                                                     FIRST DIVISION
                                                     March 31, 2011




                           No. 1-07-2229


                IN THE APPELLATE COURT OF ILLINOIS
                      FIRST JUDICIAL DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,       )   Appeal from the
                                           )   Circuit Court
          Plaintiff-Appellee,              )   of Cook County.
                                           )
v.                                         )   No. 04 CR 17334
                                           )
BRENETTA INGRAM,                           )   Honorable
                                           )   Stanley J. Sacks,
          Defendant-Appellant.             )   Judge Presiding.


     JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
     Justice Garcia specially concurred, with opinion, joined by
Presiding Justice Hall.


                           O P I N I O N

     In compliance with the supreme court’s supervisory order, we

have vacated our prior judgment in People v. Ingram, 401 Ill.

App. 3d 382, 928 N.E.2d 1205 (2010) and reconsidered this case in

light of People v. Thompson, 238 Ill. 2d 598, 939 N.E.2d 403

(2010).   See People v. Ingram, 239 Ill. 2d 569, 940 N.E.2d 1154

(2011).

     A jury convicted defendant, Brenetta Ingram, of first degree

murder.   Defendant contends she is entitled to a new trial

because the trial court failed to comply with Supreme Court Rule
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431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)).    Defendant

also contends the trial court interfered with her right to a fair

and impartial jury during jury selection.   Defendant finally

contends the trial court erred by refusing to issue a jury

instruction for second degree murder based on a sudden and

intense passion resulting from serious provocation.    We affirm.

FACTS

     In June 2004, defendant had been staying at the apartment of

the victim, Raymond Greene, with her daughter, Latasha, and her

daughter’s boyfriend, Shaun Patterson, for several months.    In

the early morning hours of June 17, 2004, defendant learned that

the victim planned to evict her from his apartment.    Defendant

became upset and participated in the stabbing and beating death

of the victim in his apartment.

     At trial, Detective Patrick Golden testified that he

interviewed defendant on June 17, 2004.   Defendant said that,

early on that date, she was standing on the corner of Chicago

Avenue and Hamlin Avenue in Chicago, Illinois, with Latasha,

Patterson, and defendant’s boyfriend, Walter Willis.    Willis told

the group that the victim owed him $50 to $60.   Willis then left

to retrieve the money from the victim.    Willis later returned to

the corner where the rest of the group remained.   Willis reported

that he went to the victim’s nearby apartment located at 3804 W.

Chicago Avenue, Chicago, Illinois, but the victim refused to

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repay the debt.     Willis further reported that the victim was

angry and planned to no longer allow defendant, Latasha, and

Patterson to stay at the victim’s apartment.      Defendant said she

became upset when she heard the news.      Jimmie Booker then

approached the group.      Defendant informed Booker that the victim

intended to evict defendant, Latasha, and Patterson.

       Defendant said she, Booker, Latasha, and Patterson left the

corner and went to the victim’s apartment.      Latasha knocked on

the rear door of the victim’s second-floor apartment.      When the

victim opened the door, Latasha stepped to the side and Booker

pushed the door open.      The group entered the apartment and the

victim demanded they leave.      When they refused, the victim

grabbed a baseball bat and swung it at defendant and Booker, but

missed them.      Defendant responded, “oh no, you are not going to

hit me with that bat.”

       Booker and the victim then began struggling with the bat.

Booker eventually gained control of the bat and told defendant he

needed help fighting the victim.      Defendant retrieved a knife

from the kitchen sink and repeatedly stabbed the victim in the

shoulders and back while the victim shouted, “I’m sorry.        I’m

sorry.    Stop.   Stop.”   The knife was approximately 8 to 10 inches

long.    Meanwhile, Booker repeatedly struck the victim with the

bat.    At some point, Booker dropped the bat and picked up a steel

shovel.    Booker then repeatedly hit the victim in the head and

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body with the shovel.    The victim fell into a chair, begging

defendant and Booker to stop hitting him.    The victim then

crawled on his hands and knees out his back door to an attached

porch.   Defendant followed, repeatedly hitting him with a wooden

stick that she found.    The victim eventually collapsed,

motionless on the rear porch.

     When they were finished, defendant and Booker changed out of

their bloodstained clothes and defendant changed out of her

bloodstained shoes.    They left the bloodstained items at the

apartment.   Defendant, Booker, Latasha, and Patterson took some

of the victim’s belongings, including a television, a microwave

oven, and a radio, and stashed the items several blocks from the

apartment in a cinder-block structure with the intention to

retrieve them later.    The group then split up.   Later that

morning, defendant learned the victim had died.

     Golden further testified that, after the interview

concluded, he instructed other detectives to photograph the

victim’s apartment and collect the bloodstained clothing

defendant and Booker had left behind.    Defendant, Latasha, and

Patterson consented to giving biological samples.     Golden and his

partner went to the cinder-block structure described by

defendant.   Nothing was found there.   Golden and his partner

returned to the police station and Golden called the State’s

Attorney’s office.    Around 10:45 p.m., Assistant State’s

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Attorneys (ASAs) Robert Robertson and Christine Frenzel arrived

at the police station.   Golden was present when the ASAs

interviewed defendant.   Defendant agreed to have her statement

videotaped.

     ASA Robertson testified that, when he first arrived at the

police station on June 17, 2004, he spoke with Detectives Golden

and Kevin Bore and reviewed the relevant police reports.    ASA

Robertson then interviewed defendant.   The interview lasted

approximately 30 minutes.   Defendant described the events that

transpired consistently with what she reported to the police.

ASA Robertson also interviewed Latasha, Patterson, and Willis.

After interviewing them, he returned to the room where defendant

was located and ASA Frenzel took her videotaped statement.     In

addition, Latasha agreed to memorialize her witness statement.

ASA Robertson took Latasha’s handwritten statement.   Afterward,

ASA Robertson reviewed the statement with Latasha, and Latasha

signed the bottom of each page of the statement.

     ASA Frenzel testified that ASA Robertson conducted the

initial interview of defendant and ASA Frenzel took defendant’s

videotaped statement.    The videotaped statement was published to

the jury.




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       In the videotaped statement,1 defendant said she, Latasha,

Patterson, and Booker went to the victim’s apartment after Willis

said the victim refused to repay the debt and planned to evict

defendant, Latasha, and Patterson from his apartment.        The group

climbed the back stairs to the victim’s second-floor door and

Latasha knocked.       When the victim opened the door, Booker pushed

his way inside and the rest of the group followed.        The victim

told Booker to leave, but Booker refused.       The victim picked up a

baseball bat and swung it.       Defendant said the bat nearly hit

her.       Booker told the victim, “I’m not gonna let you hit

[defendant].”       Then, Booker attempted to gain control of the bat

from the victim.       Booker said, “don’t let him get me, hit him,”

so defendant retrieved a “butcher” knife from the kitchen.         The

blade of the knife was approximately one foot long.        Defendant

stabbed the victim “several times” in the back, neck, and

shoulder area.       Meanwhile, Booker gained control of the bat and

hit the victim with it.       The victim retreated to a chair and sat

down.       He pleaded, “please, I’m sorry, stop, yes.”   At that time,

Booker was hitting the victim with a shovel that he found behind

the refrigerator.       The victim then fell to the floor.


       1
           At the time, defendant was wearing a paper suit because her

clothes were undergoing DNA testing.       Defendant was given a

jacket to wear because the room was cold.

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     According to defendant’s videotaped statement, Latasha

gathered her “things” and Patterson grabbed his radio and

“stuff.”    Latasha and Patterson left the apartment.   Defendant

said “there was blood everywhere,” so she and Booker changed

their clothes.    Booker told defendant that he was “gonna take the

TV and stuff.”    Booker took the bedroom television and handed

Patterson, who had reappeared, the microwave to carry out of the

apartment.    Booker gave defendant a radio, which she kept.

Booker told defendant he intended to sell the other items.      He

said he would give defendant some of the profit.    At that point,

the victim was on the floor in the kitchen and began crawling

toward the back porch.    When the victim was on the back porch,

defendant hit him with a stick.    She described the stick as four

feet long, two inches thick, and two inches wide.    Defendant said

“it must have come out the paneling of the door when they were

fighting or somewhere in the kitchen area.”    Defendant was the

last person to vacate the apartment and porch.

     The group went to a nearby “vacant lot with a gray wooden

little house with a[n] entrance window.”    Booker placed the

victim’s items in the “house.”    The group then split up.

Defendant said she went out drinking.    Later, defendant saw

Booker with the victim’s items in a shopping cart.      She never saw

the items after that.    Defendant called Willis and told him what

occurred at the victim’s apartment.     She reported that the victim

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was hurt.    Defendant also told her godmother and Herman Johnson

about the events that transpired at the victim’s apartment.      She

admitted she stabbed the victim.    Defendant knew the police were

looking for her.    Defendant said she planned to turn herself in.

Defendant, however, wanted to wait to do so until she saw Willis.

Willis arrived that afternoon and the police arrived shortly

thereafter to arrest her.

     Defendant admitted that, when she left the apartment, she

knew the victim was hurt.    Defendant said the victim was

bleeding.    Defendant, however, did not call the police or an

ambulance.

     On July 3, 2004, Booker was brought to the police station.

Golden interviewed him.    Booker consented to give a biological

sample.

     Latasha, who was in custody on a contempt charge for failing

to comply with a subpoena, testified that around 9 p.m. or

10 p.m. on June 16, 2004, she was standing near a corner on

Chicago Avenue with defendant, Patterson, and Willis.    At the

time, she, defendant, and Patterson were staying with the victim

in his apartment located across the street from where they were

standing.    Defendant told Patterson to go to the victim’s

apartment to retrieve his belongings because the victim was

evicting them.    Defendant, who was “a little tipsy and drunk,”

said she was going to confront the victim regarding rent money

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that she had paid.    Defendant and Patterson left the corner to go

to the victim’s apartment.

     Approximately 15 to 20 minutes later, Latasha walked over to

the victim’s apartment.    She noticed defendant, Patterson,

Willis, and Booker standing on the stairs leading to the back

porch of the victim’s second-floor apartment.    Willis left the

area and defendant, Patterson, and Booker began knocking on the

victim’s door.    The victim opened the door and told defendant she

was not welcome inside.    The victim closed the door, but then

opened it when Latasha knocked.    The victim instructed the group

to retrieve their belongings, and all four of them entered the

victim’s apartment.    Latasha and Patterson quickly grabbed their

belongings from the living room.    On her way out of the

apartment, Latasha heard defendant arguing with the victim.    She

did not witness any physical fighting.    Patterson left the

apartment with Latasha.    They both went to Latasha’s father’s

house about three blocks away.    Latasha did not see defendant

again that night.

     The next day, June 17, 2004, at about 7 a.m. or 8 a.m., she

and Patterson were approached by the police.    They went to the

police station, where she spoke to Detective Golden and his

partner.    Latasha reported that, on the day in question,

defendant knocked on the victim’s door and Booker pushed the door

open to gain entry.    Latasha told the detectives that the victim

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asked everybody to leave.    While she was gathering her

belongings, Latasha witnessed Booker and the victim wrestling for

control of a baseball bat.    Booker obtained control and struck

the victim with it.   Latasha further told the detectives that

defendant retrieved a shovel and beat the victim three or four

times with it, while Booker was striking the victim with the bat.

Latasha also said she heard the victim scream, “please stop.      I

am sorry!” and saw him crawl onto his rear porch.    Defendant said

she was going to kill the victim.

     Latasha further testified that she was interviewed by ASA

Robertson.   Latasha admitted she told ASA Robertson that, prior

to going to the victim’s apartment, defendant was angry.

Defendant said she was going to get “one of her boys to beat [the

victim’s] a***.”    Latasha told ASA Robertson that she was outside

the victim’s apartment when defendant exited.    Defendant had

changed into different clothes from what she was wearing when

they first arrived at the apartment.

     Latasha admitted that she testified before the grand jury on

June 18, 2004.   At trial, Latasha testified that Patterson left

the victim’s apartment with his own radio.    However, Latasha

admitted that she testified before the grand jury that the radio

was the victim’s.   During her grand jury testimony, Latasha said

defendant took some of the victim’s belongings.    Latasha also

told the grand jury that she saw her mother hit the victim with a

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“long brown stick.”   Latasha admitted that she told the

detectives and the grand jury that, while defendant was hitting

the victim with the shovel, she heard defendant yelling, “I am

going to kill you.”

     On cross-examination, Latasha testified that, when she was

interviewed by defense counsel prior to trial, she said defendant

was protecting herself from the victim at the time in question.

During that pretrial meeting, Latasha said the victim grabbed

defendant and defendant responded by hitting and kicking him to

break free.

     Detectives and evidence technicians collectively testified

that the victim was found face down on his second-floor porch.

He was surrounded by blood.   Blood was found on the ground

underneath the porch where it had poured through from above.    A

shovel was found near the landing to the second-floor porch.    A

serrated kitchen knife was found underneath the shovel.     A butter

knife was found by the victim’s right hand.   Inside, the

apartment was in complete disarray.   Bloodstains were found in a

number of places, including on the stove and a countertop.    The

police recovered the following bloodstained items: a black pot, a

black pair of shoes, a denture retainer, a blue shirt, a yellow

shirt, a white shirt, a piece of wood measuring four feet in

length, a baseball bat, the butter knife, the serrated knife, and

the shovel.

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     Officer Nick Ribaudo, an evidence technician, testified that

he photographed defendant at the police station.    Defendant had a

small cut on her pinky finger and a cut on the bottom of her

foot.   Ribaudo said he collected defendant’s bra and denim

shorts, along with Patterson’s clothes.

     Lynette Wilson, a forensic scientist, testified that she

tested a number of items for the presence of blood.    Blood was

found on defendant’s bra and jean shorts, Patterson’s tank top,

Booker’s shoes, the baseball bat, the piece of wood, the shovel,

and the large serrated knife.   The butter knife was not tested.

     Ashlee Fulmer, a deoxyribonucleic acid (DNA) expert,

testified that she analyzed the blood found on defendant’s

shorts, Patterson’s tank top, and Booker’s shoes.    The blood on

defendant’s shorts matched the victim’s DNA.    The blood on

Booker’s shoes matched his own DNA.    The blood on Patterson’s

tank top matched his own DNA.

     Doctor Mitra Kalelkar, a medical examiner, testified that

she performed the victim’s autopsy.    Kalelkar said the victim

sustained 16 groups of injuries to his face and head, 3 injuries

to the neck, 15 injuries to his trunk, 18 injuries to his upper

extremities, and 6 injuries to his lower extremities.    The

injuries included abrasions, stab wounds, contusions, and

lacerations.   Kalelkar’s internal examination revealed multiple

hemorrhages beneath the scalp and a fractured skull.

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     Kalelkar testified that the wounds on the victim’s head were

consistent with blunt force trauma using a shovel or a similar

object.    The victim’s stab or incised wounds were consistent with

the serrated knife found on the scene.     The victim’s scrapes and

abrasions could have been caused by the butter knife found on the

scene.    The victim’s rectangular-shaped injuries were consistent

with the recovered piece of wood.      The recovered pot handle was a

blunt object that could have caused abrasions, scrapes, or

bruises.    Kalelkar opined that the victim’s injuries were also

consistent with being hit by a bat or any blunt object.     The

victim’s abrasions were consistent with someone crawling over a

rough surface like wood or concrete.     According to Kalelkar,

considerable force is required to fracture a skull.     Moreover, a

fractured skull results in the loss of a large amount of blood.

Kalelkar opined that the victim died as a result of multiple

blunt force and shock force injuries.     Kalkelkar added that she

found a presence of a cocaine metabolite in the victim’s blood.

     The defense did not present any evidence.     Defense counsel

argued that defendant was acting in self defense when she struck

the victim.

     The jury found defendant guilty of first degree murder and

not guilty of armed robbery.    Defendant was sentenced to 45

years’ imprisonment.



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DECISION

I. Rule 431(b)

     Defendant contends she was denied her right to a fair and

impartial jury because the trial court failed to comply with

Supreme Court Rule 431(b).

     We review a trial court’s compliance with a supreme court

rule de novo.    People v. Lloyd, 338 Ill. App. 3d 379, 384, 788

N.E.2d 1169 (2003).

     Defendant concedes she failed to preserve her contention for

purposes of our review by failing to object to the Rule 431(b)

error.   People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124

(1988) (in order to preserve an error for appellate review, the

defendant must object at trial and include the alleged error in a

posttrial motion).    Defendant, however, requests that we review

the error under the plain error doctrine pursuant to Supreme

Court Rule 615(a) (Ill. S. Ct. R. 615(a)).

     The plain error doctrine allows us to review an issue

affecting substantial rights despite forfeiture in either of two

circumstances:

     “First, where the evidence in a case is so closely

     balanced that the jury’s guilty verdict may have

     resulted from the error and not the evidence, a

     reviewing court may consider a forfeited error in order



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     to preclude an argument that an innocent man was

     wrongly convicted.   [Citation.]   Second, where the

     error is so serious that defendant was denied a

     substantial right, and thus a fair trial, a reviewing

     court may consider a forfeited error in order to

     preserve the integrity of the judicial process.”

     People v. Herron, 215 Ill. 2d 167, 178-79, 830 N.E.2d

     467 (2005).

Relying on the second Herron circumstance, defendant claims the

trial court’s failure to comply with Rule 431(b) denied her the

basic guarantees for obtaining a fair and impartial jury.         In

order to conduct a plain error analysis, we must first determine

whether error occurred.    People v. Sims, 192 Ill. 2d 592, 621,

736 N.E.2d 1048 (2000).

     Jury selection in this case began on June 25, 2007.     Supreme

Court Rule 431(b) was amended effective May 1, 2007.     The amended

rule places a sua sponte duty on trial courts to ensure

compliance with Rule 431(b).    Thompson, 238 Ill. 2d at 607.      The

amended rule provides:

            “The court shall ask each potential juror,

     individually or in a group, whether that juror

     understands and accepts the following principles:      (1)

     that the defendant is presumed innocent of the


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    charge(s) against him or her; (2) that before a

    defendant can be convicted the State must prove the

    defendant guilty beyond a reasonable doubt; (3) that

    the defendant is not required to offer any evidence on

    his or her own behalf; and (4) that the defendant’s

    failure to testify cannot be held against him or her;

    however, no inquiry of a prospective juror shall be

    made into the defendant’s failure to testify when the

    defendant objects.

            The court’s method of inquiry shall provide each

    juror an opportunity to respond to specific questions

    concerning the principles set out in this section.”

    (Emphasis added.)    Ill. S. Ct. R. 431(b) (eff. May 1,

    2007).

    In his opening remarks, the judge here said:

            “Under the law, [defendant] is presumed innocent

    of the charges against her, and that presumption

    remains with her throughout every stage of the trial,

    and during your deliberations on your verdict, and is

    not overcome unless from all the evidence, you are

    convinced beyond a reasonable doubt that she is guilty.

            The State in this case *** has the burden to prove

    the guilt beyond a reasonable doubt, and that burden



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     remains on the State throughout the entire case.    The

     [d]efendant is not required to prove to you that she’s

     innocent of the charges against her, nor is she

     required to present any evidence on her own behalf, so

     she can rely on the presumption of innocence.”

Later, the judge continued:

            “During the course of the trial, and more so at

     the end of it, I will tell you what the law is that

     applies to the case of People v. Brenetta Ingram.    You

     as jurors are required to follow and obey the law, even

     in circumstances where you might say to yourself I

     personally disagree with it.

            Anybody have any difficulty, any of the jurors out

     there, any problem following and obeying the law in

     this case?

            Anybody think they have a problem following the

     law in the case of [defendant]?

            No response to that question either.

            There are certain things that apply in a criminal

     case, certain principles that apply to the case of

     [defendant] I will mention to you at this point.

            One of those principles is the [d]efendant *** is

     presumed innocent of the charges against her, and that

     presumption remains with [defendant] throughout the

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    entire trial and is not overcome unless by your

    verdicts in the case, you conclude the State has proven

    [defendant] guilty beyond a reasonable doubt.

            Does anybody have any difficulty or quarrel with

    the principle that [defendant] is presumed innocent of

    the charges against her and the State is required to

    prove her guilt beyond a reasonable doubt?

            Again no response.

            As part of the last question I just read to you,

    it should be obvious to you that the State in this case

    *** has the burden of proving the guilt of the

    [d]efendant beyond a reasonable doubt and that burden

    is on the State throughout the entire trial.     The

    [d]efendant is not required to prove to you that she’s

    innocent of the charges against her.

            Does anybody have any difficulty or quarrel with

    the principle the State is required to prove

    [d]efendant guilty beyond a reasonable doubt, the

    [d]efendant is required to prove nothing?

            And again, no response.

            And in conjunction with those two principles, they

    all kind of go hand in hand together is that

    [d]efendant *** has the right to remain silent.     She

    may choose sitting right here throughout the course of

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    the entire trial, and not testify on her own behalf,

    and rely upon the presumption of innocence.

            If that event should happen to occur, you as

    jurors can draw no inference for the fact she chooses

    to remain silent in favor of [defendant] or against

    [defendant] if she chooses to remain silent.

            Does anybody have any difficulty or quarrel with

    the principle an accused person has the absolute right

    to remain silent and not testify?

            Again no response.

            If at the close of all the evidence in the case,

    any arguments by the lawyers, and instructions by me,

    you come to the conclusion that the State has proven

    the charge against [defendant] beyond a reasonable

    doubt, under those circumstances, anybody have any

    difficulty or quarrel with signing a verdict form which

    would say guilty?

            No hands.

            The other side of the coin equally applies, at the

    end of all the evidence in this case, arguments by the

    lawyers, instructions by me, you come to the conclusion

    that the State has failed to prove beyond a reasonable

    doubt to your satisfaction the charge against

    [defendant], under those circumstances, anybody have

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     any problem signing a verdict form which would say not

     guilty?

            Again no response.”

Then, while reading the jury instructions to the jurors after the

close of evidence, the judge said:

            “The defendant is presumed to be innocent of the

     charges against him of first degree murder type B and

     armed robbery.   This presumption remains with him

     throughout every stage of the trial and during your

     deliberations on the verdict, and is not overcome

     unless from all the evidence in this case you are

     convinced beyond a reasonable doubt that he is guilty.

            The State has the burden of proving the guilty

     [sic] of the defendant beyond a reasonable doubt and

     this burden remains on the State throughout the case.

     The defendant is not required to prove his innocence.

            The defendant is presumed to be innocent of the

     charges against him of first degree murder, type A.

     This presumption remains with him throughout every

     stage of the trial and during your deliberations on the

     verdict and is not overcome unless from all the

     evidence in this case you are convinced beyond a

     reasonable doubt that the defendant is not guilty.



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            The State has the burden of proving the defendant

     is guilty of first degree murder, type A, and this

     burden remains on the State throughout the case.    The

     defendant is not required to prove his innocence.

            The fact that the defendant did not testify must

     not be considered by you in any way in arriving at your

     verdict.”

     Defendant contends the trial court erred by failing to

expressly inquire whether the venire understood and accepted that

defendant need not present evidence in her defense and failing to

provide the venire members with an opportunity to indicate their

understanding and acceptance of that principle.    We disagree.

     We are mindful that the supreme court rules are not

aspirational but, rather, must be “obeyed and enforced as

written.”    Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275

(1995).   However, compliance with Rule 431(b) is not dictated by

specific language.    “Importantly, the rule speaks of ‘principles’

instead of questions.    Likewise, the rule does not set out these

principles in the form of questions to be posed in haec verba.

Nor does the rule provide for any ‘magic words’ or ‘catechism’ in

order to satisfy its mandate.”    People v. Vargas, 396 Ill. App.

3d 465, 472, 469 N.E.2d 1062 (2009), judgment vacated, 239 Ill.

2d 584, 940 N.E.2d 1149 (2011) (table) (on January 26, 2011, the


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supreme court issued a supervisory order instructing this court

to vacate its judgment and reconsider the case in light of

Thompson); People v. Ware, No. 1-09-0338, slip op. at 64 (Ill.

App. Feb. 10, 2011) (“we do not believe there is special magic

language that needs to be used to show whether a prospective

juror understands and accepts the four Zehr principles”).

       There is no dispute that the entire venire was advised of

each of the four principles codified by Rule 431(b) and announced

in People v. Zehr, 103 Ill. 2d 472 (1984).    The venire members

were later asked whether they had “any difficulty or quarrel with

the principle” that defendant was presumed innocent, the State

had the burden of proof, and defendant’s decision not to testify

could not be held against her.    The judge did not expressly ask

whether the venire members had “any difficulty or quarrel with

the principle” that defendant need not present any evidence.

Nevertheless, while explaining the burden of proof and

establishing the venire members’ understanding and acceptance of

that principle, the judge said “the [d]efendant is not required

to prove to you that she [is] innocent of the charges against

her.    Does anybody have any difficulty or quarrel with the

principle the State is required to prove [d]efendant guilty

beyond a reasonable doubt, the [d]efendant is required to prove

nothing?”    Then, while establishing the venire’s understanding


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and acceptance that no adverse influence could result from

defendant’s decision whether to testify, the judge said defendant

could rely on the presumption of innocence.   Furthermore, while

reading the jury instructions at the close of evidence, the trial

judge readvised the empaneled jurors that “the defendant is not

required to prove his innocence.”

     We recognize that jury instructions will not cure existing

prejudice against any of the Zehr principles (Id. at 477);

however, taken in conjunction with the admonishments and

interrogations completed during voir dire, the trial judge

complied with the dictates of Rule 431(b).    We find that, by

informing the venire that the defendant is not required to prove

that she is innocent of the charges and that she is not required

to prove anything, the trial court sufficiently ensured the

venire understood and accepted that defendant was not required to

provide evidence on her own behalf.   Therefore, no error

occurred.

     We conclude that defendant cannot maintain her contention.

II. Judicial Interference With Jury Selection

     Defendant contends the trial judge interfered with the

selection of an unbiased jury when he warned panel members that

they would be penalized if they changed their answers on their

jury summons cards.   The State responds that defendant failed to



                               -23-
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preserve her contention for our review because she did not object

to the alleged erroneous conduct during trial and did not include

it in a posttrial motion.     In the alternative, the State contends

the trial judge did not abuse his discretion by making humorous

remarks during jury selection.

     Defendant concedes that she did not preserve her contention.

As stated, we may review a forfeited error under the doctrine of

plain error when (1) the evidence was close, regardless of the

seriousness of the offense; or (2) the error was so serious as to

deny a substantial right, and thus a fair trial, that the

closeness of the evidence does not matter.     Herron, 215 Ill. 2d

at 178-79.   We first must review whether error occurred.

Sims, 192 Ill. 2d at 621.

     The manner and scope of voir dire are within the discretion

of the trial judge.    People v. Williams, 164 Ill. 2d 1, 16, 645

N.E.2d 844 (1994).    “The purpose of voir dire is to assure the

selection of an impartial panel of jurors free from either bias

or prejudice.”   Id. at 16.    We will find the trial judge abused

his discretion in conducting voir dire only where the judge’s

conduct “thwarted the selection of an impartial jury.”      Id.

     We now turn to defendant’s substantive argument to determine

whether the trial judge erred.    During his opening remarks, the

trial judge said:


                                 -24-
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            “In order to determine your qualifications as

     jurors in this case, I’m going to ask you certain

     questions about yourselves.    The lawyers can ask you

     questions thereafter if they’d like to do that also.

            The questions that we ask you are not designed to

     pry in your private life or embarrass you.    They are

     designed to afford the lawyers a chance to find out

     about you personally so they can be informed during the

     jury selection process.

            We ask you to be frank, complete, and open in all

     your answers.   That’s how we ensure fairness to both

     sides.”

     While explaining a specific question asked on the jury

summons card, the judge said:

            “If you were arrested for something other than

     minor traffic, but you put down no, because you weren’t

     quite sure what Question No. 10 meant, now that you

     know, you will tell us.

            And that arrest could have been here in Chicago,

     anywhere in Illinois, some other state, some other

     country, anywhere.

            We are not going to delve into the embarrassing

     details.   We think we are entitled to know the answer

     to that question, however.

                                -25-
1-07-2229

            If you put down no, you can change it to yes.”

Later, the trial judge added:

            “At this point, before we start actually, just so

     you have in mind, we all know we are here for a very

     serious purpose obviously.    My mother used to always

     tell me, great lady that she was, there is a time to

     laugh and a time to cry.

            She did not mean that literally.   What she meant

     was time to make things light, time to take things

     seriously.   We know when those times are.    You will

     know when those times are.

            I don’t want you sitting with us three or four

     days glum from the time you first walk in and glum

     until you walk out.    So there may be a time during the

     course of your duties, proceedings today or tomorrow,

     next day, next day, whatever, I may say something I

     think might be somewhat humorous, you agree, you want

     to laugh, snicker, feel free to do [so].

            If you don’t think it’s humorous, don’t laugh just

     on my account.   I’m not doing that to demean the reason

     we are here.   We all know we are here for a very

     serious purpose and that should be obvious, but if I

     can lighten your load for you a little bit, I might try

     and lighten your load for a little bit.     It doesn’t

                                -26-
1-07-2229

     take way from the reason we are all here however.”

     Defendant specifically takes issue with exchanges the trial

judge had with four jurors after they revealed they needed to

change an answer on their jury summons cards.      Prior to and

between the exchanges in question, the trial judge asked the

appropriate2 venire members, “[q]uestions 9 through 16, all your

answers are no.       Any out of those you want to change in any way?”

The first exchange in question was with venire member Passantino:

             “Q. Questions 9 through 16, all your answers were

     no.     Any answer out of those you want to change in any

     way?

             A. Well, I was the victim of having my car stolen.

             Q. How long ago was that?

             A. Six years ago.

             Q. Was anybody arrested or charged as far as you

     know of?

             A. No.

             Q. Anything about that circumstance make you think

     you couldn’t be fair to both sides in this case at all?

             A. No.


     2
         The judge did not ask the question when the venire member

answered yes to the relevant questions on his or her jury summons

card.

                                   -27-
1-07-2229

            Q. Anything else you wanted to change of those

     questions?

            A. No.

            Q. Did they tell you what happened to you if you

     changed an answer?   When you change an answer on these

     forms, did they tell you what happens, when you change

     an answer?

            A. Well, I thought about it.

            Q. Did they tell you what happens when you change

     an answer?

            A. No.

            Q. You lose half your check.

            A. Oh, that’s all right.

            Q. So instead of getting $17.20, you get $8.60.

     You can live with that?

            A. I can live with that.”

Voir dire continued.    The second exchange in question was with

venire member Hardy:

            “Q. Someone in your immediate family party to a

lawsuit one time or another as well.     Who are we talking about

there?   The clock is ticking.    You are going to lose half your

money.

            A. My brother was.”



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After voir dire of the first panel was completed, the State

informed defense counsel and the judge that venire member Hardy

did not admit a 1986 arrest in Los Angeles, California.       Venire

member Hardy was recalled to chambers for the following exchange:

            “Q. On your jury card on Question No. 10 was the

     one I indicated earlier today, the one have you been

     accused, complainant, or witness in a criminal case,

     you put down no.     Was there a time going back aways

     [sic], maybe 1986 in Los Angeles?

            A. Oh yeah.

            Q. You were arrested for inflicting corporal

     punishment on a spouse or cohabitant?

            A. Yes.

            Q. You didn’t mention it.   Some reason you didn’t

     mention it?

            A. I didn’t know.   Like I didn’t get–-I didn’t

     figure I was arrested.

            Q. There was no complaint ever filed on the case,

     right?

            A. No.

            Q. So that’s why you didn’t mention it, nothing

     ever happened out of it?

            A. Right.”



                                 -29-
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The defense excused venire members Passantino and Hardy.

     Voir dire continued with the second panel of venire members.

The third exchange in question was with venire member Johnson:

            “Q. Victim of a crime, you answered yes, refers to

     what, Mr. Johnson?

            A. My house was burgled.

            Q. You got the word right.    Where did you here

     that from?      How long ago was the house burgled?

            A. That was 1983 or ‘84.

            Q. That wouldn’t affect you if [you were] a juror

     in this case, would it?

            A. No.

            Q. Someone in your immediate family, very close

     friend, victim of crime, who does that apply to?

            A. Victim?

            Q. Victim, someone in your immediate family or

     very close friend, victim of a crime?

            A. That was me.

            Q. Okay.    So we’ve go to change your answer you

     put that down that was this talks about immediate

     family or close friend, so that answer is wrong about

     close friend?

            A. Oh, no.



                                  -30-
1-07-2229

             Q. So you lose half your check.     You understand

     that?

             A. I have already got it.     That’s possession nine-

     tenths of the law.

             Q. All we do is put down stop payment.     Party to a

     lawsuit at one time or another.        What kind of lawsuit

     would that have been?

             A. I filed, was part of a lawsuit against the

     Illinois Federation of Teachers.

             Q. A long time ago?

             A. Long time ago.   It was a dispute.

             Q. Involved in an accident where somebody was

     injured, auto accident of some sort?

             A. Yes.

             Q. How long ago would you say that was?

             A. Let’s see, that was in 1966.

             Q. Okay.   Just a little kid back then, weren’t

     you?

             A. Liked to say so.”

The defense excused venire member Johnson.

     Voir dire continued with the third panel of venire members.

The fourth exchange in question was with venire member Carney:




                                    -31-
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             “Q. Victim of a crime, you answered yes, refers to

     what?

             A. My wallet was stolen.

             Q. How long ago?

             A. 18 years ago.

             Q. 18 years ago?

             A. Yeah.

             Q. That would not affect you if you were a juror

     in this case, would it?

             A. No.

             Q. Someone in your immediate family, at least very

     close friend, victim of a crime also.        Who were you

     talking about there?

             A. I wrote yes.    I didn’t mean to.

             Q. You understand the consequences?

             A. I will give it back.      Okay.

             Q. I gave you the check already?

             A. Yes.”

Venire member Carney was excused because the jury had been

filled.

     An exchange not challenged by defendant, but that gives

additional context to the tone of voir dire was with venire

member Korzum:



                                   -32-
1-07-2229

            “Q. Questions 9 though 15, all answers were no.

     Any answer you want to change in any way?

            A. No.

            Q. Involved in an accident where somebody was

     injured; auto accident of some sort involved in an

     accident?

            A. I don’t even remember answering that question.

            Q. Have you ever been involved in an accident

     where somebody was injured, you answered yes.      Should

     that be no?

            A. Yeah.    That would be no.

            Q. You understand the consequences?

            A. You can take it back.”

Yet another elucidating exchange occurred with venire member

Paquette:

            “Q. Questions 9 through 16, Miss Paquette, all

     your answers were no.      Any answer of those you want to

     change in any way?

            A. No. 14

            Q. Someone in your immediate family a party to a

     lawsuit at one time or another?

            A. Yes.

            Q. Who was that?

            A. My brother.

                                  -33-
1-07-2229

            Q. And what kind of lawsuit would that have been?

            A. Criminal.

            Q. How was he involved in a criminal lawsuit?

            A. He was the – he was being charged with

     something.

            Q. How long ago was that would you say?

            A. Three years ago.

            Q. That’s not pending anywhere now?

            A. I don’t think so.

            Q. That wouldn’t affect you if you were a juror,

     would it?

            A. No.”

     It is clear from our review of the record that the trial

judge was imparting humor into the proceedings when he

“threatened” the loss of the jurors’ earnings.      Nevertheless, the

venire members in the challenged exchanges were all excused from

the jury pool.    Moreover, contrary to defendant’s claim, the

responses of the challenged venire members, as well as the

remaining venire members, demonstrate they were not intimated by

the judge’s comments.      The record reveals the venire members

continued to verbally change their incorrect answers from their

written jury summons cards.      The trial judge encouraged as much

in his opening remarks by telling the venire members that their

voir dire responses should be “frank, complete, and open,” while

                                   -34-
1-07-2229

expressly noting that the jurors should change incorrect

responses to a particularly confusing question from the jury

summons card.   Then, during each individual voir dire, the trial

judge provided each venire member an opportunity to change his or

her answers by specifically inquiring whether he or she wanted to

change any answer in any way.   We find no evidence that the trial

judge “thwarted the selection of an impartial jury.”       Williams,

164 Ill. 2d at 16.   Therefore, the trial judge did not abuse his

discretion and there was no error.     We need not conduct a plain

error analysis; forfeiture applies to defendant’s contention.

     Defendant’s reliance on People v. Brown, 388 Ill. App. 3d 1,

903 N.E.2d 863 (2009), is misplaced.     In Brown, the trial judge

reluctantly excused a potential juror who said he could not be

fair and impartial to the defense in a drug-related trial because

of past drug-related experiences.      Id. at 2-3.   The trial judge,

however, instructed the potential juror to return to court the

next day to receive “ ‘an education as to how the system

works.’ ”   Id. at 3.   The questions in Brown were whether the

defendant forfeited his claim and whether the trial judge abused

her discretion by punishing the potential juror.      This court

applied forfeiture and held that, while “the exchange was

unnecessary in the way it occurred,” there was no evidence that

the trial judge thwarted the selection of an impartial jury.       Id.


                                -35-
1-07-2229

at 5, 10-11.

     The facts of the case here are distinguishable.   The trial

judge’s tone was clearly one of jest, unlike the stern punishment

issued by the trial judge in Brown.   Moreover, the targets of the

challenged comments demonstrated no bias to the defense, unlike

the Brown juror, who expressly disclosed that he could not be

fair to the defense.   Nevertheless, we find, similar to the Brown

holding, that defendant forfeited review of his contention and

the trial judge did not abuse his discretion.

     We recognize, as defendant points out, that the rules of

forfeiture are relaxed where the unpreserved error relates to a

trial judge’s conduct.   People v. Young, 248 Ill. App. 3d 491,

498, 618 N.E.2d 1026 (1993).   We, however, find no reason to

relax forfeiture here.   Defense counsel had ample opportunity to

question every venire member after the trial judge completed his

voir dire.   Defense counsel never asked any of the potential

jurors whether they failed to answer a question honestly for any

reason, including out of fear of the judge’s response.

III. Provocation Instruction

     Defendant contends the trial court erred by refusing to

issue a jury instruction for second degree murder based on a

sudden and intense passion resulting from serious provocation.

The State contends the trial court did not abuse its discretion


                               -36-
1-07-2229

in refusing to issue the instruction where there was no evidence

presented to support it.

     A defendant is entitled to have the jury instructed on any

legally recognized defense theory having some basis in the

evidence.   People v. Yarbrough, 269 Ill. App. 3d 96, 100, 645

N.E.2d 423 (1994).    We review a trial court’s determination

whether to give a jury instruction for an abuse of discretion.

People v. Tatum, 389 Ill. App. 3d 656, 673, 906 N.E.2d 695 (2009)

(citing People v. Sims, 374 Ill. App. 3d 427, 431, 871 N.E.2d 153

(2007)).    “However, whether a defendant has met the evidentiary

minimum for a certain jury instruction is a matter of law and our

review is de novo.”    People v. Tijerina, 381 Ill. App. 3d 1024,

1030, 886 N.E.2d 1090 (2008).

     An individual commits second degree murder when he or she

commits first degree murder, but a mitigating factor exists.      720

ILCS 5/9-2(a) (West 2004).    The potential mitigating factors are

the defendant, at the time of the killing, either:    (1) acted

under a sudden and intense passion resulting from serious

provocation, but negligently or recklessly caused the death; or

(2) believed he or she was acting in self defense.    720 ILCS 5/9-

2(a)(1), (a)(2) (West 2004).    “Serious provocation is conduct

sufficient to excite an intense passion in a reasonable person.”

720 ILCS 5/9-2(b) (West 2004).    The burden is on the defendant to


                                 -37-
1-07-2229

prove by a preponderance of the evidence the existence of either

mitigating factor.    720 ILCS 5/9-2(c) (West 2004).   “The only

categories of serious provocation that have been recognized in

Illinois are substantial physical injury or assault, mutual

quarrel or combat, illegal arrest, and adultery with the

offender’s spouse.”    People v. Leach, 391 Ill. App. 3d 161, 178-

79, 908 N.E.2d 120 (2009).

     Defendant contends the trial court erred in refusing to

issue a second degree murder instruction where the evidence

demonstrated she was seriously provoked into mutual quarrel or

combat.   Specifically, defendant contends she acted under a

sudden and intense passion due to serious provocation because the

victim evicted her from his apartment and swung a baseball bat at

her in an attempt to bar her from retrieving her belongings.

Defendant says she stabbed the victim with the knife and struck

the victim with the stick because of the ensuing fight.

     The evidence did not support the giving of a provocation

instruction based on mutual quarrel or combat.    “ ‘Mutual combat

is a fight or struggle which both parties enter willingly or in

which two persons, upon a sudden quarrel, and in hot blood,

mutually fight upon equal terms and death results from combat.’ ”

Id. at 179 (quoting People v. Neal, 112 Ill. App. 3d 964, 967,

446 N.E.2d 270 (1983)).    It is clear from the evidence, including



                                -38-
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defendant’s police statement, videotaped statement, and trial

testimony, as well as Latasha’s various testimony, that defendant

and the victim were not engaged in mutual quarrel or combat.

Defendant and the victim were not on equal terms.      When defendant

began stabbing the victim with the serrated knife, the victim was

engaged in a struggle for control of the baseball bat with

Booker.   At the time, the victim was not attempting to attack

defendant.

     Moreover, defendant failed to present any real evidence of

serious provocation.    People v. Austin, 133 Ill. 2d 118, 125, 549

N.E.2d 331 (1989) (“[d]efendant has the burden of proving there

is at least ‘some evidence’ of serious provocation or the trial

court may deny the instruction”).      Booker and defendant pushed

their way into the victim’s apartment despite his refusal to

grant them entry.   Although defendant had been staying at the

apartment for several months, the apartment ultimately belonged

to the victim.   In an attempt to force the group out of the

apartment, the victim picked up a baseball bat and swung it.

Defendant’s successive violent attacks using deadly weapons were

out of proportion to the action the victim took to defend himself

inside his home.    Id. at 127 (mutual combat will not be found

when the defendant’s response is not proportionate to the

provocation, especially where a deadly weapon is used).



                                -39-
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Defendant repeatedly stabbed the victim while Booker was also

beating the victim with a baseball bat and then a shovel.     When

the victim had been beaten into submission and begged for his

life, defendant followed him out to the porch and struck him with

a piece of wood.   The minor scrapes that defendant received do

not demonstrate mutual combat, especially when compared to the

extensive injuries the victim suffered.

     Furthermore, Latasha’s testimony confirmed there was no

mutual quarrel or combat.   In her handwritten statement, Latasha

said defendant was angry at the victim for kicking her out of his

apartment and planned to have “one of her boys to beat [the

victim’s] a***.”   Latasha added that defendant was the last

person remaining on the victim’s porch.     When Latasha went to

retrieve defendant, Latasha saw her hitting the victim with the

shovel while the victim attempted to block the blows.     At trial,

Latasha testified that defendant was tipsy or a little drunk when

she went to the victim’s apartment to confront him regarding her

eviction.   Latasha told the detectives and the grand jury that,

while defendant was repeatedly hitting the victim with the

shovel, defendant yelled, “I am going to kill you.”     Therefore,

defendant was not acting under sudden and intense passion as a

result of sufficient provocation.     Defendant went to the

apartment with the intention to at least confront the victim, if



                               -40-
1-07-2229

not incite a physical beating, because she learned that she was

being evicted.   Even if the victim grabbed defendant and held

her, as Latasha testified on cross-examination, defendant’s

response of stabbing and beating him with multiple objects to the

point of injury as described by Dr. Kalelkar was not

proportionate.   Id. at 126-27.

     Therefore, the trial court’s refusal to issue a provocation

instruction was proper.

CONCLUSION

     We affirm defendant’s conviction and sentence.

     Affirmed.




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     JUSTICE GARCIA, specially concurring:

     I disagree with the author that no error occurred in the

trial court's admonishments to the prospective jurors.    Slip op.

at 21.   I read our supreme court's decision in People v.

Thompson, 238 Ill. 2d 598, 939 N.E.2d 403 (2010), to require

trial courts to strictly follow Rule 431(b).   "Rule 431(b) ***

mandates a specific question and response process.    The trial

court must ask each potential juror whether he or she understands

and accepts each of the principles in the rule."     Id., at 607.

See People v. Fountain, No. 1-08-3459, slip op. at 19 (Ill. App.

Feb. 25, 2011)   ("[Thompson discourages] [m]odification to the

language in Rule 431(b) *** much as modification of pattern jury

instructions is discouraged.").

     I concur in the judgment only.




                               -42-
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             REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT



                   THE PEOPLE OF THE STATE OF ILLINOIS,

                           Plaintiff-Appellee,

                                    v.

                             BRENETTA INGRAM,

                          Defendant-Appellant.



                             No. 1-07-2229

                        Appellate Court of Illinois
                      First District, FIRST DIVISION

                              March 31, 2011


    JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

       Justice Garcia specially concurred, with opinion, joined by
                         Presiding Justice Hall.


              Appeal from the Circuit Court of Cook County.
               The Hon. Stanley J. Sacks, Judge Presiding.


                         COUNSEL FOR APPELLANT
     Michael J. Pelletier, State Appellate Defender, Chicago, IL 60601
                     Patricia Unsinn, Deputy Defender
                      OF COUNSEL: Christopher Kopacz


                           COUNSEL FOR APPELLEE
      Anita Alvarez, Cook County State’s Attorney, Chicago, IL 60602
            OF COUNSEL: James E. Fitzgerald and Peter Fischer




                                   -43-
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            -44-
