{ "id": 2680965, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR ROBINSON, Defendant-Appellant", "name_abbreviation": "People v. Robinson", "decision_date": "1989-09-22", "docket_number": "No. 1\u201485\u20140893", "first_page": "323", "last_page": "355", "citations": [ { "type": "official", "cite": "189 Ill. App. 3d 323" } ], "court": { "name_abbreviation": "Ill. 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ARTHUR ROBINSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE PINCHAM\ndelivered the opinion of the court:\nA jury found defendant, Arthur Robinson, guilty of the murder of his girl friend Allie Bee Anderson, with whom he lived in a Chicago, Illinois, apartment building. The trial court sentenced the defendant to an extended term of 70 years\u2019 imprisonment. On this appeal defendant Robinson contends for reversal that he was denied a fair trial because of (1) the prosecutor\u2019s noncompliance with discovery and failure to furnish defendant\u2019s attorney with defendant Robinson\u2019s oral statement of and the admission of the totally unrelated testimony of defendant Robinson\u2019s argument with and threat to kill the apartment building custodian hours before Anderson was killed; (2) the prosecutor\u2019s unsupported assertion to the jury, in the complete absence of any proof, that State witness and Anderson\u2019s neighbor, Juana Buckner, told the police that she recognized the defendant Robinson\u2019s voice as the voice of Anderson\u2019s assailant in Anderson\u2019s apartment during the fatal attack upon her; (3) the State\u2019s extensive inadmissible hearsay testimony that Anderson, the deceased, called defendant Robinson by the name \u201cOmar,\u201d to connect defendant Robinson with the homicide; (4) the State\u2019s inflammatory, prejudicial, irrelevant, inadmissible hearsay evidence that the defendant Robinson had not paid his rent and that State witnesses had told Anderson, the deceased, to leave and move to Indiana; (5) the prosecutor\u2019s erroneous and improper representation to the jury that defendant Robinson\u2019s attorney before trial withheld and destroyed his investigative notes; (6) the trial court\u2019s erroneous refusal to give the jury the second paragraph of Illinois Pattern Jury Instructions, Criminal, No. 3.02 (2d ed. 1981) (IPI Criminal 2d) on circumstantial evidence; (7) the trial court\u2019s erroneous refusal to instruct the jury on voluntary manslaughter; (8) the evidence failed to prove defendant Robinson guilty beyond a reasonable doubt; and (9) the extended-term 70 years\u2019 imprisonment sentence was improper. We reverse and remand for a new trial. Our reasons follow.\nJuana Buckner and her husband Cornell Buckner lived in an apartment next door to the apartment in which Allie Bee Anderson\u2014 the deceased \u2014 and her live-in boyfriend, defendant Arthur Robinson, lived. Juana Buckner and Allie Bee Anderson were also co-workers, as maids, at a nearby hotel and defendant Robinson walked them to work daily. About 3:30 p.m. on May 6, 1983, the date of the homicide, defendant Robinson and Cornell Buckner picked up Juana Buckner and Allie Bee Anderson at the hotel. Before the four of them left the hotel, Juana Buckner, while talking to Cornell down the hall, overheard what sounded to her like an argument between Anderson and defendant Robinson. When the four of them left the hotel, the Buckners parted Anderson and Robinson\u2019s company to go shopping. Later, when the Buckners returned to their apartment about 5 p.m., they overheard the fatal altercation in Anderson\u2019s apartment between Anderson and her assailant. To avoid repetition, the more specific details of the Buckners\u2019 witnessing of the incident are later set forth herein.\nAnderson\u2019s son, Roscoe Harris, and his girl friend, Elisha Ingram, who lived in Indiana, had a key to Anderson\u2019s apartment and frequently visited Anderson on weekends. About 11 p.m. on May 6, 1983, Elisha Ingram, Roscoe Harris and his brother, Victor Harris, came to Chicago on a surprise visit to Anderson. They found the front and rear doors to the apartment locked and the back bedroom window broken. They also discovered Anderson\u2019s body lying on the back bedroom floor. Anderson\u2019s clothing was packed in a carrying case in the front closet. Elisha Ingram noticed writing scribbled on the living room wall, and she described a large picture also on the living room wall as a mural, initialed, \u201cBee\u2019s Paradise,\u201d designed for Anderson by her former boyfriend, Walter Hiawatha.\nAnderson\u2019s neighbor and co-worker, Juana Buckner, knew that Hiawatha was Anderson\u2019s former boyfriend, that Hiawatha still \u201chung around\u201d Anderson\u2019s apartment building and that after Hiawatha and Anderson broke up, Hiawatha would occasionally come by the hotel where Anderson worked and attempt to walk Anderson home, but Anderson would refuse. A few weeks before Anderson\u2019s homicide, Juana Buckner and Anderson were approached by Hiawatha as they entered a cab. Hiawatha attempted to grab Anderson\u2019s clothes. Although Juana Buckner admitted that she said in her pretrial statement that Hiawatha yanked Anderson out of the cab, at trial, however, Juana Buckner denied this occurrence. Juana Buckner further admitted that, a few weeks before Anderson\u2019s homicide, Hiawatha had followed Anderson and Buckner around and that Hiawatha followed Buckner and Anderson all the way home from the hotel at which they worked.\nChicago police department evidence technician Joseph Moran testified that when he arrived at Allie Bee Anderson\u2019s apartment, he observed her body with her bra and underpants pulled down. (Sperm were later discovered in her vagina.) Anderson was dead from multiple knife wounds.\nEvidence technician Moran recovered two knives from the apartment which he took to the crime laboratory but did not process. Moran also lifted an undetermined number of fingerprints from the wall, the pantry door, a metal table leg, a metal table stand, and a piggybank inside the apartment. He also observed and photographed the scribbling on the wall, but the trial court refused to allow defense counsel to cross-examine him on whether he could identify the letters of or read the scribbling. Elisha Ingram and Roscoe also observed the scribbling on the wall, which had not been there before.\nAfter discovering their mother\u2019s body in her apartment, Roscoe Harris, his brother Victor, and two of their friends went looking for Arthur Robinson. They waited for him on the street corner at the deceased\u2019s building for one and a half hours. When Robinson arrived, Roscoe and Victor Harris and their two friends approached him, whereupon Robinson stated, \u201cI didn\u2019t do nothing. I didn\u2019t do nothing.\u201d The four beat and kicked Robinson until the police arrived.\nChicago police officer Reeger testified that he observed the four men beating Arthur Robinson and stopped them. After speaking to the Harris brothers, Officer Reeger arrested Robinson. Because of the injury and bleeding of Robinson\u2019s head inflicted by the Harris brothers and their two friends, Officer Reeger took Robinson to the hospital for treatment.\nRobert Lenz, a Chicago police department crime laboratory micro-analyst, testified that after examining their blood samples, he determined that defendant Robinson\u2019s blood was a type 0 and deceased Anderson\u2019s blood was a type B. Robinson\u2019s T-shirt was positive for blood type 0 and blood type B was found on Robinson\u2019s jogging pants which had been ripped off him. Microanalyst Lenz further related that type B blood was not identifiable to a particular person and was consistent with anyone who had type B blood; that anyone who bled during a mutual struggle and came in contact with Robinson could have been the source of the type B blood that was found on his clothing at the time of his microanalysis; Lenz did not know that Robinson had been injured in a fight which involved mutual bloodshed and he did not obtain the blood type of Roscoe Harris, or anyone else. Lenz did not know the source of the type B blood on Anderson\u2019s clothing or how long it had been there.\nChicago police officer Thomas Krupowicz, a fingerprint analyst, testified that of the 36 suitable fingerprints lifted from the metal table stand in the apartment of the deceased Anderson and the defendant Robinson, 10 fingerprints belonged to Robinson and two belonged to Anderson; the remaining 24 suitable fingerprints did not belong to Robinson or Anderson and Krupowicz had not determined to whom these fingerprints belonged. A single suitable print from the table leg did not belong to defendant Robinson or to the deceased Anderson. Two of the four suitable fingerprints from the piggybank belonged to defendant Robinson, but Krupowicz did not know to whom the remaining two suitable prints from the piggybank belonged, but he did know however that neither belonged to either Robinson or Anderson. Fingerprints analyst Krupowicz did not test for fingerprints of anyone else other than Anderson and Robinson, and more particularly, he did not test for fingerprints of or even obtain a fingerprint from Walter Hiawatha.\nDefendant Robinson\u2019s first contention for reversal is that the trial court erred in admitting into evidence statements of the defendant\u2019s threats to and argument with the apartment building custodian which the prosecutor had not furnished defendant\u2019s attorney pursuant to the discovery rules. We agree that this was error.\nThe uncontradicted testimony of Juana Buckner and Cornell Buckner established that Allie Bee Anderson was killed in an altercation in her apartment around the hour of 4:30 to 5 p.m. Cornell Buckner was permitted to testify that earlier that morning, at about 11:30 a.m., in the downstairs lobby of the apartment building the defendant became engaged in an argument for 15 minutes with the apartment building maintenance man about the defendant throwing trash off the back porch, that the defendant threatened to kill the maintenance man and told him, \u201cIf you don\u2019t get away from me I\u2019ll throw you through a window. I\u2019ll kill you.\u201d\nOne of the grounds on which defendant\u2019s attorney objected to this testimony and moved for a mistrial, both of which were overruled, was that the prosecutor had not furnished him with these statements of the defendant\u2019s pursuant to the discovery rule and that he was taken by surprise by them.\nThe prosecutor is obligated to disclose to defendant\u2019s attorney, upon request, all oral statements made by the defendant, and a list of witnesses thereto, whether or not such statements have been reduced to writing. (107 Ill. 2d R. 412(a)(ii); People v. Weaver (1982), 92 Ill. 2d 545, 558, 442 N.E.2d 255; People v. Shegog (1976), 37 Ill. App. 3d 615, 619, 346 N.E.2d 208, 211.) The paramount goal of this discovery rule is to avoid giving the prosecutor the unwarranted trial advantage of surprise. (People v. Szabo (1977), 55 Ill. App. 3d 866, 871, 371 N.E.2d 117, 120.) The prosecutor must disclose not only statements made by the defendant to law enforcement personnel in the nature of an admission or confession, but all statements made by the defendant. (People v. Davis (1984), 130 Ill. App. 3d 41, 49, 473 N.E.2d 387, 394.) This includes a defendant\u2019s statement to witnesses unconnected with the State. (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.) Compliance with this discovery rule is mandatory. Davis, 130 Ill. App. 3d at 49, 473 N.E.2d at 394.\nThe prejudice resulting from surprise, from inadequate preparation, as well as from the lack of opportunity to investigate the circumstances surrounding an undisclosed alleged statement is so incalculable that it cannot be conjectured by the court. (People v. Young (1978), 59 Ill. App. 3d 254, 257, 375 N.E.2d 442, 444; People v. Loftis (1977), 55 Ill. App. 3d 456, 469, 370 N.E.2d 1160, 1169.) Consequently, the prosecutor\u2019s error in withholding a defendant\u2019s statement from defense counsel during discovery may not necessarily be dependent upon the defendant\u2019s affirmative showing that he was prejudiced by the prosecutor\u2019s failure to produce the defendant\u2019s statement. (People v. Loftis (1977), 55 Ill. App. 3d 456, 469, 370 N.E.2d 1160, 1169.) Moreover, this court has recognized that defense counsel\u2019s request for a continuance is absolute if defense counsel did not learn of the defendant\u2019s undisclosed statement until the jury had heard it. (People v. Weaver (1982), 92 Ill. 2d 545, 559-60, 442 N.E.2d 255.) Under such circumstances, even a trial court\u2019s admonition to the jury to disregard the statement may not suffice to overcome potential prejudice to the defendant. People v. Young (1978), 59 Ill. App. 3d 254, 257, 375 N.E.2d 442, 444.\nPeople v. Davis (1984), 130 Ill. App. 3d 41, 49, 473 N.E.2d 387, 394, is quite similar to the case at bar. In Davis, the State failed to inform defense counsel of an oral statement made by the defendant to the victim that he had recently robbed another man. On appeal, counsel contended in Davis that the prosecutor\u2019s nondisclosure of the defendant\u2019s oral statement prevented defendant from making a motion in limine to bar his statement as evidence of this other crime, and, alternatively, from investigating the facts and circumstances of the making of the defendant\u2019s statement to possibly impeach the witness. In reversing the defendant\u2019s conviction, this court agreed that the evidentiary purpose of the defendant\u2019s statement at trial was to establish that Davis had a propensity to commit robbery and held that it was error for the trial court to refuse to take action to exclude this undisclosed statement of the defendant, especially since the defendant was completely surprised when the statement was first disclosed to him at trial. Davis, 130 Ill. App. 3d at 49, 473 N.E.2d at 394-95.\nLikewise, in the instant case the record establishes that counsel for defendant Arthur Robinson was wholly unaware before trial of Robinson\u2019s argument and threats to the apartment building maintenance manager. It was in the midst of the trial when the State elicited this argument and the threats of defendant Robinson from State witness Cornell Buckner. They took defense counsel completely by surprise. As in Davis, Robinson\u2019s statements were damaging, because their sole expressed (invalid) purpose and effect were to show Robinson\u2019s \u201caggressiveness\u201d and \u201cmood\u201d to kill on the day in question (hereinafter further discussed). (People v. Lampkin (1983), 98 Ill. 2d 418, 421-27, 457 N.E.2d 50, 53-55.) Indeed, Lampkin, like Davis, recognized that evidence of a defendant\u2019s prior totally collateral threat is severely damaging evidence, not only because it permits a guilty verdict on the basis of the jury\u2019s hostility to a defendant for his evil nature or violent tendencies, but also because it enables and encourages the jury to conclude that a defendant is predisposed to act violently and therefore irrationally find that he committed the violent crime for which he is being tried. (Lampkin, 98 Ill. 2d at 426-27, 457 N.E.2d at 54.) Consequently, had defendant\u2019s counsel been timely and properly provided with Robinson\u2019s statement which showed his propensity for violence, his counsel could have moved before trial to exclude it on that basis. (Davis, 130 Ill. App. 3d at 49-50, 473 N.E.2d at 394-95; Lampkin, 98 Ill. 2d at 421-27, 457 N.E.2d at 53-55.) However, as in Davis, the jury trial in the instant case had already begun and the jury had already heard this damaging statement when defense counsel learned of it for the first time. Consequently, the prosecutor\u2019s untimely surprise disclosure of defendant Robinson\u2019s statements was prejudicial error, not only because it was too late for defense counsel to investigate the statements, but also because it was too late for counsel to make a motion in limine to bar these inadmissible, unconnected, collateral threats by defendant Robinson against the maintenance manager as evidence at Robinson\u2019s trial. Davis, 130 Ill. App. 3d at 49-50, 473 N.E.2d at 394-95.\nIt was error, as in Davis, for the trial court to deny defense counsel\u2019s motion for a mistrial and to admit Robinson\u2019s statements of a totally unrelated collateral threat, never tendered during discovery. This violation of the discovery rules and error entitle the defendant Robinson to a new trial.\nCornell Buckner\u2019s testimony of the defendant\u2019s 11:30 a.m. argument with the apartment maintenance man about the defendant throwing trash off the back porch and the defendant\u2019s threats to throw him through a window and kill him was properly objected to by the defendant\u2019s attorney on the additional ground that this testimony was irrelevant to the defendant\u2019s trial for the totally unrelated 4:30 p.m. to 5:30 p.m. murder of Anderson, his live-in girl friend. The trial court erroneously overruled this defense objection and motion for a mistrial on the expressed, but likewise erroneous, ground:\n\u201cI don\u2019t think throwing trash off the balcony or having an argument with the maintenance man is material to the \u2014 to cause a mistrial. I think it is relevant to the defendant\u2019s mood and state of mind on this day, and, apparently, this aggressiveness has been shown earlier, and I think that\u2019s relevant for the People to show.\" (Emphasis added.)\nThe trial court did not cite, the prosecutor did not cite in the trial court, and the prosecutor has not accurately cited before this court any authority for the proposition that the defendant\u2019s 11:30 a.m. argument with and threats to throw the apartment maintenance man through a window and to kill him, arising out of the defendant\u2019s allegedly throwing garbage off the balcony, were admissible as evidence at the defendant\u2019s trial to establish his \u201cmood,\u201d or \u201cstate of mind,\u201d or \u201caggressiveness,\u201d SVa hours later, during his alleged murder of his live-in girl friend.\nThe error of the admission of Cornell Buckner\u2019s testimony of the defendant\u2019s morning argument with and threat to kill the apartment\u2019s maintenance man was compounded by the additional similar irrelevant prejudicial inadmissible testimony of State witness police officer Raymond Cooley. He testified that in response to a radio message of a battery in progress at Allie Bee Anderson\u2019s apartment, he and his partner went there, knocked on the door, but received no answer, although he heard movement inside the apartment. He attempted to open the door but found it locked. He told Cornell Buckner that they could not enter Anderson\u2019s apartment without a search warrant, and they proceeded to leave. The following direct testimony of Officer Cooley then occurred:\n\u201cQ. And what happened?\nA. We were approached by another person, and as we were walking out of the apartment doorway, he said \u2014 .\n[Defense Attorney]: Objection.\u201d\nThereupon, the following colloquy occurred out of the hearing of the jury:\n\u201cTHE COURT: What\u2019s he going to say?\n[Assistant State\u2019s Attorney]: He\u2019s going to say that he met a person who identified himself as the manager, and that he told him of prior problems he\u2019s had with the defendant. ***\nTHE COURT: I\u2019m going to sustain the objection to the conversation about trouble with the defendant ***.\u201d\nOfficer Cooley then testified in the presence of the jury as follows:\n\u201c[Assistant State\u2019s Attorney]: Q. Now, Officer Cooley, this person you had a conversation with, did he identify himself?\nA. He said he was the manager\u2019s son.\nQ. All right. What did you ask him?\nA. We asked him if he had keys for the apartment.\nQ. Did he give you anything?\nA. No.\nQ. What did he respond to you? What did he say?\nA. He said he had had a verbal altercation \u2014 .\nQ. No. Officer, state \u2014 .\n[Defense Attorney]: Objection. Judge, I want a sidebar.\nTHE COURT: Sustained.\n[Defense Attorney]: Judge, I have a motion, at this time.\nTHE COURT: Denied. Continue.\n[Defense Attorney]: Can the record reflect what my motion is, Judge?\nTHE COURT: Continue.\u201d\nAlthough the officer did not testimonially identify the person with whom the manager\u2019s son had the verbal altercation, and even though the trial court sustained defense counsel\u2019s objection to the testimony, no imagination was required for the jury to knowingly conclude that the defendant was obviously the person with whom the manager\u2019s son had the altercation and to whom the manager\u2019s son referred. The invalid damage was done. The jury heard it. The jury was not instructed to disregard it. But as Moran Allen observes, as the title of his article, \u201cWhen Jurors Are Ordered by the Court to ignore testimony, the jury instead ignores the court\u2019s order,\u201d at page 31 of the Wall Street Journal, Monday, January 25, 1988, issue.\nThe prosecutor flamboyantly capitalized on the inadmissible evidence of the defendant\u2019s prenoon argument with and threats to the apartment maintenance man. He exacerbated the erroneous admission of this testimony twice in his arguments to the jury. The prosecutor first stated in his initial opening argument:\n\u201cThey [Cornell Buckner and defendant Arthur Robinson] came back to the apartment building at approximately 11:00 o\u2019clock and that is where the defendant has, according to Cornell Buckner, an argument with the maintenance man. The maintenance man tells the defendant something about throwing garbage out of the window and they are arguing, according to Cornell Buckner. The argument ends with the defendant threatening the maintenance man, something to the effect of, \u2018Get away from me or I\u2019ll throw you out of a window and kill you.\u2019 \u201d\nThereafter, in his final closing argument, the prosecutor for the second time, again (mistakenly) argued to the jury:\n\u201cLadies and gentlemen, the defendant, just before he killed Allie Bee Anderson, got in a fight with a maintenance man for throwing garbage from the second floor. His response to that situation was to threaten to throw somebody out of a window and kill them.\nA few minutes later he is in an argument at the Belair Hotel with the victim. Moments after that he is in that apartment with knives in his hands; the victim is receiving defense wounds; furniture is going all over the place and the victim is stabbed ***.\u201d (Emphasis added.)\nParenthetically, we note that it was not \u201cjust before,\u201d but, rather, the evidence was that it was at least 41/2 hours before Allie Bee Anderson was killed that the defendant argued with and threatened the maintenance man. Likewise, it was not \u201ca few minutes\u201d after the defendant\u2019s argument with and threats to the maintenance man that Juana Buckner overheard what appeared to her to be an argument between Anderson and Robinson in the hotel where she and Anderson were employed, as the prosecutor mistakenly argued.\nA defendant\u2019s threats on a collateral matter to a person other than the deceased are inadmissible simply because they are prejudicial and irrelevant. (People v. Lampkin (1983), 98 Ill. 2d 418, 421-27, 457 N.E.2d 50, 53-55; People v. Bryant (1983), 115 Ill. App. 3d 215, 222, 450 N.E.2d 744, 749.) In Lampkin, the Illinois Supreme Court restated the long-honored distinction between a threat against the person actually killed and a threat against someone else. (Lampkin, 98 Ill. 2d at 427, 457 N.E.2d at 55.) The Lampkin decision explained that where a defendant\u2019s threat against the deceased, may be relevant to show malice and criminal intent, a defendant\u2019s threat against a third person or a threat of a general nature has no probative value and serves no other purpose than to \u201carouse prejudice or hostility on the part of the jury,\u201d against the defendant. (Lampkin, 98 Ill. 2d at 427, 457 N.E.2d at 55.) Evidence of a defendant\u2019s prior collateral threat is severely damaging with a jury, not only because it improperly encourages a jury\u2019s guilty verdict on the basis of its hostility against a defendant because of his evil nature or violent tendencies, but, also, because it erroneously motivates a jury to find that the defendant may be predisposed to act violently and therefore committed the violent crime for which he is charged. (Lampkin, 98 Ill. 2d at 426-27, 457 N.E.2d at 54; People v. Huber (1985), 131 Ill. App. 3d 163, 167, 475 N.E.2d 599, 602.) The supreme court in Lampkin quoted with approval its earlier language in Scott:\n\u201c[A] \u2018threat by the accused to kill or injure a person other than the deceased, or a mere idle threat of a general nature not directed to any particular person, is not admissible to show malice\u2019 [or intent to kill].\u201d Lampkin, 98 Ill. 2d at 425, 457 N.E.2d at 53, quoting People v. Scott (1918), 284 Ill. 465, 474-75, 120 N.E.553.\nThere was no proper purpose for introducing this prejudicial evidence. The sole reason for the testimony that defendant Robinson threatened to kill the maintenance man was the impermissible purpose of showing Robinson\u2019s propensity for violence. The trial judge in fact allowed the evidence of the defendant\u2019s collateral threat for the erroneous and prejudicial expressed purpose of showing the defendant\u2019s \u201caggressiveness\u201d or \u201cmood\u201d to kill on the day in question. Additionally, that defendant Robinson had a propensity to act violently and had acted in accordance with that propensity is precisely the way the prosecutor treated this evidence when he argued to the jury, as previously set forth herein.\nDuring the proceedings on the defendant\u2019s motion for a new trial, the trial court adroitly retreated from its initial trial position that evidence of the defendant\u2019s collateral argument with and threat to the maintenance man was admissible to establish the defendant\u2019s aggressiveness and mood on the date of Anderson's homicide. At the post-trial proceedings, the trial court gratuitously inferred that the purpose of this evidence might properly have been to establish Cornell Buckner's ability to subsequently recognize Anderson\u2019s assailant\u2019s voice as the voice of the defendant in Anderson\u2019s apartment during the fatal attack upon her. This shifted, suggested position by the trial court hardly deserves further discussion. The simple appropriate means for the prosecutor to properly establish Cornell Buckner\u2019s ability to recognize defendant Robinson\u2019s voice was merely the introduction of the Buckners\u2019 testimony that they were Robinson\u2019s friends and neighbors and daily talked and socialized with him. Indeed, Cornell Buckner testified that he and Robinson spent the entire day together prior to Anderson\u2019s death. Thus, Cornell Buckner\u2019s testimony of defendant Robinson\u2019s prenoon-day argument with and threat to the maintenance manager to establish Buckner\u2019s ability to recognize Robinson\u2019s voice utterly failed to warrant the trial court\u2019s gratuitous justification for its disclosure to the jury, particularly when \u201cvoice recognition\u201d was never the prosecutor\u2019s purpose for it, not even during his closing argument to the jury. The trial court erred in admitting this testimony, and the prosecutor egregiously compounded the error in arguing this testimony to the jury as aforesaid. Reversal is therefore required.\nThe prosecutor also erred, which likewise requires reversal, when he insinuated, wholly without any proof, that Juana Buckner told the police that during the assailant\u2019s attack upon Anderson in her apartment, she recognized the assailant\u2019s voice to be the voice of the defendant.\nJuana Buckner testified that she and Cornell Buckner left defendant Robinson and the deceased Anderson to go shopping, when their tour of duty as maids ended at about 3:30 p.m. at the hotel. Juana Buckner related that she and Cornell Buckner arrived home about 4:30 p.m. She heard banging and crashing noises coming from the Robinson-Anderson apartment, which lasted about 15 to 20 minutes. Juana Buckner heard Anderson say, \u201cPut the knives away. Stop hitting me. Omar, I thought you loved me,\u201d followed by a scream.\nJuana Buckner testified that she considered herself a close friend of Anderson, and that of the times she was with Anderson, or went out with Anderson and Robinson, and all the time she was good friends with Anderson, and during all the conversations Anderson had with Juana Buckner about Robinson, Juana Buckner never heard Anderson call or refer to defendant Robinson as \u201cOmar.\u201d Juana Buckner additionally testified that she did not recognize the male voice she heard coming from the Anderson-Robinson apartment.\nJuana Buckner also testified that she had never heard Anderson and Robinson argue like that and she had never seen or heard Robinson slap, hit or threaten Anderson, and that they got along well and had discussed marriage.\nJuana Buckner testified, on cross-examination by defense counsel, as follows:\n\u201cQ. In fact, she [Allie Bee Anderson] was yelling so loud you couldn\u2019t hear the man\u2019s voice, could you?\nA. No, you couldn\u2019t hear the man\u2019s voice, but I knew he was in there.\nQ. You knew someone was in there, but you really couldn\u2019t hear the man\u2019s voice, right?\nA. Right.\u201d\nJuana Buckner again related, on redirect examination by the prosecutor:\n\u201cQ. Now, you told the public defender when they went out to go interview you about what happened that you never recognized the male voice?\nA. Right.\nQ. Did you tell them that?\nA. Yes.\nQ. Now, you did tell him, though that you never heard Arthur [Robinson] and Bee [Anderson] argue like that before?\nA. Yes.\nQ. Is that right?\nA. Yes.\n* * *\nQ. You heard the voices coming from Bee and Arthur\u2019s apartment on May 6, 1983, the banging and crashing, and you heard words spoken by Bee.\n* * *\nDid you recognize the man\u2019s voice in that room?\nA. No.\u201d\nOver the defense attorney\u2019s repeated objections, the prosecutor was permitted to additionally, on redirect, examine Juana Buckner as follows:\n\u201cQ. Now, Miss Buckner, you talked to detectives on May 7, 1983, in the early morning hours when the incident was very fresh in your mind, isn\u2019t that correct?\nA. Yes.\n* * *\nTHE COURT: Do you remember that conversation when you talked to the police?\nA. Not all of it.\n* * *\nQ. And at that police station, you told the detectives that there was no doubt in your mind \u2014 .\n[Defense Counsel]: I object, at this time, your Honor.\nTHE COURT: Overruled.\n[Assistant State\u2019s Attorney]: Q. There was no doubt in your mind that the argument that you overheard emanating from the victim\u2019s apartment involved that of the victim and Robinson. Did you tell the detectives that?\nA. Repeat yourself.\nQ. Didn\u2019t you tell the detectives on May 7, 1983, in the early morning hours or that next day, that you did recognize his voice?\nA. I can\u2019t remember.\nQ. Okay.\nA. I just can\u2019t remember.\u201d (Emphasis added.)\nOne of the grounds of defense counsel\u2019s objections to this foregoing redirect examination of Juana Buckner by the prosecutor was that the prosecutor did not have any evidence that Juana Buckner ever told any officers, or anyone else, that she recognized Anderson\u2019s assailant\u2019s voice as the voice of the defendant Robinson, and thus, the prosecutor totally lacked the necessary refuting evidence to impeach Juana Buckner. Defense counsel urged that such impeachment evidence did not exist. The prosecutor made no contrary assertion to the trial court and did not present one iota of evidence that Juana Buckner had ever made any such inconsistent statement. Yet, the prosecutor was allowed to insinuate to the jury by his foregoing redirect examination of her that she had done so.\nSubsequently, in his closing argument the prosecutor wrongfully explained and improperly argued to the jury his evidentially baseless insinuation, that Juana Buckner recognized Anderson\u2019s assailant\u2019s voice to be the defendant\u2019s voice, as if the insinuation were actual proof. The prosecutor erroneously argued to the jury:\n\u201cNow, they [Cornell Buckner and Juana Buckner] are standing out in front of the doorway and they hear this argument. *** So, what do they hear? According to both Juana and Cornell Buckner, they hear banging and crashing as the furniture was falling or being thrown, both of them recognize the defendant\u2019s voice as one of the people arguing, and they both recognized Allie Bee Anderson\u2019s voice as the other person, which was screaming. Now, they can\u2019t make out the words that the defendant is saying, but they do make out Allie Bee Anderson\u2019s words ***.\u201d (Emphasis added.)\nThe prosecutor\u2019s aforesaid tactics, his failure and inability to perfect impeachment of this favorable defense testimony, and his argument to the jury thereon converted improper insinuations and innuendos to proof. The tactic of constructing a foundation for impeachment without supporting evidence is condemned precisely because impeachment by innuendo is intolerable. (People v. Nuccio (1969), 43 Ill. 2d 375, 253 N.E.2d 353; People v. Littlejohn (1986), 144 Ill. App. 3d 813, 821-24, 494 N.E.2d 677; People v. Starks (1983), 116 Ill. App. 3d 384, 390-91, 451 N.E.2d 1298, 1303-04; People v. Giangrande (1981), 101 Ill. App. 3d 397, 404, 428 N.E.2d 503, 509; People v. Morris (1980), 79 Ill. App. 3d 318, 330, 398 N.E.2d 38, 47; People v. Orr (1977), 45 Ill. App. 3d 660, 359 N.E.2d 1237.) Consequently, when a prosecutor, in laying the foundation for impeachment, insinuates the existence of a prior inconsistent statement by a witness and the witness either denies or is unable to recall making the statement, the prosecutor must produce evidence in rebuttal that the prior inconsistent statement was made. People v. Morris (1980), 79 Ill. App. 3d 318, 330, 398 N.E.2d 38, 47; People v. Orr (1977), 45 Ill. App. 3d 660, 666, 359 N.E.2d 1237, 1241.\nThe defendant quite persuasively argues before us that Juana Buckner\u2019s inability to recognize Anderson\u2019s assailant\u2019s voice as defendant Arthur Robinson\u2019s voice was testimony highly favorable to the defense had it not been improperly undermined by the prosecutor\u2019s insinuation of a prior inconsistent statement by her. Juana Buckner was a neighbor to defendant Robinson and the deceased Anderson. She expressly testified that she knew Robinson\u2019s voice and, accordingly, would have identified it as the voice of Anderson\u2019s assailant had she been able to so identify it. Moreover, this highly favorable defense testimony was elicited not from a defense witness but rather from a State witness.\nIn addition, this highly favorable defense testimony, the defendant contends, had it properly remained untainted by prosecutorial improper innuendo, would have served to discredit the voice identification testimony of Juana\u2019s husband Cornell, who was similarly situated to Juana at the time the assailant\u2019s voice was heard by them. (People v. Outlaw (1978), 67 Ill. App. 3d 327, 331, 384 N.E.2d 898, 901.) In Outlaw, this court reasoned that one witness\u2019 inability to identify the defendant reflects adversely on the credibility of other witnesses who make a positive identification. (Outlaw, 67 Ill. App. 3d at 331, 384 N.E.2d at 901.) The defendant urges that this reasoning could have had an impact on the jury in the instant case, had the prosecutor not improperly insinuated that Juana Buckner told the detectives that the offender\u2019s voice was the defendant\u2019s voice. Moreover, the defendant posits, had this error not occurred, the Outlaw reasoning would have been particularly compelling to the jury, because Cornell Buckner\u2019s incriminating voice identification of the defendant was made by him for the very first time at trial, and because he, too, had previously agreed with Juana Buckner that only the deceased\u2019s voice was recognizable. Therefore, the defendant insists, the prosecutor\u2019s invalid insinuation that Juana Buckner, a key State witness, had identified Arthur Robinson as Anderson\u2019s assailant by his voice was highly prejudicial to the outcome of the trial. We agree.\nThe prosecutor\u2019s foregoing persistent redirect examination tactic of substituting innuendo for proof discredited Juana Buckner\u2019s testimony, which strongly indicated that Robinson was not the offender in this crime. As previously discussed, Juana Buckner knew Robinson\u2019s voice and would have recognized it had Robinson been Anderson\u2019s assailant. Consequently, on these facts, the prosecutor\u2019s totally inaccurate and unsupported insinuation that Juana Buckner had made a prior inconsistent statement that she recognized Anderson\u2019s assailant\u2019s voice as the defendant\u2019s was particularly damaging and intolerable. It deprived Robinson of a fair trial and requires that Robinson\u2019s conviction be reversed and the cause remanded for a new trial.\nCornell Buckner also testified to the sounds, words and voices he heard emanating from Allie Bee Anderson\u2019s apartment when he and Juana Buckner returned home from their shopping errand. He testified that he heard Anderson say from her apartment, \u201cWell, you shouldn\u2019t have taken the money out of the [piggy] bank. Omar, I thought you loved me,\u201d and then she screamed.\nWe again parenthetically note that Cornell Buckner (1) did not tell the defense investigator that he could recognize the male voice coming from Anderson\u2019s apartment; (2) told the defense attorney during their out-of-court pretrial investigation interview of him and a statement that he could hear sounds in the apartment, but that only Allie Bee Anderson\u2019s voice was distinct; and (3) nevertheless, stated at trial, for the very first time, that he recognized the male voice engaged in the argument with Anderson as defendant Arthur Robinson\u2019s voice.\nWe additionally note, as an aside, that it was also during Cornell Buckner\u2019s direct examination trial testimony that he, again for the first time, ever stated that after the noise subsided in Anderson\u2019s apartment, he observed the defendant Robinson for about 10 seconds sticking his head out of the Anderson-Robinson apartment door. Yet, Cornell Buckner did not provide this extremely vital information to the detectives to whom he spoke on May 7, 1983, immediately after Anderson\u2019s killing was discovered, or when he later spoke to the defense attorney, or in his written, signed statement of his knowledge of the homicide. Moreover, when Robinson allegedly stuck his head out of the apartment door, significantly, Cornell Buckner did not ask him what the noise was all about, or if Allie Bee Anderson was alright. Nor did he inform Robinson that the police had been knocking at his door.\nThe defendant urges that the State witnesses\u2019 testimony that the defendant Arthur Robinson was also called and was known as \u201cOmar,\u201d to identify the defendant as Anderson\u2019s assailant, was inadmissible as evidence and requires reversal. We disagree.\nBoth Juana Buckner and Cornell Buckner testified that they heard Anderson refer to her assailant in her apartment as \u201cOmar\u201d during the altercation which resulted in Anderson\u2019s death. Although Juan\u00e1 Buckner was Anderson\u2019s co-worker and neighbor and had never heard Anderson call or refer to Robinson as \u201cOmar,\u201d nevertheless, Cornell Buckner, Roscoe Harris \u2014 Anderson\u2019s son \u2014 and Elisha Ingram contrarily testified. All of them related that they were present and heard Anderson call and refer to Robinson as \u201cOmar.\u201d The defendant Robinson argues that this testimony identifying him as Anderson\u2019s assailant was inadmissible under People v. Escobar (1979), 77 Ill. App. 3d 169, 395 N.E.2d 1028. The State initially argues that even though the defendant had three separate opportunities to object to the admission of this testimony, he failed to do so and likewise failed to rely on or raise this issue in his motion for a new trial. The State contends that the defendant therefore waived this issue on appeal. (People v. Seaberry (1978), 63 Ill. App. 3d 718, 723, 380 N.E.2d 511.) Because the cause will have to be retried, we decide the issue. People v. Bryant (1986), 113 Ill. 2d 497, 507, 512, 499 N.E.2d 413.\nThe defendant\u2019s reliance on Escobar is grossly misplaced. In Escobar, the State\u2019s single occurrence witness, Joseph Bradtke, identified the defendant as the driver of a car which carried the gunman who shot and killed the victim. Bradtke recognized the driver as an old high school acquaintance whom he knew as \u201cNew York.\u201d Defendant\u2019s claim of error was the admission of Bradtke\u2019s testimony that \u201ceverybody\u201d present at the scene also knew defendant as \u201cNew York.\u201d The reviewing court agreed that the witness Bradtke\u2019s testimony that everybody knew defendant as \u201cNew York\u201d was inadmissible hearsay and that its admission into evidence constituted reversible error, despite other evidence that the witness picked the defendant as the offender out of a lineup and otherwise identified the defendant as the offender to the police.\nEscobar, of course, is clearly distinguishable; there, the witness Bradtke testified to what he thought others knew. His testimony that he himself knew defendant as \u201cNew York\u201d was not objectionable. Likewise, in the case at bar, Elisha Ingram, Roscoe Harris and Cornell Buckner testified that they themselves knew defendant as \u201cOmar,\u201d having heard Anderson call him by that name. They did not testify in the case at bar, as did the witness in Escobar, that everybody else knew defendant as \u201cOmar.\u201d Therefore, Escobar is inapplicable here. Escobar merely holds that a witness may not testify to what he believes other witnesses know.\n\u201cBradtke\u2019s testimony that \u2018everybody\u2019 knew the defendant as New York, presumably meaning that his friends had been able to identify the suspect Escobar as \u2018New York,\u2019 if not as the driver, is hearsay.\u201d Escobar, 77 Ill. App. 3d at 176.\nThis hearsay testimony that others knew defendant as \u201cNew York\u201d was held to be inadmissible and its admission into evidence reversible error:\n\u201c[T]he jury might *** have believed Bradtke and assumed the other witnesses to the crime kept silent out of fear, as the prosecution hinted. We should not speculate about how the jury reacted; we must assume the statement was prejudicial.\u201d Escobar, 77 Ill. App. 3d at 176.\nDefendant\u2019s application of Escobar to this case is fatally flawed. Testimony in the instant case by three witnesses that they personally heard the deceased refer to defendant as \u201cOmar\u201d is not the same as a witness\u2019 testimony that \u201ceverybody knew defendant as New York.\u201d The testimony of the witnesses that they had heard and knew defendant\u2019s nickname was Omar was not hearsay and was properly admitted.\nDefendant next argues that the testimony that the rent of the apartment had not been paid and that an invitation was made to Anderson to move to Indiana was inadmissible prejudicial hearsay. The State maintains that this evidence was properly admitted for the relevant purpose of showing Anderson\u2019s intention to leave defendant, thereby supporting the State\u2019s theory that defendant killed her for that reason.\nThe evidence that Anderson\u2019s family had invited her to move to Indiana was Elisha Ingram\u2019s testimony that she and Roscoe Harris, Anderson\u2019s son, were coming to Chicago to \u201ctry and take her back with us because we had got jobs and everything, and we wanted her to get a job and stay with us.\u201d Ingram also stated that Harris had talked to Anderson about it the day before. Roscoe Harris also testified that the day before his mother was killed, he called and spoke to her about her coming to live in Indiana. The trial judge overruled defendant\u2019s objection, but later sustained it as to these conversations.\nThe State argues that this foregoing testimony was properly admitted to show that defendant killed Anderson because she was planning to leave him. Generally, evidence which shows that the accused had a motive to kill the victim is relevant in a homicide case if the evidence establishes the existence of the motive relied upon or alleged. (People v. Harbold (1984), 124 Ill. App. 3d 363, 376, 464 N.E.2d 734.) The evidence presented here of which complaint is made comes within this general rule. Elisha Ingram testified that she and Roscoe Harris had both talked to Anderson about her leaving Chicago. Roscoe Harris also testified that he had spoken with his mother on that subject. This evidence, coupled with evidence that Anderson\u2019s bags were packed and that defendant was arguing with Anderson when he picked her up at work that day, would allow a jury to reasonably infer that Anderson was indeed planning to leave and that the defendant knew and objected to it.\nDefendant relies on People v. Harbold (1984), 124 Ill. App. 3d 363, 464 N.E.2d 734, where certain motive evidence was held to be improper hearsay. However, the evidence admitted in Harbold is clearly distinguishable. The State\u2019s theory in Harbold was that defendant killed his girl friend\u2019s husband to prevent her from moving to Phoenix. The evidence relied upon, however, came from a witness who testified that, four years earlier, the witness had had a conversation with defendant\u2019s girl friend, during which the girl friend gave an indication that she and defendant had a relationship. The court stated that such \u201cevidence was relevant because it tended to show some relationship from which the jury could have inferred motive. [Citation.] However, the probative value of the evidence suffered from its remoteness in time; evidence that the two spent time alone together predated the crime by three years or more.\u201d 124 Ill. App. 3d at 377.\nHere, evidence of Anderson\u2019s intent and preparation to leave defendant was relevant to defendant\u2019s motive to kill her. Unlike in Harbold, however, in the case at bar the conversations were ongoing and had just recently occurred, the day before Anderson was killed. Moreover, the evidence in Harbold was improper because it was from a witness who related what the defendant\u2019s girl friend had told the witness. The defendant\u2019s girl friend was the proper one to testify to her relationship with defendant. In the instant case, both witnesses were on the witness stand and were available for cross-examination on the subject. See Harbold, 124 Ill. App. 3d at 375.\nMotive evidence is proper. In Harbold, the purported motive evidence was held to be improper hearsay because it was a statement spoken by a party who did not testify, and the statement did not actually amount to evidence of a motive. The relationship of the defendant and his girl friend four years before the murder, presented by secondhand evidence of what the defendant\u2019s girl friend had stated to the witness, was improper. The defendant\u2019s reliance on Harbold is ill-founded.\nRoscoe Harris testified that his mother, Allie Bee Anderson, the deceased, paid the rent for the apartment, that she usually paid the rent before the tenth day of each month, but that she had not paid the May 1983 rent. Roscoe Harris testified that he knew the rent was unpaid because he had asked the manager. This testimony, the State contends, was properly offered to corroborate the other evidence of defendant\u2019s motive, namely, that Anderson was planning to leave him, and for that reason the defendant killed her.\nClearly, Roscoe Harris\u2019 testimony that the May 1983 rent for the Anderson-Robinson apartment had not been paid was inadmissible hearsay testimony and was erroneously admitted. The manager or the rent collector of the apartment building would have been a more appropriate witness to establish Anderson\u2019s nonpayment of the May 1983 rent. But this testimony was merely corroborative of the other properly admitted evidence of defendant\u2019s motive. The other motive evidence was Elisha Ingram and Roscoe Harris\u2019 invitation to Anderson to move with them in Indiana, Anderson\u2019s bags packed in the closet, and the earlier argument between Anderson and the defendant at the hotel. Moreover, the prosecutor never mentioned the rent testimony in his closing argument, although he therein referred to the other, proper motive evidence. The error was therefore harmless.\nThe defendant next contends that the prosecutor engaged in prosecutorial misconduct by improperly bringing to the jury\u2019s attention, through the guise of attempted impeachment of a defense witness, that defense counsel had withheld and destroyed before trial his investigative notes of his interview of State witness Juana Buckner. The chronological scenario of this episode follows.\nDuring pretrial discovery proceedings, the prosecutor informed the trial court that he had received from defense counsel a deleted portion of a two-page document of defense counsel\u2019s interview of the anticipated State witness, Juana Buckner. The prosecutor requested that the trial court order defense counsel furnish him defense counsel\u2019s complete notes of that interview. Defense counsel objected to any further submission by him of his unsubmitted notes of his interview of Juana Buckner, on the ground that the notes were his work product and therefore nondiscoverable, and further, because the supreme court discovery rules did not require defense counsel to disclose to the prosecutor an impeaching statement made by a prosecution witness. The trial court viewed the notes in question, made additional deletions therefrom, overruled defense counsel\u2019s objections and ordered the notes be turned over to the prosecutor.\nAt trial, on cross-examination of Juana Buckner, defense counsel questioned her regarding Anderson\u2019s former boyfriend, Walter Hiawatha. The apparent purpose of this questioning was to raise an inference that Hiawatha, not defendant, may have killed Anderson. Defense counsel attempted to show that on one instance Hiawatha had behaved violently towards Anderson. He asked Juana Buckner if Hiawatha had ever yanked Anderson out of a cab. Juana Buckner recalled the incident but denied that Hiawatha had pulled Anderson out of the cab. Defense counsel then asked Juana Buckner if she hadn\u2019t told him during his interview of her that Hiawatha had, indeed, physically pulled Anderson out of the cab. She then responded that she had so told him. Defense counsel did not seek to have Buckner confirm which of her two inconsistent statements, i.e., her trial testimony or her statement to him, was true.\nDuring the defense case, defense counsel advised the trial court that Karen Costello, then an attorney and law clerk for a circuit court judge and a former law clerk for the defense attorney, would be called to testify to Juana Buckner\u2019s pretrial statement to Costello and him that Hiawatha had pulled Anderson out of a cab, as impeachment of Juana Buckner\u2019s contrary trial testimony. It would appear that inasmuch as Buckner acknowledged and admitted during her cross-examination trial testimony that she had told Costello and the defense attorney during their pretrial interview of her that Hiawatha had pulled Anderson from a cab, Costello\u2019s testimony thereof was therefore not impeaching, but was merely cumulative. In any event, the trial court ordered that the prosecutor\u2019s cross-examination of Costello be limited to this particular topic and the prosecutor expressly stated and agreed that he would abide by the cross-examination restrictive order and so confine his cross-examination.\nThereupon, Costello was called as a defense witness and testified that Juana Buckner had indeed told her and defense counsel that Hiawatha had physically pulled Anderson out of a cab. The prosecutor\u2019s cross-examination of defense witness Costello, set forth in the appendix hereto, following her foregoing purely innocuous direct testimony, escalated into totally improper prosecutorial denigrating insinuations against defense counsel.\nOn cross-examination by the prosecutor, Costello testified that she had taken no notes of the conversation herself, and that before testifying, she glanced at defense counsel\u2019s notes simply to ascertain on what date in early November the interview occurred. She further testified that she had not relied on any of defense counsel\u2019s notes to refresh her recollection.\nSubsequently, under the pretext of impeaching Costello, the prosecutor inferred the existence of another set of notes and repeatedly asked Costello, over strenuous and repeated defense objections, if defense counsel had destroyed such notes. The trial court overruled the defense objection that the existence of his notes, which had been resolved during discovery, was an improper subject to be brought before the jury, particularly on cross-examination of Costello.\nIt was certainly improper for the prosecutor, under the guise of impeachment of Costello, to inform the jury of the existence of another set of notes and to imply that defense counsel had destroyed them. (People v. Witted (1979), 79 Ill. App. 3d 156, 166-67, 398 N.E.2d 68, 77-78; People v. Hovanec (1976), 40 Ill. App. 3d 15, 17-18, 351 N.E.2d 402.) Indeed, the only purpose and effect of this purported impeachment cross-examination was to voice the prosecutor\u2019s opinion to the jury that defense counsel had improperly kept certain notes from being disclosed at trial. Clearly, it is axiomatic that the existence of someone else\u2019s notes, especially those not relied on by the witness \u2014 let alone whether such notes were withheld or destroyed by defense counsel \u2014 would not impeach witness Costello. (People v. Lewis (1979), 75 Ill. App. 3d 259, 284-85, 393 N.E.2d 1098, 1117; People v. Svizzero (1967), 84 Ill. App. 2d 251, 228 N.E.2d 604.) A witness simply cannot be impeached by a statement that he did not make, prepare or adopt. Moreover, precisely because the witness did not make or rely on any notes to prepare her testimony, then whether or not defense counsel made two sets of notes \u2014 and whether the witness was incorrect in her belief that only one set of notes existed \u2014 was at most a collateral matter upon which attempted impeachment of her was prohibited. (People v. Steptore (1972), 51 Ill. 2d 208, 281 N.E.2d 642; People v. Persinger (1977), 49 Ill. App. 3d 116, 363 N.E.2d 897; Peo pie v. Sisti (1967), 87 Ill. App. 2d 107, 230 N.E.2d 500.) Consequently, the prosecutor\u2019s cross-examination of Costello on the alleged destruction or withholding of notes by defense counsel was therefore nothing more than an attempt to disparage defense counsel\u2019s integrity before the jury.\nThe prosecutor\u2019s exhaustive cross-examination of Costello (see Appendix) aggravated his dogmatic persistence in disclosing to the jury the existence of notes that were withheld from the witness, the prosecution, and the jury alike. Moreover, it was particularly intolerable for the prosecutor to bring before the jury the matter of defense counsel\u2019s notes, because the prosecutor knew, unlike the jury, that defense counsel\u2019s additional notes were his undiscoverable work-product and that defense counsel\u2019s compliance with discovery had been resolved before trial. The prosecutor also knew to limit his cross-examination to the substance of the particular interview conversation between Juana Buckner, Costello and defense counsel \u2014 having heard and being bound by the judge\u2019s ruling restricting the scope of his cross-examination, and having expressly agreed to abide by the trial court\u2019s confining cross-examination order. The prosecutor\u2019s persistent line of questioning and editorial comments concerning the existence of another set of notes were clearly improper.\nThe defendant urges that the prejudice to him by this prosecutorial impropriety was threefold, far surpassing the immediate damage to the credibility of the defense witness Costello. He argues that not only did the improper cross-examination unmistakably imply that defense witness Karen Costello must have been unaware of Juana Buckner\u2019s testimony, as reflected in another set of notes withheld or destroyed by defense counsel before trial, but also that the improper cross-examination implied that these other notes, by virtue of defense counsel\u2019s conduct in withholding them, contained materials damaging to the defendant\u2019s defense. The defendant cites People v. Emerson (1983), 97 Ill. 2d 487, 497, 455 N.E.2d 41, which holds:\n\u201c[A]n insinuation which leads the jury to speculate may be more prejudicial than erroneously admitted specific proof.\u201d\nFinally, the defendant insists that the erroneous cross-examination was prejudicial, because the jury was left with the impression that defense counsel (1) suborned perjury by deliberately hiding his notes from the defense witness; (2) destroyed evidence; and (3) deceptively kept matters contained in the notes from being seen by the prosecutor and the jury. We conclude that having undermined the integrity of defense counsel in the presence of the jury, the prosecutor\u2019s cross-examination of Costello also tainted defense counsel\u2019s representation of the defendant and denied the defendant a fair trial. People v. Starks (1983), 116 Ill. App. 3d 384, 394, 451 N.E.2d 1298, 1305.\nThe defendant\u2019s next contentions that the total evidence against him was entirely circumstantial, was consistent with his innocence and failed to prove his guilt beyond a reasonable doubt are without merit. The hereinbefore-mentioned State\u2019s evidence, which we need not here repeat, is legally sufficient to legally compel a jury\u2019s factual determination of whether such evidence establishes the defendant\u2019s guilt beyond a reasonable doubt and preclude an exclusive legal determination that such evidence is legally insufficient to establish such guilt of the defendant. Accordingly, we reject these insufficient-evidence contentions of the defendant. People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.\nThe defendant additionally contends that inasmuch as the total evidence against him was completely circumstantial, the trial court erroneously denied the second paragraph of his tendered instruction, IPI Criminal 2d No. 3.02:\n\u201cYou should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.\u201d\nThe trial court\u2019s refusal to so instruct the jury must be affirmed in light of People v. Bryant (1986), 113 Ill. 2d 497, 507-12, 499 N.E.2d 413, which overruled People v. Crow (1985), 108 Ill. 2d 520, 536, 485 N.E.2d 381, on which defendant relies, and which held:\n\u201cWe now conclude that the \u2018reasonable theory of innocence\u2019 charge should not be used.\n* * *\nThe \u2018reasonable theory of innocence\u2019 charge is an attempt to express the reasonable-doubt standard in the vocabulary of circumstantial evidence. It is, in substance, an attempt to define reasonable doubt. We note that the jury in this case received the required instruction in the form of I.P.I. Criminal 2d, No. 2.03, on the presumption of innocence and the burden of persuasion; that instruction is given in every case, regardless of the type of evidence involved. The use of an additional instruction setting out the \u2018reasonable theory of innocence\u2019 charge may, however, confuse the jury. The language in the \u2018reasonable theory' instruction suggests that a unique standard governs cases in which the evidence of guilt is entirely circumstantial, that the burden of proof in those cases is different in some fundamental respect.\nWe conclude, then, that the second paragraph of I.P.I. Criminal No. 3.02 should no longer be used.\u201d\nAs in Bryant, the trial court in the case at bar gave jury instruction IPI Criminal 2d No. 2.03, on the presumption of innocence and the burden of persuasion. Since the supreme court held in Bryant that the tendered and refused second paragraph of the circumstantial evidence instruction is nothing more than an attempt to define reasonable doubt and is inappropriate, and since the jury was given IPI Criminal 2d No. 2.03, no error occurred when the trial court refused to give the tendered second paragraph of the circumstantial evidence instruction, IPI Criminal 2d, No. 3.02.\nThe defendant\u2019s contention that the trial court erred in refusing to give a voluntary manslaughter instruction, however, is meritorious. At the close of all of the evidence, defense counsel tendered to the trial court for submission to the jury IPI Criminal 2d Nos. 7.03 and 25.05E, which are the definitional and elemental jury instructions for voluntary manslaughter resulting from serious provocation. In support thereof, defendant\u2019s counsel argued, inter alia, that the circumstantial evidence of a fight and argument between Anderson and her assailant and the two knives recovered from the scene, at the very least, presented a jury question whether serious provocation or sudden and intense passion were ingredients of the homicide. Nevertheless, the trial court sustained the State\u2019s objection and refused to instruct the jury on voluntary manslaughter, the lesser included offense of murder. Where there is evidence of serious provocation and sudden intense passion, which, if believed by a jury, would cause the killing to be voluntary manslaughter rather than murder, an instruction to the jury defining voluntary manslaughter must be given. (People v. Leonard (1981), 83 Ill. 2d 411, 420-21, 415 N.E.2d 358, 363; People v. March (1981), 95 Ill. App. 3d 46, 53, 419 N.E.2d 1212, 1217; People v. Dortch (1974), 20 Ill. App. 3d 911, 914, 314 N.E.2d 324, 325-26.) This is so even if the defense is that the defendant did not commit the homicide. (Dortch, 20 Ill. App. 3d at 914; March, 95 Ill. App. 3d at 53-54.) A defendant in a criminal case is entitled to have the jury consider any legally recognized defense which has a foundation, however tenuous, in the evidence. Dortch, 20 Ill. App. 3d at 914; March, 95 Ill. App. 3d at 53-54.\nMutual quarrel, combat, or assault is evidence of adequate provocation to require a voluntary manslaughter instruction. (People v. Leonard (1981), 83 Ill. 2d 411, 420-21, 415 N.E.2d 358, 363; People v. Crews (1967), 38 Ill. 2d 331, 231 N.E.2d 451.) When the mutual combat occurs immediately preceding or during the infliction of death, the voluntary manslaughter instruction may not be refused, even if the defendant was the aggressor at the outset. (Leonard, 83 Ill. 2d at 413-23; People v. Craven (1973), 54 Ill. 2d 419, 425, 299 N.E.2d 1.) Nor may the instruction be validly refused on the ground that there was evidence that defendant\u2019s intent to kill was formulated at an earlier time, if there is evidence that the defendant\u2019s criminal intent may have arisen during or out of the heat of the altercation. (Leonard, 83 Ill. 2d at 422-23.) Accordingly, the voluntary manslaughter instruction is required even if the evidence of mutual combat is only a momentary scuffle, and even if the remaining evidence is that the incident was a gun battle or shoot-out between the defendant and the deceased. (People v. March (1981), 95 Ill. App. 3d 46, 54, 419 N.E.2d 1212, 1218.) Evidence of a heated argument and exchange of blows justifies the giving of a voluntary manslaughter instruction. People v. Sykes (1977), 45 Ill. App. 3d 674, 678, 359 N.E.2d 897, 900.\nIn the case at .bar, there was evidence of a violent, heated argument between the deceased and her assailant. First, the Buckners, the deceased\u2019s two neighbors, testified that they both overheard two voices \u201cyelling\u201d and \u201carguing\u201d in the deceased's adjacent apartment. Both witnesses testified that they heard noises of furniture \u201cbanging and crashing\u201d during the argument. The witness Cornell Buckner expressly stated that \u201cit sounded like a struggle.\u201d\nSecond, there was evidence from which the jury could infer that the argument was provoked by the deceased\u2019s break-up with and leaving the defendant, Arthur Robinson. There was further evidence that the deceased was also angry because the defendant had taken rent money from the piggybank to buy beer.\nThird, two knives were recovered from the homicide scene. One of the knives was on the bathroom commode beyond the vicinity of the deceased\u2019s body. Significantly, the second knife was found \u201cnear\u201d the deceased \u2014 so near, in fact, the evidence technician had to move the deceased\u2019s body to retrieve the knife. As there was no eyewitness to the altercation, the jury could have found that a knife was in the deceased\u2019s possession at some point during the altercation, or even that the deceased obtained the knife at the outset. Accordingly, the State\u2019s failure to process either knife for fingerprints, when extensive processing for fingerprints was conducted on less critical items in the apartment, could have appeared to the jury as such a conspicuous omission unfavorable to the prosecution. (People v. Howard (1975), 29 Ill. App. 3d 387, 389, 330 N.E.2d 262, 264; People v. Smith (1971), 3 Ill. App. 3d 64, 67, 278 N.E.2d 551, 553; People v. Jackson (1961), 23 Ill. 2d 360, 364, 178 N.E.2d 320, 322.) Under the beforementioned factual circumstances, the presence of a knife within the deceased\u2019s grasp could have been considered by the jury as evidence of her possession of the knife. (People v. Howard (1975), 29 Ill. App. 3d 387, 389, 330 N.E.2d 262, 264.) The jury might have considered it somewhat absurd that Anderson\u2019s assailant wielded two knives. The jury and not the trial court should have decided whether the presence of two weapons, together with the other evidence, was sufficient to make the homicide voluntary manslaughter rather than murder.\nFourth, according to both witnesses, Juana Buckner and Cornell Buckner, this heated domestic dispute, during which there was a struggle and violent acts of throwing furniture, lasted at least \u201cfifteen \u2014 twenty minutes.\u201d The altercation was already in progress when the Buckners arrived home. There were no witnesses to how the altercation began or who was the aggressor therein. Consequently, the evidence was adequate to present a question of fact for the jury on when or whether Anderson\u2019s assailant formulated an intent to kill during a heated struggle. (People v. Leonard (1980), 83 Ill. 2d 411, 420-21, 415 N.E.2d 358, 363.) The evidence was also adequate to make mutual quarrel or combat a question for the jury\u2019s determination. The supreme court held in People v. Joyner (1972), 50 Ill. 2d 302, 306-07, 278 N.E.2d 756:\n\u201c[I]n homicide cases, if there is evidence in the record which, if believed by the jury, would reduce the crime to manslaughter, an instruction defining that crime should be given, if requested. ***\n*** [I]t was possible for the jury to find the defendants guilty of murder, not guilty by reason of self-defense, or guilty of manslaughter. The last option should have remained open to the jury and the jury should have been instructed in this regard. ***\n*** [T]he defendants\u2019 failure to tender the appropriate I.P.I. instruction was not as important with reference to the fundamental fairness of their trial as the requirement that the jury be fully and properly instructed. The failure to instruct on this important aspect of the case necessitates a remand for a new trial.\u201d\nThe trial court committed reversible error in refusing to instruct the jury, via the tendered IPI instructions on voluntary manslaughter.\nBecause we reverse the defendant\u2019s conviction and remand the cause for a new trial, we decline to decide the defendant\u2019s final contention that on the facts in the case at bar, the trial court abused its discretion in imposing an extended 70 years\u2019 imprisonment sentence. Should there be a conviction upon retrial, the trial court perhaps may consider, inter alia, some of the views and factors expressed herein in imposing the appropriate sentence.\nFor the reasons hereinbefore stated, the defendant\u2019s judgment of conviction is reversed and the cause is remanded for a new trial.\nReversed and remanded.\nLORENZ, J., concurs.\nAPPENDIX\nCross-examination of defense witness Karen Costello by Assistant State\u2019s Attorney Daniel Frank:\n\u201cPROSECUTOR: I show you what will be marked up at the corner [as] People\u2019s Exhibit Number 42, ask you if you can \u2014 if you can identify that piece of paper?\nA. These are [defense counsel\u2019s] notes from the conversation.\nQ. Well, when did he make those notes, do you know?\nA. He made some notes during the course of the conversation as we were talking to Miss Buckner.\nQ. Did he destroy those notes and write those later?\nA. Pardon?\nQ. Did he destroy those original notes and write that with . you later on?\nA. No, he did not.\nQ. So, it is your understanding that those are the original notes?\nA. Yeah, that\u2019s my understanding.\nQ. You saw those notes when? When is the first time you saw those notes?\nA. Well, I \u2014 I mean, I saw him writing down the notes during the course of that conversation.\nQ. You weren\u2019t looking over his shoulder knowing what he was writing down, were you?\nA. No.\nQ. When did you see that piece of paper for the first time?\nA. I saw this piece of paper this morning.\nQ. So, you have no idea when he wrote those notes, is that correct? There\u2019s no time stamp on there, is there?\nA. There is a notation.\n[DEFENSE COUNSEL]: Judge, I object. She testified she believes those are the original notes.\nTHE COURT: Overruled.\u201d (Record, at 755-56.)\n\u201c[PROSECUTOR]: Q. It is indicated on here when the conversation took place, is that right?\nA. The date.\nQ. Fine. Did you come back to the office, the Public Defender\u2019s Office, and talk amongst yourselves about what Juana Buckner had told you?\nA. Yes, we did.\nQ. And did [defense counsel] take notes then when he talked to all \u2014 all of you together?\nA. I believe so.\nQ. Were those these notes, the composite notes?\nA. I don\u2019t think so, but I don\u2019t definitely remember.\n[PROSECUTOR]: May I have those notes then?\n[DEFENSE COUNSEL]: Pardon me?\n[PROSECUTOR]: May I have the notes that you have regarding the conversation with [defense witness] Miss Costello?\n[DEFENSE COUNSEL]: You have already been tendered three sets of notes, Mr. [prosecutor],\n[PROSECUTOR]: May I have the rest of them?\n[DEFENSE COUNSEL]: Judge, let\u2019s have a sidebar. I gave them to the [prosecutor],\n[PROSECUTOR]: I want the original.\u201d (Record, at 757.)\nThe proceedings of the sidebar were, in part, as follows:\n\u201cTHE COURT: All right. What was the point of this sidebar?\n[DEFENSE COUNSEL]: Judge, I object to the State\u2019s attorney \u2014 .\nTHE COURT: Overruled.\n[DEFENSE COUNSEL]: Well, he may ask in front of the jury where are the original notes?\nTHE COURT: That\u2019s not what he asked.\n[DEFENSE COUNSEL]: He did, Judge, in front of the jury.\nHe turned around and said, where are the original notes? Judge, that is totally improper to do in front of the jury.\n[PROSECUTOR]: This was identified as originals. I asked for the notes that she said were made later.\nTHE COURT: All right, overruled.\u201d (Record, at 761-62.)\nThe following proceedings were in the presence and hearing of the jury.\n\u201c[PROSECUTOR]: Q. Miss Costello, the notes I showed you, do you know if those are \u2014 you believe those to be the original notes, is that correct?\nA. That\u2019s correct.\nQ. But, you did see [defense counsel] when you got back to the office here in the building taking notes when you had a conversation between yourself, Mr. Figura, and [defense counsel] relative to the conversation with Juana Buckner at the Belair Hotel, is that correct?\nA. That\u2019s correct.\nQ. Did you see those notes?\nA. I don\u2019t remember seeing those notes, no.\nQ. So, as far as I understand then, there were two separate sets of notes, is that correct, that [defense counsel] took?\nA. I don\u2019t know how separate they were. I mean, they may have been on the same sheets. They were scratches really.\u201d (Record, at 762-63.)\n\u201c[Defense counsel] was the experienced trial lawyer on this case, is that correct?\n[DEFENSE COUNSEL]: Objection to that.\nA. Correct.\nTHE COURT: Overruled.\n[DEFENSE COUNSEL]: Form of the question.\nTHE WITNESS: That\u2019s correct.\n[PROSECUTOR]: Was your recollection of the conversation that you took no notes of over a year ago more complete than the notes that [defense counsel] took on or around November 8?\nA. I don\u2019t know how complete \u2014 .\n[DEFENSE COUNSEL]: Judge, objection.\nA. [Defense counsel\u2019s] notes are.\nTHE COURT: Overruled.\nA. I know that my recollection is complete. I remember distinctly this conversation. I remember losing sleep over this investigation and \u2014 of this \u2014 ***.\nQ. *** [P]lease answer my question. Is your recollection more complete than [defense counsel\u2019s] notes?\nA. I don\u2019t know because I don\u2019t \u2014 I can\u2019t say as to how complete [defense counsel\u2019s] notes are.\nQ. These are the only notes we know about, Miss Costello.\u201d (Record, at 770-71.)", "type": "majority", "author": "JUSTICE PINCHAM" }, { "text": "PRESIDING JUSTICE MURRAY,\nspecially concurring:\nI agree with the majority that this case must be reversed and remanded for a new trial because of the State\u2019s use of Robinson\u2019s statements of a totally unrelated threat to a third person.\nI do not agree with much of the remaining comments of the majority, particularly the charges of prosecutorial misconduct. An error in the introduction of evidence does not necessarily rise to the level of prosecutorial misconduct.", "type": "concurrence", "author": "PRESIDING JUSTICE MURRAY," } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Joan E. Disis, and Penelope Moutoussamy, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR ROBINSON, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201485\u20140893\nOpinion filed September 22, 1989.\nMURRAY, P.J., specially concurring.\nRandolph N. Stone, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Joan E. Disis, and Penelope Moutoussamy, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0323-01", "first_page_order": 345, "last_page_order": 377 }