

text:
    EDWARD J. BORG, Plaintiff-Appellant and Cross-Appellee, v. THE VILLAGE OF SCHILLER PARK POLICE PENSION BOARD et al., Defendants-Appellees and Cross-Appellants.
    First District (4th Division)
    No. 82—238
    Opinion filed December 23, 1982.
    Richard L. Manning and Tym J. Kerr, both of Chicago, for appellant.
    Jerome F. Grotty and James G. Wiard, both of Rieck and Crotty, P.C., of Chicago, for appellees.
   JUSTICE LINN

delivered the opinion of the court:

This is an appeal from two rulings by the circuit court of Cook County, the first of which upheld the Schiller Park Police Pension Board’s denial of Edward J. Borg’s application for pension benefits and the second of which overturned the Board’s denial of a refund of the money Borg had contributed to the pension fund. On appeal, Borg argues that the felony divestiture provision of the Illinois Pension Code (Ill. Rev. Stat. 1981, ch. 1081/2, par. 3—147) relied on by the Board to deny him pension benefits is inapplicable to him because he became a policeman before July 11, 1955. The Board argues that because Borg does not meet the statutory requirements of the Illinois Pension Code (Ill. Rev. Stat. 1981, ch. 1081/2, par. 3—124), he is not entitled to a refund of his contributions.

We reverse the denial of pension benefits to Borg, and, accordingly, we do not reach the issue of whether Borg would be entitled to a refund of his own contributions were we to affirm.

Facts

Edward J. Borg began service as a Schiller Park police officer on August 18, 1952. He was appointed chief of police on August 17, 1953. On April 16, 1957, the village of Schiller Park adopted the Fire and Police Commissioners Act, under which a police pension fund was established on August 20, 1959. Mandatory salary withholding of 7% for contribution to the pension fund began in April 1961. On January 20, 1975, Borg made an additional contribution to the police fund to make his participation in the fund retroactive to August 20, 1959. He has contributed $24,197.62 to the plan.

On April 7, 1981, Borg resigned from the Schiller Park police department and applied to the village’s Police Pension Board for his pension benefits. On April 8, 1981, he pleaded guilty in Federal court to one count of an indictment charging him with extortion (18 U.S.C. sec. 1951), a service-related felony. On May 28, 1981, the Board denied Borg’s application for pension benefits because they believed the felony divestiture provision of the Policeman’s Pension Fund article of the Illinois Pension Code (Ill. Rev. Stat. 1981, ch. 1081/2, par. 3—147) applied to Borg.

On June 9, 1981, Borg filed a complaint for administrative review in the circuit court of Cook County, arguing that the relief provision of section 3 — 147 applied to him and that the Board’s decision to deny him pension benefits was therefore erroneous. On the authority of Kerner v. State Employees’ Retirement System (1977), 53 Ill. App. 3d 747, 368 N.E.2d 1118, aff’d (1978), 72 Ill. 2d 507, 382 N.E.2d 243, the circuit court, on December 7, 1981, affirmed the Board’s denial of pension benefits. Borg then applied for a refund of the contributions he had made to the pension fund, which the Board also denied. On December 18, 1981, the circuit court permitted Borg to amend his complaint to add a count seeking review of the denial of his refund. On January 22, 1982, the court held that Borg was entitled to a refund. A check in the amount of the refund was issued by the Board and tendered to Borg the following day. Borg returned the Board’s check with a letter stating that he intended to appeal the trial court’s decision affirming the denial of his pension.

Opinion

The statute at issue in this appeal provides:

“None of the benefits provided for in this Article shall be paid to any person who is convicted of any felony relating to or arising out of or in connection with his service as a policeman.
This section shall not operate to impair any contract or vested right heretofore acquired under any law or laws contained in this Article, nor to preclude the right to a refund.
All future entrants entering service subsequent to July 11, 1955 shall be deemed to have consented to the provisions of this section as a condition of coverage.” (Ill. Rev. Stat. 1981, ch. 1081/2, par. 3-147.)

The Board applied the first paragraph of this section to deny benefits to Borg because he had pleaded guilty to a service-related felony. Borg argues that the divestiture provision does not apply to him because the relief provision of the third paragraph is applicable to his situation. We agree.

Our research has disclosed no precedent decision in a factual situation like that presented here: the pension applicant was employed before July 11, 1955, but the pension fund to which he contributed was established after that date. The authorities cited by both parties are therefore distinguishable on their facts. In Kerner v. State Employees’ Retirement System (1977), 53 Ill. App. 3d 747, 368 N.E.2d 1118, aff’d (1978), 72 Ill. 2d 507, 382 N.E.2d 243, the applicant was employed and acquired pension rights subsequent to the date specified in the saving clause of the section at issue (Ill. Rev. Stat. 1975, ch. 1081/2, par. 14—199), which is essentially the same as the section at issue in the case at bar. In Shanahan v. Policemen’s Annuity & Benefit Fund (1976), 43 Ill. App. 3d 543, 357 N.E.2d 582, the applicants became participants in their benefit fund at the time their employment began prior to July 11, 1955, the date in the saving provision in question (Ill. Rev. Stat. 1971, ch. 1081/2, par. 5—227), which is also the same as the section at issue in this case.

The question to be determined in this case is which event, acquisition of pension rights or commencement of employment, triggers the relief provision in paragraph three. Notwithstanding the language of the Kerner opinion, we think that paragraph three’s description, “future entrants entering service,” refers to persons beginning employment, and accordingly a policeman who was employed before July 11, 1955, is not subject to the felony divestiture provision of paragraph one.

It is true that this determination appears to be contradictory to the statement in Kerner that “[tjhose acquiring pension rights prior to July [11], 1955, may not have them divested by conviction of a felony; those acquiring pension rights after July [11], 1955, forfeit such rights upon such conviction.” (53 Ill. App. 3d 747, 751, 368 N.E.2d 1118, 1121.) However, there was no question in that case that the applicant had both become employed and become eligible for pension rights after the applicable date of paragraph three. The issue in Kerner concerned paragraph two of the statute, so the court’s discussion focused on the subject of that paragraph, vested rights. In holding that Kerner’s pension rights could be divested, the court explained that this was so because rights acquired after the date specified in paragraph three were subject to divestment by a condition subsequent. Because Kerner had both entered service and acquired pension rights after 1955, there was no need for the court to distinguish between these two events, and its entire discussion is couched in terms of rights rather than in terms of service.

This broad language created no problems in the context of the Kerner case, but its application to the facts of the case at bar creates conceptual difficulties because this case, unlike Kerner, lacks simultaneous employment and acquisition of pension rights by the applicant. It is therefore inappropriate in this case to apply the language of Kerner as if that case had determined that “entering service” is synonymous with acquiring pension rights. That coincidence was a matter of fact in Kerner, and so that court did not analyze whether the terms are synonymous but simply used them as such because its analysis was not dependent on precise use of this particular language. We accordingly find that Kerner is not dispositive of the case at bar.

It remains for us to construe the meaning of “future entrants entering service” to determine whether Borg shall be deemed to have consented to the felony divestiture provision. Section 3 — 147 of the Illinois Pension Code does not define either “future entrant” or “service,” but other sections of the Code do, either directly or by implication. In construing a statute, where the same words or phrases appear in different sections of the statute they are to be given a generally accepted and consistent meaning unless legislative intent to the contrary is clearly expressed. (Baker v. Salomon (1975), 31 Ill. App. 3d 278, 334 N.E.2d 313, citing Moran v. Katsinas (1959), 16 Ill. 2d 169, 157 N.E.2d 38; People ex rel. Lipsky v. City of Chicago (1949), 403 Ill. 134, 85 N.E.2d 667.) It is improper to confine the interpretation to the section being construed because legislative intent must be gathered from the entire act. (2A Sutherland, Statutes and Statutory Construction sec. 46.05, at 56 (4th ed. 1973), citing School Directors v. County Board of School Trustees (1957), 15 Ill. App. 2d 115, 145 N.E.2d 285.) Accordingly, a word or phrase that is repeated in a statute is presumed to have the same meaning throughout. Baker v. Salomon; People v. Jackson (1966), 66 Ill. App. 2d 276, 214 N.E.2d 316.

It is thus clear that the meanings ascribed to the words in question in other sections of the Pension Code are the meanings to be ascribed to them in section 3 — 147. “Future entrant” is defined as

“(a) A person employed by a city as a policeman for the first time on or after the effective date;

(b) A former policeman of a city who reenters the police service on or after the effective date ***.” (Ill. Rev. Stat. 1981, ch. 1081/2, par. 5—111; see also, e.g., pars. 6—108, 8—115.)

“ ‘Creditable service’ is the time served by a policeman as a member of a regularly constituted police force of a municipality.” Ill. Rev. Stat. 1981, ch. 1081/2, par. 3—110; see also, e.g., pars. 5—212, 5—213, 5—214, 7—113, which discuss computation and credit for “service” as synonymous with “employment.”

The phrase “future entrant entering service” means “a person being employed for the first time.” The language of the Illinois Pension Code interpreted according to the established principles of statutory construction mandates this finding. Accordingly, we hold that it was error to deny pension benefits to Borg, who entered service prior to July 11, 1955 and is therefore protected by paragraph 3 of section 3 — 147 from application of the section’s felony divestiture provision. Our holding renders moot the question of whether Borg would be entitled to a refund of his personal contributions to the pension fund if his pension benefits were denied. The ruling of the circuit court is reversed.

Reversed.

JOHNSON, P.J., and JIGANTI, J., concur.


author: JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE ADAMS, Defendant-Appellant.
    First District (5th Division)
    No. 80—2105
    Opinion filed December 17, 1982.

      Steven Clark and Susan Kaplan, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lester M. Joseph, and Kim R. Kardas, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendant was convicted of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18—2) for which the trial court sentenced him to a six-year term. On appeal, defendant contends that: (1) the State’s cross-examination of defendant was improper for it was designed to elicit his opinion of the credibility of State’s witnesses and suggested that he had a duty to explain their motivation for fabricating testimony; and (2) the cumulative effect of the improper comments made by the State in rebuttal argument deprived defendant of a fair trial. For the reasons that follow we affirm the trial court.

At the outset, lengthy pretrial motion hearings were held during which defendant’s motions to suppress physical evidence, statements, and lineup identification, among others, were denied.

State’s Case

At trial, Adrienne Guidry, the complainant, testified that on February 23, 1979, approximately 9 p.m., she was returning home from having a drink with friends after work, walking south in the middle of Essex Avenue near 79th Street in Chicago, when a man ran up from behind her, grabbed her arm, turned her toward him, and, while pointing a sawed-off shotgun at her, demanded her money. Guidry described the person as a black male, approximately 5 feet 9 inches, 155 pounds, wearing a long black coat, small black hat, tinted sunglasses and carrying a bookbag. He told Guidry that he did not want to hurt her, but that he needed the money to get his car out of the repair shop. Although it was evening, the street was brightly lit by streetlights and house lights whose glow was intensified by reflection off the snow, enabling Guidry to get a very good look at the man who robbed her. Furthermore, she had ample time in which to view her assailant because upon first approaching her, the man directed her away from the middle of the street to the west sidewalk; then, because that location was even better lit, he directed her across the street near some parked cars. Throughout these maneuvers, Guidry had a clear, unobstructed view of her assailant’s face. At one point during the robbery, a red shell with a gold end fell out of defendant’s shotgun.

After the robbery, Guidry returned home and immediately notified the police to whom she gave a detailed physical description of the man who had robbed her. Thereafter, on February 27, 1979, after having apprehended defendant, who closely resembled the description given by Guidry, police detectives picked up Guidry from her home and brought her to the police station to view a lineup at which Guidry identified defendant as the man who had robbed her. At trial, Guidry again identified defendant as her assailant and also identified the shotgun and shells that had been recovered from defendant’s apartment as those used by defendant during the robbery.

During cross-examination, the defense attempted to discredit Guidry’s identification of defendant by focusing on her inability to describe the hat defendant was wearing at the time of the robbery. Because Guidry described the hat at various times as a “tarn, turban or skull cap,” the defense characterized her identification as unreliable. In fact, Guidry was simply stating the various names commonly used to describe a small black cap such as the one defendant wore during the robbery.

Thereafter, Officer Raymond Madigan testified that on February 27, 1979, approximately 3 p.m., he arrested defendant in the area of 79th and Paxton in Chicago. At the time of his arrest, defendant was wearing a full-length black coat. At the station, Madigan read defendant his rights, informed him that he was under investigation for some armed robberies in the area, and that he would be placed in a lineup to be viewed by several of the robbery victims. Defendant was then taken to the lock-up. Approximately an hour later, Madigan received a call from the lockup keeper, informing him that defendant wanted to talk to him. As a result, Madigan brought defendant back to the tactical office for their second conversation during which Madigan confirmed that the lineups would take place. Defendant then asked him what he wanted to know. In response, Madigan went through several armed robbery case reports and asked defendant if he knew anything about them. Defendant admitted that he knew something about the robbery that took place on February 23, 1979, around 8000 South Essex, and asked Madigan if the victim in that robbery had been a woman, and if she would be at the lineup. When Madigan answered both of defendant’s questions in the affirmative, defendant voluntarily confessed to the robbery, stating that he had been armed with a sawed-off shotgun and had needed money to get his car out of the repair shop. No written statement was taken.

In addition, Officer Donald Mitchell testified that he was one of the officers who arrested defendant on February 27, 1979. Mitchell further stated that he also apprehended Darryl Edmonds, a companion of defendant’s, at the arrest scene. Edmonds informed Mitchell that he, another man (Renardo Ross), and defendant had just left defendant’s apartment where defendant had been talking about armed robberies and showed them a sawed-off shotgun which defendant kept hidden behind the back panel of a nonworking console television set in the living room of his apartment. While Madigan and several other officers took defendant and Edmonds to the police station, Mitchell and three other officers went to defendant’s apartment to recover the shotgun. Mildred Adams, defendant’s mother, voluntarily permitted the officers to enter the apartment and to recover the gun. In addition to the gun, Mitchell recovered a holster and two red bullets with gold ends from inside the back panel of the television. Mitchell marked the shotgun for identification and inventoried all recovered items at the police station. On cross-examination, Mitchell stated that the shotgun was operable on the date it was taken into custody. The record reveals that there was some dispute over the operability of the gun as the result of a police crime lab determination that the gun was not operable when examined by a lab technician. However, no actual police crime lab report had been written. To apprise the jury of the conflicting evidence, the parties stipulated to the lab finding and read the following to the jury:

“*** [W]ere Mr. Gainer to be called on behalf of the defendant as a witness, *** he would testify that he is a technician of the Chicago Police Crime Laboratory and that he would state that he examined the weapon in this case, which had been marked People’s Exhibit Number 3, a few days after the date of the arrest, February 27, 1979, and that as a technician for the crime lab, he was unable to fire that weapon.”

Thereafter, the defendant’s motion to bar the testimony of Assistant State’s Attorney William Buenger was denied and Buenger testified that on February 27, 1979, approximately 9 p.m., after the lineup identification had been made, he was called to the Fourth District police station to meet with Adrienne Guidry and defendant, separately. Officers William Zaremba and Mark Morrow were present during Buenger’s conversation with defendant. Buenger advised defendant of his rights, asked him about the robbery of Adrienne Guidry, and informed him that a sawed-off shotgun had been recovered from his apartment. At that point, defendant acknowledged that the shotgun was his, although he was not actually shown the gun that had been recovered. No written statement was taken. Subsequently, the State rested its case and defendant moved for a directed verdict which the court denied.

Defendant’s Case

Kathy Williams appeared for the defense as an alibi witness and testified that on February 23, 1979, the night of the robbery, approximately 6 p.m., defendant telephoned her and asked her to pick him up that evening. Williams met defendant approximately 8:30 p.m. in the vicinity of 79th Street and Yates, walking down the street, and they drove to her parents’ house in Markham where defendant stayed until the following evening. Williams stated that at that time she and defendant had been dating each other regularly for about a year. At the time of the trial, however, they were just friends and she had not seen defendant since February 24, 1979, when she brought defendant home from her parents’ home. She had been subpoenaed to testify.

On cross-examination, Williams indicated that she first heard about defendant’s arrest a few weeks after it had happened (March 1979) and was asked to testify a few months before trial (March 1980) . Williams farther stated that when she picked up defendant on the evening of February 23, 1979, he was wearing a three-quarter-length rust plaid coat and Totes rubber boots. She had never seen him in a long black coat or a small black hat, but had seen him in tinted sunglasses.

Next, defendant testified that on February 23, 1979, Kathy Williams picked him up on 79th Street and they drove to her parents’ house in Markham where he stayed until the next afternoon. Defendant further stated that on February 27, 1979, he was arrested and taken to the Fourth District police station. At the station, he saw Officer Madigan and asked him why he was arrested and also informed him that he wanted to talk to his lawyer. Madigan told defendant that he was under investigation for armed robbery. After being sent to the lockup, defendant asked to talk to Madigan again to find out what the charges were and the amount of his bond. During this second conversation, Madigan asked him about the robbery at 80th and Essex and told him there would be a lineup. Again, defendant asked to speak to his attorney. Approximately 9 p.m. that evening, defendant met with Assistant State’s Attorney William Buenger and two police officers at which time defendant again asked to speak to his attorney. During his conversation with Buenger, defendant denied knowing anything about the Adrienne Guidry armed robbery and denied owning a shotgun.

At trial, defendant indicated that the shotgun could have been placed in his apartment by either Darryl Edmonds or Renardo Ross who were in his apartment the afternoon of his arrest. Furthermore, defendant stated that for about four months prior to his arrest, his cousin, Robert Hicks, who had just been released from the penitentiary for a robbery conviction, had lived at defendant’s apartment. Shortly before Hicks left, he and defendant had an argument over a woman, at which time Hicks threatened to get back at defendant. Defendant suggested that the shotgun could have been left in the apartment by Hicks.

On cross-examination, defendant admitted that his car was in the repair shop on February 23, 1979. He further admitted that he owned a long black coat and tinted sunglasses, but denied wearing a hat on the day of the arrest. In fact, defendant stated that the police gave him the hat he wore in the lineup. In rebuttal, Officer Madigan testified that at the time of defendant’s arrest, he found a small black hat and a pair of tinted sunglasses in defendant’s coat pocket.

At the conclusion of testimony, defendant’s motion for a directed verdict was denied. Thereafter, closing arguments ensued, after which the jury reached its verdict and a date was set for post-trial motions and sentencing.

Subsequently, during the hearing for post-trial motions and sentencing, defendant’s motion for arrest of judgment or, in the alternative, new trial was denied and defendant was sentenced to a six-year term. Defendant then moved for 30 days to amend or supplement his post-trial motion on the ground that the police crime lab firearm worksheet had just been received. The motion was granted. The record, however, indicates that defendant did not file an amended motion. Defendant’s timely appeal followed.

Opinion

Defendant first argues that the State’s cross-examination of him was improper because it was designed to elicit his opinion of the credibility of the State’s witnesses and suggested that he had a duty to explain the motivation of State’s witnesses for fabricating testimony. The State maintains that the questions merely asked defendant to explain his theory of the case, the same theory defendant advanced throughout his examination of the witnesses.

It is axiomatic that the purpose of cross-examination is to introduce matters which explain, modify or discredit any of the evidence introduced on direct examination. Moreover, the trial court is vested with wide discretion in the manner and scope of cross-examination, and only a clear abuse of discretion will warrant this court’s interference. (People v. Buchanan (1981), 98 Ill. App. 3d 193, 199, 423 N.E.2d 1333.) However, it is equally well-established that it is improper for a prosecutor, during cross-examination, to ask a defendant’s opinion of the veracity of other witnesses. (People v. Dowd (1981), 101 Ill. App. 3d 830, 428 N.E.2d 894.) Such questioning invades the province of the jury by infringing upon their function to determine the credibility of the witnesses. (People v. Hyche (1980), 91 Ill. App. 3d 559, 414 N.E.2d 1142.) Even though such questioning is considered improper, in the absence of prejudice to the defendant and where the evidence against the defendant is strong, reversal is not warranted. People v. Dowd (1981), 101 Ill. App. 3d 830, 844, 428 N.E.2d 894.

The particular portions of the cross-examination to which defendant objects are the following:

“Q. You heard Adrienne Guidry say the man who robbed her had a black peacoat on, isn’t that correct?
MR. FITZPATRICK: I am going to object to him asking the witness questions about testimony of the other witnesses. These are improper cross examination.
THE COURT: It is overruled. He may answer.
A. I heard her testify to that, yes.
Q. Do you own a black peacoat?
A. No. I do not.
* * *
Q. You heard Mr. Buenger testify that you told him the gun was yours. Can you explain why he would say that?
A. I have no idea. I told him that the gun - I did not own a gun.
* * *
Q. Mr. Witness, do you recall when Mr. Madigan stated that you had - after he told you that you were being questioned about a robbery in the 8000 block of Essex, you asked him if it was a girl that was robbed? Can you explain why he would state that, that you told him that?
A. Being a sworn in police officer, I have no idea why he
would use perjury against me like that? [sic]
* * *
Q. Mr. Witness, can you explain why Adrienne Guidry would state that you were the young man that turned her around in the street at 80th and Essex on February 23, 1979, when she was face-to-face with you, about three inches away -
MR. FITZPATRICK: I am going to object to that question. It is improper. I ask it be stricken and ask the jury to disregard it.
THE COURT: All right, sustained.”

As support for his contention that his line of questioning was prejudicial, defendant relies on People v. Riley (1978), 63 Ill. App. 3d 176, 379 N.E.2d 746, People v. Graves (1978), 61 Ill. App. 3d 732, 378 N.E.2d 293, and People v. Hicks (1971), 133 Ill. App. 2d 424, 273 N.E.2d 450. We find these cases factually inapposite and of no persuasive value. In each of the cited cases, the prosecutor specifically asked the defendant whether the State’s witnesses had lied. Thus, the questioning went directly to defendant’s opinion as to the veracity of the witnesses, an area which lies solely within the province of the trier of fact. In the pending case, because defendant was never asked whether witnesses had lied, he was not forced to judge the truthfulness of the witnesses. (See People v. Morse (1975), 33 Ill. App. 3d 384, 342 N.E.2d 307.) Instead, the defendant was asked whether he could offer any reasons why the particular witnesses testified as they did. If anything, this gave him the opportunity to resolve testimony discrepancies in his favor. Furthermore, each of the cited cases was reversed on grounds other than improper cross-examination.

In response to defendant’s contention, the State asserts that its cross-examination questions merely asked the defendant to state the theory of his case. While we would hesitate to characterize the purpose of the cross-examination as such, we do recognize that a defendant who takes the stand in a criminal case and proceeds to contradict testimony of the State’s witnesses subjects himself to questions geared toward pointing out these inconsistencies. (People v. White (1977), 52 Ill. App. 3d 517, 367 N.E.2d 727.) In the pending case, we do find that the State’s questions were improper in that they asked the witness to comment on the mental state of the witnesses, an area about which he could have no factual knowledge. However, when viewed in light of the entire record and argument, we do not find that these questions constituted a material factor in the conviction or resulted in substantial prejudice to the defendant so as to warrant reversal. See People v. Cukojevic (1981), 103 Ill. App. 3d 711, 431 N.E.2d 1154.

We next consider defendant’s contention that various comments of the prosecutor during rebuttal argument deprived him of a fair trial. In particular, defendant complains that (1) the prosecutor mischaracterized the defense theory; (2) the prosecutor used the integrity of the State’s Attorney’s office to buttress the testimony of one of the prosecution’s witnesses; and (3) the prosecutor offered his own version of the evidence as a substitute for competent testimony.

It is well established that a prosecutor has wide latitude during closing arguments and the trial court’s determination as to the propriety of the argument will not be overturned on appeal absent a clear abuse of discretion. (People v. Bodeman (1982), 105 Ill. App. 3d 39, 43, 433 N.E.2d 1140.) Moreover, it is always proper during final argument for a prosecutor to comment on legitimate inferences which can be deduced from the evidence. (People v. Gomez (1980), 80 Ill. App. 3d 708, 714, 399 N.E.2d 1368.) Even where prosecutorial comments are improper, the defendant must show a reasonable possibility that the questionable language, in light of all the evidence, was a material factor in his conviction. People v. Bodeman (1982), 105 Ill. App. 3d 39, 43, 433 N.E.2d 1140.

In the instant case, defendant asserts that the prosecution’s characterization of the defense theory as one of conspiracy was improper and not in response to any argument advanced by defendant. The record reveals, however, that in his closing argument defendant suggested that (1) Adrienne Guidry’s testimony was prompted by her earlier conversations with Madigan and Buenger; (2) because the State needed testimony regarding a black hat worn by defendant, they put Madigan back on the stand during rebuttal; and (3) the shotgun introduced into evidence was not necessarily the shotgun used during the robbery. The impact of these statements was that the police officers, assistant State’s Attorney and the victim manipulated the evidence and testimony to insure defendant’s conviction. Clearly, the prosecution’s “conspiracy” characterization was an invited response to defendant’s statements and innuendos and defendant cannot now claim error when the response is made. (People v. Hovanec (1979), 76 Ill. App. 3d 401, 425, 394 N.E.2d 1340.) Furthermore, we do not find that the prosecution’s characterization amounted to an instruction of law requiring the jury to find a conspiracy, nor did defendant suffer any resulting prejudice that would have served to deny him a fair trial.

Defendant also claims that he was prejudiced by the following remarks made by the State during its rebuttal argument:

“*** Assistant State’s Attorney Buenger, a licensed attorney, is going to get on the witness stand and tell you a lie, tell you that he never talked to the defendant or — strike that — tell you that he talked to the defendant and he is going to lie to you about the fact the defendant admitted he had a gun?
Why would an attorney do that? Because it is job, because he is employed by the Cook County State’s Attorney’s Office and he is going to come in and lie for Bernard Carey to get a conviction? That is ludicrous. That is ludicrous.”

As support for his argument, defendant relies upon People v. Valdery (1978), 65 Ill. App. 3d 375, 381 N.E.2d 1217, and People v. Bitakis (1972), 8 Ill. App. 3d 103, 289 N.E.2d 256. We find these cases clearly distinguishable on the ground that the prosecutor in each case pledged his personal and professional reputation as proof of the integrity and character of the State’s witnesses. By contrast, in the case at bar, the witness himself was the State’s Attorney whose professional status was brought to the attention of the jury as a proper means to counter defendant’s attack on his credibility. People v. May-field (1979), 72 Ill. App. 3d 669, 678, 390 N.E.2d 1315.

The defendant further argues that, during rebuttal argument, the prosecutor offered his own version of the evidence as a substitute for competent testimony and thereby prejudiced defendant’s right to a fair trial. In particular, defendant objects to the following comments made by the prosecutor concerning the shotgun:

“This is not a gunsmith’s dream. This gun is a dangerous weapon, yes, but it is not in a perfect condition. And this gun can be fired, ladies and gentlemen. This gun can be fired. This gun can project that projectile. It is a weapon that the crime lab examined and in its normal operating condition of a gun it was unfirable by the admission. But by the man that carried it around and the man who knew it well, it was his private weapon, his tool of his trade, if you will. He could fire that gun.
* * *
This gun has to get from the Fourth District down to 11th and State. It is handled many times by the time it gets down there. You will be able to look at it. It is not a very stable weapon.”

In his brief, defendant cites People v. Vasquez (1972), 8 Ill. App. 3d 679, 291 N.E.2d 5, as support for his position that the aforementioned comments were “neither fair nor reasonable inferences.” In Vasquez, defendant’s conviction for attempted murder of two police officers was reversed and remanded for a new trial on the ground that during closing argument, the prosecutor made several remarks of a highly prejudicial nature. First, the prosecutor suggested that the family of one of the police officers had been harassed. In fact, there was no evidence that the officer’s family was subject to harassment and the statement was not a legitimate inference from the evidence presented by the State. In addition, the prosecutor improperly aligned himself with the jury by telling them that he was the 13th juror in the case, thereby suggesting he was impartial.

Illinois law clearly states that the prosecutor must confine himself to facts introduced into evidence and to the fair and reasonable deductions and conclusions to be drawn therefrom. (People v. Vasquez (1972), 8 Ill. App. 3d 679, 291 N.E.2d 5.) In the pending case, the shotgun was admitted into evidence; Officer Mitchell testified that at the time it was recovered, the shotgun could be fired; and the parties entered into a stipulation that a technician for the Chicago Police Crime Lab was unable to fire the weapon. Thus, the facts which were the basis for the prosecutor’s comments were in evidence. The prosecutor then proceeded to trace the typical route a piece of evidence such as the shotgun would travel once recovered. He never stated that the weapon was altered during that route; rather, he drew the jurors’ attention to the condition of the gun and the distance which it must travel to get from the police station to the crime lab. It is our opinion that both parties have a right to comment on the evidence and to draw any legitimate inferences therefrom, even if those inferences may prove detrimental to the defendant. Thus, we find the prosecutor’s comments regarding the shotgun were squarely within the parameters of proper final argument, and no prejudice resulted to defendant.

Finally, defendant claims that the prosecutor’s comment during closing arguments that “You can’t force somebody to give a written statement” misled the jury and distorted the testimony. Defendant’s objection, however, comes too late. As stated, this comment was made during closing argument, not rebuttal argument to which objections were properly made. Defendant’s counsel never raised any objection to this statement in the trial court. Thus, by remaining silent, defendant failed to provide the trial court with an opportunity to pass on and correct the alleged error. Furthermore, defendant had ample opportunity during his own closing argument to clear up any misconception he thought the jury may have had. He did not, however, take advantage of that opportunity. It is well established that a defendant may not sit idly by and allow alleged irregularities to occur without objection, and afterward seek to reverse his conviction by reason of those same irregularities. (People v. Taylor (1974), 25 Ill. App. 3d 396, 323 N.E.2d 388.) Thus, we find defendant has waived his right to raise this objection on appeal.

Accordingly, for the reasons noted, the judgment of the trial court is affirmed.

Affirmed.

SULLIVAN, P.J., and LORENZ, J., concur.

      At the pretrial hearing on defendant’s motion to suppress evidence, Mildred Adams testified that she did not answer the door when Mitchell and the others arrived to search for the shotgun. Rather, Mrs. Adams stated that she was in the bathroom at the time and a friend of hers answered the door. The officers allegedly explained why they were there, and when the friend left to tell Mrs. Adams, the officers entered the apartment and found the gun. Mrs. Adams further stated that when she came out of the bathroom, the officers were going down the hallway stairs. In contradiction, Officer John Peoples, one of the officers who accompanied Officer Mitchell to the apartment, testified that it was Mrs. Adams who came to the door and voluntarily let them enter the apartment to recover the gun. On cross-examination, Officer Peoples stated that he was certain it was Mrs. Adams who answered the door because he had seen her at the police station several times prior to that date and had been told then who she was.

      Objection to the first question in issue was properly overruled. In addition, defendant did not object to the second and third questions regarding the testimony of Buenger and Madigan, a failure which would permit us to consider the issue waived. (People v. White (1977), 52 Ill. App. 3d 517, 521, 367 N.E.2d 727.) However, we note that the main purpose of the waiver doctrine is to enable the reviewing court to have the benefit of the trial court’s judgment. Thus, when the matter has in some manner been brought to the attention of the trial court as it was here by defendant’s objections to the other substantively similar questions, the reviewing court may, in its discretion, consider the issue on its merits. (People v. Whitley (1977), 49 Ill. App. 3d 493, 500, 364 N.E.2d 511.) Therefore, this opinion will address all of the cross-examination questions in issue.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE BARNEY, Defendant-Appellant.
    First District (4th Division)
    No. 80—2321
    Opinion filed December 16, 1982.
    Rehearing denied January 20, 1983.

      Steven Clark and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and David A. Baitman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Clarence Barney, was found guilty of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9—1) and armed violence (Ill. Rev. Stat. 1979, ch. 38, pars. 33A—1 through 33A—3). Defendant was sentenced to a 30-year term of imprisonment for murder. No sentence was imposed for the armed violence conviction. Defendant appeals his conviction, arguing that (1) he was deprived of his right to have the jury determine whether he was guilty or innocent of voluntary manslaughter when the trial judge told the jury, in response to its inquiry during deliberations, that it need not reach a verdict on voluntary manslaughter if it found defendant guilty of murder; (2) the State improperly shifted the burden of proof to him by commenting in closing argument on his failure to produce occurrence witnesses; and (3) the trial judge improperly considered a factor in aggravation and refused to consider another factor in mitigation at sentencing.

The State argued additionally that defendant also should be sentenced on his armed violence conviction. The State abandoned that claim, however, in view of the recent Illinois Supreme Court holding in People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477, 479, that “multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges.”

We affirm defendant’s conviction and sentence for murder and vacate his conviction for armed violence.

Facts

On October 22, 1979, four men were standing in the lobby of the Chicago Housing Authority building at 3653 South Federal Street, Chicago, Illinois. The building has a separate entrance and lobby at 3651 South Federal. The four men in the lobby were Eugene Hoskins, Earl Willis, Robert Smith, who was the murder victim, and Gerald Spratlin, who was stabbed and wounded. Robert Smith recently had moved from Mississippi to Chicago and was living with his sister and her family at 3651 South Federal.

At about 10 p.m., defendant entered the lobby and spoke to Hoskins about money with which to buy marijuana. These two began to argue. Testimony from Spratlin and Willis indicated that defendant thought Hoskins owed him $5, and Hoskins said he had no money. Defendant left and walked into the lobby at 3651 South Federal; a few minutes later the four others followed. When they entered, several people were standing in the lobby along with defendant.

Defendant and Hoskins resumed their argument. After a few minutes defendant left the lobby and went upstairs. He returned in about five minutes and again asked Hoskins for the money; Hoskins repeated that he did not have it. Spratlin and Willis testified that defendant, who was angry, said, “Well, I got something for you all.” Defendant struck Spratlin on the shoulder and grabbed Smith by the neck, pushed him into a flower box, and struck him in the chest. Spratlin picked up a bottle and tried to hit defendant with it, but could not because of pain in his arm. Both Spratlin and Willis ran out of the building. Defendant ran after Spratlin but did not catch him. Spratlin then went to Hoskins’ apartment, where he discovered a knife wound in his shoulder. He went to a hospital for treatment.

Tinsel Wince, Smith’s sister, testified that Smith, who was 18 years old, had lived with her for two weeks before he was killed. Wince’s daughter, Treva Smith, testified that the night of October 22 Smith came into their apartment with blood on his jacket and blood coming from his mouth. He went into the bathroom and locked the door. When she heard him “growling” she woke her mother, who told Smith to open the door. He said he could not, but managed to open the door and then fell. He told Wince he had been stabbed but did not know the name of the fellow who did it. Wince called an ambulance, which took Smith to the hospital, where he died. A Cook County deputy medical examiner testified that Smith died of a stab wound to the heart.

Defendant testified that at 7 p.m. on October 22, 1979, he gave Hoskins $5 to buy marijuana, but received neither the marijuana nor a refund of the $5. Later that night in the lobby he talked to Hoskins, who said he did not have the money. Hoskins left, and defendant began to talk to Spratlin and Smith. During their conversation, Hoskins returned. Then, defendant testified, Smith struck him from behind and Hoskins also struck him. Spratlin was standing in front of defendant with a bottle in his hand. Defendant said that he pulled out a knife to defend himself and stabbed Spratlin and Smith with it. Defendant asserted that he then went to a friend’s apartment.

Defendant was arrested at the friend’s apartment at about 3 a.m. He showed the police where the knife with which Smith and Spratlin had been stabbed was hidden in some bushes. Defendant was taken to the police station; two investigators read him his rights and then questioned him. Defendant told them he had used the knife to defend himself. The investigator who testified said that he saw no bruises, cuts, swelling, or blood on defendant.

After closing arguments the trial judge instructed the jury on the proof necessary to sustain the charges of both murder and voluntary manslaughter. During its deliberations, the jury sent the trial judge a note asking, “If we find Mr. Barney guilty of murder, do we also reach a verdict on voluntary manslaughter? and vice versa?” The judge simply answered no to both questions. Shortly thereafter, the jury reached verdicts finding defendant guilty of murder and armed violence.

A sentencing hearing was held on August 21, 1980, at which factors in aggravation and mitigation were presented. Although the presentence report indicated that defendant had no history of health problems and had never received psychiatric treatment, defense counsel claimed that defendant had been hospitalized in Tinley Park Mental Health Center in September 1979. The trial judge found it conclusive that after the trial defendant had been found fit for sentencing; he sentenced defendant to 30 years’ imprisonment for murder. No sentence was imposed for armed violence.

Opinion

I

Defendant’s first argument for reversal is that the trial judge’s response to the questions asked by the jury “was tantamount to failing to instruct the jury as to the offense of voluntary manslaughter ***.” We disagree. The jury was properly instructed by the trial court on murder and on voluntary manslaughter, and was given verdict forms covering findings of guilty and not guilty of both murder and voluntary manslaughter. As noted, during its deliberations the jury sent the trial judge a note asking, “If we find Mr. Barney guilty of murder, do we also reach a verdict on voluntary manslaughter? and vice versa?” The trial judge answered no to both of these questions without further comment. Shortly thereafter, the jury returned verdicts finding defendant guilty of murder and armed violence. Neither verdict form, guilty or not guilty, was returned for voluntary manslaughter.

Defendant argues that, while the trial judge was correct to respond to the jury’s question on a point of law (see, e.g., People v. Morris (1980), 81 Ill. App. 3d 288, 401 N.E.2d 284), the response constituted prejudicial error because it “effectively prevented the jury from finding *** [defendant] guilty of the lesser included offense of voluntary manslaughter.” Defendant concedes that the trial judge did not by his one-word responses direct the jury to consider the murder verdict first. However, defendant reasons, manslaughter is established by proof of an additional, less culpable mental state than that required to prove murder, rather than by proof of fewer than all of the elements of the greater offense, which is required for conviction of the typical lesser included offense. Therefore, defendant argues, the trial judge’s response allowed the jury to find defendant guilty of murder without going on to decide whether there existed mitigating circumstances that would reduce defendant’s offense to voluntary manslaughter, the effect of which was the same as failing to give the voluntary manslaughter instruction in the first place.

We initially note that defendant is correct in assuming that if there is evidence in the record that would, if believed by the jury, reduce the offense of murder to manslaughter, an instruction defining manslaughter should be given. (People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378; People v. Simpson (1978), 74 Ill. 2d 497, 384 N.E.2d 373; People v. Johnson (1971), 1 Ill. App. 3d 433, 274 N.E.2d 168.) In such a situation, failure of the trial court to give a manslaughter instruction would be reversible error. (People v. Guthrie (1970), 123 Ill. App. 2d 407, 258 N.E.2d 802.) Because correct and complete instructions on voluntary manslaughter were given in this case, defendant’s claim of error is premised on his theory that the subsequent questions and answers operated to negate the instructions given. Defendant relies primarily on this court’s decision in People v. Pastorino (1980), 90 Ill. App. 3d 921, 414 N.E.2d 54, to support his claim that a “situation *** analogous to one in which the judge failed to instruct the jury on voluntary manslaughter” (90 Ill. App. 3d 921, 925, 414 N.E.2d 54, 58) exists in this case and constitutes reversible error.

We find defendant’s argument unpersuasive. Defendant’s reliance on the Pastorino decision is inappropriate. First, the facts in Pastorino are significantly different from the facts in the case at bar. The trial judge in Pastorino made comparatively lengthy remarks, specifically instructing the jury to consider the murder verdict first and to consider voluntary manslaughter only if it found the defendant not guilty of murder. He also told the jury, “[I]f you find her guilty of murder, then you do not consider voluntary manslaughter.” In contrast, the trial judge in the instant case answered each of the jury’s alternative questions with a single word.

Further, the question here was not whether the jury should con sider voluntary manslaughter, it was whether the jury should reach a verdict on voluntary manslaughter. The trial judge in no way suggested that either murder or manslaughter should be omitted from consideration; he merely stated correctly that a finding of guilty of either crime would render a verdict on the other unnecessary. The logical inference from the questions asked and answered in this case is that the jury was questioning only whether it should complete verdict forms for both murder and manslaughter, and not whether it should omit consideration of defendant’s guilt or innocence of one of the crimes. This inference is supported not only by the plain language of the questions, but also by the fact that the jury returned neither manslaughter verdict form, having found defendant guilty of murder. In addition, there is nothing in the record to support defendant’s claim that the jury failed to consider defendant’s guilt of the crime of manslaughter. “We must assume that jurors do not fall short of their constitutional functions and [that they do] follow the instructions of the trial judge.” People v. Jenkins (1977), 69 Ill. 2d 61, 66, 370 N.E.2d 532, 534.

Another reason why defendant’s reliance on the Pastorino decision is misplaced is that the decision has been reversed by the Illinois Supreme Court. (People v. Pastorino (1982), 91 Ill. 2d 178, 435 N.E.2d 1144.) The supreme court held that the alleged error in the instructions had been waived by failure of the defendant to object at the proper time, and that the evidence that the defendant was entitled to a voluntary manslaughter instruction was insufficient to prompt the court to look past the lack of objection. Defendant argues that the reasoning of the appellate opinion nevertheless supports his position because, in reversing, the supreme court “did not sanction an instruction to a jury that it need not consider whether a defendant has been proven guilty of voluntary manslaughter if it agrees that he has been proved guilty of murder.” This argument begs the question because, as we have pointed out, the trial judge in the case at bar did not instruct the jury that it need not consider whether defendant had committed voluntary manslaughter.

Additionally, we find the theoretical basis for defendant’s argument to be mistaken. Defendant maintains that to find an accused guilty of voluntary manslaughter, a jury must first find him guilty of murder, and then go on to find an additional less culpable mental state that mitigates the crime to voluntary manslaughter. “[Manslaughter differs from the classical [sic] lesser included offense,” says defendant, “in that it is not established by proof of less than all of the elements of the greater offense ***.” This is simply not the case. The difference between murder and manslaughter is the absence of malice or intent to kill as a necessary element of manslaughter. (People v. Jones (1943), 384 Ill. 407, 51 N.E.2d 543; People v. Scott (1970), 123 Ill. App. 2d 107, 259 N.E.2d 594.) The crime of manslaughter is embraced in a charge of murder, and where homicide is proved but proof of the requisite malice is lacking, a conviction for manslaughter is proper. (People v. Wiggins (1957), 12 Ill. 2d 418, 147 N.E.2d 80.) Thus, defendant’s argument that the jury, after finding him guilty of murder, was prevented from finding the additional element necessary to reduce defendant’s offense to manslaughter is without merit, since finding an additional element is not the manner in which a homicide is found to be manslaughter rather than murder. Accordingly, we hold that defendant was not deprived of his right to have the jury consider whether he was guilty of voluntary manslaughter.

II

Defendant’s second argument is that the State improperly shifted the burden of proof to defendant by commenting in closing argument on defendant’s failure to present any witnesses other than the defendant. The State argued as follows:

“Consider that, the tactics that were used in this case. Now, Mr. Morrissey [defense counsel] went out to the building there on January 18 and he went out there with two investigators.
They were going to investigate this case from top to bottom. There were other people there at the elevator there when supposedly when this happened. You don’t think he talked to everybody over there if he could get anybody to say anything on behalf of him.
Defense counsel: Objection, he is transferring the burden to ' the defense.
The court: Overruled.
The State: He said he is the one who went out there and talked to everyone. Who testified on behalf of defendant? Nobody but the defendant because there was nobody to say anything for him because he knows what he did.”

Defendant argues that this statement implied that defendant had the burden of producing witnesses to corroborate his testimony, which conflicted with his right to be presumed innocent. We disagree.

The State argues that defendant’s objection was waived by failure to raise it at trial or in a post-trial motion. (See People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739; People v. Killebrew (1973), 55 Ill. 2d 337, 303 N.E.2d 377.) The State points out that the objection during trial quoted above was made before the State commented that defendant had not called any witnesses on his behalf. No objection was made to the specific remarks now complained of, either at the time they were made or in the post-trial motion. The State also argues persuasively that this is not a proper case for application of the plain error rule (87 Ill. 2d R. 615(a)) because, in light of the overwhelming proof of defendant’s guilt, the remark did not cause substantial prejudice to defendant.

It is true, however, that defense counsel did object to “transferring the burden of proof,” and may have felt it was unnecessary to renew the objection following the judge’s adverse ruling. For this reason, we think it is appropriate to examine additional reasons why the State’s comment did not constitute reversible error.

The failure of the witnesses in question to testify was first commented on by defense counsel in his closing argument:

“[TJhere are some other witnesses to this thing supposedly, too. Remember Willis and Spratlin, they said well 3651 Federal, who was there. There were people waiting for the elevators. A lot of people hanging around the lobby.
It would be very nice if somebody who testified for the State in this case wasn’t tainted, wasn’t tainted by prejudice or bias. Where are they? Where are those people that were supposed to be in the lobby?”

A defendant may not claim he has been prejudiced by comments made by the State that were invited or provoked by defense counsel. (People v. Randall (1980), 84 Ill. App. 3d 888, 405 N.E.2d 1269; People v. Johnson (1968), 102 Ill. App. 2d 443, 243 N.E.2d 310.) The remarks by defense counsel quoted above clearly made the subject of the absence of the other people in the lobby at the time of the stabbing a fair topic for comment by the State.

Furthermore, a prosecutor has wide latitude in closing argument, and the trial court’s determination of propriety of the argument will not be reversed on appeal absent a clear abuse of discretion or substantial prejudice to the defendant. (People v. Richard (1980), 88 Ill. App. 3d 247, 410 N.E.2d 459.) Because defense counsel invited comment on the absent witnesses, we find no abuse of discretion in the trial judge’s ruling. Because the evidence presented at trial proved defendant’s guilt beyond a reasonable doubt, there is no reason to believe the comment influenced the jury’s verdict.

Finally, the trial judge instructed the jury that closing arguments are not evidence, and that it should disregard any statements that were not based on the evidence. Where such an instruction is given, even improper closing arguments are not necessarily prejudicial. (People v. Redmond (1979), 73 Ill. App. 3d 160, 390 N.E.2d 1364.) Such an instruction is considered to cure any potential error that might result were it not given because jurors are assumed to follow the instructions given them. (See People v. Jenkins (1977), 69 Ill. 2d 61, 370 N.E.2d 532.) For all of the above reasons, we find that no prejudicial error occurred in the State’s closing argument.

Ill

Defendant’s final claim of error is that he was deprived of his right to an adequate sentencing hearing because the trial judge improperly considered in aggravation a factor necessarily implicit in every murder and refused to consider in mitigation evidence of defendant’s mental illness. Defendant claims that because “the legislature has already considered factors necessarily implicit in the offense in establishing the range of penalties for the offense, those same factors cannot be utilized again by the sentencing judge in aggravation to justify imposition of a more severe sentence than might otherwise be imposed.”

As required by the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—4—1(c)), the trial judge specified for the record the particular evidence, information, and factors in aggravation and mitigation that led to his sentencing determination as follows:

“The Court has considered the arguments of counsel and has read the pre-sentence reports and recalls the evidence in this case that there was a very simple — what began as a simple discussion developed into an argument about five dollars, and that no one except of the four men involved — four or five — except the defendant became over emotional or enraged about the whole thing. The whole matter was of short duration, but the defendant left and returned, and upon returning, for whatever motives that he had, he suddenly and violently attacked with a knife and stabbed and killed the victim in this case, a young man, who had the least to do with it. When I say the least, apparently nothing to do with the whole matter, Robert Smith. And whatever provoked this kind of violence that took the life of Robert Smith was one thing, to say that this defendant that has a limited record, but balanced against the fact that he eliminated from life on earth Robert Smith, why it is just outbalanced. And the Court finds everything considered, all of these things, a proper sentence in this case to be a term of thirty years in the penitentiary system of the Illinois Department of Corrections, and Clarence Barney is so sentenced.”

Defendant assumes that the trial judge imposed a longer sentence than he otherwise would have because his statement referred to Smith’s death. We think this assumption is unwarranted, since other factors that reasonably could be considered aggravating factors also were specified: the defendant left after becoming enraged, but then returned and suddenly stabbed his victim, a young man who had nothing to do with the argument about the $5.

We also find defendant’s understanding of the nature and intended application of the Illinois determinate sentencing statute to be mistaken. Defendant seems to assume that any sentence longer than the minimum, even though it be within the range the statute provides, is an extended term. In fact, the imposition of a sentence of any length within the range provided for the class of the crime of which defendant was convicted is a decision committed by the statute to the discretion of the sentencing court. The statute imposes no requirement that the minimum sentence be imposed in the absence of aggravating factors. The requirement of section 5 — 4—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—4—1(c)) that the judge specify on the record the factors that led to his sentencing determination was not intended to be a trap for the sentencing judge. It is unrealistic to suggest that the judge sentencing a convicted murderer must avoid mentioning the fact that someone has died or risk committing reversible error.

We do not think that the reasoning of People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, conflicts with this analysis. In the two consolidated Conover cases, one defendant had received one year less than the maximum permissible sentence for burglary and one had received the maximum sentence for theft. Conover held that section 5— 5 — 3.2(a)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2(a)(2)) (receipt of compensation for committing the offense) is inapplicable where defendant received compensation by sharing in the proceeds of crime, and may be considered a factor in aggravation only when one is remunerated to commit an offense. In other words, a factor implicit in the crime itself should not be used as an aggravating factor at sentencing.

In an unfortunately vague piece of dictum, the Conover court explained that the legislature considered the factors involved in the crimes when it statutorily established the range of penalties to be imposed, and if it had intended a factor to “be utilized again to impose a more severe penalty for those offenses, such intent would be more clearly expressed.” (Emphasis added.) (People v. Conover (1981), 84 Ill. 2d 400, 405, 419 N.E.2d 906, 909.) This dictum mirrors the language of section 5 — 5—3.2(a): “The following factors *** may be considered by the court as reasons to impose a more severe sentence under Section 5 — 8—1.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2(a).) The language of this statute is permissive rather than mandatory, comparative rather than absolute. Read together with section 5 — 8—1, its import clearly is that the specified factors may prompt the imposition of a longer sentence within the range provided by section 5 — 8—1. Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1.

Perhaps because the Conover defendants had not received extended term sentences, and because the opinion fails to specify what a more severe penalty is measured against in its severity, defendant assumes that any sentence longer than 20 years is impermissible if it is based on a factor implicit in murder. We do not believe this is a valid interpretation of Conover. It is far more logical to read that opinion to say that it is impermissible to impose a sentence more severe than the sentence that would have been imposed if the impermissible factor had not been considered. Given the language of the applicable statutes, that sentence could be any number of years within the range of penalties provided for each class of felony. Section 5 — 8—2(a) provides that “[a] judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5— 8 — 1 *** unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—2(a).) Obviously, then, a sentence not in excess of the maximum authorized may be imposed in the absence of such aggravating factors.

An impermissible factor was explicitly considered in aggravation in Conover. Because one defendant received the maximum and one only one year less than the maximum permissible sentence, the supreme court could not determine how much weight the factor was accorded, and therefore remanded the cases for reconsideration of the sentences. In the case at bar the defendant received 10 years less than the maximum permissible sentence, and we do not believe the record indicates that an impermissible factor contributed to the sentencing decision.

Finally, defendant’s claim that his mental illness should have been considered in mitigation is also unpersuasive. There is no evidence in the record that defendant had ever been diagnosed as mentally ill or received psychiatric treatment. Defendant was examined by the Psychiatric Institute of the circuit court of Cook County and found to have been sane at the time of the murder, fit for trial, and fit for sentencing. “ ‘[T]he trial judge’s decisions in regard to sentencing are entitled to great deference and weight.’ ” (People v. La Pointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344, 348-49, quoting People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) We find no merit in defendant’s arguments that the trial judge’s determination is not entitled to such deference in this case.

For all of the reasons discussed, defendant’s conviction and sentence for murder are affirmed. His conviction for armed violence is vacated.

Affirmed in part; vacated in part.

JIGANTI and ROMITI, JJ., concur.

      The additional mental state claimed by this defendant is the unreasonable belief that self-defense was necessary. See Ill. Rev. Stat. 1979, ch. 38, par. 9—2(b).