PEOPLE v. SAWCZENKO DUB (2003)

Following a bench trial, defendant Tamara Sawczenko-Dub was convicted of first degree murder of her husband, Donald Dub (Don).   The trial court sentenced her to 45 years' imprisonment;  20 years (the minimum) for first degree murder plus the mandatory 25-year enhancement that was added to the sentencing statute (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2000)) by Public Act 91-404 (eff. January 1, 2000) because defendant personally discharged a firearm causing death during the course of the offense.   On appeal, defendant contends that the sentencing scheme is unconstitutional because:  (1) it violates the proportionate penalties clause of the Illinois Constitution (Ill. Const.1970, art.   I, § 11), both as written and as applied;  (2) it violates separation of powers principles;  (3) it violates double jeopardy;  and (4) it constitutes an impermissible double enhancement of the offense of first degree murder and her sentence.   Defendant also challenges the sufficiency of the evidence, contending that the trial court should have found her guilty of second degree murder or, alternatively, of involuntary manslaughter.   For the reasons set forth below, we affirm.

[Editor's Note:  Text omitted pursuant to Supreme Court Rule 23.]

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STATEMENT OF FACTS

Defendant and Don were married on November 30, 1999.   Although the two had no children together, defendant had two children from previous relationships:  a son, Jesse, age 13, and an autistic daughter, Stephanie, age 11.   Defendant and Don resided in an apartment at 1801 South 56th Court in Cicero, with defendant's two children.   This case arose as a result of defendant's shooting of Don on June 4, 2000, with a 12-gauge shotgun in their apartment.

Defendant's bench trial was held on May 7, 2002.   Police officer Bernard Harrison testified that at approximately 11 p.m. on June 4, he was dispatched to 1801 South 56th Court for a possible shooting.   When he looked into the apartment, he saw splattered blood and a pool of blood approximately 16 feet from the back door.   Harrison entered the apartment and saw a body, later identified as Don, lying at the bottom of a staircase.   Paramedics arrived, were unable to do anything because Don was dead, and left.   Harrison then found a shotgun, lying on the floor in the bedroom.   Harrison secured the scene and, when detectives arrived, he turned it over to them.

The parties stipulated that if the medical examiner, Thamrong Chira, was called to testify, he would state that Don died as a result of a gunshot to the chest.   Chira would also testify that the presence of alcohol and cocaine was disclosed in Don's blood test.

Assistant State's Attorney Katherine Ryan testified that she had two conversations with defendant beginning at approximately 2:28 a.m. on June 5. The first conversation lasted approximately one and one-half hours.   After this conversation, Ryan asked defendant if she would put her statement in writing, to which defendant agreed.   According to Ryan, defendant elected to have Ryan write out the statement.   Ryan further testified that both during and after the statement, defendant made corrections.   Ryan then published defendant's statement to the court.

In her statement, defendant stated that on June 4 she and her husband argued because he was mad at her since she had taken the car and had been drinking.   Don told defendant he was not coming home that evening and that she had three days to get out of the apartment. They then parked the car at Don's mother's house, approximately one-half block from their apartment, and Don went to his mother's home.   Defendant went home.   According to defendant, she had decided to leave so she began looking for her money.   She could not find it and stated that Don had it.   Defendant then returned to Don's mother's house and asked him to come home, but he refused.   Defendant then returned home and got the shotgun that Don had in the closet.   Although there were shells in the shotgun, defendant retrieved more from the dresser and started putting them into the shotgun.   Defendant stated that she kept putting shells into the gun until it was full and that she did not know if she was putting them in correctly.

Further, according to defendant's statement, she put the gun under her chin and then on the bed.   Defendant then told her son to go get Don because defendant wanted him to come home.   Her son returned and stated that Don had refused to come home.   According to defendant, Don had stated that “[she] wasn't there for him earlier and he wouldn't come for [her] now or something like those words.”   Defendant stated she then got more frantic.   She told the children she would be right back and returned to Don's mother's house.   Defendant stated that Don answered the door and she asked him to come home-that she only needed 10 minutes.   According to defendant, she “couldn't say how [she] felt because we were at his mom's house.” Don agreed to come home.   Don went back inside, got his shoes, and then followed defendant home.   Upon returning home, defendant told the children to go to her friend's house, which they did.   Defendant then stated:

“I was sitting on the bed in the bedroom.   From the bed you can see the front door.   The door was open.   Don came and stood in the door to the apartment.   Don was about 6 feet away.   Don saw the gun on the bed and asked me if I was going to shoot him.   Then he looked down to where [my daughter] sleeps on the floor and she wasn't there so he asked where are the kids.   I said they're gone.   We looked at each other.   I picked up the gun and that is when I shot him.   I pulled the trigger one time and shot him.   Don went backwards and there was lots of blood everywhere.   I dropped the gun.   I yelled and I could see him moving.   Then I ran out and went over to [my friend's] house.   I told [my friend], I just shot Don. She tried to calm me down and someone called the police.”

Defendant also indicated in her statement that she had “one wine” to drink prior to Don's arriving at the party to retrieve her and that she and Don had “partied all weekend and by that [she] mean[t] smoking crack cocaine.”

Various stipulations were entered into evidence.   First, the parties stipulated that if Virginia Dub, Don's mother, were to testify, she would state that Don lived with defendant, but that on June 4 he was sleeping at her house, on the couch, from approximately 9:45 to 10:45 p.m. At this time, defendant came to Virginia's home and wanted to speak with Don. Virginia told defendant to go home.   Virginia would also testify that a few minutes later, Jesse, defendant's son, came to the door and stated he wanted to speak with Don. After Don spoke with Jesse, Jesse left.   A few minutes later, defendant again returned and spoke with Don. Defendant left, followed shortly thereafter by Don. Virginia would further testify that this was the last time she saw Don alive.

The parties also stipulated that if Pablos Flores and John Banuelos were called to testify, they would testify that, at approximately 11 p.m. on June 4, they saw two children run from defendant's apartment.   A few seconds later, they heard a shot.   Shortly thereafter, they saw a white female run from the same apartment.   According to the witnesses, the female was crying and talking to herself.   The State then rested.

Defendant testified on her own behalf.   She stated that she currently was on three medications for depression.   She further testified that she had attended drug rehabilitation in April 2000 and had remained sober for 30 days.   Defendant then testified with respect to her statement and the events that occurred prior to and on June 4.

Defendant also testified that her statement published by Ryan was not a complete statement of what occurred on June 4 and she elaborated on additional details at trial not included in her statement.   Specifically, defendant testified that she and Don started partying on Thursday, June 1, and that she never slept from that point to the time of shooting Don. According to defendant, they drank alcohol and did cocaine in both powder and rock form.   Defendant denied ever doing a four-day binge prior to this time.   According to defendant, Don stopped partying Sunday because he had to work on Monday.   Defendant further testified that she or they were then partying at home on Sunday and, when they finished the drugs Don had, she wanted more so she grabbed some money and left the house.   She partied at a friend's house until late in the evening.   According to defendant, at approximately 10 p.m., Don came to the friend's house and told her to get into the car.   He was upset and the two argued.   Defendant added details to these events that had not been included in her statement.   Specifically, she testified that Don was mad at her because she was drinking and doing drugs and had driven the car.   In addition, during this argument, Don called her names and asked her if their marriage was worth her doing drugs and drinking, to which she replied in the negative.   Defendant also testified that Don told her to leave and that she had a week to do so, not three days as she had stated in her statement.

With respect to returning home and looking for her money, defendant did not state at trial that Don had the money.   In addition, with respect to her returning to Don's mother's house, her testimony was entirely different.   At trial, she testified that she went over to Don's mother's house.   Don's mother answered the door and told defendant that Don was sleeping.   Defendant then “went around” and overheard the two talking about how she should leave and “things like that.”   According to defendant, she was mad at herself and hated herself.   Specifically, defendant stated:  “I was a bad mother.   I was a bad wife.   I was a bad human person to myself.   I was disgusted with myself.”   At this point, she returned home and retrieved the shotgun.   Also at trial, defendant testified that she loaded additional shells into the shotgun because there was only one in it and she did not know if it would fire with only one shell in it.   After loading the gun, she then pumped it.   Defendant said nothing at trial, as she had in her statement, about not knowing if she loaded the shells correctly.

Defendant then testified that she put the gun under her chin, at which time her son came into the room and saw her.   According to defendant, her son said, “[M]om, no.   Mom, no.”   Defendant told her son to go get Don at his mother's house.   Her son left and returned approximately 5 to 10 minutes later.   Defendant then returned to Don's mother's house.   According to defendant's trial testimony, after Don answered the door, she told him that she needed him to come home.   When he asked why, she responded that she could not tell him why.   Defendant's trial testimony was then consistent with her statement up to the point where Don asked defendant if she was going to shoot him.   Thereafter, her trial testimony differed entirely.   According to defendant's trial testimony, when Don asked her this, she did not say anything to him, but just picked up the shotgun and put it under her chin.   Defendant testified that she had her right thumb on the trigger and her left finger on the barrel.   At this time, Don told her to “pull it away from her.”   According to defendant, as she was “pushing” the gun away from herself, she “guess[ed]” she pulled the trigger and hit Don. She then screamed, dropped the gun, and went to her friend's house.   During trial, defendant also testified that she and her friend then returned to the “crime scene.”   At this time, defendant ran up to the officers present at the scene and told them that she did not mean to shoot Don. Defendant then was put in a squad car and taken to the police station.

Defendant further testified that she was not mad at Don that night, but was mad at herself.   She also testified that she did not want to hurt him, nor did she intend to shoot him.   Additionally, when she pulled the gun away from herself, she did not intend to point it at Don. Defendant further testified that when she returned to the apartment, with Don following, she told the children to leave because she was going to kill herself and she did not want them to see it.   She retrieved Don from his mother's house to stop her from killing herself.   According to defendant, if she was alone, she was going to kill herself.

On cross-examination, when asked if she told the officers who drove her to the police station that she pointed the gun at Don when he came in to scare him, defendant stated, “I don't remember it in those words.”   In addition, she did not remember telling the police that when she pointed the gun at Don, he told her to just pull the trigger and she did.   However, she did remember telling the police that she had not meant to shoot Don.

Defendant also admitted that her drinking and drugs had been a problem in the marriage for quite some time and that Don wanted her to leave because of her problems.   Defendant denied being angry with Don because her money was not in the apartment.   Defendant testified that when she went to Don's mother's house the second time, she did not tell Don that she was feeling desperate and wanted to kill herself because she did not want to speak of such things in front of his mother.   Defendant admitted that certain things she testified to at trial were not added by her after she had reviewed and signed her statement that had been written out by Ryan.

Defendant then rested.   In rebuttal, the State offered the stipulated testimony of Officer Tomko, who transported defendant to the police station.   Tomko would have testified that while transporting defendant, defendant stated that when Don came home, she pointed the gun at him to scare him.   Additionally, defendant stated that when she did this, Don told her just to pull the trigger and she did.   Tomko would further testify that on the way to the station, as well as at the station, defendant repeatedly stated that she did not mean to shoot Don and it was just an accident.   The parties then presented their closing arguments.   Defense counsel argued that defendant's conduct was not intentional, it was an accident, and merely reckless behavior.   Counsel asked for a verdict of involuntary manslaughter.

The court, after stating that it had reviewed the evidence and judged the credibility and reliability of the witnesses, found defendant guilty of first degree murder.   The trial court specifically stated that it believed defendant's statement, made shortly after the incident, was “exactly what happened.”   The court did not find defendant “necessarily credible” in her trial testimony that the shooting was an accident.   According to the court, defendant took steps to accomplish what ultimately occurred.   With respect to intent, the court found that the following evidence showed intent:  defendant left the apartment, returned to the apartment and loaded the gun, got Don to come back to the apartment, and had the children leave.   The trial court concluded that defendant had the requisite intent, i.e., knowledge, for the commission of murder.

On June 24, the trial court denied defendant's motion for a new trial and then conducted a sentencing hearing.   The State presented a victim impact statement from Don's sister-in-law, Cheryl Dub. Defendant offered six certificates from Bible study groups that defendant completed while in jail, a certificate for outstanding achievement in criminal procedure and family law classes defendant attended while in jail, and the GED certificate defendant earned while in jail.   Defendant also offered a letter from the GED instructor, stating that defendant was a role model in the class, assisted other students, and was very dedicated.   A letter from defendant's former neighbor, Sophie, was also admitted.   Sophie stated that defendant was a good person and was always there for her. In addition, defendant had taken in four young women as a foster parent when they had nowhere else to go.   Sophie reiterated that defendant was nice and helpful.   Defendant then spoke on her own behalf, apologizing to Don's family and stating that she never intended to hurt him.

The presentence investigation (PSI) report offered to the court indicated that defendant had one prior charge in 1992 for retail theft for which she received six months' supervision.   The report also stated that defendant was from a dysfunctional family-both of her parents were alcoholics and were physically and mentally abusive to each other.   Defendant's mother left the home when defendant was 12.   The report also disclosed that two of defendant's brothers had died from drug overdoses, in 1997 and 1998.   A third brother was currently in prison.   The PSI report further indicated that prior to her arrest, defendant had been employed by the same company for six years.   It also showed that defendant was diagnosed at the age of 22 as being manic depressive and had been prescribed medications for her condition.   Defendant had had a drinking problem since the age of 13, and stated that since 1998, she drank one-fifth of alcohol every day.   She also started using cocaine at the age of 17 and had done so on a daily basis for the six months preceding the shooting of her husband.   Defendant had been admitted to MacNeal Hospital in April 2000 for psychiatric treatment and had remained there for two weeks.   Two weeks after her release, defendant was admitted again for three days.   Defendant stated that she had attempted suicide four times:  the first, when she was 14 and had tried to hang herself;  the second, two weeks prior to the shooting when she took an excessive amount of pills;  the third, on the night of the shooting, when she tried to shoot herself;  and the fourth, while in jail for shooting Don, when she attempted to hang herself.

After reviewing all the evidence, the trial court sentenced defendant to 20 years' imprisonment for murder, along with the 25-year enhancement required by law.   Defendant's subsequently filed motion to vacate the sentence was denied.   This appeal followed.

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ANALYSIS

As set forth above, this case involves numerous constitutional challenges to the first degree murder sentencing statute as amended by Public Act 91-404.   Public Act 91-404 amended the penalty portion of various criminal offenses, including first degree murder, which the legislature deemed “the most serious offenses” (91 Ill. Gen. Assem., House Proceedings, May 13, 1999, at 67-68 (statements of Representative Turner)), by adding what has been referred to as the “15/20/25 to life” mandatory sentence enhancement or add-on provisions when the designated offenses involve the use of a firearm. See People v. Moss, 206 Ill.2d 503, 506, 276 Ill.Dec. 855, 795 N.E.2d 208 (2003). The relevant provision here provides:

“(a) Except as otherwise provided in the statute defining the offense, a sentence of imprisonment for a felony shall be a determinate sentence set by the court under this Section, according to the following limitations:

(1) for first degree murder

(a) a term shall not be less than 20 years and not more than 60 years, or

  * * *

(d)(i) if the person committed the offense while armed with a firearm, 15 years shall be added to the term of imprisonment imposed by the court;

(ii) if, during the commission of the offense, the person personally discharged a firearm, 20 years shall be added to the term of imprisonment imposed by the court;

(iii) if, during the commission of the offense, the person personally discharged a firearm that proximately caused great bodily harm, permanent disability, permanent disfigurement, or death to another person, 25 years or up to a term of natural life shall be added to the term of imprisonment imposed by the court.”  730 ILCS 5/5-8-1(a)(1)(d)(i), (ii), (iii) (West 2000).

 Initially, we note that the law with respect to constitutional challenges to a criminal statute is well-settled:

“A statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invalidity.  [Citation.]  This court has a duty to construe a statute in a manner that upholds its validity and constitutionality if it can reasonably be done.  [Citation.]  The question of whether a statute is constitutional is subject to de novo review.”  Moss, 206 Ill.2d at 519-20, 276 Ill.Dec. 855, 795 N.E.2d 208.

I. Proportionate Penalties 1

 The proportionate penalties clause of the Illinois Constitution provides that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”  Ill. Const.1970, art. I, § 11.  “In evaluating whether a proportionate penalties violation has been established, the central question is whether the penalty at issue has been set by the legislature ‘according to the seriousness of the offense.’  [Citation.]”  Moss, 206 Ill.2d at 522, 276 Ill.Dec. 855, 795 N.E.2d 208, As stated by the court in Hill, there are three separate tests to identify a proportionate penalties violation:

“First, a penalty violates the proportionate penalties clause if it is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community.   Second, a penalty is invalid under the proportionate penalties clause where similar offenses are compared, and conduct that creates a less serious threat to the public health and safety is punished more severely.   Third, there is a violation of the proportionate penalties clause when identical offenses are given different sentences.”  2  Hill, 199 Ill.2d at 452, 264 Ill.Dec. 670, 771 N.E.2d 374.

In People v. Miller, 202 Ill.2d 328, 269 Ill.Dec. 503, 781 N.E.2d 300 (2002), the court set forth the relevant principles in analyzing the first test, stating:

“ ‘When the legislature has authorized a designated punishment for a specified crime, it must be regarded that its action represents the general moral ideas of the people, and the courts will not hold the punishment so authorized as either cruel and unusual, or not proportioned to the nature of the offense, unless it is a cruel or degrading punishment not known to the common law, or is a degrading punishment which had become obsolete in the State prior to the adoption of its constitution, or is so wholly disproportioned to the offense committed as to shock the moral sense of the community.’   [Citation.]”  Miller, 202 Ill.2d at 339, 269 Ill.Dec. 503, 781 N.E.2d 300.

The Miller court went on to note that it had never defined “what kind of punishment constitutes ‘cruel,’ ‘degrading,’ or ‘so wholly disproportioned to the offense as to shock the moral sense of the community.’ ”  Miller, 202 Ill.2d at 339, 269 Ill.Dec. 503, 781 N.E.2d 300.   The Miller court stated that this is so “because, as our society evolves, so too do our concepts of elemental decency and fairness which shape the ‘moral sense’ of the community.”  Miller, 202 Ill.2d at 339, 269 Ill.Dec. 503, 781 N.E.2d 300. Thus, the court concluded, “[w]e review the gravity of the defendant's offense in connection with the severity of the statutorily mandated sentence within our community's evolving standard of decency.”  Miller, 202 Ill.2d at 340, 269 Ill.Dec. 503, 781 N.E.2d 300.

 Under the second test, a two-step, cross-comparison analysis must be conducted.  Hill, 199 Ill.2d at 454, 264 Ill.Dec. 670, 771 N.E.2d 374.   Specifically, the Hill court stated that

“[f]irst, we consider whether the purposes of the compared offenses are distinct such that comparative proportionality review is not appropriate.   [Citations.]  Second, if the purposes are deemed related, we consider whether the offense with the harsher penalty is more serious than the offense with the less severe penalty.”  Hill, 199 Ill.2d at 454, 264 Ill.Dec. 670, 771 N.E.2d 374.

With respect to the first part of this test, “it is well settled that if the statutory purposes are different, comparative proportionality review is inappropriate.”  Moss, 206 Ill.2d at 523, 276 Ill.Dec. 855, 795 N.E.2d 208.   With respect to the second part of this test, the Hill court stated:

“[T]he legislature may perceive a need to enact a more stringent penalty provision in order to halt an increase in the commission of a particular crime.  [Citations.]  As an institution, the legislature is better equipped than the judiciary to identify and remedy the evils confronting our society and is more capable of gauging the seriousness of an offense.  [Citations.]  Thus, courts will generally defer to the legislature's judgment that a particular offense is more serious than another.”  Hill, 199 Ill.2d at 454, 264 Ill.Dec. 670, 771 N.E.2d 374.

A. As Written

Defendant first contends that the sentencing scheme for first degree murder by personally discharging a firearm (hereinafter referred to as the 25-year firearm enhancement provision), set forth in section 5-8-1(a)(1)(d)(iii) (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2000)), violates the proportionate penalties clause of the Illinois Constitution.  Ill. Const. 1970, art. I, § 11.   In this regard, defendant relies on the following two bases in support of her argument:  that the scheme is so severe that it offends the “moral sense” and that, when compared to other offenses, specifically the commission of murder that is accompanied by brutal and heinous conduct, it punishes more severely a less serious crime.   In a footnote, defendant also argues that the lack of good time credit is unconstitutional.³

With respect to defendant's first basis, she maintains that the automatic 25-year firearm enhancement provision prohibits the trial court from fashioning a sentence that takes into account a defendant's rehabilitative potential.   In other words, according to defendant, the provision forecloses the trial court, in actuality, from giving any weight to mitigation evidence, which, in the instant case, was substantial.   With respect to defendant's second basis, she maintains that a single shot murder, with mitigating circumstances, is automatically punished by 45 years to life, whereas murder, that is accompanied by brutal and heinous conduct, is punishable by only 20 years to life since the court can weigh mitigating factors in the latter instance.⁴  Defendant argues that this disparity cannot be justified by the legislature's desire to deter the use of firearms.

 With respect to the first proportionate penalties test, whether a penalty is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community, defendant's only argument, that the trial court was not able to weigh the mitigation evidence, ignores the fact that the trial court was able to weigh such evidence in determining whether to sentence her to the minimum 20-year sentence, the maximum 60-year sentence, or somewhere in between.   See, e.g., People v. Martinez, 76 Cal.App.4th 489, 495, 90 Cal.Rptr.2d 517, 521 (1999) (noting that, under a similar firearm enhancement provision, “the trial court retains flexibility as to fixing the underlying base term for [the offense]”).   Defendant also ignores the fact that the trial court can take into account mitigating factors in fashioning the enhancement sentence.   Specifically, the enhancement sentence ranges from 25 years to life.   Accordingly, defendant's argument is unpersuasive.

 In any event, we find that the 25-year firearm enhancement provision is not so disproportionate to the offense of first degree murder by the personal discharge of a firearm causing injury or death that it shocks the moral sense.   We note that California case law, interpreting its enhancement statute that our Illinois statute is modeled after, is instructive.⁵  The California courts have uniformly concluded that the California firearm enhancement provisions do not result in such a grossly disproportionate sentence as to constitute cruel and unusual punishment.   See, e.g., People v. Zepeda, 87 Cal.App.4th 1183, 1212-16, 105 Cal.Rptr.2d 187, 207-08 (2001);  Martinez, 76 Cal.App.4th at 493-98, 90 Cal.Rptr.2d at 519-23.   In so finding, the California courts have recognized that severe punishment is warranted for the use of a firearm during a crime because firearms allow a perpetrator to kill effortlessly and are lethal to the victim of the underlying crime and to others in the vicinity.  Zepeda, 87 Cal.App.4th at 1215, 105 Cal.Rptr.2d at 208.   For example, one court has noted that the use of a firearm in committing a murder has been “adjudged by society through its legislative representatives as particularly egregious and dangerous.”  People v. Hutchins, 90 Cal.App.4th 1308, 1313, 109 Cal.Rptr.2d 643, 647 (2001).   In this regard, the Hutchins court noted that the firearm enhancement provisions were enacted “in order to deter a particular form of violence judged especially threatening to the social fabric.”  Hutchins, 90 Cal.App.4th at 1315, 109 Cal.Rptr.2d at 647.   Another court has concluded that singling out firearm offenses is warranted because

“ ‘[t]he ease with which a victim of one of the enumerated felonies could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means.’  [Citation.]”  Zepeda, 87 Cal.App.4th at 1215, 105 Cal.Rptr.2d at 207.

More specifically, the Zepeda court stated:

“A firearm gives a perpetrator a strong advantage over the victim and effectively deters the victim's escape.   A firearm is particularly lethal to the victim of the underlying crime as well as others in the vicinity;  and a firearm allows the perpetrator to effortlessly and instantaneously execute an intent to kill once it is formed.”  Zepeda, 87 Cal.App.4th at 1215, 105 Cal.Rptr.2d at 207-08.

Similarly, another court noted that “firearms pose a potentially greater risk to safety than other weapons because of their inherent ability to harm a greater number of victims more rapidly than other weapons,” and their ability to “ ‘inflict deadly wounds on a number of people within a wide area and within a short amount of time.’  [Citation.]”  People v. Perez, 86 Cal.App.4th 675, 678-79, 103 Cal.Rptr.2d 533, 535 (2001).   See also 720 ILCS 5/33A-1 (West 2002) (the Illinois legislature itself set forth the same reasons and concerns espoused by the California courts, detailed above, in the statutory section entitled, “Legislative Intent”).

Given the factors identified above, lethalness, quickness, ease, range, etc. of the use of a firearm, along with the fact that defendant's conduct subjected an innocent person to a “death sentence,” in a society faced with increased incidences of gun usage and a society that has exhibited moral outrage regarding these circumstances, we do not believe that the 25-year firearm enhancement provision is cruel, degrading, or so wholly disproportionate to the offense committed, first degree murder with the personal discharge of a firearm causing injury or death, that it shocks the moral sense of the community.   As the court in Morgan stated, we should “not second-guess the legislature's determination that the protection of society necessitates the imposition of severe penalties whenever a firearm is used in the course of an offense.”  Morgan, 203 Ill.2d at 488, 272 Ill.Dec. 160, 786 N.E.2d 994.

 With respect to the second proportionate penalties test, requiring a cross-comparison analysis, neither defendant nor the State has undertaken the analysis required by law.   Because it is not this court's duty to make arguments for the parties, particularly defendant here who is challenging the constitutionality of a statute, we do not consider defendant's argument on this basis alone since defendant has waived the issue.   188 Ill.2d R. 341(e)(7).

 Assuming, arguendo, that defendant had not waived this issue, we would nonetheless conclude that a cross-comparison proportionality review is not appropriate here because the statutory purpose of the Public Act 91-404 enhancements and the statutory purpose behind prevention of brutal and heinous murders (the crime relied upon by defendant as the second basis of her argument) are not the same.   The purpose of Public Act '91-404 is “to deter the use of firearms” in the commission of certain felonies.   See Moss, 206 Ill.2d at 514, 276 Ill.Dec. 855, 795 N.E.2d 208;  Morgan, 203 Ill.2d at 488, 272 Ill.Dec. 160, 786 N.E.2d 994;  Walden, 199 Ill.2d at 395, 264 Ill.Dec. 91, 769 N.E.2d 928;  Hill, 199 Ill.2d at 457, 458, 264 Ill.Dec. 670, 771 N.E.2d 374;  91st Ill. Gen. Assem., Senate Proceedings, March 25, 1999, at 286 (statement of Senator Dillard).   While the legislature has not defined a purpose with respect to brutal and heinous murders, nor has our independent research located any authority stating the legislative purpose, the purpose certainly and clearly was not to deter the use of firearms in the commission of murder.   A quick perusal of the annotated statute of section 5-8-1 clearly shows that brutal and heinous conduct is as often committed by other means, i.e., beating, stabbing, etc., as it is committed with a firearm. 730 ILCS 5/5-8-1 (West 2000).   Because the statutory purposes of the provisions are not the same, a comparative review therefore is not appropriate.   Accordingly, we reject defendant's contention that the 25-year firearm enhancement provision violates the proportionate penalties clause of the Illinois Constitution.⁶

B. As Applied

 In a supplemental brief, defendant contends that the sentencing scheme for first degree murder by personally discharging a firearm violates the proportionate penalties clause as applied to her.   Defendant maintains that for all practical purposes she was sentenced to a life sentence and there were abundant mitigating factors, including the fact that she had never committed a violent crime before, her conduct was not brutal and heinous, she had a history of mental problems and substance abuse, and there was testimony offered that she was a compassionate person.

 We do not find the 25-year firearm enhancement provision disproportionate as applied to defendant.   The sentence was not so harsh, cruel, degrading, or shocking to the conscience based on the seriousness of the offense to conclude that it is unconstitutional.   First, defendant received both the minimum underlying sentence and the minimum enhanced sentence.   The seriousness of defendant's conduct is unquestionable-she shot her husband to death.   As we conclude below, defendant armed herself with a shotgun, loaded it to capacity, lured her husband to their apartment, and then sent her children away.   Thereafter, defendant aimed the gun at her husband and pulled the trigger.   Weighed against the facts of the crime are the mitigating factors of lack of criminal history, defendant's mental problems, and evidence that she was a dedicated and devoted person.   The trial court, we must presume, weighed these mitigating factors and, as noted above, gave defendant the minimum of both sentences.   See People v. Quintana, 332 Ill.App.3d 96, 109, 265 Ill.Dec. 462, 772 N.E.2d 833 (2002) (appellate court will presume that the trial court considered appropriate factors in sentencing a defendant);  People v. Zarka-Nevling, 308 Ill.App.3d 516, 526, 241 Ill.Dec. 879, 720 N.E.2d 334 (1999) (where mitigating factors are present, the appellate court presumes the trial court considered them).   Mitigating factors are not entitled to more weight than the seriousness of the offense.  People v. Pippen, 324 Ill.App.3d 649, 652, 258 Ill.Dec. 492, 756 N.E.2d 474 (2001).   Because the legislature, which we must not second-guess, has concluded that committing first degree murder by personally discharging a firearm necessitates an enhanced sentence and the trial court considered the proper factors in sentencing defendant, even though her sentence may be akin to a life sentence, we do not deem the enhanced sentence unconstitutional in light of the seriousness of defendant's crime.

II. Separation of Powers

 Defendant next contends that the sentencing scheme for first degree murder by personally discharging a firearm violates separation of powers principles because the scheme removes from the judicial branch all discretion to consider and give weight to aggravation and mitigation factors and does not allow the trial court to differentiate among offenders.

In Hill, the defendant argued that the 15-year enhancement for committing home invasion while armed with a firearm, set forth in section 12-11(a)(3) of the Criminal Code of 1961 (Code), violated the separation of powers clause of the Illinois Constitution.   Hill, 199 Ill.2d at 442, 264 Ill.Dec. 670, 771 N.E.2d 374.   The defendant argued that the “mandatory add-on sentence of 15 years usurps the judiciary's sentencing power by removing its ability to consider aggravating and mitigating factors and to fashion a sentence that is tailored to the circumstances of the offense.”  Hill, 199 Ill.2d at 446, 264 Ill.Dec. 670, 771 N.E.2d 374.   The supreme court disagreed.  Hill, 199 Ill.2d at 446, 264 Ill.Dec. 670, 771 N.E.2d 374.   The court first concluded that the trial court still retained the ability to consider aggravating and mitigating factors under the sentencing scheme.  Hill, 199 Ill.2d at 447, 264 Ill.Dec. 670, 771 N.E.2d 374.   The Hill court then found that the “mandatory sentencing schemes do not inherently usurp the judiciary's power to impose a sentence.”  Hill, 199 Ill.2d at 447, 264 Ill.Dec. 670, 771 N.E.2d 374.   In this regard, the court noted that it had repeatedly held that the legislature has the power to impose mandatory sentences.   Hill, 199 Ill.2d at 447, 264 Ill.Dec. 670, 771 N.E.2d 374.   Specifically, the Hill court noted that in those circumstances, the court had found “that the legislature's power necessarily includes the authority to establish mandatory minimum sentences, even though such sentences, by definition, restrict the inquiry and function of the judiciary in imposing sentence.”   Hill, 199 Ill.2d at 447, 264 Ill.Dec. 670, 771 N.E.2d 374.   The Hill court then noted that the United States Supreme Court has “ rejected the constitutional necessity for discretionary sentencing ranges.”  Hill, 199 Ill.2d at 448, 264 Ill.Dec. 670, 771 N.E.2d 374.   Specifically, the Hill court relied upon Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), in which the Supreme Court stated:

“ ‘Such a sentencing scheme-not considering individual degrees of culpability-would clearly be constitutional.   Congress has the power to define criminal punishments without giving the courts any sentencing discretion.   [Citation.]  Determinate sentences were found in this country's penal codes from its inception [citation] and some have remained until the present.   [Citations.]  A sentencing scheme providing for ‘individualized sentences rests not on constitutional commands, but on public policy enacted into statutes.’   (Emphases added.)  [Citations.]”  Hill, 199 Ill.2d at 448, 264 Ill.Dec. 670, 771 N.E.2d 374.

Based upon the above authority, the Hill court noted that “discretionary sentencing power did not always lie squarely within the judiciary.”  Hill, 199 Ill.2d at 449, 264 Ill.Dec. 670, 771 N.E.2d 374.   In concluding that the sentencing scheme at issue did not “place an unconstitutional limit on the judiciary's power to adjudicate, pronounce judgment, impose sentence, interpret the law, or carry it into effect,” the court specifically stated:

“When the legislature implements a mandatory sentencing scheme, however, it necessarily restricts the judiciary's discretion and its ability to consider aggravating and mitigating factors.  [Citations.]

We conclude that defendant has failed to show that the legislature exceeded its authority in implementing section 12-11(a)(3)'s mandatory add-on sentencing scheme.   Generally, aggravating and mitigating factors need not necessarily be a part of the sentencing equation if the legislature deems such factors inappropriate.   The legislature has the power to fix the sentence for a crime and, in turn, limit the scope of judicial discretion with respect to imposing the sentence.”  Hill, 199 Ill.2d at 450-51, 264 Ill.Dec. 670, 771 N.E.2d 374.

Although Hill involved an enhancement to home invasion, as opposed to first degree murder in the instant case, we do not find this fact precludes the applicability of the Hill court's rationale regarding the legislature's “power to fix the sentence for a crime.”  Hill, 199 Ill.2d at 450-51, 264 Ill.Dec. 670, 771 N.E.2d 374.   The defendant's argument in Hill was the same as defendant's argument here, i.e., the legislature's sentencing scheme removes all discretion from the judiciary.   This argument was the core of the Hill court's analysis.   See also Olivo v. State, 823 So.2d 872, 872-73 (Fla.App.2002) (rejecting the defendant's argument that the Florida firearm enhancement statute violates separation of powers principles and noting that two other districts of the appellate court had also done so).   Accordingly, we reach the same result here and conclude that the 25-year firearm enhancement to first degree murder does not violate separation of powers principles for the reasons espoused in Hill.

III. Double Jeopardy

 Defendant next contends that the 25-year firearm enhancement provision violates double jeopardy.   Defendant maintains that she was placed in jeopardy for first degree murder, which depended upon her discharging a firearm, and then the same factor, discharge of a firearm, subjected her to additional penalties.

 As stated by the Moss court,

“[t]he double jeopardy clause * * * affords three protections to the criminal defendant.  ‘The first two, which are the most familiar, protect against a second prosecution for the same offense after acquittal, and against a second prosecution for the same offense after conviction.’  [Citation.]  The third safeguard, which is the one at issue here, protects against multiple punishments for the same offense.”  Moss, 206 Ill.2d at 535-36, 276 Ill.Dec. 855, 795 N.E.2d 208.

Thus, the question here is whether defendant is being punished more than once for the same offense.  People v. Ollie, 333 Ill.App.3d 971, 990, 267 Ill.Dec. 726, 777 N.E.2d 529 (2002).

In the instant case, defendant was punished for the murder of her husband with a 20-year sentence.   It was irrelevant whether she used a firearm in committing the murder or not.   Once the State proved she killed her husband and that she had the requisite intent, she was subject to imprisonment of, at the least, 20 years.   This sentence did not punish her for use of a firearm.   Again, she was punished for killing her husband, however that may have occurred.   Only after this was the 25-year enhancement provision triggered by the use of a firearm element.   In Moss, the defendants raised a double jeopardy challenge to the enhancement provision with respect to armed robbery.   The Moss court found that a defendant was subject to a Class X sentence for armed robbery even if the offense did not involve a firearm.   As such, the mandatory 15-year enhancement to a Class X offense with a firearm did not constitute multiple punishment for the firearm element.  Moss, 206 Ill.2d at 536, 276 Ill.Dec. 855, 795 N.E.2d 208.   With respect to the 25-year enhancement, the court reached the same conclusion, finding that the part of the sentence triggered by the firearm element was the 25-year sentence.   Moss, 206 Ill.2d at 536, 276 Ill.Dec. 855, 795 N.E.2d 208.   Accordingly, the Moss court concluded that the use of a firearm element did not constitute multiple punishment and, therefore, did not result in any double jeopardy violation.  Moss, 206 Ill.2d at 537, 276 Ill.Dec. 855, 795 N.E.2d 208.

Also instructive on this issue is the California case of Hutchins.   In Hutchins, a California statute was in existence that specifically prohibited multiple punishments for a single act (section 654).  Hutchins, 90 Cal.App.4th at 1312, 109 Cal.Rptr.2d at 645.   The defendant challenged the California firearm enhancement provision as violating this statute.   The Hutchins court rejected the defendant's argument, stating:

“The manner in which any crime is accomplished may vary in innumerable respects.  * * * Section 654 is not implicated by the imposition of a sentencing enhancement on a particular manner of committing murder-with the use of a firearm-adjudged by society through its legislative representatives as particularly egregious and dangerous.”  Hutchins, 90 Cal.App.4th at 1313, 109 Cal.Rptr.2d at 647.

Rather, according to Hutchins,

“[w]hat the Legislature has done by enacting [the firearm enhancement provisions] is not to punish the same single criminal act more than once or in more than one way.   Instead, in determining that a criminal offender may receive additional punishment for any single crime committed with a firearm, the Legislature has chosen to enhance or expand the punishment imposed on a single underlying crime, where committed by use of a firearm, in order to deter a particular form of violence judged especially threatening to the social fabric.”  Hutchins, 90 Cal.App.4th at 1313-14, 109 Cal.Rptr.2d at 647.

The Hutchins court then stated:

“[The defendant's] ‘use of the firearm was not a crime in and of itself.   The crime was the extinction of a human life․ The gun was simply the method selected by [the defendant] to accomplish the crime, and the particular method selected subjects [him] to an additional penalty.   Because the underlying crime and the enhancement are not identical, there is and can be no double punishment.’  [Citation.]”  Hutchins, 90 Cal.App.4th at 1314, 109 Cal.Rptr.2d at 647.

In conclusion, the Hutchins court stated:

“[T]he statute's purpose quite specifically is to deter persons from inflicting great bodily injury or death through the intentional discharge of firearms in the commission of such felonies, the exact result of the offense which occurred here [second degree murder].  ‘To refrain from imposing the enhancement would contradict the exact terms of the statute, preventing the imposition of the enhancement in many instances of murder, manslaughter and attempted murder, the most vicious results of [personally and intentionally] discharging a weapon [in the commission of a felony].   Imposing the enhancement fulfills the legislative purpose of punishing more severely those crimes which actually result in great bodily injury.   [Citation.]’  * * * ‘[Any contrary] result would undermine the intent of the legislation.’  [Citation.]”   Hutchins, 90 Cal.App.4th at 1314, 109 Cal.Rptr.2d at 647.

Based on the principles espoused in Hill and Hutchins, we therefore find no double jeopardy violation in the instant case.

IV. Double Enhancement 7

 In a second supplemental brief, defendant contends that the sentencing scheme for first degree murder by personally discharging a firearm creates an impermissible double enhancement of the offense and sentence because the element of causation of death is both an element of the offense of first degree murder and an aggravating factor for imposition of the 25-year enhancement sentence.

 Double enhancement of an offense and sentence is generally improper unless there is a clear legislative intent to the contrary.  People v. Koppa, 184 Ill.2d 159, 174, 234 Ill.Dec. 479, 703 N.E.2d 91 (1998).   See also People v. Ferguson, 132 Ill.2d 86, 97, 138 Ill.Dec. 262, 547 N.E.2d 429 (1989).   It appears that there are two different definitions or theories of thought with respect to double enhancement.   The first theory states:  “Double enhancement occurs when a single factor is used ‘both as an element of a defendant's crime and as an aggravating factor justifying the imposition of a harsher sentence than might otherwise have been imposed.’  (Emphasis in original.)”  Moss, 206 Ill.2d at 533, 276 Ill.Dec. 855, 795 N.E.2d 208.  “ ‘Thus, to use one of those same factors that make up the offense as the basis for imposing a harsher penalty than might otherwise be imposed constitutes a double use of a single factor.’   (Emphasis in original.)”   Moss, 206 Ill.2d at 533, 276 Ill.Dec. 855, 795 N.E.2d 208.   See also People v. Rissley, 165 Ill.2d 364, 390, 209 Ill.Dec. 205, 651 N.E.2d 133 (1995);  Ferguson, 132 Ill.2d at 97, 138 Ill.Dec. 262, 547 N.E.2d 429;   People v. Milka, 336 Ill.App.3d 206, 235, 270 Ill.Dec. 476, 783 N.E.2d 51 (2003);  People v. Thompson, 331 Ill.App.3d 948, 958, 265 Ill.Dec. 653, 773 N.E.2d 15 (2002);  People v. Carney, 327 Ill.App.3d 998, 1003, 262 Ill.Dec. 420, 765 N.E.2d 1028 (2002);  People v. Sample, 326 Ill.App.3d 914, 930, 260 Ill.Dec. 643, 761 N.E.2d 1199 (2001).   This theory is premised upon the assumption that the legislature considered the factors inherent in an offense in determining the appropriate sentence range.   Rissley, 165 Ill.2d at 390, 209 Ill.Dec. 205, 651 N.E.2d 133.

 The second theory has stated the rule as follows:  “It is well established that double enhancement occurs when a factor previously used to enhance an offense or penalty is again used to subject a defendant to a further enhanced offense or penalty.”  Koppa, 184 Ill.2d at 174, 234 Ill.Dec. 479, 703 N.E.2d 91.   See also People v. Thomas, 171 Ill.2d 207, 223, 215 Ill.Dec. 679, 664 N.E.2d 76 (1996);  Ollie, 333 Ill.App.3d at 989, 267 Ill.Dec. 726, 777 N.E.2d 529;  People v. Phelps, 329 Ill.App.3d 1, 6, 263 Ill.Dec. 408, 768 N.E.2d 168 (2002);  People v. Watkins, 325 Ill.App.3d 13, 20, 258 Ill.Dec. 732, 757 N.E.2d 117 (2001);  People v. Phelps, 324 Ill.App.3d 695, 700, 257 Ill.Dec. 934, 755 N.E.2d 36 (2001);  People v. Childress, 321 Ill.App.3d 13, 28, 254 Ill.Dec. 26, 746 N.E.2d 783 (2001);  People v. Becker, 315 Ill.App.3d 980, 995, 248 Ill.Dec. 696, 734 N.E.2d 987 (2000).   This theory is based upon the view that

“ ‘the legislature has the power to codify provisions which enhance a criminal offense (e.g., misdemeanor to a felony) or enhance the applicable range of punishment (e.g., extended term sentence or Class X sentencing).   This is known as “single enhancement.” ’  [Citation.]”  Phelps, 324 Ill.App.3d at 700, 257 Ill.Dec. 934, 755 N.E.2d 36.

Initially, we note that although defendant here focuses on the “causation of death” as the appropriate factor to be used in our analysis, which clearly is an element of first degree murder, the focus and basis of the enhancement provisions here are the use of a firearm in the commission of certain felonies.   See Moore, 343 Ill.App.3d at 347-48, 277 Ill.Dec. 870, 797 N.E.2d 217 (rejecting the defendant's argument that the proper factor to be considered in double enhancement analysis was causation of a death and finding that the proper factor to analyze was the use of a firearm).   How the firearm was used is subordinate to the ultimate focus of the legislature-the mere use of a firearm.   Thus, we look to the element, “use of a firearm,” rather than “causation of death,” as being the proper factor to analyze.

 Under the first theory of double enhancement set forth above, we do not find any double enhancement violation.   First degree murder does not require the use of a firearm.   Specifically, use of a firearm is not an essential element of first degree murder and the State is not required to prove the use of a firearm in establishing that someone committed first degree murder.   Clearly, first degree murder can be committed in any number of ways.   All the State was required to prove was that defendant here killed her husband and that she had the requisite intent in doing so.  People v. Sykes, 341 Ill.App.3d 950, 982-83, 276 Ill.Dec. 57, 793 N.E.2d 816 (2003).   Because the personal use of a firearm factor was not an inherent or essential element of first degree murder and it was only used to impose a longer sentence, there is no double enhancement.   See Moore, 343 Ill.App.3d at 347, 277 Ill.Dec. 870, 797 N.E.2d 217 (holding that there was no double enhancement in connection with the 25-year to life enhancement provision with respect to murder).

Similarly, under the second theory set forth above, there was no double enhancement.   The use of a firearm element was not used, in the first instance, to enhance or increase the first degree murder offense that defendant committed, nor to enhance or increase her 20-year sentence for first degree murder.   Thus, there can be no “use again” to further enhance her offense or penalty for first degree murder.

Accordingly, we conclude that the 25-year firearm enhancement provision does not constitute a double enhancement on the basis that the proper factor to look to regarding application of the provision is the use of a firearm, not the causation of death.

[Editor's Note:  Text omitted pursuant to Supreme Court Rule 23.]

[THE FOLLOWING MATERIAL IS NONPUBLISHABLE UNDER SUPREME COURT RULE 23]

V. Second Degree Murder

Defendant next contends that she should have been found guilty of, at most, second degree murder and that her attorney should have made this argument to the trial court.   Defendant maintains, therefore, that her attorney was ineffective.   According to defendant, there was evidence of serious provocation, i.e., the quarrel between her and Don in which Don suddenly ejected her from their apartment, that should have either been argued by counsel or considered sua sponte by the trial court.   Defendant argues that this quarrel was sufficient serious provocation, particularly in light of her instability, to warrant reducing the charge against her to second degree murder.

“A person commits second degree murder when ‘[a]t the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed * * *, but he negligently or accidentally causes the death of the individual killed.’  [Citation.]”  People v. Kidd, 295 Ill.App.3d 160, 166, 229 Ill.Dec. 682, 692 N.E.2d 455 (1998).  “The defendant must be acting under a sudden and intense passion spurred from serious provocation that the law recognizes as reasonable.”  Kidd, 295 Ill.App.3d at 167, 229 Ill.Dec. 682, 692 N.E.2d 455.  “Serious provocation” is defined as “conduct sufficient to excite an intense passion in a reasonable person.”   720 ILCS 5/9-2(b) (West 2002).   The test is objective, not subjective (People v. Petrusel, 238 Ill.App.3d 683, 689, 179 Ill.Dec. 715, 606 N.E.2d 547 (1992)), and the traits of the defendant cannot be considered (People v. Pecora, 107 Ill.App.2d 283, 296, 246 N.E.2d 865 (1969);  21 Ill. Law & Prac. Homicide § 33 (2003)).

In Illinois, four categories of provocation are recognized:  “(1) substantial physical injury or substantial physical assault, (2) mutual quarrel or combat, (3) illegal arrest, and (4) adultery with the offender's spouse.”  Kidd, 295 Ill.App.3d at 167, 229 Ill.Dec. 682, 692 N.E.2d 455.   The defendant must demonstrate both passion and serious provocation “[f]or, passion on behalf of the defendant, no matter how violent, will not relieve the defendant of culpability for first degree murder unless it is engendered by provocation.”   People v. Garcia, 165 Ill.2d 409, 429, 209 Ill.Dec. 172, 651 N.E.2d 100 (1995);  People v. Falls, 235 Ill.App.3d 558, 568-69, 176 Ill.Dec. 578, 601 N.E.2d 1276 (1992).   With respect to mutual quarrel or combat, “mere words are not contemplated.   Words, in and of themselves, no matter how vile, can never constitute serious provocation such that second degree murder should be found instead of first degree murder.”  Garcia, 165 Ill.2d at 429-30, 209 Ill.Dec. 172, 651 N.E.2d 100.  “Rather, the words * * * must be accompanied by mutual combat so serious that it mitigates against finding the defendant guilty of first degree murder.”  Garcia, 165 Ill.2d at 430, 209 Ill.Dec. 172, 651 N.E.2d 100.   With respect to the fourth category, “adultery of a spouse is sufficient provocation only when the parties are discovered in the act of adultery or immediately before or after such an act, and the killing immediately follows such discovery.”  Falls, 235 Ill.App.3d at 568, 176 Ill.Dec. 578, 601 N.E.2d 1276.   See also People v. Chevalier, 131 Ill.2d 66, 75-76, 136 Ill.Dec. 167, 544 N.E.2d 942 (1989) (declining to change the law “by holding that a confession of adultery by a spouse is legally adequate provocation”).   See also People v. Cedeno, 263 Ill.App.3d 257, 264, 200 Ill.Dec. 708, 635 N.E.2d 1047 (1994);  People v. Schorle, 206 Ill.App.3d 748, 757, 151 Ill.Dec. 813, 565 N.E.2d 84 (1990).  “As a result, mere words or gestures, even if they result in an admission of adultery and comment negatively on the party's sexual prowess are still considered insufficient provocation.”  Falls, 235 Ill.App.3d at 569, 176 Ill.Dec. 578, 601 N.E.2d 1276.   See also Chevalier, 131 Ill.2d at 76, 136 Ill.Dec. 167, 544 N.E.2d 942;  People v. Yarbrough, 269 Ill.App.3d 96, 102-03, 206 Ill.Dec. 418, 645 N.E.2d 423 (1994);  Cedeno, 263 Ill.App.3d at 264, 200 Ill.Dec. 708, 635 N.E.2d 1047;  People v. Bradley, 220 Ill.App.3d 890, 900, 163 Ill.Dec. 359, 581 N.E.2d 310 (1991).   In this regard, a history of marital discord generally indicates “growing anger or resentment against the spouse rather than the sudden and intense passion required by the statute.”  Falls, 235 Ill.App.3d at 568, 176 Ill.Dec. 578, 601 N.E.2d 1276.   See also Chevalier, 131 Ill.2d at 75, 136 Ill.Dec. 167, 544 N.E.2d 942 (where the court stated, “we fail to understand why a history of marital discord should be a factor favoring a voluntary manslaughter instruction * * *[;] a history of marital discord * * *, if relevant at all, would undermine, not support, a defendant's claim that the evidence supports a voluntary manslaughter instruction”).

Defendant does not specify under which of the four recognized categories her provocation allegedly falls and, in any event, we find that she falls under none of them.   Clearly, there was no substantial injury or physical assault to plaintiff, nor was she illegally arrested.   Similarly, there is no evidence of adultery.   Thus, the only category left is mutual quarrel and combat.   However, defendant would not fall under this category because there was no evidence of any struggle or physical contact whatsoever between defendant and Don at the time Don told defendant to leave.   See Cedeno, 263 Ill.App.3d at 264, 200 Ill.Dec. 708, 635 N.E.2d 1047.   Words alone, the only thing present in the instant case, are clearly insufficient to constitute serious provocation.   See Chevalier, 131 Ill.2d at 70-72, 136 Ill.Dec. 167, 544 N.E.2d 942;  Yarbrough, 269 Ill.App.3d at 102-03, 206 Ill.Dec. 418, 645 N.E.2d 423;  Cedeno, 263 Ill.App.3d at 264, 200 Ill.Dec. 708, 635 N.E.2d 1047;  Schorle, 206 Ill.App.3d at 757, 151 Ill.Dec. 813, 565 N.E.2d 84.   See also Bradley, 220 Ill.App.3d at 900, 163 Ill.Dec. 359, 581 N.E.2d 310 (noting that Chevalier reaffirmed the long-standing rule that mere words alone are insufficient provocation).   Thus, defendant's conduct in the instant case did not fall into any of the four recognized categories of provocation and, instead, consisted of mere words between defendant and Don that were insufficient to constitute provocation.   See Yarbrough, 269 Ill.App.3d at 101, 206 Ill.Dec. 418, 645 N.E.2d 423.

We note that defendant relies on a line of cases, People v. Newberry, 127 Ill.App.2d 322, 262 N.E.2d 282 (1970), People v. Curwick, 33 Ill.App.3d 757, 338 N.E.2d 468 (1975), and People v. Wesley, 65 Ill.App.3d 25, 22 Ill.Dec. 38, 382 N.E.2d 358 (1978), which held that the breakup of a relationship was sufficient to give rise to a sudden and intense passion and, thus, sufficient to constitute provocation.   We do not find these cases persuasive or controlling.   First, Newberry did not cite any authority as to the law it was required to follow, i.e., the standards for manslaughter, nor did it cite any authority for its conclusion.  Curwick simply cited Newberry and People v. Ahlberg, 13 Ill.App.3d 1038, 301 N.E.2d 608 (1973).  Wesley cited Newberry, Curwick, and Ahlberg.   Additionally, our supreme court has deemed Ahlberg to be bad law.  Chevalier, 131 Ill.2d at 73-76, 136 Ill.Dec. 167, 544 N.E.2d 942 (stating that the Ahlberg line of cases was “an incorrect statement of Illinois law” and noting that under this line of cases, specifically Ahlberg, “even the slightest provocation would suffice, as long as the defendant testified that the deceased's conduct provoked intense passion”).   See also Bradley, 220 Ill.App.3d at 900, 163 Ill.Dec. 359, 581 N.E.2d 310 (noting that Chevalier observed that the above cited line of cases eroded the rule with respect to mere words being insufficient provocation and that such cases represented “ ‘an incorrect statement of Illinois law’ [citation]”);  Schorle, 206 Ill.App.3d at 758, 151 Ill.Dec. 813, 565 N.E.2d 84 (same as Bradley).   Although Chevalier did not cite Newberry, Curwick, or Wesley, we find that the same conclusion would apply to those cases-they are incorrect statements of Illinois law.   See People v. Hightower, 258 Ill.App.3d 517, 522, 196 Ill.Dec. 353, 629 N.E.2d 1197 (1994).

Second, and most importantly, the line of cases relied upon by defendant in support of her “provocation argument” is not in accord with prevailing law.   In Hightower, the defendant relied upon Wesley in support of his contention that his killing of his wife occurred as a result of the parties' marriage breaking up and, thus, constituted sufficient provocation under the law.  Hightower, 258 Ill.App.3d at 521, 196 Ill.Dec. 353, 629 N.E.2d 1197.   The Hightower court rejected the defendant's argument, stating that “although the breakup of a marriage often causes intense emotional pain, it simply is not a recognized category of sufficient provocation under the law of this State.”  Hightower, 258 Ill.App.3d at 521, 196 Ill.Dec. 353, 629 N.E.2d 1197.   With specific reference to Wesley, the Hightower court stated, “[T]he only support in Wesley for th[e] erroneous departure from the clearly recognized categories of sufficient provocation is a line of cases created by the appellate court out of whole cloth to fit the exigencies of the cases before them,” citing Wesley, Curwick, Newberry, and Ahlberg.  Hightower, 258 Ill.App.3d at 522, 196 Ill.Dec. 353, 629 N.E.2d 1197.   The Hightower court noted that the supreme court in Chevalier “properly criticized cases like Ahlberg that, without any explanation, considered a history of marital discord as a factor favoring a voluntary manslaughter instruction.”   Hightower, 258 Ill.App.3d at 522, 196 Ill.Dec. 353, 629 N.E.2d 1197.   The court concluded that “the mere breakup of a marriage does not warrant the giving of a voluntary manslaughter instruction.”  Hightower, 258 Ill.App.3d at 522, 196 Ill.Dec. 353, 629 N.E.2d 1197.

Because a marital breakup simply does not fall into any of the four categories discussed above, and, in the instant case, as established by the record, Don's conduct involved only words, Don's conduct did not constitute sufficient provocation under the law.   Accordingly, we find that defendant's “quarrel” with Don was not sufficient provocation to warrant a reduction of the first degree murder charge against her to second degree murder.

Additional support for our conclusion is based on the fact that defendant's current second degree murder theory is inconsistent with the theory she advanced at trial-that she accidentally shot her husband.   See, e.g., People v. Tate, 25 Ill.App.3d 411, 419, 323 N.E.2d 485 (1974).   In a similar respect, defendant specifically testified that she was not mad at Don for any reason.   Additionally, she did not testify that she was upset because he ejected her from the home.   Clearly, there was no evidence of a sudden and intense passion experienced by defendant that resulted from serious provocation to warrant a second degree murder finding.   Accordingly, we find that the trial court did not err in failing to sua sponte consider a second degree murder verdict, nor did defendant's counsel render ineffective assistance in failing to raise this theory as an issue.

VI. Involuntary Manslaughter

Defendant next contends that her conviction should be reduced from first degree murder to involuntary manslaughter because she had no felonious intent and she only shot her husband by accident when she moved the gun away from her chin.   Defendant argues that the trial court gave too much weight to her statement to the police versus her in-court testimony.

A defendant commits involuntary manslaughter “when he performs acts that are likely to cause death or great bodily harm to another and he performs these acts recklessly.”  People v. Eason, 326 Ill.App.3d 197, 209, 260 Ill.Dec. 102, 760 N.E.2d 519 (2001).   Conversely, a defendant does not commit involuntary manslaughter “where the evidence reveals that the defendant voluntarily and willfully commits an act that has the natural tendency to cause death or great bodily harm, as such acts demonstrate an intent to kill or injure the victim.”  Eason, 326 Ill.App.3d at 208-09, 260 Ill.Dec. 102, 760 N.E.2d 519.  “In general, a defendant acts recklessly, when he is aware that his conduct might result in death or great bodily harm, although that result is not substantially certain to occur.”  Eason, 326 Ill.App.3d at 209, 260 Ill.Dec. 102, 760 N.E.2d 519. A defendant's testimony that she did not intend to kill anyone is insufficient to create a fact question on the issue of recklessness.  Eason, 326 Ill.App.3d at 209, 260 Ill.Dec. 102, 760 N.E.2d 519.   The defendant must point to some evidence of something that she did recklessly.  People v. Castillo, 188 Ill.2d 536, 541, 243 Ill.Dec. 242, 723 N.E.2d 274 (1999).  “[A]n involuntary manslaughter instruction is generally not warranted where the nature of the killing, shown by either multiple wounds or the victim's defenselessness, shows that defendant did not act recklessly.”   People v. DiVincenzo, 183 Ill.2d 239, 251, 233 Ill.Dec. 273, 700 N.E.2d 981 (1998).   One relevant factor in determining whether a defendant acted recklessly is whether he used his bare fist or a weapon.  DiVincenzo, 183 Ill.2d at 251, 233 Ill.Dec. 273, 700 N.E.2d 981.

Initially, we note that defendant's argument here is premised solely upon a determination of credibility, i.e., whether her trial testimony was truthful or her statement to the police after her arrest was truthful.   The trial court specifically found that defendant's statement to the police was more credible.  “In a bench trial, it is the province of the trial court to determine the credibility and weight of the testimony, to resolve the inconsistencies and conflicts therein and to render a decision accordingly.”   People v. Cunningham, 333 Ill.App.3d 1045, 1048, 267 Ill.Dec. 675, 777 N.E.2d 478 (2002).   Because the trial court made this determination, we reject defendant's argument on this basis alone.

Defendant also relies upon People v. Bauman, 34 Ill.App.3d 582, 340 N.E.2d 178 (1975), contending that the facts of that case are similar to the facts present here.   We disagree-the facts are in no respect similar.  Bauman involved a party where numerous individuals were involved in various separate altercations during which violent behavior was exhibited.  Bauman, 34 Ill.App.3d at 584-87, 340 N.E.2d 178.   The defendant in Bauman was fearful for his own life and killed the victim as a result of attempting to protect himself.  Bauman, 34 Ill.App.3d at 589, 340 N.E.2d 178.   Moreover, the defendant's story about how the incident occurred did not change over time.   Specifically, both in the statement he gave to the police shortly after the shooting and at trial, the defendant testified that the shooting was an accident.  Bauman, 34 Ill.App.3d at 589, 340 N.E.2d 178.  Bauman did not involve a private incident between only two people as in the instant case.   In addition, the defendant in Bauman was trying to protect himself, not trying to kill himself as defendant here alleges.   Lastly, defendant's version of the incident in the instant case was not consistent.   Shortly after the shooting, defendant stated that she picked the shotgun off of the bed, pulled the trigger, and shot Don, whereas at the time of her trial, defendant testified that the shooting of Don was an accident when she was trying to move the shotgun away from her own chin.

We agree with the trial court that there was sufficient evidence of defendant's intent to shoot Don to preclude a finding of recklessness.   As the trial court noted, defendant loaded the gun and lured Don back to their apartment.   By defendant's own statement given shortly after the incident, which the trial court gave credence to, defendant pointed the gun at Don and fired.   This is corroborated by the stipulated testimony of Officer Tomko.   Clearly, this conduct does not exhibit elements of recklessness, particularly given Don's defenselessness.   Defendant voluntarily and wilfully committed an act, pointing the gun at Don and pulling the trigger, knowing the shotgun was fully loaded because she had loaded it herself, the natural tendency of which was to cause death.   Accordingly, we find that defendant was not entitled to an involuntary manslaughter conviction.

VII. Personal Discharge of Firearm

Defendant next contends that the 25-year enhancement sentence must be vacated because the State failed to prove that she personally discharged a firearm within the meaning of section 2-15.5 of the Code. Defendant maintains that she did not knowingly and intentionally fire the shotgun.

Section 2-15.5 of the Code states:  “A person is considered to have ‘personally discharged a firearm’ when he or she, while armed with a firearm, knowingly and intentionally fires a firearm causing the ammunition projectile to be forcefully expelled from the firearm.” 720 ILCS 5/2-15.5 (West 2002).   For the reasons set forth above, we find that the State proved that defendant personally discharged a firearm within the meaning of the 25-year enhancement provision and section 2-15.5 of the Code.

[THE PRECEDING MATERIAL IS NONPUBLISHABLE UNDER enhancement provision and section 2-15.5 of the Code.

CONCLUSION

For the reasons stated, we affirm the judgment of the circuit court of Cook County.

Affirmed.

FOOTNOTES

1.   Other cases have addressed the constitutionality of certain amendments added by Public Act 91-404 on proportionate penalty grounds with respect to other offenses.   In People v. Hill, 199 Ill.2d 440, 264 Ill.Dec. 670, 771 N.E.2d 374 (2002), the court concluded that the 15-year enhancement for committing home invasion while armed with a firearm did not violate the proportionate penalties clause of the Illinois Constitution.   Hill, 199 Ill.2d at 451, 264 Ill.Dec. 670, 771 N.E.2d 374.   In People v. Walden, 199 Ill.2d 392, 264 Ill.Dec. 91, 769 N.E.2d 928 (2002), the court concluded that the 15-year enhancement for committing armed robbery while in possession of a firearm violated the proportionate penalties clause of the Illinois Constitution.   Walden, 199 Ill.2d at 396-97, 264 Ill.Dec. 91, 769 N.E.2d 928.   See also People v. Garcia, 199 Ill.2d 401, 264 Ill.Dec. 314, 770 N.E.2d 208 (2002) (same holding as Walden ).   In People v. Morgan, 203 Ill.2d 470, 272 Ill.Dec. 160, 786 N.E.2d 994 (2003), the court concluded that the 15-20-25 to life provision enhancement to the attempt statute, specifically attempted first degree murder, violated the proportionate penalties clause of the Illinois Constitution.   Morgan, 203 Ill.2d at 491-92, 272 Ill.Dec. 160, 786 N.E.2d 994.   Lastly, in Moss, the court concluded that the 15 and 20-year enhancements for committing armed robbery with the personal discharge of a firearm (20 years), aggravated vehicular hijacking while in possession of a firearm (15 years), and aggravated vehicular hijacking with the personal discharge of a firearm (20 years) violated the proportionate penalties clause of the Illinois Constitution.   Moss, 206 Ill.2d at 531, 276 Ill.Dec. 855, 795 N.E.2d 208.   With respect to the 25-year enhancement for committing armed robbery with the personal discharge of a firearm that causes injury or death, the trial court had explicitly found “no disproportionateness in the case of the 25 years to life enhancement in cases resulting [in] great bodily harm or death.”  Moss, 206 Ill.2d at 532, 276 Ill.Dec. 855, 795 N.E.2d 208.   The Moss court concluded that the defendants had presented no argument sufficient to dissuade it from deviating from the trial court's finding.  Moss, 206 Ill.2d at 532, 276 Ill.Dec. 855, 795 N.E.2d 208.

2.   The third test is not involved in this appeal because defendant does not raise such a challenge.

3.   This argument is made in a footnote, without ample argument or any citation to authority and, therefore, we do not address it.   188 Ill.2d R. 341(e)(7).

4.   Defendant has not cited, nor has our independent research disclosed, any case in which a trial court sentenced a defendant found guilty of murder that was accompanied by brutal and heinous conduct to 20 years' imprisonment.

5.   In this regard, we note that the challenges to the California statute have been made on the basis of constituting cruel and unusual punishment.   We believe the distinction to be one without a difference because the cruel and unusual analysis, i.e., whether the provision is unconstitutional because it “shocks the conscience,” and “offends fundamental notions of human dignity” (In re Lynch, 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 226, 503 P.2d 921 (1972)), is similar to the analysis we must employ in a disproportionate penalties challenge.

6.   It should be noted that the court in Moss rejected such a challenge to the armed robbery statute.   With respect to the 25-year enhancement for committing armed robbery with the personal discharge of a firearm that causes injury or death, the trial court had explicitly found “no disproportionateness in the case of the 25 years to life enhancement in cases resulting [in] great bodily harm or death.”  Moss, 206 Ill.2d at 532, 276 Ill.Dec. 855, 795 N.E.2d 208.   The Moss court concluded that the defendants had presented no argument sufficient to dissuade it from deviating from the trial court's finding.  Moss, 206 Ill.2d at 532, 276 Ill.Dec. 855, 795 N.E.2d 208.   See also People v. Moore, 343 Ill.App.3d 331, 348, 277 Ill.Dec. 870, 797 N.E.2d 217 (2003) (addressing a proportionate penalties challenge to the 25-year firearm enhancement provision with respect to murder under a different cross-comparison theory and concluding that a cross-comparison analysis was not applicable because of the different statutory purposes).

7.   We note that while the Moss court addressed double enhancement, it was with respect to armed robbery.   The Moss court's analysis is not applicable to the case sub judice because in Moss there was an initial enhancement of the offense from Class 1 to Class X. The same situation is not present here.

Justice BURKE delivered the opinion of the court: