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NO. 4-02-0163

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JUSTICE STEIGMANN delivered the opinion of the court:

In August 2001, a jury convicted defendant, Darrell B.Culbreath, of aggravated battery (720 ILCS 5/12-4(b)(1) (West Supp.2001)). In November 2001, the trial court sentenced him to anextended term of six years in prison, based on a prior conviction(730 ILCS 5/5-5-3.2(b)(1) (West Supp. 2001); 730 ILCS 5/5-8-2(a)(West 2000)). The court also ordered that within two years of hisrelease from prison, defendant pay $10,026.02 in restitution to thehospital that treated the victim.

Defendant appeals, arguing that (1) the trial court erredby (a) sustaining the State's objection to a question posed todefendant on redirect examination, (b) conducting voir dire ofprospective jurors without a court reporter present, and (c)ordering that defendant pay $10,026.02 in restitution within twoyears of his release from prison; and (2) his extended-termsentence must be vacated. We affirm.

In June 2001, the State charged defendant with two countsof aggravated battery, alleging that he (1) knowingly and withoutlegal justification caused great bodily harm to Larry Lewis, inthat he stabbed Lewis in the back and punctured his lung (count I),and (2) knowingly and without legal justification caused bodilyharm to Lewis, in that he stabbed Lewis with a knife, a deadlyweapon (count II). The State later dismissed count I.

In August 2001, on the first day of defendant's trial,the trial court asked the State and defense counsel if either partywanted a court reporter present to transcribe voir dire ofprospective jurors. The State informed the court that it was notnecessary for a court reporter to be present. Defense counselresponded as follows: "I would be willing to waive the presence ofthe [c]ourt [r]eporter with the understanding that the reporter isnearby in case we need to make a record of something." The courtthen excused the court reporter for voir dire. Court reportingresumed the next day for counsels' opening statements and theremainder of defendant's trial.

Because the parties are familiar with the evidencepresented at defendant's trial, we discuss it only to the extentnecessary to put defendant's arguments in context. Lewis testifiedthat he was a tenant and assistant manager of a 12-unit apartmentbuilding in Bloomington. Around 8:30 a.m. on June 2, 2001, Lewiswas cleaning a second-floor apartment when his cousin informed himthat some people were making noise downstairs. Lewis wentdownstairs and encountered defendant and defendant's girlfriend,Eartha West. He told defendant and West to quiet down and thenwent back upstairs. Around 11:30 a.m., defendant came upstairs andbegan knocking on an apartment door. When Lewis asked defendant tostop, defendant responded that defendant could go anywhere hewanted. Defendant then stepped toward Lewis, and the men beganfighting. Lewis knocked defendant to the floor, and a steak knifefell out of defendant's back pocket. Lewis picked up the knife,put it in his pocket, and told defendant to leave the apartmentbuilding. Defendant refused, and instead, entered an apartmentoccupied by Jack Duncan. Lewis followed defendant and once againtold him to leave. Defendant said that he was trying to find West. Lewis told defendant if he left the building, Lewis would find Westand send her outside. Defendant then went outside.

A few minutes later, Lewis went outside and tolddefendant that West did not want to see him. Lewis then returneddefendant's knife and told him to leave the premises. Lewis wentback upstairs. A couple of minutes later, defendant reentered theapartment building and said he needed to talk to West. Lewis onceagain told defendant to leave and followed him outside. Onceoutside, Lewis noticed that defendant had put a beer bottle on thegrass. When Lewis bent down to pick up the bottle and throw itaway, defendant stabbed him in his right shoulder. Lewis turnedtoward defendant, who was still holding the knife. Defendant said,"I told you that I was going to get you." Lewis, who was weak andhaving difficulty breathing, was taken to BroMenn Hospital, wherehe was hospitalized for one week.

Bloomington police detective Tim McCoy testified thatduring a June 5, 2001, interview of defendant, defendant statedthat on the morning of June 2, 2001, he went to the apartmentbuilding. He walked upstairs and knocked on a friend's apartmentdoor. As he was doing so, Lewis hit him in the face. Defendantthen left the building. Defendant initially denied knowinganything about the stabbing. However, after further questioning,defendant told McCoy that after Lewis hit him, the strugglecontinued when defendant retreated outside, and defendant stabbedLewis during that struggle. McCoy told defendant that McCoy didnot believe his story. Defendant then said that after he and Lewiswent outside, Lewis reached for a 40-ounce beer bottle that was onthe ground. Defendant then stabbed Lewis because he thought Lewiswas going to hit him with the bottle. After the stabbing,defendant left and later threw the knife down a sewer. Defendantalso told McCoy that he had been drinking beer and using drugs thenight before and the morning of the incident.

Defendant testified on his own behalf that on the morningof the incident, he went to the apartment building to visit afriend. Once there, he saw West on the porch, and they beganarguing. Defendant then tried to visit his friend, who wasunavailable. He went upstairs to visit Duncan and wait for hisride home. When defendant saw West, who was still angry, hedecided to visit another friend who lived next door to Lewis. After he knocked on that friend's door, Lewis came into the hallwayand told him to stop knocking on the door. Before defendant couldwalk away, Lewis hit him in the face, knocking him down. Defendantwas shaking as he scooted away from Lewis, who was standing overhim with clenched fists. Defendant told Lewis that defendant didnot want any trouble, and defendant walked outside. Lewis followeddefendant outside, tossed the knife (which defendant initiallydenied but ultimately acknowledged had fallen out of his pocket inthe hallway) toward defendant, and picked up a 40-ounce beerbottle. Defendant, who was dazed and scared, thought Lewis wasgoing to hit him with the bottle. As Lewis was "coming up" withthe bottle in his hand, defendant grabbed the knife and stabbedhim. Defendant acknowledged that when he stabbed Lewis, Lewis hadnot turned around and faced him.

On redirect examination, defendant testified that whenLewis was in the process of standing up with the bottle in hishand, defendant was scared. Defense counsel then asked thefollowing question: "Did you fear that you were going to receivegreat bodily harm?" Defendant answered, "Yes, I did." At thatpoint, the State objected on the grounds that the question wascumulative and beyond the questioning on cross-examination. Thetrial court sustained the State's objection, and defense counselended his redirect examination.

On rebuttal, Lewis testified that the beer bottle wasstill on the ground when defendant stabbed him.

Based on this evidence, the jury convicted defendant ofaggravated battery, and the trial court sentenced him as stated. Defendant later filed a motion to reconsider his sentence, whichthe trial court denied. This appeal followed.

A. The Trial Court's Ruling on the State's

Objection to the Question Regarding Defendant's

Fear of Receiving Great Bodily Harm

Defendant first argues that the trial court erred bysustaining the State's objection to the following question posed todefendant on redirect examination: "Did you fear that you weregoing to receive great bodily harm?" Specifically, he contendsthat by sustaining the objection, the court improperly precludedhim from presenting evidence regarding his state of mind at thetime of the offense. We disagree.

The admissibility of evidence lies within the trialcourt's sound discretion, and this court will not substitute itsjudgment for that of the trial court absent a clear abuse ofdiscretion. People v. Cookson, 335 Ill. App. 3d 786, 793, 780N.E.2d 807, 812 (2002).

In this case, after defense counsel asked defendant onredirect examination if he feared that he was going to receivegreat bodily harm, defendant answered, "Yes, I did." The Stateobjected on the grounds that the question was cumulative and beyondthe questioning of cross-examination, and the trial court sustainedthe State's objection.

We agree with the trial court that the question at issueand defendant's affirmative answer were largely cumulative of othertestimony presented at defendant's trial. In particular, duringhis interview with McCoy, defendant stated that he stabbed Lewisbecause he thought Lewis was going to hit him with the beer bottle. In addition, defendant testified on direct examination that (1) hestabbed Lewis because he was afraid Lewis was going to hit him withthe bottle; and (2) when he stabbed Lewis, he was dazed and scared. Further, on redirect examination, defendant testified that he wasscared when Lewis picked up the bottle. Thus, defendant's state ofmind at the time of the stabbing was already before the jury whendefense counsel asked defendant if he feared great bodily harm. Accordingly, we conclude that the court did not abuse itsdiscretion by sustaining the State's objection to that question. See Dillon v. Evanston Hospital, 199 Ill. 2d 483, 495, 771 N.E.2d357, 365 (2002) ("the exclusion of cumulative evidence is withinthe discretion of the trial court, whose ruling will not bereversed absent a clear abuse of that discretion").

In addition, although not raised by the State below orrelied on by the trial court, we may affirm the court's ruling onthe ground that defense counsel's question was leading and thusimproper as to form. See People v. Wilson, 331 Ill. App. 3d 434,439, 771 N.E.2d 996, 1000 (2002) (a reviewing court may affirm thetrial court on any basis supported by the record). Generally, itis improper for counsel to ask a leading question of his ownwitness. M. Graham, Cleary & Graham's Handbook of IllinoisEvidence