{ "id": 3605530, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD BARKAUSKAS, Defendant-Appellant", "name_abbreviation": "People v. Barkauskas", "decision_date": "1986-08-25", "docket_number": "No. 83\u20140883", "first_page": "360", "last_page": "373", "citations": [ { "type": "official", "cite": "147 Ill. App. 3d 360" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "412 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476013 ], "pin_cites": [ { "page": "280-81" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0268-01" ] }, { "cite": "483 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "108 Ill. 2d 54", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130811 ], "pin_cites": [ { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0054-01" ] }, { "cite": "401 N.E.2d 1123", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 851", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3228479 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0851-01" ] }, { "cite": "424 N.E.2d 922", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 708", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499827 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0708-01" ] }, { "cite": "261 N.E.2d 469", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "126 Ill. App. 2d 179", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1576563 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/126/0179-01" ] }, { "cite": "402 N.E.2d 732", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. App. 3d 129", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3226500 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0129-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "345 N.E.2d 211", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 304", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2716857 ], "pin_cites": [ { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0304-01" ] }, { "cite": "430 N.E.2d 331", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1981, "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 773", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3072345 ], "weight": 2, "pin_cites": [ { "page": "775" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0773-01" ] }, { "cite": "488 N.E.2d 247", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "109 Ill. 2d 431", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3125819 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/109/0431-01" ] }, { "cite": "449 N.E.2d 1031", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 908", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3590192 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0908-01" ] }, { "cite": "424 N.E.2d 727", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 413", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499390 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0413-01" ] }, { "cite": "418 N.E.2d 739", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. 2d 350", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3046232 ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0350-01" ] }, { "cite": "458 N.E.2d 59", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 951", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3629396 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0953-01" ] }, { "cite": "475 N.E.2d 945", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 517", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3436830 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0517-01" ] }, { "cite": "463 N.E.2d 929", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "124 Ill. App. 3d 140", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3429084 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0140-01" ] }, { "cite": "385 N.E.2d 904", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 341", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3308928 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0341-01" ] }, { "cite": "444 N.E.2d 801", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 895", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5440647 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0895-01" ] }, { "cite": "428 N.E.2d 1087", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 948", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3083982 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0948-01" ] }, { "cite": "404 N.E.2d 233", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069192 ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0564-01" ] }, { "cite": "427 U.S. 97", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174831 ], "weight": 3, "year": 1982, "opinion_index": 0, "case_paths": [ "/us/427/0097-01" ] }, { "cite": "414 N.E.2d 1235", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 631", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3149634 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0631-01" ] }, { "cite": "443 N.E.2d 238", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 930", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2996723 ], "weight": 3, "pin_cites": [ { "page": "940" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0930-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] } ], "analysis": { "cardinality": 1226, "char_count": 29585, "ocr_confidence": 0.781, "pagerank": { "raw": 2.833871810656339e-07, "percentile": 0.8393749983107123 }, "sha256": "a79a0f0b5fe60446875ca8a9d8b544407c7149929f7f4639f4b16142bbb5f0ea", "simhash": "1:aaee1a7e570a9df5", "word_count": 4851 }, "last_updated": "2023-07-14T19:34:28.954445+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD BARKAUSKAS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Edward Barkauskas was convicted of the murder of his wife (Ill. Rev. Stat. 1979, ch. 38, par. 9\u2014 1(a)) and armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A \u2014 2), solicitation (Ill. Rev. Stat. 1979, ch. 38, par. 8 \u2014 1(a)), and conspiracy (Ill. Rev. Stat. 1979, ch. 38, par. 8 \u2014 2(a)), in connection with that murder. The judgments on armed violence, solicitation, and conspiracy were vacated, and the trial court sentenced defendant to natural life in prison for murder. Defendant appeals, contending that: (1) the prosecution failed to comply with rules of discovery; (2) the prosecution failed to prove him guilty beyond a reasonable doubt; (3) prosecutorial misconduct deprived him of a fair trial; (4) the trial court erred in conducting an in camera inspection of a witness\u2019 mental-health records outside the presence of counsel; (5) he received inadequate legal representation at trial; (6) the trial court erred in refusing to tender certain instructions to the jury; and (7) his natural-life sentence is excessive. For the following reasons, we affirm.\nThe record reflects that a few weeks prior to the homicide, defendant approached James Galason at a hot dog stand on 43rd and Rockwell in Chicago and asked him if he was \u201ccrazy enough\u201d to kill defendant\u2019s wife Joanne. Galason testified that he agreed to do it in exchange for the remainder of insurance money after the victim\u2019s funeral expenses were paid. Galason further testified that three days after his initial meeting with defendant, he was walking down the block with his roommates Ken and Joe Beringer when Ken pulled out a picture of defendant\u2019s wife and remarked, \u201cWe\u2019ll see who gets her first.\u201d Galason also stated that about two Tuesdays before the homicide, the defendant came to his apartment and implored him to kill his wife soon because she wanted to see a lawyer about a divorce. The defendant asked Galason to shoot her below the neck so there could be an \u201copen coffin wake.\u201d\nThe next time Galason saw the defendant was at 11 p.m. on June 15, 1981, the night before the shooting. Galason, who was seated on the porch at the Chiquet residence at 43rd and Artesian, flagged down the defendant who was driving down the street. The defendant gave Galason a ride home. Galason testified that while in the car, the defendant told him that he had the murder planned for the following day because his wife would be walking on 42nd and Artesian to the bus stop and he would be driving to Skokie on business and would therefore have a good alibi. Galason further testified that the defendant told him to say it was a robbery if he got caught since his wife usually carried a lot of money and wore expensive jewelry.\nAt approximately 4:30 a.m. on July 16, 1981, Joe and Ken Beringer woke Galason to tell him that they had stolen a getaway car to use for the murder. The three men then had an argument over who was going to do the shooting and Joe finally agreed to do it. Three hours later, the defendant arrived at Galason\u2019s home and stated, \u201cLet\u2019s go, let\u2019s go, we got to do it now, because his wife was going to see her lawyer that day. Ken Beringer decided not to go, but Joe Beringer picked up a .16-gauge sawed-off shotgun and left with Gala-son.\nGalason testified that the defendant drove him and Joe Beringer to 47th and Western where the stolen car was located. After the defendant reminded them to tell Ken Beringer to destroy his wife\u2019s picture, he drove to Skokie. Galason drove the stolen car to an alley near 42nd and Artesian to wait for the defendant\u2019s wife. Galason stated that Joe Beringer exited the car and hid by a garage until she appeared. As the victim walked past the alley, Beringer jumped out and shot her twice. He returned to the car and Galason drove it to 49th and Rockwell where they hid the gun in some weeds near the railroad tracks. The two started to walk in different directions when a squad car pulled up and an officer questioned Joe Beringer. At that point, Galason ran toward his home. A few minutes later, the police entered Galason\u2019s residence and placed him and Ken Beringer under arrest. Galason confessed to the crime the same day and indicated the killing was done at the request of the defendant. Shortly thereafter, the defendant and Joe Beringer were arrested.\nOfficer Joe Mikulskis of the Chicago police department, who was the first officer on the scene, testified that he took a brief statement from Harvey Webb, an eyewitness to the shooting. Webb did not testify in the defendant\u2019s trial which began January 25, 1983, however he testified at the Beringer brothers\u2019 joint trial two months later.\nThe defendant testified that he did not know Ken and Joe Beringer and had no idea how his wife\u2019s photograph got in their possession. He further testified that he met James Galason on July 4, 1979, as a result of a dispute over fireworks. He thereafter began to see Galason because Galason was dating the daughter of Carmen Jagazynski, defendant\u2019s friend and insurance client. The defendant admitted that he gave Galason a ride home on the night before the shooting, but he stated that their conversation involved whether defendant\u2019s wife would be going to Skokie with him the next day and whether Galason would purchase defendant\u2019s motorcycle.\nDefendant also testified that at approximately 11:30 a.m. on the day of the homicide, he arrived at Holy Cross Hospital where his wife had been taken. At the hospital, he volunteered to Officer Thomas Ptak that he loved his wife, and \u201cturned frantic\u201d when he learned of her death. The defendant subsequently told the police that a possible explanation for his wife\u2019s murder was that she carried a great deal of jewelry and that there was a rumor in the neighborhood that he and his wife had \u201ca lot of money.\u201d His wife, however, was found with jewelry on her person and over $50 in her purse.\nI\nDefendant initially argues that he is entitled to a new trial because the prosecution failed to disclose favorable information within its possession prior to or during defendant\u2019s trial denying him due process of law. (Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.) We disagree.\nThe record reflects that defendant made a similar argument on April 4, 1983, in support of his motion for a new trial. On that day, defense counsel presented the trial court with a transcript of Harvey Webb\u2019s testimony on March 25, 1983, in the Beringer trial in which he identified James Galason as the shooter of defendant\u2019s wife. Defense counsel contended that the prosecution violated Brady v. Maryland by failing to disclose this information prior to or during defendant\u2019s trial since it would have impeached the credibility of Galason who testified at defendant\u2019s trial that it was Joe Beringer who pulled the trigger. The trial court determined that the prosecution had two contacts with Harvey Webb; the first was a phone call and the second was a meeting on February 21, 1983. Based on Webb\u2019s \u201ctwo positive assertions\u201d at the Beringer trial, the court found that it was at the February 21 meeting that Webb observed photographs of Galason and Beringer and identified Galason as the shooter. The trial court therefore denied defendant\u2019s motion reasoning that the prosecution was under no duty to disclose this information because it was not within the prosecution\u2019s control until after the conclusion of defendant\u2019s trial on February 2, 1983.\nDefendant now maintains that the trial court was not presented with particular statements made by the prosecutor during proceedings in the Beringer trial on March 14, 16, and 25, 1983, which would establish that the prosecution did in fact meet with Webb prior to or during defendant\u2019s trial. In the March 14 proceeding, defense counsel for Joe Beringer asked the prosecution if it had a current address for Harvey Webb. The prosecutor responded that no one from the State\u2019s Attorney\u2019s office had spoken to Webb since prior to the Barkauskas trial, perhaps November or December of 1982. On March 16, 1983, in pretrial proceedings in the Beringer case, defense counsel for Joe Beringer stated that Harvey Webb had indicated to several people that in February 1983 he had been interviewed by an assistant State\u2019s Attorney at which time he identified Galason as the shooter. The prosecutor then asserted that he had talked to Webb a couple of times, most recently before the Barkauskas trial, and as far as he knew, Webb had only identified Joe Beringer as the killer. The portion of the March 25, 1983, transcript in the Beringer trial not presented to the trial court discloses that the prosecutor \u201cwasn\u2019t sure of the exact date\u201d he met with Webb, but thought it was in January 1983.\nAfter reviewing the proceedings in the Beringer case, we find no reason to disturb the trial court\u2019s determination that Webb identified Galason as the shooter for the first time on February 21, 1983. There is no indication from the transcripts now before us that the prosecution possessed any information with respect to Webb\u2019s identification of Galason prior to or during defendant\u2019s trial. The transcripts simply reveal that the prosecution was uncertain as to the date of its meeting with Webb. The trial court, in light of Webb\u2019s two positive assertions at the Beringer trial, resolved the issue by determining that the meeting took place on February 21, and therefore properly denied defendant\u2019s motion for a new trial.\nEven assuming that the prosecution possessed this information prior to or during defendant\u2019s trial, the prosecution was under no duty to disclose it. In order to establish a Brady violation, \u201cit must be shown that the evidence was suppressed following a request for it by defendant and that the evidence was favorable to defendant and material either to guilt or to punishment.\u201d (People v. Kosik (1982), 110 Ill. App. 3d 930, 940, 443 N.E.2d 238.) Materiality in a constitutional sense is not the mere possibility that the undisclosed information might have helped the defense or affected the outcome of the trial. (110 Ill. App. 3d 930, 443 N.E.2d 238; People v. Williams (1980), 91 Ill. App. 3d 631, 414 N.E.2d 1235.) Rather, omitted evidence is material if, when evaluated in the context of the entire record, it creates a reasonable doubt of the defendant\u2019s guilt. United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392; People v. Kosik (1982), 110 Ill. App. 3d 930, 443 N.E.2d 238.\nWe have reviewed the record on appeal and are convinced that the information allegedly withheld by the prosecution, even if presented to impeach the credibility of James Galason, does not raise a reasonable doubt of defendant\u2019s guilt. While the information may be relevant to the guilt or punishment of Galason, it in no way rebuts his testimony and the independently corroborated evidence discussed below that the defendant conspired to murder his wife. Thus, the information is immaterial to defendant\u2019s guilt or punishment, and accordingly, no Brady violation has been demonstrated.\nII\nDefendant next claims that he was not proved guilty of his wife\u2019s murder beyond a reasonable doubt because the State\u2019s case was based solely on the uncorroborated testimony of a \u201cpathological liar,\u201d James Galason, \u201cwho traded his story for a light prison sentence.\u201d The evidence reveals, however, that Galason confessed to the crime and implicated defendant on the day of the homicide, prior to receiving any promises of leniency from the prosecution. Moreover, it is well established that the determination of the credibility of witnesses is a function of the jury, and this court will not disturb a jury\u2019s decision to convict unless the evidence is so improbable as to leave a reasonable doubt of the defendant\u2019s guilt. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) Here, we find no reason to reverse the jury\u2019s verdict.\nWe initially note that this case was submitted to the jury with proper instructions setting forth the theory of accountability. A person is legally accountable for conduct of another when:\n\u201cEither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.\u201d Ill. Rev. Stat. 1985, ch. 38, par. 5-2(c).\nUnder the principle of accountability, the ample evidence in this case based on James Galason\u2019s corroborated testimony establishes defendant\u2019s guilt in the murder of his wife. Defendant\u2019s admission that he met with Galason on the eve of the murder, the fact that Galason and Beringer knew precisely where the victim would be walking the morning of the homicide, Galason\u2019s ability to accurately describe defendant\u2019s clothing on the day of the murder corroborated by Officer Thomas Ptak\u2019s and defendant\u2019s testimony, and Officer Ptak\u2019s discovery of a photograph of defendant\u2019s wife in the Galason and Beringer apartment, which defendant claimed he lost or was stolen, sufficiently prove defendant\u2019s involvement. Furthermore, defendant\u2019s \u201cvolunteered\u201d statement to Ptak that the crime was motivated by robbery, although the evidence indicated otherwise, corroborates Galason\u2019s testimony that that was what defendant requested he tell the authorities if he got caught. Therefore, defendant\u2019s argument that he was not proved guilty beyond a reasonable doubt must fail.\nIII\nDefendant further maintains that he was denied a fair trial because of allegedly prejudicial comments made by the prosecutor during the rebuttal argument and examination of two witnesses. Defendant first challenges the prosecutor\u2019s implication in rebuttal that defendant and his wife were having marital problems and the prosecutor\u2019s characterization of defense counsel as a \u201cdirector\u201d of manufactured testimony.\nIn considering defendant\u2019s contentions, we note that a prosecutor is allowed great latitude in closing argument, and absent an abuse of discretion, the trial court\u2019s determination as to the propriety of the comments made will be followed. (People v. Maldonado (1981), 101 Ill. App. 3d 948, 428 N.E.2d 1087.) Moreover, a defendant cannot claim prejudice if a prosecutor\u2019s remarks are either made in response to those of defense counsel (People v. Smith (1982), 111 Ill. App. 3d 895, 444 N.E.2d 801), or are a comment on the evidence (People v. Bloodworth (1979), 68 Ill. App. 3d 341, 385 N.E.2d 904).\nHere, defense counsel argued in closing that defendant had a good marital relationship and the prosecution failed to produce one witness to corroborate Galason\u2019s testimony that defendant told him his wife wanted a divorce. Thus, the prosecutor\u2019s comments that he was precluded from questioning the victim\u2019s father about his daughter\u2019s marriage and that he was unable to contact the victim\u2019s divorce attorney were invited by the defense, and as such, were proper. Furthermore, in both instances, defendant\u2019s objections were sustained and the jury was instructed to disregard any arguments by counsel which were not based on the evidence. Consequently, any alleged harm was alleviated by the trial court\u2019s actions. See People v. Clay (1984), 124 Ill. App. 3d 140, 463 N.E.2d 929.\nWe also find no resulting prejudice in the prosecutor\u2019s reference to defense counsel as a \u201cdirector.\u201d The record reflects that Harriet Ermel, defendant\u2019s next door neighbor, testified that defendant and his wife had an argument on the night before the murder during which defendant stated, \u201cWait until tomorrow.\u201d Defendant testified, however, that his words were, \u201cCan\u2019t this wait until tomorrow,\u201d referring to the argument itself. The prosecutor subsequently commented in rebuttal argument on how defendant found \u201csome words that would fit into the State\u2019s case\u201d which would make his statement to his wife seem innocuous. We believe that the prosecutor\u2019s argument was a proper comment on the evidence and the credibility of defendant as opposed to an accusation that defense counsel fabricated a defense and encouraged defendant to testify accordingly.\nDefendant next contends that the prosecutor\u2019s redirect examination of James Galason and cross-examination of Mary Beth Letz, Galason\u2019s probation officer, were improper. With respect to the examination of Galason, defendant argues that the prosecutor erroneously bolstered his testimony by eliciting his prior consistent statements to an assistant State\u2019s Attorney on the day of his arrest.\nGenerally, a witness\u2019 prior consistent statements are inadmissible to corroborate his testimony at trial. (People v. Faysom (1985), 131 Ill. App. 3d 517, 475 N.E.2d 945.) An exception exists where such statements are offered to rebut a charge or inference that a witness is motivated to testify falsely or that his testimony is a recent fabrication. (People v. Jackson (1983), 119 Ill. App. 3d 951, 458 N.E.2d 59.) In this case, the record reveals that defense counsel questioned Galason extensively on cross-examination about alleged inconsistencies in his trial testimony and statements he made previously in his confession. Defense counsel also stated to Galason, \u201c[Y]ou didn\u2019t make any statements until you made a deal for twenty years before you would talk to the State\u2019s Attorney ***.\u201d To refute these assertions of fabrication, the prosecutor properly rehabilitated Galason with his prior confession.\nRegarding the cross-examination of Letz, defendant argues that it was improper for the prosecution to ask whether she knew \u201cthat when James Galason was arrested, he told the police who hired him to kill Joanne Barkauskas.\u201d The trial court sustained defense counsel\u2019s objection, and, as discussed above, the cautionary instruction given to the jury was sufficient to cure any prejudice.\nEven assuming that any of the forgoing remarks by the prosecutor were error, we do not believe in light of the overwhelming evidence of defendant\u2019s guilt that they were so prejudicial as to have been a material factor in defendant\u2019s conviction or to have denied him a fair trial. See People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.\nIV\nWe further reject defendant\u2019s claim that the trial court erred in its ruling concerning James Galason\u2019s mental-health records from Old Orchard Hospital. Defendant sought to subpoena the records from the hospital and use them to impeach Galason\u2019s testimony at trial. Old Orchard Hospital and counsel for Galason, however, objected to the production of the confidential information. Consequently, the trial court conducted an in camera inspection of the records outside the presence of the prosecutor and defense counsel, and released the relevant portion of the material consisting of a three-page discharge summary. Defendant contends that by conducting the in camera examination in the manner in which it did, the court deprived him of a fair trial under the sixth and fourteenth amendments of the United States Constitution and sections 2 and 8 of article 1 of the 1970 Illinois Constitution and, further, that its action was violative of the provisions of Supreme Court Rule 412(h) (87 Ill. 2d R. 412(h)).\nDefendant\u2019s reliance on People v. Phipps (1981), 98 Ill. App. 3d 413, 424 N.E.2d 727, and People v. Dace (1983), 114 Ill. App. 3d 908, 449 N.E.2d 1031, to support his argument that Galason\u2019s records should have been examined in an in camera hearing attended by counsel for both parties to determine what information would be relevant and material to his credibility is misplaced. In Phipps, the defendant was charged with battery and maltreatment of mentally retarded people who were witnesses in the case. These \"witnesses, whose mental-health records the defendant sought to obtain, suffered from psychiatric disorders so severe that they were long-term residents of a mental hospital and were in the institution at the time of the offense and at the time of the trial. The court directed the trial court to issue subpoenas to the mental-health facility and, in the event either a therapist or patient invoked a privilege, directed the trial court to hold in camera hearings with attorneys for the State and defendant present.\nIn Dace, the State\u2019s chief witness had been previously committed to a mental hospital involuntarily. The trial court, in camera, reviewed the file from the witness\u2019 commitment proceedings which contained information that she was found to be mentally ill and dangerous, but no mention was made of her diagnosis, treatment or release. On this basis, the trial court ruled that the records were privileged and too old to be relevant. The trial court also barred the defendant from questioning the witness on her mental history. The appellate court held that the trial court could not reasonably conclude from the information before it that the health history of the witness was irrelevant and immaterial, and therefore remanded the case with directions to the trial court to conduct an in camera hearing with counsel for both parties if the defendant\u2019s requested discovery is challenged.\nIn the case at bar, IV2 years prior to the offense, Galason was voluntarily admitted by his parents to Old Orchard Hospital where he remained for six months. Unlike the witnesses in Phipps, he was not hospitalized at either the time of the murder, the time of defendant\u2019s trial, or during the intervening period. While Galason\u2019s records from Old Orchard Hospital were not included in the record before us, it appears that he was evaluated as a nonpsychotic and that a diagnosis of his mental health was made. Thus, in contrast to the trial court in Dace, the court here had sufficient information to determine what was relevant to Galason\u2019s credibility. Moreover, in both Dace and Phipps, the trial courts refused any discovery to the defendants regarding the mental-health records of the witnesses, whereas in this case, the court conducted an in camera examination of Galason\u2019s records, provided both parties with a three-page summary of their contents, and permitted defense counsel to question Galason regarding his stay at Old Orchard Hospital.\nThe determination of whether material is discoverable and subject to disclosure is to be made by the trial court. (People v. Coates (1985), 109 Ill. 2d 431, 488 N.E.2d 247; People v. Stevens (1981), 102 Ill. App. 3d 773, 430 N.E.2d 331.) The procedure followed by the trial court in this case adequately protected defendant\u2019s right to a fair trial and, at the same time, observed the hospital\u2019s and Galason\u2019s right to confidentiality in the nonmaterial information contained in the mental-health records. People v. Stevens (1981), 102 Ill. App. 3d 773, 775, 430 N.E.2d 331; People v. Ator (1976), 37 Ill. App. 3d 304, 309, 345 N.E.2d 211.\nV\nWe next consider defendant\u2019s argument that he was denied effective assistance of counsel because his attorney failed to sufficiently investigate when the prosecution learned of Harvey Webb\u2019s identification of Joe Beringer as the killer. Although defense counsel presented the court with Webb\u2019s testimony at the Beringer trial during defendant\u2019s motion for a new trial, counsel neglected to tender transcripts of additional proceedings on March 14, 16, and 25, 1983, in the Beringer case. Defendant maintains that if these transcripts had been provided, the trial court would have granted his motion. Given our finding above that the additional information would not have altered the trial court\u2019s decision to deny defendant\u2019s motion, we conclude that defendant did not establish that his counsel\u2019s alleged inadequate representation affected the outcome of his trial. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.\nVI\nDefendant further maintains that the trial court improperly refused to tender two instructions to the jury. The first of these instructions would have charged the jury that \u201cwitness James Galason is a narcotics addict and his testimony is subject to suspicion due to the fact that habitual users of narcotics become notorious liars.\u201d We find no error in the trial court\u2019s refusal to give this nonpattem instruction.\nThe decision whether to give a nonpattem instruction rests within the discretion of the trial court. (People v. Larson (1980), 82 Ill. App. 3d 129, 402 N.E.2d 732.) Moreover, it is settled that an instruction on the credibility of a narcotics addict is improper where it contains an incorrect statement of law (People v. Phillips (1970), 126 Ill. App. 2d 179, 261 N.E.2d 469), or if there is insufficient evidence to indicate a witness\u2019 addiction to narcotics (People v. McVay (1981), 98 Ill. App. 3d 708, 424 N.E.2d 922).\nIn the present case, no evidence was produced at trial to support the conclusion that Galason was a \u201chabitual user of narcotics.\u201d Galason merely stated that he drank alcohol, smoked marijuana occasionally, and did not consume pills or other drugs. Thus, the jury was made aware of any drug use by Galason and was able to consider its effect on his credibility, as the standard instruction given on witness credibility instructs them to do. Illinois Pattern Jury Instruction, Criminal, No. 1.02 (2d ed. 1981) (IPI Criminal 2d).\nDefendant also contends that IPI Criminal 2d No. 3.16 was improperly given to the jury. The instruction reads:\n\u201cThe defendant has introduced evidence of his reputation for truth and veracity. This evidence may be sufficient when considered with the other evidence in the case to raise a reasonable doubt of the defendant\u2019s guilt. However, if from all the evidence in the case you are satisfied beyond a reasonable doubt of the defendant's guilt, then it is your duty to find him guilty, even though he may have a good reputation for truth and veracity.\u201d\nDefendant argues that because the State alleged his motive to kill his wife was marital problems, the following modified version of IPI Criminal 2d No. 3.16 should have been given:\n\u201cThe defendant has introduced evidence of his reputation as a faithful and loving husband. This evidence may be sufficient when considered with the other evidence in this case to raise a reasonable doubt of the defendant\u2019s guilt.\u201d\nIt is apparent that defendant\u2019s instruction is not merely a modified version of IPI Criminal 2d No. 3.16 as he alleges, but rather a separate nonpattern jury instruction. As previously noted, the decision whether to give a nonpattern instruction is within the sound discretion of the trial court, and once again, we find no abuse of that discretion here.\nA review of the record discloses that none of the witnesses mentioned by defendant in his brief testified to defendant\u2019s reputation as being a \u201cfaithful and loving husband.\u201d Rather, they offered their personal opinions based on their own observations of defendant\u2019s marital bliss. As such, the proposed instruction was not supported by the evidence. Moreover, even if we were to consider defendant\u2019s instruction a form of IPI Criminal 2d No. 3.16, our research has revealed no case which has held that being a \u201cfaithful and loving husband\u201d is an appropriate character trait to be included in that instruction.\nEven assuming error occurred when the trial court refused to tender defendant's nonpattern jury instructions, reversal is not required unless defendant was so prejudiced as to affect the jury\u2019s verdict. (People v. Bertucci (1980), 81 Ill. App. 3d 851, 401 N.E.2d 1123.) Defendant has failed to demonstrate that any such prejudice resulted in this case.\nVII\nLastly, defendant urges that his sentence to natural life in prison is excessive and should be reduced to 30 years. In support of this argument, defendant asserts that he was 26 years old at the time of sentencing, was employed at the time of his arrest, and complied with the bond conditions for two robbery convictions in 1976.\nOur examination of the record before us reveals that the trial court thoroughly considered those factors now articulated by defendant as well as other mitigating evidence that was presented. The court, however, properly weighed against these factors the necessity of an adequate punishment for the crime committed. In this regard, the court found that defendant \u201cin a cold and calculating way did spearhead the tragic events\u201d leading to his wife\u2019s murder. The court also found that the confessions of Joe and Ken Beringer introduced in aggravation supported the \u201cdepth of the culpability of defendant,\u201d particularly where Joe Beringer stated that defendant told him to make sure his wife was dead and that any leftover insurance money would be his and Galason\u2019s.\nThe imposition of a sentence is within the discretion of the trial court (People v. Almo (1985), 108 Ill. 2d 54, 70, 483 N.E.2d 203), and absent an abuse of that discretion, this court cannot modify the sentence. (People v. Cox (1980), 82 Ill. 2d 268, 280-81, 412 N.E.2d 541.) In the present case, the crime was of a particularly heinous nature, and we conclude that the trial court did not abuse its discretion in sentencing defendant to life imprisonment.\nFor the forgoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nCAMPBELL and O\u2019CONNOR, JJ., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "Steven Clark and Richard F. Faust, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat and Patrick J. Foley, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD BARKAUSKAS, Defendant-Appellant.\nFirst District (1st Division)\nNo. 83\u20140883\nOpinion filed August 25, 1986.\nSteven Clark and Richard F. Faust, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat and Patrick J. Foley, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0360-01", "first_page_order": 382, "last_page_order": 395 }