{ "id": 5304380, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Clinton Burnett, Defendant-Appellant", "name_abbreviation": "People v. Burnett", "decision_date": "1975-12-31", "docket_number": "No. 59906", "first_page": "109", "last_page": "124", "citations": [ { "type": "official", "cite": "35 Ill. App. 3d 109" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "160 N.E.2d 766", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill.2d 23", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5333858 ], "opinion_index": 0, "case_paths": [ "/ill-2d/17/0023-01" ] }, { "cite": "221 N.E.2d 798", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill.App.2d 131", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2574714 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/76/0131-01" ] }, { "cite": "243 N.E.2d 520", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill.App.2d 287", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2533962 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/102/0287-01" ] }, { "cite": "280 N.E.2d 764", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill.App.3d 249", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2911191 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0249-01" ] }, { "cite": "399 U.S. 149", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168934 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/399/0149-01" ] }, { "cite": "308 N.E.2d 364", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill.App.3d 421", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2514931 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0421-01" ] }, { "cite": "153 N.E.2d 557", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill.2d 605", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2768826 ], "opinion_index": 0, "case_paths": [ "/ill-2d/14/0605-01" ] }, { "cite": "295 N.E.2d 258", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "10 Ill.App.3d 652", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5393252 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0652-01" ] }, { "cite": "304 N.E.2d 630", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill.2d 577", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2937034 ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0577-01" ] }, { "cite": "235 N.E.2d 587", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill.2d 298", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2858409 ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0298-01" ] }, { "cite": "102 N.E.2d 134", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "410 Ill. 280", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5310622 ], "opinion_index": 0, "case_paths": [ "/ill/410/0280-01" ] }, { "cite": "117 N.E.2d 91", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "2 Ill.2d 165", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 12123628 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/2/0165-01" ] }, { "cite": "247 N.E.2d 10", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "108 Ill.App.2d 150", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1595880 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-2d/108/0150-01" ] }, { "cite": "318 N.E.2d 249", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill.App.3d 873", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2944439 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/22/0873-01" ] }, { "cite": "306 N.E.2d 16", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill.2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405554 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0187-01" ] }, { "cite": "225 N.E.2d 460", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "80 Ill.App.2d 300", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2562127 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/80/0300-01" ] }, { "cite": "220 N.E.2d 432", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill.2d 467", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378433 ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0467-01" ] }, { "cite": "275 N.E.2d 196", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "1 Ill.App.3d 949", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5313621 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0949-01" ] }, { "cite": "234 N.E.2d 175", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "90 Ill.App.2d 167", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2899392 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/90/0167-01" ] }, { "cite": "190 N.E.2d 755", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill.2d 55", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5363782 ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0055-01" ] }, { "cite": "265 N.E.2d 385", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill.2d 120", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903067 ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0120-01" ] }, { "cite": "314 N.E.2d 313", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill.App.3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5345461 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0915-01" ] }, { "cite": "51 N.E.2d 261", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "384 Ill. 303", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2489892 ], "opinion_index": 0, "case_paths": [ "/ill/384/0303-01" ] }, { "cite": "326 N.E.2d 762", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "764" } ], "opinion_index": 0 }, { "cite": "60 Ill.2d 287", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5415171 ], "weight": 2, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0287-01" ] } ], "analysis": { "cardinality": 1262, "char_count": 35659, "ocr_confidence": 0.722, "pagerank": { "raw": 1.7918441765080302e-07, "percentile": 0.7151106106958359 }, "sha256": "d94a28fd68e43d182f7aab006f89620a394fc3f921f0f6019071fba3d9c78736", "simhash": "1:0b163c183b25dfa3", "word_count": 5840 }, "last_updated": "2023-07-14T15:45:45.042916+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. Clinton Burnett, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE STAMOS\ndelivered the opinion of the court:\nFollowing an indictment charging defendant, Clinton Burnett, with \u25a0 the offense of murder (Ill. Rev. Stat. 1971, ch. 38, par. 9 \u2014 1(a)(2)), a jury of 11 persons found defendant guilty as charged. Judgment of conviction was entered thereon and a sentence of from 15 to 30 years imprisonment was imposed.\nDefendant appeals from this judgment and presents several issues for our consideration: (1) whether defendant knowingly and understandingly waived his statutory right to be tried by a jury of 12 jurors, (2) whether the trial court properly admitted into evidence an exhibit introduced by the State, (3) whether the credibility of certain defense witnesses was improperly impeached, (4) whether it was proper for the trial court, under the circumstances of this case, to instruct the jury that the State did not have to prove motive in order to establish defendant\u2019s guilt, (5) whether the prosecution sustained its burden of proving beyond a reasonable doubt that defendant was not acting in self-defense at the time the homicide occurred, and (6) whether the evidence creates a reasonable doubt of defendant\u2019s guilt of the charged offense.\nI.\nDue to the amount of conflicting testimony adduced at trial and its impact on the issues to be addressed herein, a summation of pertinent portions of the record is necessary. On July 14, 1972, the deceased, Steve Loston, and defendant resided in adjacent apartments, numbers 1508 and 1510 respectively, in a Chicago Housing Authority Project located at 3519 South Federal in Chicago. Loston (hereinafter referred to as \u201cthe deceased\u201d) died on July 14 after receiving a single laceration under his right arm during a fight that evening with defendant in an area outside of their apartments; a pathologist testified that the cause of death was attributable to the stab wound.\nThree corridors form a U-shaped hallway on the floor on which the incident occurred; two side corridors branch off of a main corridor. Outside of each apartment is a small porch area leading to a corridor. A partition or wall extends across approximately one-third of each porch in die passage way between the porch and the corridor. Throughout the trial, this partition was referred to by the witnesses as a \u201cpillar.\u201d Two elevators are located in the main corridor. One end of this corridor terminates at defendant\u2019s porch. The side corridor which meets the main corridor in front of defendant\u2019s porch leads to the deceased\u2019s apartment; the porches outside of these two apartments are perpendicularly adjacent to one another.\nIt is undisputed that defendant was in the deceased\u2019s apartment at approximately 6:30 p.m. on July 14. Also present in the apartment at that time were, among others, the deceased and his common-law wife, Elmer \u201cSue\u201d Loyd; Robert \u201cFoley\u201d Spurlock, a friend of the deceased; and Betty \u201cRita\u201d Williams, a neighbor who resided in apartment 1512.\nMrs. Williams testified that on July 14 while she was in the deceased\u2019s apartment, she witnessed the foUowing conversation between defendant and the deceased:\n\u201cDEFENDANT: Steve, did you teU me that Rita [Mrs. Williams] told you that I was going with Elmer Loyd?\nDECEASED: Man, I didn\u2019t teU you no bullshit like that, I don\u2019t want to even hear it.\nDEFENDANT: You just don\u2019t tell me no lie, you just wait until I come back.\u201d\nShe stated that defendant was \u201cshouting\u201d during this conversation. Defendant then left the apartment, and the witness departed shortly thereafter. From her apartment, Mrs. Williams heard defendant say in a \u201cloud\u201d voice from the haUway \u201cYou better not come out of there, if you come out of there, I\u2019m going to kill you.\u201d About 10-15 minutes later, Elmer Loyd and Robert Spurlock came to her apartment and said \u201cRita, Clint have cut Steve.\u201d Immediately thereafter, the deceased, bleeding and unarmed, \u201cstaggered\u201d to her door and collapsed on her porch.\nElmer Loyd testified that defendant was in her apartment on July 14 when the deceased returned home from work. She testified with regard to the argument between defendant and tire deceased in a manner similar to Mrs. WiUiams\u2019 version of the conversation. She further testified that defendant left her apartment after the argument, but subsequently returned to the hallway and shouted threatening remarks. A few minutes later, after she and the deceased finished packing for a trip to Detroit, they went out into the hallway to get on the elevator. According to her testimony, the elevator is located 6-8 feet from defendant\u2019s apartment. While they were waiting for the elevator, she observed defendant walk out of his apartment and proceed toward the elevator. Defendant had his hand on a brown handled knife which was about 12 inches long. The deceased, who was unarmed, \u201cjumped\u201d behind the pillar in front of defendant\u2019s apartment. Defendant \u201chad his hand on the knife and got up to the pillar and looked around like he was going to puU the knife.\u201d The deceased \u201cgrabbed\u201d defendant and threw him to the floor. After an exchange of punches, defendant \u201cstuck\u201d the deceased under the right arm. Defendant then said to the deceased \u201cI told you I was going to kill you.\u201d\nOn cross-examination, Ms. Loyd stated that the deceased was on top of defendant throughout the fight which lasted for about five minutes. When asked by defense counsel if she heard the deceased say to Robert Spurlock immediately after the stabbing \u201cMan, I told you to reach me my knife,\u201d she responded in the negative. Reading from the transcript of the grand jury proceedings, counsel next asked her if she remembered making the following statement before the grand jury: \u201cOh, and I heard Steye [the deceased] say one thing. When he walked around he told Foley [Robert Spurlock], \u2018Man, I told you to reach me my knife/ \u201d She remembered making that statement. However, at a side-bar conference, the prosecution argued that the statement from the transcript had been read out of context. In response, defense counsel agreed to read more of the witness\u2019 grand jury testimony in conjunction with his question. When the proceedings resumed, the court struck the last question, whereupon defense counsel asked the witness if she recaHed malting the foHowing statement before the grand jury:\n\u201cOh, then I heard Steve say one thing. When he walked around he told Foley, \u2018Man, I told you to reach me my knife,\u2019 and Steve fell. Then he told me to say he didn\u2019t say that and I caHed the Police and I didn\u2019t hear any more.\u201d\nShe replied that she did not remember making this statement. Following redirect examination, defense counsel moved that her testimony be stricken on the ground of perjury. In denying this motion, the trial court stated that in matters of impeachment the trier of fact is entitled to determine the credibility to be ascribed to each witness.\nRobert Spurlock testified that he did not witness an argument between defendant and the deceased in the deceased\u2019s apartment on July 14 because h\u00e9 was asleep at the time it allegedly occurred. He was standing with the deceased waiting for the elevator when defendant came out of his apartment. Defendant \u201cliad his hand on a knife, or something.\u201d After the deceased jumped behind the piHar, defendant approached and looked around the pillar. The deceased threw defendant down, hit him, and then stood up after he was cut. He did not see the deceased holding a knife until after defendant had left the area.\nOn cross-examination, he testified that one could only see the haHway, but not the elevators, from defendant\u2019s apartment because hallway doors partially obstructed the view. He recaHed being asked at the coroner\u2019s inquest what type of knife defendant had in his possession on July 14, but he did not remember answering \u201ca white pearl-handled knife.\u201d After further examination, he then remembered giving that answer, but maintained that he had been mistaken in this regard in his testimony at the earlier proceeding. He further testified that he did not see the fatal .wound inflicted and that he did not hear the deceased say \u201cMan, I told you to reach me my knife.\u201d\nAlbemicia Cox, another resident on the floor where the incident occurred, was called as a defense witness, and she testified that she was standing at the opposite end of the main corridor from defendant\u2019s apartment during the fight. From a distance of 20-25 feet, she observed defendant exit from liis apartment, reenter momentarily, and then again walk out onto his porch. As defendant walked into the corridor, the deceased, who had been standing behind the pillar, \u201ctackled\u201d defendant. She could not see the fight because defendant and the deceased fell behind a hallway door and she did not walk to the other end of the corridor. She did not see defendant holding a knife, but she testified that the deceased was holding a knife which was about 8 inches long while he was standing by the pillar. She thought that the deceased tucked the knife into his waistband after defendant reentered his apartment because she did not observe a knife when defendant was tackled.\nOn cross-examination, Miss Cox stated that she did not discuss the incident with any police officers on July 14 nor did she testify with respect to this case at any proceeding prior to trial. On March 5, 1973, she discussed this case with an investigator from the Sheriff\u2019s department. She recalled telling the investigator that she saw the deceased holding a knife immediately prior to the fight.\nJoan Walker, Albemicia Cox\u2019 mother, also testified as a defense witness. At about 5 p.m. on July 14, she was standing with her daughter on the porch of her apartment and observed defendant standing in the hallway at the opposite end of the main corridor telling the deceased to come out of his apartment. After 10-15 minutes, defendant went into his apartment. About 10-15 minutes later, the deceased was standing with a group of people by the elevator. The deceased, holding a knife 6-7 inches long, walked over to the pillar as defendant walked out onto his porch. Defendant walked back to his apartment door, and at that time the deceased placed the knife in his waistband. When defendant walked past the pillar, the deceased \u201ctackled\u201d him. Although her view of the altercation was momentarily blocked by the hallway door, she walked over to where they were fighting. She observed the deceased on top of defendant and \u201cbeating\u201d defendant in the face. The deceased then \u201cturned around and asked the children to find his so and so knife so he can kill this so and so.\u201d Shortly thereafter, the deceased stood up, grabbed under his right arm, and fainted. She next saw defendant when he came back to the scene of the occurrence accompanied by two police officers. She further testified that \u201cthere was already some up there\u201d and that she later \u201cwas standing there talking to the polices.\u201d\nOn cross-examination, Mrs. Walker stated that she did not see the deceased get stabbed. She testified that two sets of uniformed police officers arrived at the scene. The first group containing three or four officers arrived 30-40 minutes after the fight. The second group consisted of two officers and defendant. After the victim\u2019s body was removed, she talked to one of the officers who had arrived with the first group, but she did not recall his name. She told the officer her name and stated that she had seen the deceased holding a knife. She did not testify at any other proceeding prior to trial.\nII.\nWe first consider defendant\u2019s argument that he did not knowingly or understandingly waive his statutory right to a trial by 12 jurors. (Ill. Rev. Stat. 1971, ch. 38, pars. 103 \u2014 6, 115 \u2014 4(b).) Immediately after 12 jurors were sworn, but outside the presence of the jury, defense counsel and one of the prosecutors stipulated that in the event \u201cone or more\u201d members of the jury became unable to carry out the responsibilities of a juror, they would accept and abide by a verdict rendered by the remaining jurors. This stipulation was later modified to provide that at least 10 jurors must hear the cause. The record is silent as to defendant\u2019s presence at the time the stipulation was made of record. During the cross-examination of the first defense witness, one juror was absent for medical reasons. Defense counsel was notified of this fact, but stated that he had no questions with regard to proceeding with only 11 jurors. This juror was absent for the remainder of the trial and did not participate in the rendition of the verdict. Prior to the imposition of sentence, defendant made the following statement to the trial court:\n\u201cI asked to be tried by a jury of twelve jurors. I did not agree in any way to be tried by a jury of less then twelve jurors, and this has been my complaint during the time that the court stated that the absent juror had taken sick \u2014 and this hasn\u2019t come out before the court. I did not agree.\u201d\nIn his corrected reply brief, defendant concedes that People v. Murrell, 60 Ill.2d 287, 326 N.E.2d 762, cited in the State\u2019s brief, \u201cstands on its head\u201d the position advanced by defendant that he had not knowingly and understandingly waived his right to be tiled by 12 jurors. Notwithstanding this admission, defendant requests that the cause be remanded for a determination of whether defendant disagreed with his trial counsel with regard to the stipulation and whether this fact was suppressed during trial. We will not grant defendant\u2019s request.\nDefendant\u2019s assessment of the applicability of Murrell to the instant case is correct. Although Murrell pertained to whether a waiver of trial by jury was knowingly and understandingly entered, rather than whether defendant voluntarily agreed to be tried by less than 12 jurors, the rationale set forth therein applies a fortiori to the facts presented in the instant case. Nothing contained in the record suggests that defendant was absent from the proceedings when the stipulation was made or from the courtroom throughout the trial, nor does defendant now contend that he was not present. Consequently, we assume that defendant was present during this portion of the proceedings. Furthermore, it was not until a verdict of guilty was returned and judgment entered thereon that defendant manifested an objection to the size of the jury that heard the case. In light of these circumstances, we will not presume from a silent record that defendant was absent when the stipulation was made or that the waiver was not knowingly and understanding^ made. Hence, defendant is deemed to have acquiesced in, and is bound by, his attorney\u2019s action. See People v. Murrell, 60 Ill.2d 287, 290, 326 N.E.2d 762, 764.\nDefendant\u2019s second contention is that reversible error was committed by the trial court when it admitted into evidence, over defense counsel\u2019s objection, a certain photograph offered by the State. This exhibit depicted the side corridor which leads to the deceased\u2019s apartment. The investigator whose testimony laid the foundation for the introduction of this exhibit accurately described what was depicted by the photograph. Since neither defendant\u2019s apartment nor tire elevators were visible in the photograph, this witness, upon the State\u2019s request, drew two arrows on the photograph to indicate the direction to each of these areas; one of the arrows was labeled \u201celevator\u201d and the other labeled \u201c1510.\u201d In addition, this witness stated on direct examination and reiterated on cross-examination that a person standing in the main corridor by the elevators could see \u201cdirectly to the door\u201d of defendant\u2019s apartment. During closing argument, the assistant State\u2019s Attorney referred to this testimony and this exhibit when stating to tire jury that defendant, when leaving his apartment, had a clear view of the hallway and the people standing near the elevator, and therefore, defendant would not have proceeded into the corridor if it had been the deceased who was holding a knife.\nWe find no error in the admission into evidence of this photograph, and we consider the prosecutor\u2019s comments in this regard during closing argument to be reasonable inferences deductible from the evidence adduced at trial. (People v. Gleitsmann, 384 Ill. 303, 51 N.E.2d 261.) Defendant argues that the arrows and labels added to the photograph by the investigator distorted the photograph, confused the juiy, had the effect of improperly discrediting the defense witnesses, and thus, deprived him of a fair trial. We note, however, that not one question was asked of this witness on cross-examination directly pertaining to this exhibit in order to either discredit or clarify the testimony elicited from this witness on direct examination. Furthermore, other witnesses testified that they could see defendant\u2019s apartment while standing in the main corridor. Our examination of a certified floor plan of the floor on which the incident occurred reveals that due to the location of various doors and the \u201cpillar-,\u201d whether one could see defendant\u2019s apartment while standing in the main corridor depends entirely upon where one is standing. And although the testimony elicited on this point was both conflicting and confusing, tire testimony of each witness, with the possible exception of the investigator\u2019s statement that no wall is located in front of defendant\u2019s apartment which could obstruct one\u2019s view, was probably quite accurate when their respective vantage points are considered. Moreover, a defense exhibit was admitted which clearly depicts the main corridor and the pillar outside of defendant\u2019s apartment. Referring to this exhibit in his closing argument, defense counsel lucidly explained his theory of the case. As a result, a question of fact of who was the aggressor was presented for the jury\u2019s resolution. Hence, we hold that the admission of this particular exhibit did not result in prejudice to defendant so as to deprive him of a fair trial.\nDefendant cites three instances which he believes not only illustrate improper conduct on behalf of the prosecutors, but which also had the effect of depriving him of a fair trial. First, defendant quotes two remarks allegedly made by one of the prosecutors from the prosecution table during the testimony of Albemicia Cox. Defendant\u2019s counsel submitted an affidavit in which he stated that he heard one of the assistant State\u2019s Attorneys say \u201cShe said that, she said that\u201d and \u201cShe is well coached\u201d on two occasions during her testimony. Defendant argues that by these statements, the prosecutor\u2019s attempt to discredit Miss Cox\u2019 testimony was highly improper and prejudicial. When defense counsel informed the trial court of this matter at a side-bar conference, the judge commented that he had not heard the remarks, and therefore, he was unable to determine if the jury was influenced by them. The judge further noted that he did not believe that the entire jury could have heard the statements, but that he would handle the situation in an appropriate manner if he perceived that improper statements were being made. We believe that the trial court\u2019s disposition of this matter was proper and that no prejudice accmed to defendant.\nDefendant next points to the rebuttal testimony of the deceased\u2019s brother as another instance in which the prosecution attempted to discredit the testimony of certain defense witnesses in an improper and prejudicial manner. Over defense counsel\u2019s objection, the trial court allowed this witness to testify in rebuttal to contradict Mrs. Walker s testimony that she had seen the deceased in the apartment building around 5 p.m. on July 14. However, once on the stand, this witness testified not only that he had seen the deceased downtown on July 14 at approximately 5:45 p.m., but also that the deceased at that time had two tickets to the cleaners, and that he did not observe the alleged murder weapon in the deceased\u2019s possession. During closing argument, the State both commented upon and misrepresented this rebuttal testimony. No objection was made to this portion of the State\u2019s argument.\nRebuttal witnesses may properly be called by the State to contradict testimony elicited by the defense, but only with respect to material issues in the case. (People v. McGhee, 20 Ill.App.3d 915, 314 N.E.2d 313.) CoUateral matters which are not the proper subject for comment by rebuttal witnesses are generally considered to include facts which are irrelevant to the substantive issues in the case and facts which are not independently provable by extrinsic evidence, apart from impeachment purposes. People v. McGhee.\nHere, it is arguable whether the impeachment of Mrs. Walker\u2019s statement was a proper subject for rebuttal, thus we cannot say that the trial court abused its discretion in aUowing this witness to testify for this limited purpose. In our judgment, however, other testimony elicited from this witness constituted improper impeachment, and the trial court erred in admitting it. Nonetheless, this testimony pertained to matters which were remote to the substantive issues presented in this case, and hence, we do not believe that the introduction of this testimony was sufficiently prejudicial to defendant to warrant a reversal of his conviction. (Compare People v. Dennis, 47 Ill.2d 120, 265 N.E.2d 385, with People v. McGhee.) Defendant maintains that this error was amplified during the State\u2019s argument to the jury, but we find no compelling reason why the general rule which provides that failure to object to closing arguments bars their review should not apply. People v. Morgan, 28 Ill.2d 55, 190 N.E.2d 755; People v. Winstead, 90 Ill.App.2d 167, 234 N.E.2d 175.\nThe third allegation made by defendant of improper conduct by the prosecution is that the prosecutor\u2019s closing argument invaded the province of the trial court by attempting to instruct the jury. Although the statements referred to exceeded the bounds of legitimate argument, their effect on the trial could not constitute reversible error. In reaching this determination, we note that the remarks were met by timely objections by defense counsel which were sustained by the court, the court interjected curative remarks, and the jury was subsequently instructed by the court as to the applicable law. Moreover, the gravity of these remarks was not such as to require reversal, notwithstanding the manner in which they were treated. Compare People v. Hall, 1 Ill.App.3d 949, 275 N.E.2d 196, with People v. Weinstein, 35 Ill.2d 467, 220 N.E.2d 432, and People v. Wright, 80 Ill.App.2d 300, 225 N.E.2d 460.\nThe fourth issue raised by defendant is whether reversible error resulted when the jury was given Illinois Pattern Jury Instruction \u2014 Criminal No. 3.04 (1968). This instruction defines \u201cmotive\u201d and provides that the State is not required to prove a motion for the commission of the charged offense in order to establish defendant\u2019s guilt. However, the IPI Committee Note which follows this instruction provides that this instruction should not be given if the prosecution elicits testimony which tends to establish a motive and then argues the circumstances of that motive to the jury.\nDefendant contends that evidence was adduced at trial pertaining to an argument between defendant and the deceased prior to their fight in the hallway, and that the State argued to the jury that this dispute prompted defendant to fatally stab the deceased. Defendant concludes that in light of this evidence, it was highly prejudicial for the jury to receive this instruction.\nThe giving of this instruction has been held to constitute error when motive evidence is adduced and commented upon in an attempt to establish the identity of the wrongdoer (People v. Manzella, 56 Ill.2d 187, 306 N.E.2d 16) or to discredit a self-defense claim. (People v. Jackson, 22 Ill.App.3d 873, 318 N.E.2d 249.) Similarly, we hold that the giving o\u00ed IPI No. 3.04 under tire circumstances present in the instant case constituted error. However, the giving of this instruction did not constitute reversible error. Sufficient evidence was adduced at trial, independent of the motive evidence, upon which the judgment of conviction can rest; the testimony of Elmer Loyd and Robert Spurlock support the conclusion that defendant was the aggressor at the time of the incident. People v. Jackson, supra; see People v. Manzella, supra.\nBefore addressing the final issues raised by defendant, we feel compelled to mention that one instruction given to the jury is labeled in the record as \u201cCOURT\u2019S INSTRUCTION NO. 1.\u201d All other instructions given were IPI instructions. This particular instruction is identical to IPI No. 25.05, \u201cIssues in Defense of Justifiable Use of Force,\u201d with the exception that it added one additional element to the State\u2019s burden. The instruction given by the court provided in pertinent part as follows:\nTo sustain the charge of murder, the State must prove the following propositions:\n# # # #\nThird: The defendant was not justified in using the force which he used; and\nFourth: That the defendant did not reasonably believe that circumstances existed which justified the use of force which he used.\nThe fourth proposition in this instruction is not included in IPI No. 25.05. We consider the instruction given by the trial court to be misleading and that IPI No. 25.05 is preferable. However, since this instruction could only have had the effect of increasing the State\u2019s burden of proof in this case, no prejudice to defendant could have resulted from the giving of this instruction.\nHaving found that defendant was not deprived of a fair trial, we will consider defendant\u2019s final argument that the evidence adduced at trial was insufficient to establish beyond a reasonable doubt his guilt of murder. Defendant maintains that he was justified in using deadly force in defense of his person (Ill. Rev. Stat. 1971, ch. 38, par. 7 \u2014 1), and that in response to this affirmative defense, the State failed to sustain its burden of proving beyond a reasonable doubt that defendant did not act in self-defense. (Ill. Rev. Stat. 1971, ch. 38, pars. 7 \u2014 14, 3 \u2014 2.) In the alternative, defendant urges that the record would at most sustain a conviction for voluntary manslaughter. Ill. Rev. Stat. 1971, ch. 38, par. 9 \u2014 2(a).\nWith respect to his self-defense claim, defendant points to the testimony of Miss Cox and her mother who stated that they saw the deceased holding a knife immediately prior to the time when the deceased \u201ctackled\u201d defendant. Defendant also contends that the evidence, particularly Mrs. Walker\u2019s testimony that she heard the deceased ask children to find his knife so that he could kill defendant, establishes that his life was threatened by the deceased. Thus, defendant concludes that since it is uncontroverted that he was beneath the deceased throughout the fight, and further, since the deceased was armed and threatened to kill defendant, he was justified in using deadly force.\nThis evidence clearly raises the issue of self-defense (Ill. Rev. Stat. 1971, ch. 38, par. 3 \u2014 2(a)), but defendant ignores other evidence which was properly presented for the jury\u2019s consideration. The testimony of two occurrence witnesses supports the theory that it was defendant and not the deceased who was armed, and that defendant was thrown to the floor by the deceased out of necessity when defendant looked around the pillar.\nIf the issue of self-defense is properly before the trier of fact in a criminal proceeding, the prosecution must prove beyond a reasonable doubt not only that defendant committed each element of the charged offense, but also that defendant was not acting in self-defense. (People v. Johnson, 108 Ill.App.2d 150, 247 N.E.2d 10.) When this issue is raised to justify the use of force which is intended or likely to cause death or great bodily harm, the test which should be applied by the trier of fact is did this particular defendant reasonably believe that the circumstances to which he was confronted necessitate the use of such force. (People v. Johnson, 2 Ill.2d 165, 117 N.E.2d 91.) If conflicting evidence is presented on this issue, it is the function of the trier of fact to assess the credibility of the witnesses and to reach a determination accordingly. (People v. McClain, 410 Ill. 280, 102 N.E.2d 134.) After this determination is made and a verdict reached, a court of review should not substitute its judgment for the jury\u2019s finding unless the evidence is palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory so as to create a reasonable doubt of defendant\u2019s guilt. People v. Johnson, 2 Ill.2d 165, 117 N.E.2d 91; People v. Johnson, 108 Ill.App.2d 150, 247 N.E.2d 10.\nOur review of the record reveals sufficient evidence to sustain the jury\u2019s finding, implicit in the verdict, that the prosecution sustained its burden of proving beyond a reasonable doubt that defendant did not act in self-defense.- But defendant argues further that a reasonable doubt of his guilt of murder remains, notwithstanding the fact that the evidence is conflicting on this issue, because the testimony of the two occurrence witnesses caUed by the State is contradictory and inconsistent, whereas the testimony elicited from two defense witnesses is consistent and remained undisturbed under cross-examination. Defendant asserts, moreover, that Elmer Loyd\u2019s grand jury testimony supports his contention that the deceased was aimed and intended to kifl him. Defendant further maintains that when the trial testimony of Robert Spurlock is compared with the statements he made at the coroner\u2019s inquest, his credibility is left in doubt.\nThis position advanced by defendant both understates the record and misinterprets the law. First, mere conflicts in the testimony of a witness with his prior statements or with other evidence adduced at trial does not ipso facto establish that the witness has committed perjury. (People v. Lagios, 39 Ill.2d 298, 235 N.E.2d 587.) Defendant attempted to impeach the credibility of both Elmer Loyd and Robert Spurlock by confronting them with statements they had previously made which were inconsistent with their testimony at trial. In fact, defendant buttressed his attack against Ms. Loyd\u2019s veracity by calling as a witness the court reporter who had transcribed the grand jury proceedings. By this procedure, defendant employed the most effective means of attack upon the credibility of these two witnesses (see McCormick on Evidence \u00a7 33 (2d ed. 1972)), but the verdict speaks for itself, and we find adequate evidence contained in the record to sustain the judgment of conviction.\nSecond, the prosecution presented rebuttal evidence which, if believed by the jury, tended to contradict the testimony of the two key defense witnesses. Mrs. Walker testified that after the stabbing, she related what she had seen to an officer who had arrived at the scene. In rebuttal, the prosecution called two Chicago police officers and an investigator. Each testified that they did not have a conversation with either Mrs. Walker or Miss Cox on the evening of July 14. The investigator further testified that he had obtained aU police reports which had been prepared in conjunction with this incident and the names of these two defense witnesses did not appear therein. During closing argument, the presecutor stated that the evidence shows that Mrs. Walker did not talk to any of the seven officers present at the scene. Defendant argues that after careful examination of the record, and in particular the testimony of one pohce officer who stated that \u201cChicago Housing Authority Pohce\u201d were present at the scene when he arrived, it is \u201cclear that it was one of these CHA officers that Mrs. Walker talked to.\u201d However, not only did defendant faff to object to this portion of the prosecution\u2019s closing argument, thus waiving any error which may have occurred (People v. Skorusa, 55 Ill.2d 577, 304 N.E.2d 630), but also we consider that the prosecutor\u2019s remarks in this regard were reasonable inferences which could be deduced from the evidence presented at trial, and as such, represented a legitimate subject for comment by the State. People v. Gleitsmann. See also People v. King, 10 Ill.App.3d 652, 295 N.E.2d 258; III Wigmore, Evidence \u00a7 1042 (3d ed. 1940).\nThe prosecution also caUed as a rebuttal witness a member of the Sheriff\u2019s department who testified that he interviewed Miss Cox on March 5, 1973, and, contrary to her testimony, she stated to him that she did not see the deceased with a weapon in his possession on July 14. Since the testimony of several witnesses was contradicted, the issue of their credibility became, as always, a question of fact for the tried to resolve. (People v. Sudduth, 14 Ill.2d 605, 153 N.E.2d 557.) The jury apparently found the State\u2019s rebuttal evidence convincing.\nAnd third, defendant\u2019s attempted use of Ms. Loyd\u2019s and Mr. Spur-lock\u2019s prior inconsistent statements as substantive evidence in support of his theory of the case is unsupported by case authority in Illinois. In People v. Coleman, 17 Ill.App.3d 421, 308 N.E.2d 364, we stated that only testimony given by a witness while under oath and subject to cross-examination may properly be considered by factfinder as substantive evidence. Although prior inconsistent statements attributable to a witness may be admitted for the limited purpose of impeachment, any other attempted use of such statements is necessarily incompetent on hearsay grounds. People v. Coleman; see California v. Green, 399 U.S. 149, 26 L.Ed.2d 489, 90 S.Ct. 1930.\nDefendant contends in the alternative that the evidence would at most sustain a conviction for voluntary manslaughter. In this regard, defendant strongly relies upon People v. Johnson, 4 Ill.App.3d 249, 280 N.E.2d 764. However, in Johnson, and two cases cited therein (People v. Hough, 102 Ill.App.2d 287, 243 N.E.2d 520; People v. Stepheny, 76 Ill.App.2d 131, 221 N.E.2d 798), there was insufficient evidence to show a cooling-off period following provocation by the victim, and therefore, the requisite mental state for the offense of murder was not present. In his brief, defendant admits that \u201cA sufficient period of time had elapsed to permit the parties to cool off\u201d after the argument in the deceased\u2019s apartment. Perhaps the jury reached the same conclusion, a result which is warranted by this record.\nAs could be expected in a case of this nature, the record is not free from error. However, our function as a court of review in a criminal case is not to determine if the record is perfect, but rather to determine if defendant received a fair trial under the law and whether his conviction is based upon evidence establishing his guilt beyond a reasonable doubt. (People v. Kirkwood, 17 Ill.2d 23, 160 N.E.2d 766.) For the reasons set forth above, we affirm the judgment of the circuit court of Cook County.\nJudgment affirmed.\nDOWNING, P. J., and LEIGHTON, J., concur.\nDefendant cites another instance of inconsistency between Elmer Loyd\u2019s testimony at trial and her testimony before the grand jury pertaining to the argument in the deceased\u2019s apartment. However, since this matter was not brought out at trial for the jury\u2019s consideration, we will not consider it further.", "type": "majority", "author": "Mr. JUSTICE STAMOS" } ], "attorneys": [ "James R. Streicker and Gordon Berry, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and John T. Theis, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Clinton Burnett, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 59906\nOpinion filed December 31, 1975.\nJames R. Streicker and Gordon Berry, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and John T. Theis, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0109-01", "first_page_order": 135, "last_page_order": 150 }