{ "id": 3554616, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE BROOKS, Defendant-Appellant", "name_abbreviation": "People v. Brooks", "decision_date": "1988-09-20", "docket_number": "No. 86-1107", "first_page": "136", "last_page": "149", "citations": [ { "type": "official", "cite": "175 Ill. App. 3d 136" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "268 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] }, { "cite": "428 N.E.2d 503", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 397", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3081254 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0397-01" ] }, { "cite": "481 N.E.2d 1272", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 534", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599264 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0534-01" ] }, { "cite": "430 N.E.2d 1091", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. 2d 245", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3083259 ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0245-01" ] }, { "cite": "116 Ill. App. 3d 384", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3520847 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0384-01" ] }, { "cite": "253 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "43 Ill. 2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2844221 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-2d/43/0375-01" ] }, { "cite": "503 N.E.2d 778", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 558", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3539295 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0558-01" ] }, { "cite": "197 N.E.2d 436", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "30 Ill. 2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826177 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-2d/30/0359-01" ] }, { "cite": "508 N.E.2d 202", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1964, "opinion_index": 0 }, { "cite": "116 Ill. 2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542942 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/ill-2d/116/0265-01" ] }, { "cite": "469 N.E.2d 275", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 642", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3562925 ], "weight": 2, "pin_cites": [ { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0642-01" ] }, { "cite": "481 N.E.2d 744", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 113", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3601148 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0113-01" ] }, { "cite": "458 N.E.2d 1312", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 900", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3593132 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0900-01" ] }, { "cite": "469 N.E.2d 1062", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "103 Ill. 2d 472", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152531 ], "weight": 4, "pin_cites": [ { "page": "477" }, { "page": "477-78" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0472-01" ] }, { "cite": "495 N.E.2d 1207", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "145 Ill. App. 3d 626", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3535572 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0626-01" ] }, { "cite": "500 N.E.2d 1074", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "149 Ill. App. 3d 684", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3462080 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0684-01" ] }, { "cite": "469 N.E.2d 368", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 784", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3562211 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0784-01" ] }, { "cite": "513 N.E.2d 367", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "117 Ill. 2d 271", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545542 ], "weight": 2, "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/117/0271-01" ] }, { "cite": "123 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550970 ], "weight": 4, "pin_cites": [ { "page": "198" }, { "page": "194-97" }, { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0184-01" ] } ], "analysis": { "cardinality": 1131, "char_count": 30431, "ocr_confidence": 0.782, "pagerank": { "raw": 2.6275973740904645e-07, "percentile": 0.8219162584382332 }, "sha256": "737226221db041efe9fec4899182865c9be8d45d34951ca00c9e25c1347116f9", "simhash": "1:3a2b0ace72a2b4ac", "word_count": 5022 }, "last_updated": "2023-07-14T17:24:13.630237+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. JOE BROOKS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SCARIANO\ndelivered the opinion of the court:\nFollowing a jury trial, defendant was found guilty of murder and sentenced to 30 years\u2019 imprisonment. He appeals, arguing that: (1) the trial court erred in failing to inquire into the bias of prospective jurors; (2) he was denied a fair trial by the assistant State\u2019s Attorney\u2019s references to the victim\u2019s family; (3) the evidence does not support his conviction; (4) he was denied a fair trial by the assistant State\u2019s Attorney\u2019s cross-examination; (5) the trial court erred in admitting evidence of his four prior convictions; (6) the trial court abused its discretion in sentencing him to 30 years\u2019 imprisonment; and (7) the voluntary manslaughter instruction given in this case incorrectly stated the State\u2019s burden of proof.\nAt trial, Mary Brooks, defendant\u2019s sister, testified that she lived with the victim, Edward Youngblood, and their two daughters. On February 8, 1985, defendant came to Mary\u2019s home at approximately 5:30 p.m., and the victim returned home two hours later. Defendant asked Youngblood for money that he owed him and, when the victim replied that he did not have it, defendant began \u201ccussing\u201d at him. The two men went into a bedroom to discuss the matter, but defendant was still upset when they returned to the kitchen. Later in the evening defendant and Youngblood left the apartment together to go to a store, and when they returned they were no longer fighting but rather just talking. Youngblood went down to another apartment to visit some friends, and defendant followed him about 10 minutes later. The people in the apartment would not allow defendant to enter, so defendant and Youngblood returned to Mary\u2019s apartment, laughing and talking. At approximately 9 p.m., defendant and Youngblood returned to their friends\u2019 apartment, but about 10 minutes later Mary brought Youngblood back to her apartment. Youngblood later returned to the friends\u2019 apartment with his seven-year-old daughter, who returned to Mary\u2019s apartment shortly thereafter. Mary then heard a \u201ccommotion\u201d and \u201ccussing\u201d and, upon going out in the hallway, saw Youngblood standing on the steps at the landing between the 8V2 and the 9th floors of the apartment building, his arms and chest bleeding, and saw defendant standing on the landing between the eighth and ninth floors. Defendant was holding a knife with a blade approximately 12 inches long, which he was swinging toward Youngblood as Youngblood backed up the stairs. Mary pulled Youngblood away and he turned and walked into their apartment. Defendant also went into the apartment, stopped in the living room to make a phone call, and then walked into the room Youngblood was in and began swinging his knife at him. Youngblood picked up a chair and used it as a shield, and defendant began hitting the chair with the knife, breaking the chair. Youngblood then picked up a bookcase, holding it in front of him as he walked forward, forcing defendant to walk out of the apartment. Defendant continued swinging the knife towards Youngblood, and by the time they were out in the hallway, Youngblood was holding just one piece of the bookcase. Clarence Coleman and Joseph Williams came out of their apartment just as Youngblood was standing at the top of the stairs on the ninth floor and defendant stood on the landing between the eighth and ninth floors. Coleman and Williams grabbed defendant, trying to take the knife away from him. Youngblood threw the piece of bookcase he was holding at Brooks, but hit Williams instead. Defendant broke loose of the two men, \u201ccharged\u201d up the stairs and stabbed Youngblood in the chest. Prior to this time Youngblood had not fought back or threatened defendant, but he now began to fight.\nClarence Coleman testified that on February 8, 1985, defendant and three others were in an eight-floor apartment drinking and gambling. At approximately 10 p.m., Youngblood and his daughter arrived. Defendant was drunk and upset, and Youngblood asked defendant to come upstairs with him. He did not threaten defendant, but could not convince him to leave. When Mary came in, Youngblood and their daughter left with her. Approximately 15 minutes later Youngblood returned with his daughter, and when he left, defendant stated \u201cI\u2019m going upstairs to get that nigger.\u201d Defendant left, and approximately 20 minutes later Coleman heard a \u201ccommotion.\u201d He and Williams went out into the hallway and saw defendant holding a knife in his hands and Youngblood bleeding. Defendant charged at Youngblood, jabbing him with the knife, after Youngblood threw a stick towards him. Coleman never saw Youngblood threaten defendant, nor did he see Youngblood with a weapon.\nA medical examiner testified that Youngblood had a total of four stab wounds, one to the left armpit, one to the left chest which punctured the left lung, one to the left elbow and one to the right lower back. Youngblood also had 12 incise wounds: three to his face, four on his chest, two on his back, two on his left arm, and a defense wound on the palm of his right hand. He also had a total of nine abrasions on his body. The doctor testified that all wounds were inflicted at approximately the same time and that Youngblood died as a result of the multiple stab and incise wounds.\nDefendant testified on his own behalf.\" He stated that he asked Youngblood for money he owed him and Youngblood replied he would not pay it. Youngblood began arguing with defendant because defendant would not allow him to have any of his liquor. Youngblood \u201cgot in a heated rage\u201d and came at defendant, but defendant\u2019s brother stepped in and \u201cbroke it up.\u201d Mary asked defendant to leave, which he did, and he did not return to Mary\u2019s apartment that day. Youngblood followed defendant out of the apartment, wanting to talk to him. Defendant responded that he had nothing to talk about with Youngblood and left to go to the store. Youngblood arrived at the store while defendant was there. Defendant then went to Coleman\u2019s apartment, where Youngblood arrived shortly before defendant fell asleep. When defendant awoke Youngblood was gone. Defendant denied ever telling Coleman he was \u201cgoing to get\u201d Youngblood. As defendant left the apartment he encountered Youngblood, who told him \u201cI\u2019m going to teach you about running me off,\u201d which defendant testified meant embarrassing him. Youngblood then began hitting defendant in the face with his fists. Defendant was dazed and as he began to fall backwards he reached forward, grabbing Youngblood around the waist and, feeling a knife in his waistband, took it from him. Youngblood ran upstairs and then returned with a stick which he used to beat defendant about the face and hands. Defendant fell down as Youngblood advanced upon him, and defendant began swinging the knife \u201cwildly.\u201d Coleman and Williams grabbed defendant while Youngblood chanted and called names, then threw his stick at defendant, hitting Williams. Youngblood ran back to his apartment, returning with a chair and a stick which had been part of a bookcase. He hit defendant with the stick while blocking himself with the chair. Defendant was swinging the knife at Youngblood, asking him \u201cWhat\u2019s wrong with you?\u201d After that Youngblood \u201clay there and quit swinging the stick.\u201d Defendant then left and went to a gas station, where he asked an attendant to call the police. When the police arrived he told them that he had been in a fight, that a \u201cguy\u201d was trying to kill him and that he had cut him. He also relinquished his knife to the police. The police took him to the hospital, where he was treated for cuts over his eye and finger and thumb and a splint was placed on his finger and thumb.\nOn cross-examination, defendant testified that he took the knife from Mary, then stated that he took it from \u201chim\u201d and not Mary. By stipulation, the defense presented evidence that defendant told a nurse at the hospital that he was hit on the right hand with an unknown object, he was examined and found to have swelling and tenderness of the left hand. There was an abrasion on defendant\u2019s right wrist and a half-inch superficial laceration on his face. Defendant was under the influence of alcohol and in acute distress.\nThe jury returned a verdict finding defendant guilty of murder, and the trial judge sentenced him to 30 years\u2019 imprisonment. He appeals.\nOpinion\nDefendant relies on the recent supreme court case of People v. Reddick (1988), 123 Ill. 2d 184, consolidated with People v. Lowe, cause No. 65002, in support of his argument that the jury instructions given in his case were incorrect and denied him a fair trial. This argument was not raised before the trial court, but defendant contends that this court should consider this issue under the plain error doctrine. (Reddick, 123 Ill. 2d at 198.) The instructions at issue state in part as follows:\n\u201cTo sustain the charge of murder, the State must prove the following propositions:\nFirst: That the defendant performed the acts which caused the death of Edward Youngblood; and\nSecond: That when the defendant did so, he intended to kill or do great bodily harm to Edward Youngblood; or he knew that his act would cause death or great bodily harm to Edward Youngblood; or he knew that his acts created a strong probability of death or great bodily harm to Edward Youngblood; and\nThird: That the defendant was not justified in using the force which he used.\u201d Illinois Pattern Jury Instructions, Criminal, Nos. 7.02, 24\u201425.06 (2d ed. 1981) (hereinafter IPI Criminal 2d).\n\u201cTo sustain the charge of voluntary manslaughter, the State must prove the following propositions:\nFirst: That the defendant performed the acts which caused the death of Edward Youngblood; and\nSecond: That when the defendant did so, he intended to kill or do great bodily harm to Edward Youngblood; or he knew that his acts would cause death or great bodily harm to Edward Youngblood; or he knew that his acts created a strong probability of death or great bodily harm to Edward Youngblood; and\nThird: That when the defendant did so he believed that circumstances existed which would have justified killing Edward Youngblood; and\nFourth: That the defendant\u2019s belief that such circumstances existed was unreasonable.\u201d IPI Criminal, 2d No. 7.06.\nIn Reddick, the supreme court held that the IPI voluntary manslaughter instruction, when read in conjunction with the instruction for murder, fails to inform the jury that the State bears the burden of disproving mitigating mental states.\n\u201cThe voluntary manslaughter instructions indicate that to obtain a voluntary manslaughter conviction the People must prove the existence of one of the alternative mitigating mental conditions which the People contend did not exist. By contrast, the murder instruction makes no mention of the mitigating mental conditions. These instructions essentially assure that, if the jury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter. The reason is that even if a mitigating state is proved, it will have been proved by the defendant, not the People.\n* * *\nThe burden-of-proof instructions regarding both voluntary manslaughter and murder *** were thus incorrect in placing upon the People the burden of proving the existence of intense passion or unreasonable belief in justification. The instructions should have placed upon the People the burden of disproving the existence of either of these two states of mind.\u201d (Reddick, 123 Ill. 2d at 194-97.)\nThe court went on to reverse defendants\u2019 convictions and remand their cases for new trials, holding that the incorrect instructions constituted \u201cgrave error\u201d warranting reversal, even though defendants had not objected to the instructions as given.\nThe State responds that pursuant to the test announced in People v. Erickson (1987), 117 Ill. 2d 271, 513 N.E.2d 367, Reddick should not be applied retroactively. In Erickson the supreme court held that judicial opinions announcing new constitutional rules will be applied retroactively when the following factors are present: \u201c(1) the case to which the new rule is to be applied was not final or was pending on direct review when the rule was declared and (2) the rule to be applied retroactively is of constitutional dimension.\u201d (117 Ill. 2d at 289.) The State maintains that Reddick relates to a procedural matter and is not of \u201cconstitutional dimension.\u201d\nWe disagree. Reddick held that the jury was not correctly instructed as to the State\u2019s burden of proof when the IPI jury instructions on murder and voluntary manslaughter were given. The right of an accused to have the State prove all the elements of his alleged crime (People v. Turner (1984), 127 Ill. App. 3d 784, 469 N.E.2d 368) is incontestably of constitutional dimension, and a ruling regarding that right must be applied retroactively.\nThe State also argues that defendant failed to present any evidence or argue that he had an unreasonable belief in justification, and therefore it did not have to disprove the mental state of unreasonable belief. The State further argues that any instruction on voluntary manslaughter, even an incorrect one, inured to the benefit of defendant. This argument is meritless, for our supreme court has held that \u201cgrave\u201d and reversible error occurs when a jury is given an erroneous instruction on voluntary manslaughter. Reddick, 123 Ill. 2d at 198.\nFinally, the State contends that the instant case is distinguishable from Reddick in that here the record, when viewed as a whole, demonstrates that the jury knew that the State bore the burden of disproving that defendant was acting with an unreasonable belief that the killing was justified. We disagree. There is nothing in the record of this case, whether we view its components separately or as a unitary whole, which would correct in any fashion the improper instruction the jury was given. Moreover, we must assume that the jury followed the instructions given (People v. Bernard (1986), 149 Ill. App. 3d 684, 500 N.E.2d 1074; People v. Jackson (1986), 145 Ill. App. 3d 626, 495 N.E.2d 1207), and therefore applied incorrect law.\nSince defendant\u2019s conviction must be reversed and his case remanded pursuant to Reddick we need not resolve his remaining contentions. However, we address the following issues in the event that they arise again during retrial.\nDefendant contends that he was denied a fair trial when the trial court failed to ask prospective jurors either individually or as a group if they would have any hesitation in returning a verdict of not guilty should the State fail to sustain its burden of proof and whether the prospective jurors understood that the defendant is presumed innocent and need not offer any evidence in his own behalf. People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062.\nIn Zehr, the Illinois Supreme Court stated:\n\u201cWe are of the opinion that essential to the qualification of jurors in a criminal case is that they know that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held against him. If a juror has a prejudice against any of these basic guarantees, an instruction given at the end of the trial will have little curative effect. It is also vital to the selection of a fair and impartial jury that a juror who finds that the State has failed to sustain its burden of proof of guilt beyond a reasonable doubt have no prejudices against returning a verdict of not guilty.\u201d (103 Ill. 2d at 477.)\nThe court went on to hold that the trial court\u2019s refusal to ask questions tendered by defendant which covered the critical issues referred to by the supreme court in its opinion was prejudicial error requiring reversal. The court rejected the State\u2019s argument that the voir dire question to prospective jurors on their ability to follow the law as given by the court even though they might personally disagree with it was sufficient in and of itself to detect juror bias.\nDefendant acknowledges that his counsel did not submit questions regarding jury bias, but contends that this court has held \u201cin the analogous context of jury instructions that the court, not counsel, bears the burden of seeing that the jury is properly admonished on the presumption of innocence and burden of proof.\u201d (People v. Williams (1983), 120 Ill. App. 3d 900, 458 N.E.2d 1312.) Defendant argues that the court\u2019s duty to question prospective jurors during voir dire on the presumption of innocence and burden of proof is even more important than the duty to instruct the jury, noting the Zehr court\u2019s statement that an instruction given at the end of trial will have little effect on a juror\u2019s bias. Zehr, 103 Ill. 2d 472.\nDefendant also maintains that the trial judge\u2019s inaccurate statement of the law compounded his error in not asking the Zehr questions. He stated:\n\u201cUnder the law the defendant is presumed innocent of the charges in this indictment. This presumption will remain with Mr. Brooks throughout the trial until the twelve or fourteen of you, who are selected as jurors, at the conclusion of all the evidence become satisfied by the evidence in the case, if you can, beyond a reasonable doubt standard that Mr. Brooks is guilty.\nThe law does not require Mr. Brooks to prove his innocence.\u201d\nDefendant contends that the word \u201cuntil\u201d presumes guilt, and the word \u201csatisfies\u201d connotes an incorrect preponderance standard of proof.\nThe State responds that defendant has waived this issue by failing to submit suggested questions regarding juror bias, by failing to object to the lack of inquiry and by failing to raise the issue in a post-trial motion, relying, in support of its argument, on People v. Visnack (1985), 135 Ill. App. 3d 113, 481 N.E.2d 744, and People v. Estes (1984), 127 Ill. App. 3d 642, 469 N.E.2d 275. In Visnack, defense counsel requested that the court question prospective jurors as to their attitude toward defendant\u2019s right to refrain from testifying. The trial judge agreed to ask the question, but neglected to do so, without objection from defense counsel. The appellate court upheld defendant\u2019s conviction, stating:\n\u201cAlthough the failure to question or instruct prospective jurors on this point [potential bias] has been considered reversible error (People v. Zehr (1984), 103 Ill. 2d 472, 477-78, 469 N.E.2d 1062), defendants have waived the issue by their failure to make a timely objection, and we cannot say that plain error exists here, in light of the overwhelming evidence against defendants.\u201d 135 Ill. App. 3d at 124.\nIn Estes, defense counsel made a vague suggestion that the trial court \u201cjust briefly assure that each individual juror will go along with the reasonable doubt standard.\u201d (Estes, 127 Ill. App. 3d at 655.) On appeal, Estes argued that the trial court\u2019s failure to question the prospective jurors regarding the State\u2019s burden of proof was reversible error. The appellate court declined to find a violation of the rule announced in Zehr, stating:\n\u201cTo find that the court has committed error here, where no question was actually submitted, in our opinion pushes the Zehr rule too far.\n*** For us to rule that the court erred in refusing to allow a question which was not actually submitted would be to transform the duty of the trial court into an unreasonable burden.\u201d 127 Ill. App. 3d at 655.\nIn the event that this court finds that defendant has not waived this issue, the State maintains that the trial court adequately instructed and questioned prospective jurors regarding the presumption of innocence and the State\u2019s burden of proof. In addition to making the statement regarding the presumption of innocence, which defendant claims is incorrect, the trial judge also asked each individual juror whether he or she would be able to follow the judge\u2019s instructions and whether there was any reason why any juror could not be fair and impartial. The State also contends that the judge\u2019s misstatement of the law was harmless, because an instruction which accurately states the law regarding the presumption of innocence was given.\nBecause this case is remanded for a new trial, we need not decide this issue. During retrial, both parties will be required, of course, to adhere to Zehr, and to ensure that all issues which should be addressed in voir dire will, in fact, be covered.\nDefendant next argues that he was denied a fair trial by the prosecutor\u2019s references to the victim\u2019s family. During his opening statement, the prosecutor made the following comments:\n\u201cUp until February 8, 1985 Edward Youngblood was the father of two little girls age 7, and up until February 8, 1985 he lived with a woman named Mary Brooks, the mother of those twin little girls, and he lived on that date in the projects at 4429 South Federal in Chicago. It\u2019s not too far from here. And up until February 8, 1985 things were tough for Edward Youngblood and Mary Brooks raising two little girls in the projects. Money for food, clothing\u2014\nDEFENSE COUNSEL: Objection.\nTHE COURT: Sustained.\nPROSECUTOR: The evidence will show, ladies and gentlemen, that Edward Youngblood, like any father, did what he could to support his family.\nDEFENSE COUNSEL: Objection.\nTHE COURT: Overruled.\nPROSECUTOR: The evidence will show that Edward Youngblood was a good father.\nDEFENSE COUNSEL: Objection.\nTHE COURT: Overruled.\nPROSECUTOR: The evidence will show that Edward Youngblood[,] that Monday, because February 8, 1985 was a Friday, was to start a job, to do what he could for his family. But, you see, Edward Youngblood never made it to that job. He never made it. And he didn\u2019t make it because that man stabbed him multiple times to death, and he died. You are going to learn from the evidence, and the evidence is witnesses who take that witness stand, exhibits that you will see and have when you deliberate, and stipulations. *** You are going to learn from the evidence that Mary Brooks, Edward Youngblood\u2019s common-law wife, is the defendant\u2019s sister. That\u2019s right. He\u2019s the uncle of the twin little girls, Uncle Junior.\nDEFENSE COUNSEL: Objection.\nTHE COURT: Overruled.\nPROSECUTOR: Well, why would an uncle want to kill the little girls\u2019 father? Money? The evidence will show that Edward Youngblood borrowed money from that man and had problems paying it back. The defendant didn\u2019t like that. And that\u2019s where this begins in the early evening hours of February 8, 1985.\u201d\nThe prosecutor asked the following question of Mary Brooks:\n\u201cQ. Edward Youngblood, did he have an education?\nDEFENSE COUNSEL: Objection.\nTHE WITNESS: Yes.\nPROSECUTOR: Judge, I believe the jury has a right to know about the victim.\nTHE COURT: Overruled.\nPROSECUTOR: Did he have an education?\nA. Yes.\nQ. Would you tell us what education he had?\nA. He was a- high school graduate and he had training in accounting and some training in the Army and Navy.\u201d\nIn his closing argument, the prosecutor again reminded the jury that the victim was the father of two little girls and stated that \u201c[tjhings have gotten real hard\u201d for the deceased\u2019s family.\nDefendant contends that such references to the victim\u2019s family are improper and prejudicially arouse the sympathy and passions of the jury. (People v. Hope (1986), 116 Ill. 2d 265, 508 N.E.2d 202; People v. Bernette (1964), 30 Ill. 2d 359, 197 N.E.2d 436; People v. Beringer (1987), 151 Ill. App. 3d 558, 503 N.E.2d 778.) Defendant further maintains that the prosecutor\u2019s comments about the quality of the deceased\u2019s life were particularly prejudicial in this case because the jury was required to decide whether the deceased had been the aggressor or at least involved in mutual combat.\nThe State argues that references to the victim\u2019s family were \u201cunavoidable as explanatory of the crime\u201d and incidental. The State further contends that such comments were invited by defense counsel; however, given that defendant complains of statements made during the prosecutor\u2019s opening argument, this argument is arrantly disingenuous. Finally, the State argues that any improper remarks were harmless error, because the evidence of defendant\u2019s guilt was overwhelming and the jury could not have come to a different result.\nThe prosecutor made numerous references to the quality of the victim\u2019s life and his family. There was testimony and evidence that defendant was involved in a fight with the deceased, and the prosecutor\u2019s remarks may well have influenced the jury to find defendant guilty of murder rather than a lesser offense. During retrial, the prosecutor must, as required by well-established and well-defined authority (People v. Hope (1986), 116 Ill. 2d 265, 508 N.E.2d 202; People v. Bernette (1964), 30 Ill. 2d 359, 197 N.E.2d 436; People v. Beringer (1987), 151 Ill. App. 3d 558, 503 N.E.2d 778), avoid making any references to the victim or his family which serve only to inflame the emotions of the jury.\nDefendant next maintains that he was denied a fair trial by the prosecutor\u2019s failure to perfect impeachment of him. The prosecutor asked defendant the following questions:\n\u201cPROSECUTOR: Do you remember talking to the State\u2019s Attorney after your arrest, a person by the name of Thomas Wright? I believe you said you talked to police officers and a State\u2019s Attorney?\nA. Right, yes.\nQ. Do you remember telling the State\u2019s Attorney you stabbed Edward Youngblood one time?\nA. Pardon me?\nQ. Do you remember telling the State\u2019s Attorney Thomas Wright that you stabbed Youngblood one time?\nA. I told him I stabbed Edward Youngblood.\nQ. One time?\nA. I didn\u2019t state how many times because I myself didn\u2019t know how many times.\u201d\nThe State did not perfect impeachment when it failed to show that the alleged inconsistent statement was ever made. Defendant contends that this failure meant that he was subjected to an improper tactic of substituting insinuation and innuendo for proof. (People v. Nuccio (1969), 43 Ill. 2d 375, 253 N.E.2d 353; People v. Starks (1983), 116 Ill. App. 3d 384.) Defendant further maintains that since his defense was that he was involved in a fight, he therefore did not know how many times he stabbed the victim. According to defendant, the State\u2019s insinuation of a contrary statement minimizing the number of stabbings conveyed \u201ca consciousness of guilt inconsistent with a genuine belief, either reasonable or unreasonable, that Brooks\u2019 conduct was justified.\u201d Defense counsel did not object to the above questions, because no error occurred until the prosecutor failed to present rebuttal evidence. (People v. Nuccio, 43 Ill. 2d 375, 253 N.E.2d 353.) In response to the State\u2019s argument that defendant waived this issue by failing to raise it in his post-trial motion (People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091), defendant claims that this issue is reviewable under the doctrine of plain error (107 Ill. 2d R. 615(a)).\nAddressing the merits of defendant\u2019s argument, the State contends that it has a right to cross-examine defendant on matters raised in his direct testimony in an attempt to explain, modify, discredit or contradict it. Additionally, the State argues that in order for the failure to complete impeachment to rise to the level of reversible error, the unfounded insinuation must be substantiated, repeated and prejudicial. People v. Redman (1985), 135 Ill. App. 3d 534, 481 N.E.2d 1272.\nDefendant responds that the error need not be repeated before it requires reversal if it prejudices defendant, citing People v. Giagrande (1981), 101 Ill. App. 3d 397, 428 N.E.2d 503; however, that case did not involve failure to perfect impeachment. Here, the State should have perfected its impeachment and if the occasion arises on remand it should take care to do so.\nDefendant next contends that the trial court allowed evidence of defendant\u2019s four prior convictions to go to the jury without considering \u201cthe probative value against the prejudice in allowing these convictions in evidence, or considering the obvious prejudicial effect of sending all four convictions back to the jury.\u201d\nDefendant had four prior convictions: a 10-year old 1976 conviction for misdemeanor theft, simultaneous 1979 convictions for felony theft and possession of burglary tools, and a 1979 conviction for robbery. In allowing evidence of these convictions to go to the jury, the judge stated:\n\u201cAll of them are within the ten years. All of them are either felonies or in the case of thefts or they in my opinion go to basic honesty and integrity, and so they are permissible provables.\u201d\nDefendant argues that his convictions are not relevant to his credibility, but are inherently prejudicial, especially since the jury was told of all four of them.\nThe State responds that defendant has waived this issue by failing to raise it at trial and failing to raise it in his post-trial motion. In the event that this court finds that this issue is not waived, the State contends that the trial judge properly admitted evidence of defendant\u2019s convictions. The Illinois Supreme Court has held that the trial court may, in its discretion, admit evidence of defendant\u2019s prior convictions for impeachment purposes after balancing the probative value of those convictions against their prejudicial effect. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) Montgomery does not require the trial judge to verbalize his thoughts, but requires only that the court consider the probative value of convictions and their prejudicial effect.\nHere, the convictions were \u201cpermissible provables\u201d and this court must therefore assume that the trial judge properly considered the prejudicial effect of admitting evidence of them before making his ruling.\nFor the foregoing reasons the judgment of the circuit court of Cook County is reversed and this cause remanded for a new trial.\nReversed and remanded.\nHARTMAN, P.J., and EGAN, J., concur.\nDefendant testified at trial, so the question of his right not to testify is not an issue in this case.", "type": "majority", "author": "JUSTICE SCARIANO" } ], "attorneys": [ "Paul P. Biebel, Jr., Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund and Judy L. Groeneveld, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE BROOKS, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 86\u20141107\nOpinion filed September 20, 1988.\nPaul P. Biebel, Jr., Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund and Judy L. Groeneveld, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0136-01", "first_page_order": 158, "last_page_order": 171 }