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App. 3d", "case_ids": [ 5435086 ], "weight": 2, "pin_cites": [ { "page": "967" }, { "page": "968" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0964-01" ] }, { "cite": "231 N.E.2d 451", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "38 Ill. 2d 331", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2860162 ], "year": 1983, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0331-01" ] }, { "cite": "526 N.E.2d 141", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "123 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550970 ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0184-01" ] } ], "analysis": { "cardinality": 1485, "char_count": 36638, "ocr_confidence": 0.766, "pagerank": { "raw": 9.55650145919347e-08, "percentile": 0.5252927873401113 }, "sha256": "eda9ba60c0d8c9c66cd73e2e9ed9811fe89e83b306d666b7844bd2d91cdfed0b", "simhash": "1:fa9638162b55a590", "word_count": 6128 }, "last_updated": "2023-07-14T17:00:55.726214+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. MAURICE GREEN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE FREEMAN\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Cook County, defendant Maurice Green was convicted of murder, aggravated criminal sexual assault and unlawful restraint. (Ill. Rev. Stat. 1985, ch. 38, pars. 9 \u2014 1(a)(1), 12 \u2014 14(a)(1), 10 \u2014 3(a).) Defendant was sentenced to an extended term of 60 years\u2019 imprisonment for murder, 60 years\u2019 extended term for aggravated criminal sexual assault, to run consecutively to the term for murder, and three years\u2019 for unlawful restraint, to run concurrently with the term for aggravated criminal sexual assault. Defendant appeals, contending that: (1) the trial court erred in instructing the jury on the proper burdens of proof for voluntary manslaughter; (2) the trial court erred in permitting certain evidence to be taken into the jury room during deliberations; (3) a combination of errors in closing arguments denied him a fair trial; (4) the trial court erred in imposing an extended-term sentence for the aggravated criminal sexual assault conviction; (5) the trial court erred in considering the death of the victim as a factor in sentencing; and (6) since the extended-term sentence of aggravated criminal sexual assault was influenced by defendant\u2019s conviction for murder, if a new trial is ordered on the murder charge, the court should order reconsideration of the sentence for aggravated criminal sexual assault. We affirm in part and reverse in part.\nThe record reveals that on June 7, 1985, at about midnight, defendant visited M.H., the victim, at her apartment in Chicago. The victim shared her apartment with B.J., her 15-year-old daughter, and her stepson, R.J. Defendant and the victim had been friends for about eight years, and he knew both of her children.\nDefendant and the victim went into the victim\u2019s bedroom, where they shared some cocaine. After using all of the drugs, the couple went out to purchase more. The two separated, and defendant returned to the victim\u2019s apartment at about 2:45 a.m. and smoked more cocaine.\nAt some point during the early morning of the 8th, the victim left the bedroom. While she was out of the room, defendant took a small packet of cocaine and put it in his shirt pocket. When the victim returned, she noticed that a packet was missing. She asked defendant about the missing packet, and he denied having taken it, telling her that she had miscounted the packets. The victim told defendant that he was not leaving until she found the missing packet.\nThe victim then reached for defendant, in a playful manner, and he pushed her away. The victim reached again and again defendant pushed her away. When the victim reached for him a third time, defendant grabbed a large glass decanter and struck her on the top of her head. The victim fell into his arms and he hit her a couple more times. The victim then fell against the bed and slid onto the floor.\nDefendant then sat down on the bed and cooked another packet of cocaine. Moments later, while defendant was seated on the bed, the victim\u2019s foot hit his leg. Defendant looked and saw the victim\u2019s cheeks and lips were moving and he heard her moaning. He then picked up a green champagne or wine bottle and hit the victim in the head three or four more times. The bottle broke.\nDefendant then left the bedroom, went into the kitchen, got a 7-Up bottle and returned to the victim\u2019s bedroom. He removed her .32 caliber handgun from underneath her pillow and went into B.J.\u2019s bedroom. He did not recall whether he struck the victim with the 7-Up bottle.\nB.J. testified as follows. On the evening of June 7, 1985, defendant knocked on the door of the apartment and identified himself. B.J. then knocked on her mother\u2019s bedroom door and told her of defendant\u2019s presence. The victim told B.J. to tell defendant that she was not available. She did not want to be bothered with him.\nB.J. eventually allowed defendant to come inside the apartment. Once inside, the victim invited defendant into her bedroom. Later, after B.J. had eaten, she went into her bedroom, closed the door, turned on the radio and went to sleep.\nLater, she was awakened by defendant walking in and out of her room. B.J. described that at times, as defendant knelt by her bed, she could see and smell smoke. B.J. did not let defendant know she was awake.\nFinally, defendant told her to wake up. She told him to leave her alone, but defendant told her to get up, that he had a gun. Defendant then raised the gun and told her that he didn\u2019t want to kill her. On his order, B.J. touched his face. He then told her that he just wanted to put his face between her legs. Defendant continued to point the gun at her as he removed her underpants and put his tongue inside of her vagina. Defendant would leave the room, return and repeatedly sexually assault B.J. B.J. could not remember how many times this had occurred; however, she did remember that it happened more than twice. Once, after leaving the room and returning, defendant told B.J. to lie on her stomach, and he then put his tongue inside of her anus. B.J. recalled that this happened only once.\nB.J. also testified that defendant lay on top of her, holding the gun down by his side, and told her to touch him. She complied. During this time B.J. heard her brother R.J. as he was starting to unlock and come in the back door of the apartment. Defendant then got up, ran to door and pushed it closed. R.J. identified himself and asked defendant what was going on. Defendant told R.J. to get away from the door. R.J. left and telephoned the apartment.\nB.J. spoke with R.J. on the phone. After speaking with R.J., defendant told her to dial 911. As the 911 service rang, defendant snatched the phone away from B.J. and he spoke with the person who answered. Subsequently, at about 8 a.m., the police arrived. B.J. spoke with them on the telephone and was told that defendant was going to release her. Until the time that she was released, defendant would not allow her to leave the apartment; he kept her in a closet in the bathroom, leaving the closet door ajar.\nAfter being released B.J. went upstairs to a neighbor\u2019s apartment, where she met with the police and R.J. R.J. asked B.J. whether defendant had allowed her to go into her mother\u2019s room. B.J. responded negatively. R.J. then told the police that his mother was still in the apartment.\nB.J. recalled that at some time during this ordeal she asked defendant about her mother. He responded that the victim had gone out with his money and would return. B.J. identified photographs of the apartment which depicted that defendant had placed a chair in front of the entry into the apartment. She also identified a window in the kitchen of the apartment with two bullet holes shot by defendant.\nOfficer Dennis Banahan testified that on June 8 he responded to a call at M.H.\u2019s apartment. Upon knocking on the door and identifying his office, defendant told him to get away and that he had a gun. Banahan asked and defendant consented for him to speak with B.J. B.J. was crying and informed Banahan that she was all right. Banahan again attempted to persuade defendant to release B.J.; however, defendant told him to get away from the door. Banahan then went outside the building and contacted the hostage barricade terrorist unit.\nThomas Johnson, a detective with the hostage barricade terrorist incident program, made telephone contact with defendant. Defendant permitted B.J. to speak with him. B.J. told Johnson that defendant was pointing a gun at her. Johnson asked to speak with defendant again. Defendant then took the phone away from B.J. and hung it up.\nSeveral minutes later, Johnson telephoned the apartment again and attempted to persuade defendant to surrender. Defendant told Johnson that he wanted to talk to Mary because she owed him some money. Johnson asked him to release B.J.; however, defendant said that he could not. The telephone conversation lasted several minutes, then defendant hung up.\nJohnson made several attempts to telephone the apartment for the next few hours. Finally, at about 8:15 a.m. defendant released B.J. Johnson continued to talk with defendant to convince him to come out. At about 9:15 a.m. defendant came to the rear door of the apartment and threw out the gun. Defendant then told Johnson that he had killed Mary over cocaine, but he refused to surrender. At about 10:25 a.m., after continued negotiations, defendant came out of the apartment. He was then handcuffed, taken back inside the apartment and given Miranda warnings.\nSubsequent to defendant\u2019s arrest he was taken to the police station, and after again being advised of his rights, he made a statement to Detectives Patrick Carroll and Michael O\u2019Connor of the Chicago police concerning the incident. He subsequently made a second statement to Assistant State\u2019s Attorney Mark Schroeder, which Schroeder summarized and defendant signed.\nDefendant\u2019s first contention is that the jury was improperly instructed on the burden of proof for voluntary manslaughter. He claims that the instruction placed the burden of proof on the State to prove that defendant \u201cacted under a sudden and intense passion resulting from serious provocation by another.\u201d He maintains, relying on People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, that placement of the burden on the State rendered the instruction invalid. Therefore, he argues, a new trial on the murder charge is required.\nThe State neither disputes the claimed error in the instruction nor the retroactive application of Reddick. However, the State argues that since there was no evidence to support defendant\u2019s theory that he was acting with an unreasonable belief that the killing was justified, the error was harmless. We note, as does defendant in his reply brief, that defendant\u2019s theory was not unreasonable belief, as the State here addresses, but serious provocation.\nHere, the jury was instructed, without objection, on the then-standard instructions on voluntary manslaughter, viz., that the State bore the burden of proving that when the defendant killed, he acted under a sudden and intense passion resulting from serious provocation by another. Subsequent to defendant\u2019s trial, our supreme court, in Reddick, held that in order to sustain a murder conviction in cases where the defendant presents sufficient evidence to raise the affirmative defense of voluntary manslaughter based on provocation, the State has the burden of disproving, rather than proving, the existence of provocation and that the jury should be so instructed.\nEven assuming that Reddick is controlling in this case, we do not believe that a reasonable jury would have found that defendant acted out of serious provocation at the time of this offense. (Ill. Rev. Stat. 1985, ch. 38, par. 9 \u2014 2(a)(1).) Here, the defendant\u2019s statement, which was introduced into evidence, described that the victim came toward him, empty handed, and when she grabbed him, he hit her in the head with a decanter. The victim fell on the bed and slid onto the floor. As the defendant sat on the bed, the victim\u2019s leg moved and touched his foot. The defendant jumped up because he thought that the victim was dead. As the victim lay there on the floor, her face and mouth twitching, defendant picked up another bottle and began hitting her again in the head with it.\nIt is well settled that mutual combat or quarrel can be sufficient to support a finding of serious provocation. (See, e.g., People v. Crews (1967), 38 Ill. 2d 331, 335, 231 N.E.2d 451; People v. Neal (1983), 112 Ill. App. 3d 964, 967, 446 N.E.2d 270.) However, if the provocation is inadequate (People v. Matthews (1974), 21 Ill. App. 3d 249, 253, 314 N.E.2d 15), or if the defendant attacks the victim out of proportion to the provocation, then the crime is murder. (People v. Hood (1989), 191 Ill. App. 3d 129, 134, 547 N.E.2d 637; Neal, 112 Ill. App. 3d at 968.) Even were we to find that there was provocation, we would nonetheless find that it was in no way in proportion to the manner in which defendant retaliated. After review of the record, we are unable to conclude that the result of trial would have been different if the Reddick instruction had been given. (People v. Fierer (1988), 124 Ill. 2d 176, 187, 529 N.E.2d 972.) Therefore, we find that any error in the instruction was harmless beyond a reasonable doubt. See, e.g., People v. Harris (1989), 132 Ill. 2d 366, 547 N.E.2d 1241, cert. denied (1990), 496 U.S. 908, 110 L. Ed. 2d 275, 110 S. Ct. 2594; People v. Moleterno (1990), 199 Ill. App. 3d 15, 556 N.E.2d 703; People v. Skipper (1988), 177 Ill. App. 3d 684, 533 N.E.2d 44 (supplemental opinion).\nDefendant\u2019s second contention is that the trial court erred in permitting a vial of the victim\u2019s blood and \u201cgruesome autopsy\u201d photographs of the victim to be sent into the jury room during deliberations. He argues that the blood and the photographs needlessly inflamed the emotions of the jurors.\nWe first address the issue of the photographs. The court, over defendant\u2019s objections, allowed 11 color photographs of the victim to go back into the jury room during its deliberations. Contrary to defendant\u2019s characterization of the pictures as post-autopsic, the pathologist testified these photographs (exhibits 28, 29, 30, 31, 32, 33, 35, 36, 37 and 38) showed the victim as she appeared at the time of the autopsy. According to him, these photographs depicted the various angles of multiple blunt trauma lacerations and abrasions to the top, front, back and sides of the victim\u2019s head. The victim\u2019s head had been shaven by the pathologist\u2019s staff in order to make the injuries more visible. One photograph, exhibit 37, showed an area on the left side of the victim\u2019s head where, according to the pathologist\u2019s testimony, the margin was lifted from the surface; the scalp was separated from the skull. In another photograph, exhibit 41, the victim\u2019s scalp had been pulled away from the left side of the skull and fracture lines are visible.\nThe State maintains that the photographs were introduced to show the victim\u2019s wounds and to corroborate the pathologist\u2019s testimony. It argues, relying on People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238, and People v. Montague (1986), 149 Ill. App. 3d 332, 500 N.E.2d 592, that photographs which establish the various wounds and their locations or which corroborate and explain the pathologist\u2019s testimony are admissible.\n\u201c \u2018It is the rule that where photographs are relevant to establish any fact in issue that they are admissible in spite of the fact that they may be of a gruesome nature.\u2019 \u201d (People v. Foster (1979), 76 Ill. 2d 365, 377, 392 N.E.2d 6, quoting People v. Speck (1968), 41 Ill. 2d 177, 202, 242 N.E.2d 208, rev\u2019d (1971), 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct. 2279; see also People v. Shum (1987), 117 Ill. 2d 317, 353, 512 N.E.2d 1183, cert. denied (1988), 484 U.S. 1079, 98 L. Ed. 2d 1022, 108 S. Ct. 1060.) When presented with photographic evidence, the trial court must weigh the probative value and its potential prejudicial effect. (People v. Greer (1980), 79 Ill. 2d 103, 117, 402 N.E.2d 203; People v. Partin (1987), 156 Ill. App. 3d 365, 509 N.E.2d 662.) The ultimate decision as to what shall be taken into the jury room rests within the sound discretion of the trial court and, absent an abuse of that discretion, its decision will not be disturbed. (Shum, 117 Ill. 2d at 353; People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220, cert. denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364.) Obviously, photographs which have no probative value and no purpose, \u201cother than to horrify the jurors and arouse their emotions against the defendant,\u201d should not be admitted. People v. Coleman (1983), 116 Ill. App. 3d 28, 36, 451 N.E.2d 973, cert. denied (1987), 479 U.S. 1056, 93 L. Ed. 2d 984, 107 S. Ct. 933.\nDefendant relies on People v. Landry (1977), 54 Ill. App. 3d 159, 368 N.E.2d 1334, to support his argument that photographs taken diming an autopsy are highly prejudicial. In Landry, \u201cgrisly pictures, not of [the] external injury inflicted, but of the autopsy,\u201d were shown to the jury. (54 Ill. App. 3d at 161.) The pathologist there testified that the autopsy procedure may have exaggerated the appearance of superficial injury. To exemplify the distortion caused by the autopsy procedure, the pathologist testified that a dark area which appeared on the left side of the decedent\u2019s face was actually his nose. The court concluded that the gruesome nature of the photographs was caused by the autopsy procedure, rather than by an act of the defendant.\nSimilarly, in People v. Lefler (1967), 38 Ill. 2d 216, 221-22, 230 N.E.2d 827, one photograph showed the decedent\u2019s chest cavity after the breast bone, a portion of the ribs and the lungs, heart and main blood vessels had been removed. Another photograph showed the skull and portions of the brain after an area of the skull had been removed. The testimony there was that the gruesome nature of the pictures was caused almost entirely by the autopsy procedure. Additionally, the photographs had little probative value in view of the pathologist\u2019s detailed testimony and the fact that the nature and extent of the injuries were not disputed. Therefore, the court held that the photographs should not have been admitted. See also People v. Jackson (1956), 9 Ill. 2d 484, 138 N.E.2d 528 (photograph which showed sutures of the autopsic incision improperly admitted).\nIn the present case, the pathologist testified that the cause of the victim\u2019s death was the result of head injuries due to multiple blunt traumas. With the exception of exhibit 41, the photographs of the victim\u2019s shaven head depicted the condition of the victim as a result of the injuries she sustained, not the autopsy. The trial court stated that it would permit exhibits 37 and 41 to go into the jury room because they were descriptive of the pathologist\u2019s search for injuries and corroborated his testimony.\nWe believe that the exhibits, though gruesome, were probative on the issues of the cause of the victim\u2019s death and the force and manner in which the injuries were inflicted. Additionally, the photographs served to corroborate the pathologist\u2019s testimony concerning the extent and the nature of the injuries suffered. The fact that exhibit 41 showed the victim as a result of some preliminary autopsic procedure does not necessarily render the photograph prejudicial. (See People v. Yoho (1987), 164 Ill. App. 3d 17, 517 N.E.2d 329 (probative value of color photograph depicting a close-up view of the heart and its wound within what appears to be the chest cavity outweighed prejudice); People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 174, 104 S. Ct. 199 (two photographs which showed views of the left and right sides of the victim\u2019s head, with a small area around her ear partially shaved, the wounds cleaned and brain fragments near the victim\u2019s hair properly admitted).) While we might have disagreed with the trial court on the necessity of submitting some of the photographs, we find no abuse of discretion.\nWe note that defendant\u2019s reliance on People v. Coleman (1983), 116 Ill. App. 3d 28, 451 N.E.2d 973, cert. denied (1987), 479 U.S. 1056, 93 L. Ed. 2d 984, 107 S. Ct. 933, is misplaced. The photographs in Coleman depicted the decedent\u2019s decomposing, maggot-infested, partially autopsied body. Several teeth were missing and the brain was exposed, lying next to the head. A rag, which had been lodged in the decedent\u2019s mouth, and had caused the suffocation death, had been removed. The reviewing court held that the cause of the decedent\u2019s death was not in issue and, moreover, the rag, which caused the suffocation, had been removed from the decedent\u2019s mouth.\nIn the present case, the photographs are not nearly as gruesome as those described in Coleman. Additionally, the photographs here, unlike in Coleman, depicted the injuries which were the cause of decedent\u2019s death. Finally, as we have already stated, the photographs here were probative on the issues of the manner and extent of the victim\u2019s injuries.\nWe next consider the admission of the vial of blood.\nIn its brief, the State offers no purpose for allowing the vial of blood to go to the jury. Instead, it relies on the trial court\u2019s determination that the blood was \u201cdescriptive and part of the physical evidence recovered.\u201d The State maintains that even if it was error to permit the vial in the jury room during deliberations, such error was harmless.\nDefendant maintains that the presence of the blood during the jury deliberations aroused the emotions of the jury so as to compel a rejection of his voluntary manslaughter defense. He relies on People v. Elwell (1977), 48 Ill. App. 3d 628, 362 N.E.2d 830, to support his claim of reversible error. We find defendant\u2019s reliance on Elwell to have been misplaced and, further, we believe that the other evidence, coupled with defendant\u2019s post-arrest statement, are what in fact served to discredit his defense of voluntary manslaughter.\nOur review of Elwell reveals that the evidence there was more closely balanced than in this case. In Elwell three men, including the defendant, were involved in a fight with two other men. While the evidence revealed that only the defendant had come in contact with the victim during the melee, no one saw the defendant stab the victim, no one ever saw a knife in the defendant\u2019s hand, and no knife or other instrument capable of being used for stabbing was ever found. In this case, defendant made a statement admitting his involvement in the incident and the objects used to kill the victim were recovered from the scene. Moreover, as the State points out, the jury in Elwell, unlike here, deliberated over a period of several days.\nHowever, merely because evidence is \u201cdescriptive and part of the physical evidence recovered\u201d does not bestow upon it any probative value nor does it diminish its potential for prejudice. We fail to see any valid purpose for permitting the vial to be taken with the jury during its deliberations. The blood could not have aided the jury in its deliberations. That notwithstanding, based on the evidence presented defendant was not substantially prejudiced by the error and reversal is not required. See, e.g., People v. Lee (1990), 194 Ill. App. 3d 595, 551 N.E.2d 300; People v. Gonzales (1979), 79 Ill. App. 3d 498, 398 N.E.2d 647; People v. Seaberry (1978), 63 Ill. App. 3d 718, 380 N.E.2d 511.\nDefendant\u2019s third contention is that as a result of a combination of errors in the State\u2019s closing argument he was denied a fair trial. He points to four separate ways in which the comments prejudiced him. Defendant first argues that the State made improper comments concerning the exercise of his constitutional rights and improperly invoked the sympathy of the jury.\nThe State responds that the issues have been waived for defendant\u2019s failure to properly include the objections in his post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) We have reviewed defendant\u2019s motion and find that the issue concerning defendant\u2019s constitutional rights has been properly preserved for our review. However, the sympathy argument was raised neither at trial nor in the post-trial motion. Thus it is waived.\nThe objectional comments are as follows:\n\u201cMR. McNERNEY [Assistant State\u2019s Attorney]: You also heard a lot about rights. The defendant has a right to a fair and impartial jury. He got one.\nMR. McINERNEY [Defense Counsel]: Judge, objection. This is not rebuttal. Objection.\nMR. McNERNEY [Assistant State\u2019s Attorney]: He has a right to a fair trial. He has a right to be represented by able counsel. He has a right to confront the witnesses, the accusers against him. He has a right to remain silen[t].\nMR. McINERNEY [Defense Counsel]: Objection, Judge.\nMR. McNERNEY [Assistant State\u2019s Attorney]: He has all kinds of rights.\nMR. McINERNEY [Defense Counsel]: Objection, Judge.\nTHE COURT: Objection overruled.\nMR. McNERNEY [Assistant State\u2019s Attorney]: What about Mary Arm? Don\u2019t the victims of crime have any rights? What about her right to live? He doesn\u2019t think anything of that. What about B.J.\u2019s right not to be sexually assaulted in her own home? I don\u2019t see him crying about that.\nThis is nothing more than an attempt to avoid responsibility for what he\u2019s done.\u201d\nThe prosecution is permitted wide latitude in closing argument, and improper remarks will not merit reversal unless they result in substantial prejudice to the defendant. (People v. Thompkins (1988), 121 Ill. 2d 401, 445, 521 N.E.2d 38, cert. denied (1988), 488 U.S. 871, 102 L. Ed. 2d 156, 109 S. Ct. 187; People v. Cisewski (1987), 118 Ill. 2d 163, 514 N.E.2d 970.) However, it is critical, during rebuttal argument, that the prosecuting attorney not make improper arguments or assumptions not based on the evidence since, at that point, the defense is without opportunity to respond. (People v. Heidorn (1983), 114 Ill. App. 3d 933, 938, 449 N.E.2d 568; People v. Escobar (1979), 77 Ill. App. 3d 169, 395 N.E.2d 1028.) When presented with a claim of prosecutorial misconduct, arguments of both the prosecutor and defense counsel must be examined in their entirety, and the complained-of comments must be placed in their proper context. (People v. McBounds (1989), 182 Ill. App. 3d 1002, 1015, 536 N.E.2d 1225; People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174, cert. denied (1983), 461 U.S. 944, 77 L. Ed. 2d 1302, 103 S. Ct. 2121.) Absent a clear abuse of discretion, the trial court\u2019s determination of the propriety of the argument will stand. Cisewski, 118 Ill. 2d at 175; People v. Harris (1989), 187 Ill. App. 3d 832, 543 N.E.2d 859.\nHaving set out the applicable legal principles, we first consider defendant\u2019s argument concerning his reliance on his constitutional rights. Defendant claims that the State sought to penalize him for employing his rights, by encouraging the jurors to find that he was using his rights \u201cto avoid responsibility for what he\u2019s done.\u201d\nWe have reviewed the arguments of the parties. In its closing, defense counsel, referencing expert testimony, made comments concerning the effects of cocaine abuse. He asked the jury to recall that the effects, among other things, were hallucinations and abnormal behavior. At one point in the argument, counsel stated that defendant was under the effects of cocaine and that that was why he had killed the victim.\nThe State does not argue, but it appears to us, that the statement concerning defendant\u2019s rights did not purport to penalize him for the exercise of those rights. The tenor of the State\u2019s argument up to the point of listing defendant\u2019s rights was that defendant\u2019s reliance on diminished capacity, due to his cocaine use, and his cooperative behavior were attempts to avoid the consequences for the offenses committed. In its proper context, we believe that the comment concerning avoiding responsibility related to defense counsel\u2019s argument concerning the effects of cocaine use. We do not find, as in People v. Ray (1984), 126 Ill. App. 3d 656, 662-63, 467 N.E.2d 1078 (prosecutor stated \u201cthis man has hid[den] behind those rights\u201d), that the remark here implied that defendant was taking refuge in his constitutional rights, but rather that he was attempting to use the drug abuse as an excuse. (Compare People v. Webb (1986), 143 Ill. App. 3d 427, 493 N.E.2d 52.) We conclude that the remark was proper.\nDefendant next argues that comments made by the State prejudiced him in two additional ways. In its rebuttal, the State called defendant a liar, a coward, a thief, a drug abuser, a manipulator, an intimidator, an assaulter, of helpless women, a child molester and a murderer. He then stated to the jury, \u201cGod help us if you let the guy go that did this to Mary Ann.\u201d\nDefendant first argues that the State, without basis, repeatedly disparaged his character. He maintains that there was no evidence to support the State\u2019s characterization of him. The State responds that its statements about the character of defendant were based on reasonable inferences from the evidence.\nGenerally it is prejudicial error for a prosecutor to characterize a defendant as a liar. (People v. King (1989), 182 Ill. App. 3d 501, 506, 538 N.E.2d 230; People v. Strange (1984), 125 Ill. App. 3d 43, 465 N.E.2d 616.) However, such conduct does not constitute reversible error where proof of guilt is supported by substantial evidence. We agree with the State that the characterizations find some support in the record. We point to the evidence that defendant stated that he had taken a packet of the victim\u2019s cocaine, then told the victim that she had miscounted. Further, defendant stated that he told B.J. that her mother had taken his money and had left the apartment when, in fact, she lay beaten to death in her bedroom. Moreover, even were we to conclude that the characterization here was error, we would nonetheless find that the overwhelming evidence of defendant\u2019s guilt, rather than the negative characterization, resulted in his conviction.\nDefendant next argues that the prosecution frightened the jurors into convicting him of murder by drawing assumptions not based on the evidence. He claims prejudice because the jury\u2019s option was either to find him guilty of murder or to find him guilty of voluntary manslaughter. He argues that he was not asking the jury to release him, but to find him guilty of voluntary manslaughter.\nThe State responds, and we find, that defendant\u2019s argument claiming that the verdict was based on fear is not properly preserved for review. Moreover, even if the argument was properly before us, and assuming that the comments carried defendant\u2019s assigned meaning, we would find no impropriety. The jury received an instruction on the elements to prove voluntary manslaughter and a verdict form which included an option to find defendant not guilty of both murder and voluntary manslaughter. Thus, had the evidence shown that he was not guilty of either offense, regardless of what defendant asked the jury to find, acquittal on both charges would have been required.\nDefendant next contends that the imposition of the extended-term sentence for his aggravated criminal sexual assault conviction was improper. He advances two arguments in support thereof. First, in a supplemental argument, filed in this court prior to oral argument, defendant asserts that since aggravated criminal sexual assault, a Class X offense, is a lesser class offense than murder, he could not be sentenced to an extended term for the aggravated criminal sexual assault.\nDefendant is correct. The statute authorizing extended terms provides, in pertinent part:\n\u201c(a) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 \u2014 8\u20141 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 \u2014 5\u20143.2 were found to be present.\u201d Ill. Rev. Stat. 1987, ch. 38, par. 1005 \u2014 8\u20142(a).\nSee People v. Jordan (1984), 103 Ill. 2d 192, 203-06, 469 N.E.2d 569; People v. Holiday (1985), 130 Ill. App. 3d 753, 474 N.E.2d 1280. Compare People v. Young (1988), 124 Ill. 2d 147, 529 N.E.2d 497, and People v. Neal (1985), 111 Ill. 2d 180, 489 N.E.2d 845, cert. denied (1986), 476 U.S. 1165, 90 L. Ed. 2d 733, 106 S. Ct. 2292 (where capital sentence, as opposed to term of years, for murder imposed extended-term sentence on offense in lesser class permissible).\nSecond, in his opening brief, defendant maintains that the sentence was improper because the sexual assault was not characteristically brutal or heinous. We agree. However, since we find defendant\u2019s first argument to be dispositive, we need not engage in analysis of the second. Pursuant to Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)), we reduce defendant\u2019s sentence for the aggravated criminal sexual assault to 30 years, the maximum nonextended-term sentence for that offense. Ill. Rev. Stat. 1985, ch. 38, par. 1005 \u2014 8\u20141(a)(3).\nDefendant\u2019s fifth contention is that the trial court improperly considered the victim\u2019s death as a factor in sentencing him for murder. (People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.) Defendant asks that the sentence be vacated and that the case be remanded for resentencing.\nWe have reviewed the court\u2019s statements during the sentencing phase of defendant\u2019s trial. The trial judge gave a lengthy laundry list of the factors which it had considered in determining defendant\u2019s sentence. Among the factors, the court stated that it had considered defendant\u2019s background, his criminal history, the arguments in mitigation and aggravation, as well as defendant\u2019s potential for rehabilitation. Finally, after stating these factors, the court stated:\n\u201cBut in imposing the sentence, I am taking into consideration how your conduct caused serious harm, it caused serious harm, the worst possible loss to the victim of the murder, her life was taken.\u201d\nWhile it is proper to consider as an aggravating factor the force employed and the physical manner in which the victim\u2019s death was brought about, it is improper to consider the death of the victim as an aggravating factor where the death is implicit in the offense. (Saldivar, 113 Ill. 2d at 271-72; People v. Tompkins (1987), 155 Ill. App. 3d 380, 508 N.E.2d 481.) However, as was stated in People v. Martin (1983), 112 Ill. App. 3d 486, 445 N.E.2d 795, it is unrealistic to suggest that the judge in sentencing the defendant must avoid mentioning the fact that someone has died or risk committing reversible error.\nThe State distinguishes Saldivar, noting that there the harm caused was the primary aggravating factor considered, while in this case other factors were considered. The State also distinguishes Tompkins on the basis that the trial court there considered the victim\u2019s death, \u201cin and of itself,\u201d as an aggravating factor.\nIn this case we have the trial court\u2019s express statement that it was considering the death of the victim. The court erred. However, consideration of an improper aggravating factor in sentencing does not always require remandment; resentencing is only required where the reviewing court is unable to determine the weight given to the improper factor. (People v. Bourke (1983), 96 Ill. 2d 327, 332, 449 N.E.2d 1338; People v. Watts (1990), 195 Ill. App. 3d 899, 552 N.E.2d 1048.) We have examined the trial court\u2019s sentencing comments in their entirety. Notwithstanding the error, we believe that any consideration given to the improper factor was insignificant and that the sentence imposed was neither excessive nor inappropriately enhanced as a result.\nIn making this determination we consider that the court did give due consideration to the other factors presented in aggravation, including the extremely brutal nature of the offense. Further, defendant\u2019s statement, in his presentencing investigation, that he \u201cnever wanted to be treated\u201d for his chronic cocaine abuse, strongly indicates that the potential for his rehabilitation is minimal at best. Based on the facts in this case and for the reasons stated, we decline remandment for reconsideration of the sentence.\nFinally, defendant\u2019s sixth contention is that since the extended-term sentence for aggravated criminal sexual assault was influenced by the murder conviction, if a new trial is ordered on the murder charge, the court should order reconsideration of the sentence for aggravated criminal sexual assault.\nOur determination that the murder conviction was proper and further, our vacature of defendant\u2019s extended-term sentence for the aggravated criminal sexual assault conviction obviates the need for us to consider this argument.\nFor the foregoing reasons, we affirm in part and reverse in part.\nAffirmed in part; reversed in part.\nRIZZI and WHITE, JJ., concur.\nJustice Freeman authored this opinion prior to his election to the Illinois Supreme Court.", "type": "majority", "author": "JUSTICE FREEMAN" } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Karlene Behringer, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE GREEN, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1-87-2358\nOpinion filed January 16, 1991.\nRandolph N. Stone, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Karlene Behringer, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0233-01", "first_page_order": 255, "last_page_order": 271 }