{ "id": 5434271, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR E. MARTIN et al., Defendants-Appellants", "name_abbreviation": "People v. Martin", "decision_date": "1983-01-25", "docket_number": "No. 80-2432", "first_page": "486", "last_page": "506", "citations": [ { "type": "official", "cite": "112 Ill. App. 3d 486" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "510 F.2d 634", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 146933 ], "opinion_index": 0, "case_paths": [ "/f2d/510/0634-01" ] }, { "cite": "412 N.E.2d 175", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 973", "category": "reporters:state", "reporter": "Ill. 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ARTHUR E. MARTIN et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE PERLIN\ndelivered the opinion of the court:\nDefendants, Arthur Martin and Darnell Jenkins, were charged in a four-count indictment with the murder and armed robbery of Joshua Beasley. (Ill. Rev. Stat. 1977, ch. 38, par. 9 \u2014 1(a)(1), (a)(2), (a)(3) and 18 \u2014 2.) In a bench trial, both defendants were found guilty on all counts and judgment was entered accordingly. Defendants were sentenced to serve concurrent terms of 30 years for murder and 20 years for armed robbery in the Illinois Department of Corrections. On appeal defendants contend that they were deprived of their right to the effective assistance of counsel; that they were denied a fair trial by the prosecutor\u2019s suggestions that the testimony of certain witnesses was the product of intimidation; that they were not proved guilty beyond a reasonable doubt; that the trial court erred in denying their motions for a new trial; that the trial court abused its discretion in sentencing defendants to 30 years\u2019 imprisonment for murder; and that they were improperly convicted of both armed robbery and murder. For the reasons hereinafter stated, we affirm the convictions and sentences for armed robbery and for murder under the first count of the indictment (Ill. Rev. Stat. 1977, ch. 38, par. 9 \u2014 1(a)(1)) and vacate the convictions for murder under the second and third counts of the indictment (111. Rev. Stat. 1977, ch. 38, pars. 9 \u2014 1(a)(2), (a)(3)).\nThe victim, Joshua Beasley, resided in an 11th floor apartment in a Chicago Housing Authority facility located at 2145 West Lake Street in Chicago (2145 building). Lena Mae Beasley, his first wife, testified that at approximately 6 p.m. on Sunday, January 27, 1980, Beasley accompanied her from his apartment to the ground floor. Upon reaching the ground floor, Mrs. Beasley stepped out of the elevator and a young black man ran past her and jumped into the elevator. Another young man in the courtyard of the building \u201chollered at him\u201d to hold the elevator. In the courtyard two men appeared to be forcing a third man towards the elevator. Mrs. Beasley stated that all of the men were \u201cin their twenties\u201d but could not describe them in any greater detail because it was too dark. She looked back at Beasley, who was still in the elevator, to try to get his attention to tell him something was wrong. Beasley asked her what she was looking at but she was afraid to answer and hoped that he would \u201ccatch her eye\u201d and get out of the elevator. Beasley told her not to stand there because it was getting dark and she had a bus to catch. Mrs. Beasley then walked to the bus stop. Beasley was wearing a white fur hat, a three-quarter length brown leather jacket with buttons, black leather gloves, pants and a sweater. He was also wearing a birthstone ring.\nPerry Lewis, who was 17 years old at the time of trial, testified that he was playing on the stairs in the 2145 building with his 12-year-old cousin, Odessa Turner, when he heard a moan on the 11th floor. Lewis walked to the stairwell of the 11th floor where he saw both defendants, whom he had known for three years, and a third unidentified man with Joshua Beasley. Jenkins and the third man were holding Beasley while Martin stood in front of him demanding his money. When Beasley replied that he had none, Martin searched Beasley\u2019s pockets, found his wallet and said, \u201cI thought you didn\u2019t have any money.\u201d Beasley pleaded with Martin, saying, \u201cI need this money very bad, I need it badder than you do.\u201d According to Lewis, Martin then began striking Beasley on the side of his head with an object that was approximately 12 inches long. Jenkins and the third man removed Beasley\u2019s coat, Martin hit him again and Beasley \u201cslid down the wall.\u201d The three offenders then approached the stairwell where Lewis had witnessed the attack on Beasley. Lewis ran up one flight of stairs and then began to jump down the stairs as if he were playing. On the 11th floor Lewis encountered Martin and asked him, \u201cWhat\u2019s up Red [Martin\u2019s nickname]?\u201d Martin threatened him, saying, \u201cIf you see anything, if you tell anybody you see anything, something is going to happen to you.\u201d\nLewis testified that he observed the three men with Beasley for between 10 and 20 minutes and that his cousin, Odessa Turner, was not with him during that interval. He did not call for help because he was frightened. Lewis admitted that he did not tell the police what he knew until they interviewed him on March 11, 1980, more than six weeks after the crime. He explained that he did not approach the police earlier on his own initiative because he was scared. The same evening Lewis returned from the police station, defendant Martin\u2019s brother, Charles Martin, came over to his apartment and threatened him. Lewis testified that \u201che [Charles Martin] said that Red [defendant Martin] said that if he get indicted, something was going to happen to me.\u201d Martin did not elaborate but told Lewis, \u201cYou will find out.\u201d Lewis then moved out of the 2145 building.\nThe police discovered Beasley\u2019s body lying face up on the kitchen floor of his 11th floor apartment shortly before 7 p.m. on January 27. There were bloodstains around his head and the crime scene indicated that Beasley crawled to his apartment after the beating. He was already dead when the police arrived and his body was removed to the Cook County Morgue where Dr. Edmund R. Donoghue, a forensic pathologist, performed the autopsy.\nDr. Donoghue testified that he observed 21 evidences of external injury, consisting of lacerations, bruises and abrasions over his head, arms, knees and back, and three evidences of internal injury, consisting of hemorrhages under the scalp, on the back of the neck and under the skin overlying that part of the chest where the collarbones join the breastbone. Dr. Donoghue stated that these injuries were consistent with the use of blunt force. The autopsy also revealed that Beasley had severe coronary atherosclerosis (hardening of the arteries) and a thrombosis or total occlusion of the left descending anterior artery and that he had suffered prior heart attacks. Dr. Donoghue concluded that the cause of Beasley\u2019s death was \u201carteriosclerotic cardiovascular disease secondary to the beating.\u201d By \u201csecondary to the beating\u201d he meant that Beasley had very severe heart disease and the stress of the beating placed such a strain on his heart that he died. The beating \u201cdefinitely aggravated\u201d Beasley\u2019s heart condition and \u201ccaused his death at this time.\u201d A person without heart disease probably would not have been killed by the injuries Beasley sustained.\nBoth defendants testified in their own defense and denied that they had robbed or beaten the victim. Their testimony was substantially the same. Jenkins stated that he spent the afternoon of January 27, 1980, in his apartment in the 2145 building with his mother, Geraldine Jenkins, and his girlfriend, Frances Sims. Both Mrs. Jenkins and Ms. Sims corroborated this testimony. At approximately 6:30 or 6:45 p.m., Jenkins went to Martin\u2019s apartment on the 14th floor of the same building to celebrate Martin\u2019s birthday. Martin and his common law wife, Evelyn Jackson, testified that they had spent most of the day in their apartment with their children. Although Martin\u2019s birthday is March 7, Ms. Jackson explained that Martin usually celebrates his birthday more than a month early. She could not recall, however, whether there was a birthday celebration for Martin on January 27.\nThe defendants testified that after a few minutes they left Martin\u2019s apartment, walked to the 12th floor, took the elevator to the seventh floor where they tried to find Dwayne Beasley, the victim\u2019s son, and then walked downstairs to the first floor. Lester Neal, a resident of the same building, corroborated Martin\u2019s testimony that Martin and Jenkins had visited his seventh floor apartment looking for Dwayne Beasley. Jonathan Regunberg, an assistant State\u2019s Attorney, testified in rebuttal that on March 11, 1980, Martin told him that when defendants left Martin\u2019s apartment, they proceeded downstairs without stopping on the seventh floor.\nDefendants testified that they drove downtown, ate dinner at the Windy City Restaurant and went to the Woods Theater. Martin stated that they arrived at the theater at approximately 7:45 p.m. and stayed for 2V2 hours. At trial, the defendants could not remember which movies they had seen. On cross-examination, Martin admitted that on March 11, 1980, he told Assistant State\u2019s Attorney Regunberg that he had seen either \u201cThe Onion Field\u201d or \u201cThe Tattoo Connection.\u201d In rebuttal, Regenberg testified that Martin said that they had seen \u201cThe Onion Field,\u201d and Jenkins said that they had seen \u201cCult of the Damned.\u201d Jenkins testified that he never mentioned the name of the movie to Regunberg. Fidel Irizarri, a friend of Martin and an employee of the Woods Theater, testified that he saw Martin at the theater on January 27, 1980, at approximately 8:30 p.m. The theater was showing \u201cNight Charge, Night Child,\u201d \u201cPolice Woman\u201d and \u201cTattoo Connection.\u201d According to Irizarri, the theater never exhibited \u201cCult of the Damned.\u201d Martin testified that he saw his friends, the Sanders sisters, at the theater, and Lily Sanders corroborated this statement.\nDefendants testified that they left the theater between 10:15 and 10:30 p.m., stopped at a liquor store and then drove home. Martin and Evelyn Jackson both stated that he returned to their apartment between 10:45 and 11:30 p.m. Geraldine Jenkins stated that her son returned at 2 a.m.\nOdessa Turner, Perry Lewis\u2019 cousin, denied seeing Perry Lewis at any time on January 27, 1980. She stated that on the night before she testified she received a telephone call from Lewis who threatened her that if she told the truth, Lewis and his friend Darryl Lee would catch her \u201cby herself.\u201d Turner testified further that on July 24, 1980, during the court proceedings, Lewis\u2019 mother threatened her while she was sitting in a waiting room. Turner also stated that Lewis\u2019 sister kidnaped Turner\u2019s mother\u2019s baby. On cross-examination, Turner admitted that prior to trial she told an assistant State\u2019s Attorney that she had been playing on the stairs with Perry Lewis on January 27, 1980.\nSusie Turner, another resident of the 2145 building and Perry Lewis\u2019 aunt, testified that on July 15, 1980, eight days before trial commenced, Perry Lewis visited her apartment and told her he had lied about defendant Martin and that Martin was innocent. Lewis denied that he had ever discussed the killing with his aunt.\nDwayne Beasley, the victim\u2019s son and a Mend of defendant Martin, testified that Martin and Joshua Beasley were friends and that Martin occasionally loaned him money because he knew Beasley was poor. Beasley identified Defense Exhibit No. 3, a gold wedding band, as a ring which his father had worn. The ring had no identifying marks and Beasley did not know whether his father was wearing it on January 27. Willie Patton testified that he purchased the ring and a watch from Perry Lewis and Darryl Lee on January 28 or 29, 1980, for $15. Patton also tried on a \u201cquarter length\u201d brown leather coat they showed him. Lewis denied that he had attempted to sell Patton a gold band, a watch or a leather coat and stated that he had last seen Patton on January 27, 1980. Patton testified that he sold the ring to a jewelry store and pawn shop on March 6, 1980, for $24 and gave the original receipt for the ring to Geraldine Jenkins. Dwayne Beasley testified that sometime after his father\u2019s death, he, Willie Patton, Evelyn Jenkins and Geraldine Jenkins went to a pawn shop and Mrs. Jenkins bought the ring. Mrs. Jenkins stated that only Patton accompanied her to the store.\nVanessa Beasley, the victim\u2019s daughter, testified in rebuttal that she had seen her father wear a birthstone ring but had never seen him wear any other ring. Lena Mae Beasley, the victim\u2019s first wife, testified in the State\u2019s case in chief that Joshua Beasley was not wearing a wedding band on January 27,1980.\nThe trial court found both defendants guilty on all counts of the indictment, entered judgment thereon and sentenced each defendant to concurrent terms of imprisonment of 30 years for murder and 20 years for armed robbery.\nI\nDefendants first contend that they were deprived of their constitutional right to the effective assistance of counsel. Each defendant was represented by his own privately retained counsel. The Illinois Supreme Court has not yet decided whether the same standard of competence applies to both retained and appointed counsel. (See People v. Williams (1983), 93 Ill. 2d 309, 324-26.) Decisions from four of the five districts of our appellate court, however, have held in conformity with the United States Supreme Court\u2019s opinion in Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708, that the effectiveness of counsel, retained or appointed, is to be measured by one standard: whether the attorney is actually incompetent as reflected in the performance of his duties as a Mai attorney, and whether that incompetence produced substantial prejudice to the defendant such that the outcome of the trial was probably changed. (People v. Moore (1981), 105 Ill. App. 3d 264, 269-70, 434 N.E.2d 300; People v. Talley (1981), 97 Ill. App. 3d 439, 442-43, 422 N.E.2d 1084; People v. Lovitz (1981), 101 Ill. App. 3d 704, 710, 428 N.E.2d 727; People v. Corder (1982), 103 Ill. App. 3d 434, 437, 431 N.E.2d 701; People v. Scott (1981), 94 Ill. App. 3d 159, 162-64, 418 N.E.2d 805.) It is defendant\u2019s burden to establish clearly both that incompetency and the resultant prejudice. People v. Berger (1982), 109 Ill. App. 3d 1054, 1067.\nIn Berger, the court set out several factors to be considered in evaluating an attorney\u2019s competence. A defendant is entitled to competent, not perfect, representation; nor is a defendant entitled to a successful defense. Competency is determined from the totality of counsel\u2019s conduct at trial. Conduct which can be shown to be an exercise of judgment, discretion or trial strategy does not prove incompetency. Proof of prejudice cannot be based on mere conjecture. A defendant also may not rely on speculation as to the outcome of his case had the representation been of higher quality. Nor is the test what appellate counsel would have done at trial. (People v. Berger (1982), 109 Ill. App. 3d 1054, 1062.) With these principles in mind we turn to defendants\u2019 specific allegations of incompetence.\nDefendants complain of their counsel\u2019s failure to call either Anthony or Larry Mayweather as witnesses, although both were named in the State\u2019s answer to discovery. Defendants, however, fail to suggest what testimony Anthony Mayweather could have given. With respect to Larry Mayweather, defendants\u2019 counsel, after trial, produced an affidavit of Denise Beasley in which she stated that Larry Mayweather had told her that he had witnessed the robbery and that defendant Martin was not one of the assailants. As the trial court correctly noted, this statement was obviously inadmissible hearsay. There was no affidavit from Mayweather. Whether Mayweather was available to testify at trial and would have testified as Beasley represented is entirely speculative. (See People v. Greer (1980), 79 Ill. 2d 103, 122, 402 N.E.2d 203.) Under the circumstances presented by this record, we cannot say that defense counsel\u2019s failure to call either Mayweather was evidence of incompetence.\nDefendants\u2019 next allegation of incompetence concerns the testimony of Dwayne Beasley. On direct examination, Beasley, a defense witness, accused Perry Lewis of first selling his father a clock and a bottle of cologne and then stealing them. On cross-examination, Beasley admitted that he had no personal knowledge of this alleged conduct and the trial court disregarded his testimony on this matter. Defendants claim that this demonstrates that counsel either failed to interview Beasley properly or was unaware that his testimony was hearsay. We do not believe that these are the only two possible explanations but regardless of the reason that this particular attack on Lewis\u2019 credibility did not succeed, it falls far short of suggesting incompetence.\nDefendants also point out that defense counsel failed to prove up the impeachment of Lena Mae Beasley and Perry Lewis. On cross-examination, defense counsel questioned Mrs. Beasley about prior inconsistent statements she purportedly made to the police in which she had described the young men at the elevator as being 15 to 18 years old. Her testimony on direct examination was that they were \u201cin their twenties,\u201d which was the approximate age of defendants. In response to counsel\u2019s inquiry, Mrs. Beasley stated that she could not recall whether she had so described them but if she had, it was because she was very upset. Defense counsel did not prove that the witness gave an inconsistent statement, but we do not find that this is evidence of incompetence. Although the witness did not unequivocally admit that she had made the prior inconsistent statements, nothing in the record indicates that the court ignored this impeachment or doubted whether she had given an inconsistent statement. In closing arguments, which were notable for their extraordinary give and take between counsel and the court, defense counsel represented without correction by the court that the witness had told the police that the men she saw on January 27 were 15 to 18 years old. In any event, the failure to use available impeaching evidence relative to a witness\u2019 description does not constitute incompetence. (People v. Nelson (1982), 106 Ill. App. 3d 838, 844, 436 N.E.2d 655.) This is particularly true in the case at bar where the witness, Lena Mae Beasley, never identified either defendant. The identification of defendants was based entirely on the testimony of another witness, Perry Lewis, who had known both of them for several years.\nOn cross-examination, Perry Lewis denied that he used several aliases. Defendants argue that defense counsel\u2019s failure to introduce evidence contradicting Lewis\u2019 denial is indicative of incompetence. We cannot agree. Nothing in the record establishes that defense counsel had evidence that Lewis employed aliases. Moreover, even if counsel had such evidence, we question whether that evidence would have been admissible (see People v. Steptore (1972), 51 Ill. 2d 208, 216-17, 281 N.E.2d 642 (regarding impeachment on collateral matters) or probative of Lewis\u2019 credibility (see People v. Berlin (1979), 75 Ill. 2d 266, 268, 388 N.E.2d 412 (regarding the innocuous use of aliases)).\nLewis also denied on cross-examination that he told the police that the crime occurred on the seventh, and not the 11th, floor of the 2145 building. The attempted impeachment was not perfected. In closing argument defense counsel referred to a police report in which Lewis allegedly said that the offense occurred on the seventh floor. At this point, the court interjected, \u201cIt may be just a technical point, but none of that impeachment was completed, was it?\u201d Nothing in the court\u2019s question indicates that it was going to overlook the attempted impeachment. Counsel was permitted to continue with his argument and, after a few moments, returned to a discussion of what the police report said without further comment by the court. In our judgment, counsel\u2019s technical failure to perfect his impeachment on this matter does not necessarily reflect on his competence.\nAs further evidence of incompetence, defendants mention three instances during the cross-examination of defendant Martin and defense witness Dwayne Beasley when, without objection by defense counsel, the State was allowed to suggest matters for which there was no evidence. Failure to object, however, may have been a tactical decision which is not reviewable. (People v. Greer (1980), 79 Ill. 2d 103, 122, 402 N.E.2d 203.) Moreover, this was a bench trial and there is a presumption in a bench trial that the court considered only competent evidence. (People v. Rodgers (1978), 58 Ill. App. 3d 719, 724, 374 N.E.2d 721.) This presumption is not overcome unless the record affirmatively shows that the court actually relied on the objectionable evidence. (People v. Conwell (1978), 64 Ill. App. 3d 995, 1003, 382 N.E.2d 64.) No such showing has been made here. We have reviewed defendants\u2019 other allegations of incompetence and find that they are without merit.\nThe issue of competence of counsel must be determined from the entire record rather than from isolated instances in the trial. (People v. Berger (1982), 109 Ill. App. 3d 1054, 1067.) Upon our examination of that record, we cannot say that defendants were denied the effective assistance of counsel. Defense counsel vigorously and extensively cross-examined the State\u2019s witnesses, moved for directed findings, presented 12 witnesses in defense and gave detailed closing arguments and responded immediately and thoroughly to the court\u2019s inquiries during those arguments. Throughout the trial counsel manifested familiarity with all aspects of the case against their clients and capably, albeit unsuccessfully, defended them.\nTo be entitled to a new trial on grounds of ineffective assistance of counsel, defendants must clearly establish both that counsel were actually incompetent as reflected in the performance of their duties as trial attorneys, and that this incompetence substantially prejudiced defendants such that the outcome of the trial was probably changed. In our judgment, defendants have shown neither incompetency nor the resultant prejudice. We therefore conclude that defendants are not entitled to a new trial.\nII\nDefendants next contend that the State attacked the credibility of certain defense witnesses with repeated, unsupported insinuations that the witnesses\u2019 testimony was the product of threats and intimidation. The State initially responds that this issue has been waived since it was not raised in either defendant\u2019s motion for a new trial. While we could find that the issue has been waived, nevertheless we choose to address it.\nAt trial, one of the prosecutors suggested to the court that the purpose of the defense in sending defendant Martin\u2019s brother to the home of Susan and Odessa Turner was not to transport them to court but to intimidate them into testifying for the defense. When defense counsel objected, the trial judge stated that he was not likely to be inflamed by remarks of either counsel. Obviously the court was not affected by the prosecutor\u2019s suggestion. Prior to Perry Lewis testifying, the prosecutor argued that the presence of the defendants\u2019 families in the courtroom was a subtle form of intimidation of the witness. Again defense counsel objected and the court said: \u201cWithout going into [ajllusions, if the request is simply that since there is room and everybody is sitting on the other side of the courtroom, these people should as well, I think that is appropriate and I will so ask.\u201d Nothing in the court\u2019s answer indicates that it was improperly influenced by the prosecutor\u2019s comments. After Lewis testified, the prosecutor asked that he be allowed to leave the courtroom and the building immediately \u201cbecause of the threats and his own family\u2019s fears.\u201d The court granted this request, stating that \u201c[tjhere is at least a colorable claim of his concern for himself in that he wants to get out of here, ***.\u201d In light of Lewis\u2019 testimony that both defendant Martin and his brother threatened him, we find nothing objectionable either in the prosecutor\u2019s request or in the court\u2019s response.\nThe major portion of defendants\u2019 second argument is devoted to the State\u2019s cross-examination of Susie Turner, Perry Lewis\u2019 aunt, who testified on direct examination that Lewis admitted to her that he had lied in naming Martin as one of the offenders. Mrs. Turner initially refused to relate the substance of that conversation, explaining that she had been threatened. Defense counsel declined the court\u2019s invitation to inquire further about any threats to the witness and this became an area of the State\u2019s cross-examination.\nMrs. Turner stated that she knew that members of defendants\u2019 families were present in court as she was testifying and was aware that they lived in her building. Several relatives of defendants spoke with her before she took the stand. She stated that she had feared to testify because she had been threatened, but was not afraid to return to her apartment since she had testified that \u201cRed [defendant Martin] didn\u2019t do it.\u201d On further cross-examination, Mrs. Turner admitted that she had not wanted to give a statement to anybody because she was afraid. She concluded her testimony saying, \u201cEither way it go, I am afraid.\u201d In our opinion the State\u2019s cross-examination was not improper.\nThe attempted intimidation of a witness in a criminal case is properly attributable to a consciousness of guilt and is thus relevant. (People v. Jones (1980), 82 Ill. App. 3d 386, 393, 402 N.E.2d 746.) It was brought out on direct examination that Mrs. Turner had been threatened and the State was well within the bounds of permissible cross-examination to explore the source of those threats. Defendants, however, argue that although the State failed to prove who had threatened Mrs. Turner, it succeeded in insinuating to the court that it was the defendants. Defendants refer us to a comment the court made during closing argument, but we do not find that the comment, in context, supports defendants\u2019 argument.\nDefense counsel\u2019s theory at trial was that Perry Lewis had implicated the defendants to avoid being charged himself. In developing this theory in closing argument, counsel posed the rhetorical question, why would Susie Turner lie. The court interjected:\n\u201cNo, let\u2019s not get onto Susie Turner for a moment. Even assuming what you are saying is true [that Lewis had falsely accused the defendants], why would he [Lewis] go back to 2145 West Lake Street where apparently on sight and with justification he could believe that any number or any large number of people would see him, would at least jump on him and beat him up.\u201d\nThe court\u2019s remarks were clearly addressed to the reasonableness of defendants\u2019 theory that Lewis had \u201cframed\u201d the defendants and did not even remotely reflect a belief on the court\u2019s part that defendants or their families had threatened or intimidated Susan. Turner. Defendants have failed to show that they were prejudiced by the prosecutor\u2019s comments or by his cross-examination of Mrs. Turner.\nIll\nDefendants next contend that they were not proved guilty beyond a reasonable doubt. Specifically, defendants argue that there was insufficient evidence that defendants\u2019 acts caused the victim\u2019s death and that the testimony of the sole occurrence witness, Perry Lewis, was unworthy of belief.\nIn a criminal trial, the State bears the burden of proving beyond a reasonable doubt all the material and essential facts constituting a crime. (People v. Weinstein (1966), 35 Ill. 2d 467, 470, 220 N.E.2d 432.) In a murder prosecution, those facts are proof of death and proof of a criminal agency causing death. (People v. Benson (1960), 19 Ill. 2d 50, 58, 166 N.E.2d 80.) The State, however, is not required to prove that a defendant\u2019s acts constituted the sole and immediate cause of death. It is sufficient that the State establish that those acts constituted a contributory cause such that the death did not result from a source unconnected with those acts. (People v. Schreiber (1982), 104 Ill. App. 3d 618, 625, 432 N.E.2d 1316; People v. Brown (1978), 57 Ill. App. 3d 528, 531, 373 N.E.2d 459.) In our judgment, the State has met this burden.\nThe pathologist, Dr. Donoghue, testified that the cause of Joshua Beasley's death was \u201carteriosclerotic cardiovascular disease secondary to the beating.\u201d By \u201csecondary to the beating,\u201d he meant that Beasley had very severe heart disease and the beating placed such a strain on his heart that he died. Evidence similar to this has been held sufficient to establish criminal agency. (People v. Schreiber (1982), 104 Ill. App. 3d 618, 624-25, 432 N.E.2d 1316; People v. Cunningham (1902), 195 Ill. 550, 63 N.E. 517.) The fact that a person without the deceased\u2019s history of heart disease probably would have survived the attack is immaterial. People v. Humble (1974), 18 Ill. App. 3d 446, 449-50, 310 N.E.2d 51.\nDefendants, however, point out that based on his autopsy examination alone, Dr. Donoghue could not exclude the possibility that the victim\u2019s death was caused by some stress independent of the beating. The testimony of Lena Mae Beasley and Perry Lewis, however, established that the victim was alive before and during the assault. The only reasonable inference that can be drawn from their testimony is that the stress of the beating did in fact trigger the heart failure. This was also the opinion of Dr. Donoghue who testified that the beating \u201cdefinitely aggravated\u201d Beasley\u2019s heart condition and \u201ccaused his death at this time.\u201d\nThe determination of whether there was a casual relationship between the defendants\u2019 conduct and the decedent\u2019s death is a matter properly left to the trier of fact. (People v. Dillon (1975), 28 Ill. App. 3d 11, 18, 327 N.E.2d 225.) The trial court found that the beating inflicted upon Joshua Beasley caused his death. On the basis of the evidence presented, we cannot say that this finding was erroneous. The State proved beyond a reasonable doubt that the victim\u2019s death was the result of criminal acts.\nDefendants argue that their convictions for murder and armed robbery must be reversed because they rest on the uncorroborated and uncontradicted testimony of a single witness, Perry Lewis, who only identified defendants as the offenders after he had been arrested and advised of his rights. We have carefully examined the evidence on which defendants rely and find that defendants\u2019 argument merely raises questions of credibility which, in a bench trial, were within the province of the trial judge to decide. (People v. Glaze (1977), 48 Ill. App. 3d 523, 532, 362 N.E.2d 1287.) The testimony of a single witness, if positive and credible, is sufficient to sustain a conviction even though the testimony is contradicted by the accused. (People v. Carr (1973), 16 Ill. App. 3d 76, 78, 305 N.E.2d 554.) Where, as here, the evidence is merely conflicting, a court of review will not substitute its judgment for that of the trier of fact. (People v. Akis (1976), 63 Ill. 2d 296, 298-99, 347 N.E.2d 733.) In the instant case the trial court apparently believed the testimony of Perry Lewis and rejected the alibi presented by defendants. We cannot say that these determinations were in error. Accordingly, the defendants\u2019 convictions will not be reversed for insufficiency.\nIV Defendants next contend that the trial court abused its discretion in refusing to grant them a new trial. The basis of defendants\u2019 motion for a new trial was newly discovered evidence. In support of their motion, defendants attached the affidavits of George Adams, a security guard at the 2145 building, Aaron Beasley and Denise Beasley. George Adams alleged in his affidavit that sometime after the attack upon Joshua Beasley, he heard Perry Lewis brag that he (Lewis) had committed the offense himself. Aaron Beasley stated that the gold wedding band marked as Defense Exhibit No. 3 was indeed his father\u2019s ring. Denise Beasley denied that the deceased was wearing a birthstone ring on the day that he died and claimed that no one had given her sister, \"Vanessa Beasley, a birthstone ring on January 27, 1980.\nMotions for a new trial on the ground of newly discovered evidence are not looked upon with favor by the courts and, in order to prevent fraud and imposition on the part of the defeated party, should always be subjected to the closest scrutiny by the court. (People v. Reese (1973), 54 Ill. 2d 51, 59, 294 N.E.2d 288.) To entitle a defendant to a new trial, newly discovered evidence must meet the following standards: it must be conclusive and likely to change the result upon retrial; it must be material and noncumulative; it must have been discovered after the trial; and it must be of such character that it could not have been discovered before trial by the exercise of due diligence. (People v. Ramos (1980), 80 Ill. App. 3d 722, 725, 400 N.E.2d 676.) Newly discovered evidence which only has the effect of impeaching, discrediting or contradicting a witness does not afford a basis for a new trial. People v. Carpenter (1979), 74 Ill. App. 3d 770, 774, 393 N.E.2d 50, citing People v. Holtzman (1953), 1 Ill. 2d 562, 568, 116 N.E.2d 338.\nThe averments in the affidavits of Aaron and Denise Beasley are merely cumulative of evidence presented at trial and could not be regarded as conclusive on any issue. Turning to the affidavit of George Adams, we note that defense counsel initially made a tactical decision to proceed to trial without George Adams because counsel believed that there was enough evidence without Adams\u2019 testimony to raise a reasonable doubt of the defendants\u2019 guilt. Defense counsel was aware of what testimony Adams purportedly could have given but did not seek a continuance in order to locate him. Given these circumstances, the trial court ruled that defense counsel failed to exercise due diligence in discovering the evidence provided by George Adams. We cannot say that this determination was in error.\nA motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge and denial thereof will not be disturbed upon review in the absence of a showing of a manifest abuse of that discretion. (People v. Miller (1980), 79 Ill. 2d 454, 462, 404 N.E.2d 199; People v. Reese (1973), 54 Ill. 2d 51, 59, 294 N.E.2d 288.) No such showing has been made, and we find no error in the trial court\u2019s denial of defendants\u2019 motion for a new trial.\nV\nDefendants next contend that the trial court abused its discretion in sentencing defendants to 30-year sentences for murder. Defendants maintain that these sentences are excessive and that the minimum sentence of 20 years would be more appropriate given the defendants\u2019 \u201cyouth and exemplary backgrounds\u201d and their potential for rehabilitation. Defendants also argue that the court placed undue weight on the need for deterrence and improperly considered the fact of the victim\u2019s death as a factor aggravating defendants\u2019 convictions for murder.\nOur courts have frequently stated that the trial judge is in a better position to determine the punishment to be imposed than the courts of review. (See, e.g., People v. Butler (1976), 64 Ill. 2d 485, 490, 356 N.E.2d 330.) A reasoned judgment as to the proper sentence to be imposed must be based upon the particular circumstances of each individual case. (People v. Bolyard (1975), 61 Ill. 2d 583, 589, 338 N.E.2d 168.) This judgment depends upon many factors, including the defendant\u2019s credibility, demeanor, general moral character, mentality, social environment, habits and age. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) The trial judge, in the course of the trial and the sentencing hearing, has an opportunity to consider these factors which is superior to that afforded by the cold record in this court. (Perruquet.) Accordingly, \u201cthe trial judge\u2019s decisions in regard to sentencing are entitled to great deference and weight,\u201d and, \u201cabsent an abuse of discretion *** a sentence may not be altered upon review.\u201d People v. La Pointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344, quoting People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.\nInitially, we must point out that the trial court specifically declined to impose either consecutive sentences or extended term sentences. And the court did not impose the maximum sentence for murder (40 years) \u201cprimarily because of the prior good record of these defendants, ***.\u201d Among the factors in mitigation, the court placed principal emphasis on the \u201cabsence of any prior record of convictions,\u201d stating that \u201cin each case that is a very significant fact.\u201d The court also mentioned \u201cthe mitigating factors of employment ***.\u201d It is apparent from these and other remarks at the sentencing hearing that in selecting an appropriate sentence, the trial court did take into account the age, employment history and absence of a criminal record of each defendant. The court, however, found that a minimum sentence was inappropriate \u201cbecause of the viciousness of the actions which occurred, ***.\u201d The court elaborated:\n\u201cThis was a beating for sport, he was beaten for the fun of being beaten, and he was beaten to death.\nIt was not a beating as part of or a necessary part of the other unlawful end of the armed robbery. Apparently, at some point it took on its own end to simply beat Joshua Beasley because he was there and handy, and it was fun to do to beat this old man down to his knees and leave him in the kind of condition he was in as he crawled away from the puddle of blood outside the elevator, a puddle of blood brought about not by any deep wound, but a puddle of blood caused by extensive bleedings from superficial wounds, wounds around the face and head and the like, which is an indication of just how badly he was beaten to leave that much blood.\u201d\nThe record amply demonstrates that defendants received sentences in excess of the minimum for murder because of the \u201cvicious, senseless, unprovoked beating\u201d they inflicted upon the deceased. Moreover, we do not find that the court gave \u201cundue weight\u201d to the need for deterrence. The court stated that defendants had to be punished both in consideration of the effect of punishment upon them and as deterrence to others. The court explained:\n\u201cI don\u2019t know to what extent it would make any difference, but the Court has to do at least its part in getting the message across that it\u2019s not open season on the Joshua Beasleys of this world and the Taylor homes or in any other housing projects, wherever they may be, but they are citizens and entitled to the same protections we all enjoy.\u201d\nWe find no error in this. Nor do we find any error in the court\u2019s reference to \u201cthe aggravating factor which was previously pointed out of the matter of the death of Mr. Beasley.\u201d We have recently stated that \u201c[i]t 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.\u201d People v. Barney (1982), 111 Ill. App. 3d 669, 679.\nThe apparent thrust of defendants\u2019 argument is that no sentence in excess of the minimum may be imposed unless an aggravating factor not implicit in the crime itself is present. Since, according to defendants, there were no aggravating factors here, the trial court\u2019s sentences for murder are excessive. While our previous examination of the trial court\u2019s comments at the sentencing hearing leaves no doubt that there was an aggravating factor (see People v. Warfel (1979), 67 Ill. App. 3d 620, 625-26, 385 N.E.2d 175), we also believe the premise of defendants\u2019 argument is erroneous.\nWe have recently observed that the Code of Corrections \u201cimposes no requirement that the minimum sentence be imposed in the absence of aggravating factors.\u201d (People v. Barney (1982), 111 Ill. App. 3d 669, 679.) After a careful analysis of the Code of Corrections, we concluded that \u201ca sentence not in excess of the maximum authorized may be imposed in the absence of such aggravating factors.\u201d (111 Ill. App. 3d 669, 680.) While it is improper to impose a sentence more severe than the sentence that would have been imposed if the impermissible factor had not been considered (People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906), we do not find that an impermissible factor was considered here. Defendants have failed to show that the trial court abused its discretion in sentencing them to 30 years\u2019 imprisonment for the crime of murder.\nVI\nDefendants\u2019 final contention is that they were improperly convicted and sentenced for three counts of murder and one count of armed robbery which arose out of the same physical acts. Defendants also contend that the armed robbery convictions and sentences must be vacated because armed robbery is a lesser included offense of the felony-murder conviction.\nDefendants were indicted on three counts of murder (Ill. Rev. Stat. 1977, ch. 38, pars. 9 \u2014 1(a)(1), (a)(2), (a)(3)) and one count of armed robbery. They were found guilty on each count and judgment was entered on each count. In sentencing defendants, the trial court stated: \u201cI\u2019m going to impose on each of these defendants upon their conviction [not convictions] of murder, which is to the Department of Corrections for a period of thirty years ***.\u201d The mittimus indicates that each defendant was sentenced to a single 30 year term on all three convictions. In our judgment, the trial court imposed one 30-year sentence for murder on each defendant, not three 30-year sentences, as defendants represent.\nSince there was only one victim, only one murder conviction is appropriate. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) Where multiple convictions have been entered erroneously, the less serious or \u201cincluded\u201d offense(s) will be vacated. (People v. Whitaker (1980), 87 Ill. App. 3d 563, 566, 410 N.E.2d 166.) The Criminal Code defines an \u201cincluded\u201d offense as one which is established by proof of a less culpable mental state than that which is required to establish the commission of another crime charged. Ill. Rev. Stat. 1979, ch. 38, par. 2 \u2014 9(a).\nHere, defendants\u2019 three murder convictions are equally serious Class X offenses. Of the three, however, the most culpable mental state is that which is required for a conviction of \u201cintentional\u201d murder under subsection (a)(1), which requires proof of a defendant\u2019s \u201cactual intent\u201d to kill or do great bodily harm. By comparison, subsection (a)(2) requires proof that a defendant \u201cknow\u201d that his acts create a \u201cstrong probability\u201d of death or great bodily harm. Felony-murder (subsection (a)(3)) is an \u201cimplied intent\u201d offense. A person may be convicted of felony-murder \u201cwhether the killing *** is intentional or accidental, or is committed by a confederate without the connivance of the defendant.\u201d (Ill. Ann. Stat., ch. 38, par. 9 \u2014 1, Committee Comments, at 16 (Smith-Hurd 1979).) For purposes of felony (armed robbery) murder, there is no requirement that the State prove a mental state element for the underlying offense. (People v. Hawkins (1973), 14 Ill. App. 3d 549, 551, 302 N.E.2d 128.) Thus, no mental state element as such need be proved to obtain the felony-murder conviction. (People v. Gulliford (1980), 86 Ill. App. 3d 237, 244, 407 N.E.2d 1094.) The defendant is held strictly liable for felony-murder upon proof of armed robbery. By contrast, in order to obtain a conviction under the first classification of murder as defined in Illinois, the State is required to prove beyond a reasonable doubt that the defendant intended \u201cto kill or do great bodily harm,\u201d or knew that his acts would cause death. To obtain a conviction under the second classification, the State must prove that the defendant knew that his acts \u201ccreated a strong probability of death or great bodily harm.\u201d\nThe mental state element in subsection (a)(1) renders more culpable a subsection (a)(1) offense than a subsection (a)(2) offense. And both are most culpable than a subsection (a)(3) offense for which no mental state element exists. Thus, it appears that on the basis of criminal culpability, the defendants\u2019 felony (armed robbery) murder convictions under subsection (a)(3) and their convictions under (a)(2) are \u201cincluded\u201d offenses of their convictions under subsection (a)(1) and must therefore be vacated. See People v. Bone (1982), 103 Ill. App. 3d 1066, 1068-69, 432 N.E.2d 329 (of defendant\u2019s two murder convictions under subsections (a)(2) and (a)(3), the appellate court vacated the (a)(3) conviction); People v. Robinson (1969), 106 Ill. App. 2d 78, 86-87, 246 N.E.2d 15 (of defendant\u2019s two murder convictions under subsections (a)(1) and (a)(2), the appellate court vacated the (a)(2) conviction); People v. Brownell (1980), 79 Ill. 2d 508, 514, 404 N.E.2d 181 (of defendant\u2019s two murder convictions under subsections (a)(1) and (a)(3), the trial court vacated the (a)(3) conviction).\nOur vacation of defendants\u2019 convictions under subsections (a)(2) and (a)(3) makes it unnecessary to reach defendants\u2019 contention that the armed robbery convictions must be vacated as lesser included offenses of the felony-murder convictions. But see People v. Miller (1980), 89 Ill. App. 3d 973, 979, 412 N.E.2d 175; People v. Gulliford (1980), 86 Ill. App. 3d 237, 407 N.E.2d 1094 (armed robbery is not a lesser included offense of felony-murder).\nWe do not find that it is necessary to remand the cause for resentencing on either the defendants\u2019 convictions for murder under subsection (aXl) or for armed robbery. Defendants\u2019 argument in favor of remandment assumes that defendants\u2019 sentences in excess of the minimum are explainable only by reference to the fact that there were multiple convictions for murder. For the reasons set forth previously (Part V), we disagree and therefore decline to remand for resentencing.\nFor the foregoing reasons, we affirm the defendants\u2019 convictions and sentences for armed robbery and for murder under the first count of the indictment (Ill. Rev. Stat. 1977, ch. 38, par. 9 \u2014 l(aXl)) and vacate the convictions for murder under the second and third counts of the indictment (Ill. Rev. Stat. 1977, ch. 38, pars. 9 \u2014 l(aX2) and (aX3)).\nAffirmed in part and vacated in part.\nDOWNING, P.J., and STAMOS, J., concur.\nAlthough defendants urge us to replace this standard with the \u201cminimum standard of professional representation\u201d test articulated in United States ex rel. Williams v. Twomey (7th Cir. 1975), 510 F.2d 634, our supreme court has repeatedly rejected that standard. (See, e.g., People v. Greer (1980), 79 Ill. 2d 103, 121, 402 N.E.2d 203.) We therefore decline defendants\u2019 invitation to adopt it.", "type": "majority", "author": "JUSTICE PERLIN" } ], "attorneys": [ "Stephen Clark and Patricia Unsinn, both of State Appellate Defender\u2019s Office, of Chicago, for appellants.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat and David L. Kind, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR E. MARTIN et al., Defendants-Appellants.\nFirst District (2nd Division)\nNo. 80\u20142432\nOpinion filed January 25, 1983.\nStephen Clark and Patricia Unsinn, both of State Appellate Defender\u2019s Office, of Chicago, for appellants.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat and David L. Kind, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0486-01", "first_page_order": 508, "last_page_order": 528 }