author: JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHOUDARY AHMAD, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—0941
    Opinion filed November 30, 1990.

      Michael J. Pelletier and Mitchell Katten, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and David R. Butzen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Defendant was charged with the murder of Syed Shah, but he was initially found unfit to stand trial. However, at a subsequent reinstatement hearing defendant was found fit for trial and was tried before a jury. Following instructions to the jury on the verdicts of guilty, not guilty, not guilty by reason of insanity and guilty but mentally ill, the jury found defendant guilty of murder. He was subsequently sentenced to a term of 26 years. The issues raised on appeal are: (1) whether defendant was denied his constitutional right to due process because the guilty but mentally ill instruction injected irrelevant issues into the determination of guilt or innocence; (2) whether the trial court’s failure to properly instruct the jury on the statutory elements and burden of proof for the guilty but mentally ill verdict was plain error; (3) whether defendant was deprived of his right to be found guilty but mentally ill because the statute in effect at the time of his trial created a class of defendants who could not prove their insanity by a preponderance of evidence, and who could not be found guilty but mentally ill because the State could not prove their sanity beyond a reasonable doubt; (4) whether the trial court’s determination that defendant was fit to stand trial was proper; (5) whether defendant was denied his right to a fair trial where the State argued that defendant’s assertion of his right to remain silent was evidence that he was sane; (6) whether the State’s expert witness’ misstatement of the law regarding defendant’s burden of proof in establishing the insanity defense deprived him of a fair trial; and (7) whether defendant’s conviction should be reduced from guilty to guilty but mentally ill.

Jack Mashni testified for the State that on the evening of June 17, 1986, he owned the Granville Liquor Store, which was located at 1102 West Granville Avenue in Chicago. Around midnight, the victim and a companion were in the store when defendant arrived with a man by the name of Bobby Israel. Defendant and the victim started arguing, and Mashni asked the four men to leave. Mashni stated that defendant did not appear to be intoxicated at that time. Sometime after Mashni asked the men to leave, he looked outside and saw defendant lying on the ground. After contacting the police, he received a telephone call from Will Garrison, the manager of the apartment building across the street from the liquor store. Garrison told Mashni that someone was coming over with a knife. Shortly thereafter, the victim returned to the store and went to the bathroom. Defendant then arrived, but Mashni asked him to leave which he did. Mashni initially persuaded the victim to remain in the store, but after a short period of time, he left the premises. Mashni testified that sometime after the victim left, someone came to the store and reported that there had been a stabbing. Mashni went outside and saw the victim lying on the ground.

Will Garrison testified for the State that he had known defendant approximately four weeks, and that defendant shared an apartment with Bobby Israel in the same building that Garrison lived in and managed. Garrison corroborated Mashni’s testimony regarding the events prior to the stabbing. He further testified that defendant and Israel followed the victim after he left the liquor store, and that defendant caught up with him and stabbed him in a downward motion over the right shoulder. Garrison stated that the next thing he saw was the victim fall to the ground. Defendant then ran back to the apartment building.

Deborah Ezell testified that at around midnight on the night of the stabbing she parked her car on the corner of Granville and Winthrop Avenues and started walking toward the liquor store. She then saw a man stab the victim with a serrated butcher knife, and she ran back to her car. When she saw defendant leave the scene, she approached the victim and found that he had been stabbed several times.

Officer Fred Vitek of the Chicago police department testified that in the early morning hours of June 18, 1986, he responded to a call that there had been a stabbing at 1109 West Granville. When Vitek arrived, he saw the victim’s body with several chest wounds. He called for an ambulance and spoke with several people at the scene of the incident. Vitek was told that the offender lived in the apartment building on that street, and he was given a description of defendant. Vitek further testified that he went to the apartment building and saw defendant standing in the window. He contacted the police station, gave them a description of defendant and proceeded to defendant’s apartment to look for him. Several other officers were at defendant’s apartment when Vitek arrived, but defendant was gone. Vitek also noticed that the window of the second-floor landing which led to the roof of an adjacent building was broken, and the metal bars had been removed.

Officer William Stump testified that he arrived at the scene of the incident at around 12:24 a.m. He spoke with Bobby Israel and then began searching the area for defendant. A short time later Stump found defendant in a taxi cab, and he saw that defendant had blood on his shirt. Stump identified himself as a police officer and asked defendant to step out of the taxi cab. When defendant stood up, he was searched by Stump, and a knife was found in his possession. Defendant was then taken to the police station. Stump stated that he observed nothing unusual about defendant’s behavior. He was able to provide information regarding his height, weight, birthdate, place of birth and occupation. On the arrest report, Stump indicated that defendant had been drinking, but he testified that he did not believe he was intoxicated. Stump further testified that defendant was cooperative, peaceful, followed all orders and answered all questions.

Detective Phillip Manion testified that he interviewed defendant after advising him of his Miranda rights and that defendant acknowledged that he understood his rights. When Manion initially asked defendant about the stabbing, defendant stated that he and the victim had an argument and that the victim stabbed himself. Manion then told defendant that his story was not believable. Defendant stated that he had been drinking and could not remember what had happened, but he thought someone else had stabbed the victim. At that point, defendant stated that he did not want to talk anymore, and the interview was terminated.

The parties stipulated that, based on the findings of criminalist Pamela Fish, the bloodstains found on defendant’s shirt were those of the victim.

In support of his insanity defense, defendant presented the testimony of several friends and relatives as well as a psychiatrist. Choudary Ahmad, defendant’s nephew, testified that he had known defendant since they were both children living in Pakistan. Ahmad had come to the United States in 1982, and he shared an apartment with defendant until his marriage two years later. According to Ahmad, defendant had worked hard as a cab driver and had many friends. However, in 1984, defendant’s behavior began to change. He started drinking, worked fewer hours, became easily upset and neglected his appearance. Defendant moved in with Ahmad until Ahmad sent him to Pakistan. Defendant returned several months later and again moved in with Ahmad and his wife. Ahmad testified that defendant’s behavior had not improved. Defendant told Ahmad that he had money coming from Pakistan, which was not true, and he frequently argued with his friends. Ahmad reported an instance when he told defendant that he should go to work, and defendant threw a bottle at him. Ahmad sent defendant to Pakistan a second time because he was afraid defendant would harm someone. Defendant returned ■nine months later and moved back in with Ahmad. At that time, defendant exhibited paranoid delusions that people from the Mafia were following him, and he accumulated excessive telephone charges. At one point defendant hit Ahmad’s wife, and Ahmad ordered him to move out. Defendant then moved in with a friend. In January 1986, Ahmad brought defendant to Read Mental Hospital, but defendant left after a few days.

Mohammed Tahir testified that he had known defendant since 1984. Tahir also testified that defendant had been friendly, dressed well and worked hard as a cab driver, but that his behavior was not normal when he returned from his first trip to Pakistan. At that time, defendant claimed that the late Mayor Harold Washington and former President Ronald Reagan were his friends. Tahir also corroborated Ahmad’s testimony regarding defendant’s behavior after his return from his second trip to Pakistan.

Defendant’s former fiancee, Maria Casares, testified that when she met defendant in 1982, he was quiet, sensitive, gentle, dependable and hard working. In 1985, she and defendant became engaged, and shortly thereafter, he started acting abnormally. He looked distant, lacked emotion, talked irrationally and would hear voices. Casares stated that when defendant returned from his second trip to Pakistan he did not work and had tremors.

Casares stated that she was with defendant on the day of the stabbing. They met to finalize their wedding plans, and, at one point, they had a conversation about defendant’s former marriage. They then went to a restaurant where defendant met some friends. At around 9 p.m. defendant drove her home. During the drive home, they had an argument about wedding plans.

Dr. Conroe, a private psychiatrist, testified that in his opinion, defendant was legally insane at the time of the stabbing. He stated that defendant suffered from paranoid schizophrenia and drug and alcohol abuse. Conroe further stated that the schizophrenia was aggravated by the substance abuse. He stated that his opinion was based on his review of police reports, the eyewitness accounts of the stabbing, defendant’s medical records from mental hospitals in the United States and his conversations with defendant’s former fiancee and nephew. Conroe testified that Casares had reported a conversation in which defendant told her that the victim had said he was jealous of defendant and had threatened to harm Casares. Conroe also examined defendant while he was in the Cook County jail. Defendant told Con-roe that he did not remember the stabbing or anything else that night after 9 p.m. According to Conroe, defendant stated that he had been using one gram of cocaine and drinking about 12 beers a day. Defendant said that he had been using marijuana and cocaine when he was with Casares on the day of the stabbing. Casares had told Conroe that defendant had smoked marijuana, but she knew of no cocaine use. Conroe testified that his diagnosis was consistent with the information in defendant’s medical records from Lahore Government Mental Hospital in Pakistan. According to these records dated October 3, 1984, defendant’s behavior was described as aggressive, violent and argumentative with paranoid ideation. At that time, defendant was treated with tranquilizers and shock treatment. Within several weeks, his condition had improved, and he was paroled for 10 days, but he failed to return to the hospital. On May 13, 1985, defendant was again admitted to the Lahore Mental Hospital. At that time, the records stated that defendant had a relapse of symptoms and exhibited a violent, aggressive and paranoid attitude with a gross thought disorder. He was diagnosed as suffering from paranoid schizophrenia and treated with shock treatment and several antipsychotic medications. Defendant’s condition improved, but he again failed to continue treatment after his parole.

In rebuttal, Dr. Matthew Markos, a psychiatrist specializing in forensic psychiatry, testified that it was his opinion that defendant was not legally insane at the time of the stabbing. Markos based his opinion on his four examinations of defendant after the stabbing, his review of police reports and hospital records from defendant’s 1986 and 1987 admissions at Read mental health facility as well as his 1987 admission to Elgin State hospital. Markos also reviewed the reports of Dr. Michael Rabin of the Psychiatric Institute of Cook County. Rabin had performed tests in May 1987, to evaluate defendant’s cognitive functions and any existing psychosis. He also performed an electroencephalogram which showed no organic brain pathology. Markos then testified regarding his knowledge of the standard of the American Law Institute regarding the insanity defense.

Markos first examined defendant in January 1987 and concluded that he was suffering from psychotic episodes of a paranoid schizophrenic type, substance abuse and that he exhibited antisocial personality traits. However, he also indicated that defendant’s-behavior during his hospitalization at Read Mental Hospital was probably more consistent with a drug-induced psychosis than schizophrenia. He also stated that during this hospitalization, defendant was diagnosed as suffering from a personality disorder and substance abuse. Markos again examined defendant on February 2, 1987, but found that his condition had not improved. He examined defendant the third time on April 20, 1987, and found him to be cooperative and coherent despite the fact that defendant complained of hearing voices, mood swings and insomnia. The fourth time Markos examined defendant was on May 27, 1987. He concluded that defendant was sane at the time of the stabbing, that his inability to remember the incident was inconsistent with his ability to discuss it with the police immediately after its occurrence and that his conduct with the police was goal directed and voluntary. Markos opined that defendant could have stabbed the victim as a result of anger or antisocial behavior. He also stated that he considered the records of defendant’s hospitalization in Pakistan incomplete because they did not include an admission history, reason for the diagnosis of paranoid schizophrenia, course of treatment, description of defendant’s behavior during hospitalization or discharge plans. During closing argument, the State argued that defendant’s exercise of his right to remain silent and terminate the police- interrogation showed that he was sane. The jury was then instructed on the verdicts of guilty, not guilty, not guilty by reason of insanity and guilty but mentally ill.

Defendant contends that authorizing the jury to find a defendant guilty but mentally ill introduces into the jury’s fact-finding task a consideration that diverts the jury’s attention from its primary task of determining defendant’s guilt or innocence. The guilty but mentally ill (GBMI) instruction is governed by section 115—4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115—4(j)). The relevant portion of the statute provides:

“When the affirmative defense of insanity has been presented during the trial, the court, where warranted by the evidence, shall also provide the jury with a special verdict form of guilty but mentally ill, as to each offense charged and shall separately instruct the jury that a special verdict of guilty but mentally ill may be returned instead of a general verdict ***.”

Defendant acknowledges that an argument similar to the one he has raised has been rejected by the appellate court and that the constitutionality of the GBMI statute has been upheld. (People v. Fierer (1987), 151 Ill. App. 3d 649, 653, 503 N.E.2d 594, affd (1988), 124 Ill. 2d 176, 529 N.E.2d 972, citing People v. DeWit (1984), 123 Ill. App. 3d 723, 463 N.E.2d 742.) However, defendant argues that this court should review the constitutionality of the statute. In support of his argument, defendant has quoted passages from the appellate and supreme court opinions in People v. Fierer. The appellate court stated:

“[I]t remains to be seen, and only experience will show, whether a jury can formulate a clear and understandable conceptualization of the distinction between legal insanity and mental illness when reaching a verdict of GBMI.” (Fierer, 151 Ill. App. 3d at 653.)

However, the court did not hold that this question was a basis for finding the statute unconstitutional. When the case was before the supreme court on the State’s appeal, the court addressed a different issue regarding the GBMI statute than the one argued by defendant. The issue addressed by the court was the conflicting burden and standard of proof in the insanity and GBMI statutes, i.e., defendant’s burden of proving insanity by a preponderance of the evidence for a not guilty by reason of insanity verdict versus the State’s burden of proving defendant’s noninsanity beyond a reasonable doubt for a GBMI verdict. (Fierer, 124 Ill. 2d at 185.) The court noted the difficulty in formulating jury instructions that these conflicting standards created. It was in this context that the court made the following statement:

“We invite the legislature to carefully review the interplay between these unclear and confusing statutes.” (Fierer, 124 Ill. 2d at 191.)

Defendant has also used this passage in an attempt to bolster his argument regarding the unconstitutionality of the GBMI statute even though his argument varies from that of the Fierer court. We, thus, conclude that defendant’s right to due process was not denied by the submission of a GBMI instruction to the jury.

Defendant next contends that the trial court’s failure to properly instruct the jury constituted plain error and denied defendant his right to a fair jury trial because the instruction failed to place the burden on the State to prove beyond a reasonable doubt not only that defendant committed the elements of the offense, but that he' was not insane and was mentally ill. The 1987 version of the GBMI statute, which was the version applicable to this case, provided that the special verdict of GBMI required “a unanimous finding by the jury beyond a reasonable doubt that the defendant committed the acts charged and that defendant was not legally insane at the time of the commission of these acts but that he was mentally ill at such time.” (Ill. Rev. Stat. 1987, ch. 38, par. 115—4(j).) Therefore, under this statute, the State bears the burden of proving defendant’s noninsanity beyond a reasonable doubt. However, an instruction to the jury on the GBMI verdict is dependant on a defendant’s presentation of the insanity defense at the trial. When defendant raises this defense, he bears the burden of proving his insanity by a preponderance of evidence. (Ill. Rev. Stat. 1987, ch. 38, pars. 3—2(b), 6—2(e).) Thus, a situation is created where the trial judge is required to formulate jury instructions based on two statutes which contain potentially conflicting provisions regarding the burden and standard of proof. (See Fierer, 124 Ill. 2d at 191.) It was under these circumstances that the trial judge in the instant case instructed the jury on the GBMI special verdict as follows:

“If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt and that the defendant has not proved by a preponderance of the evidence that he was insane at the time of the offense, and you find that defendant was mentally ill at the time of the commission of the offense, you should find defendant guilty but mentally ill.”

We conclude, as defendant contends, that this instruction was defective and constituted plain error because it failed to place the burden on the State to prove that defendant was not insane beyond a reasonable doubt.

The State argues that defendant has waived this issue because he failed to object to the instruction at the trial. The State further argues that the error in instruction was not plain error because the alteration made it more likely that the jury would have returned a verdict of guilty but mentally ill. In support of this argument, the State quotes the statement of the Fierer court that the modification in instruction in that case had “the undeniable effect of making the GBMI verdict easier to attain and more likely to result.” (Fierer, 124 Ill. 2d at 187.) The State then claims that because the Fierer court found that the guilty but mentally ill verdict, which the jury returned in that case, was more harmful than a guilty verdict, the modified instruction was erroneous as it made the GBMI verdict easier to attain. However, what the Fierer court actually said was:

“If the jury, properly instructed, had been unable to conclude that defendant was sane beyond a reasonable doubt, it would have faced a more difficult choice between not guilty or guilty. We need not speculate as to the outcome of that decision-making process. It is enough to say that the altered GBMI instruction might have affected that outcome. Therefore, the alleged error cannot be viewed as harmless.” (Fierer, 124 Ill. 2d at 187-88.)

Furthermore, Fierer■ is distinguishable because in that case, the only modification in the instruction was in the standard of proof. The relevant portion of the instruction stated:

“ ‘By a preponderance of the evidence that the defendant was sane at the time of the commission of that offense.’ ” (Fierer, 124 Ill. 2d at 186.)

The burden of proof still remained with the State. In the instant case the modified instruction not only altered the standard of proof but also placed the burden of proof on defendant rather than on the State. Therefore, the defect was substantial, and it was not waived by defendant’s failure to make a timely objection.

The State also cites People v. Cooney (1985), 136 Ill. App. 3d 989, 484 N.E.2d 802, in support of its argument that the error in the jury instruction was harmless. However, Cooney is distinguishable because the error that the defendant in that case addressed was that an instruction on the GBMI verdict was given, not that the instruction was defective. Because the defendant was found guilty, the court concluded that he was not prejudiced by the improper instruction. In this case, the giving of an instruction on the GBMI verdict was proper, but the burden of proof as well as. the standard of proof were improperly stated. We conclude that defendant was prejudiced by this alteration because it may have affected the outcome of the case. Thus, the error was not harmless. See Fierer, 124 Ill. 2d at 187-88.

Because this matter is being remanded for a new trial, we need not address the issue raised by defendant that he was deprived of his right to be found GBMI because the statute created a class of defendants who could not prove their insanity by a preponderance of the evidence but who also could not be found GBMI because the State could not prove their noninsanity beyond a reasonable doubt. This potential problem existed because the same statute held defendant and the State to different standards of proof. (See Fierer, 124 Ill. 2d at 189.) The statute has now been amended so that defendant has the burden of proving his insanity as well as his own mental illness by a preponderance of evidence. (Pub. Act 86—392, eff. Jan. 1, 1990.) However, on the retrial of this case, the jury will be instructed on the version of the statute which was effective at the time that the offense was committed. (People v. Eckhardt (1987), 156 Ill. App. 3d 1077, 1080, 509 N.E.2d 1361.) Because the issue defendant raises may not be present if he is found not guilty, not guilty by reason of insanity, or GBMI on remand, we will not decide this issue at this time.

The issues of defendant’s fitness to stand trial as well as the question of whether his conviction should be reduced to GBMI will also not be decided at this time. However, we will address the issues regarding the State’s comments on defendant’s silence as evidence of his sanity and the State’s expert witness’ misstatements of the law in order to avoid repetition of these errors on retrial.

Defendant contends that the State’s use of his silence to prove that he was sane violated his right to due process and penalized him for exercising his Miranda rights. At the trial, the State elicited testimony that when defendant was given his Miranda warnings, he terminated his conversation with the police. During the presentation of his case, defendant relied on the insanity defense to respond to the charges against him. In its closing argument, the prosecutor made the following statements:

“This is the guy who is just totally out of it? He is able to go ahead and give one story and then another story to the detective, and then finally he can say, well, I don’t want to answer any more questions. And [sic] the officer stops asking [sic] questions. Well, you heard that the officer read him all his rights. Among these rights was that he still has the right to stop asking questions at any time and he does have that, right, it’s [sic] his Constitutional right and no problem with that. But how did he know that he does? Because the officer told him and he heard it from the officer and he understood it.”

Both the United States and Illinois Supreme Courts have determined that it is fundamentally unfair for the prosecution to use defendant’s post Miranda silence as evidence of his sanity. (People v. Stack (1986), 112 Ill. 2d 301, 307, 493 N.E.2d 339, citing Wainwright v. Greenfield (1986), 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634.) In this case, the State’s reference to defendant’s assertion of his right to remain silent as evidence of his sanity penalized him for exercising this right and destroyed its value to defendant. Although the State argues that defendant has waived this issue on appeal, a violation of a defendant’s right to remain silent is plain error. (People v. Robinson (1976), 44 Ill. App. 3d 447, 449, 358 N.E.2d 43; People v. Monaghan (1976), 40 Ill. App. 3d 322, 326, 352 N.E.2d 295.) We also conclude, contrary to the State’s argument, that the error was not harmless and that the evidence of defendant’s sanity or insanity was close. (See People v. Anderson (1986), 113 Ill. 2d 1, 495 N.E.2d 485.) For these reasons, we conclude that the State’s reference to defendant’s exercise of his Miranda rights as evidence of his sanity is reversible error.

Defendant also contends that the State’s expert witness’ misstatements of law as to defendant’s burden of proof in establishing an insanity defense deprived him of a fair trial. The expert witness’ testimony at issue was that of the State’s expert witness, Dr. Mathew Markos. In his testimony regarding his professional education, Markos stated that he pursued specialization in forensic psychiatry, “also known as psychiatry and the law.” He then stated that as part of his training in forensic psychiatry, he attended lectures in criminal law. The State then elicited testimony from the witness regarding the standards for legal insanity. Markos stated that Illinois used the standards of the American Law Institute (ALI) for the insanity defense. He testified that to establish the insanity defense:

“[T]he evaluator or examiner has to prove beyond a reasonable doubt with a reasonable degree of medical certainty that the psychosis or the serious mental illness was directly linked to the commission of the criminal act.”

Prior to this statement, Markos had testified:

“[I]n order to prove the insanity defense with a reasonable degree of certainty — a reasonable degree is approximately 70 percent, roughly — one has to show that there was an existing mental illness, a serious mental illness, in other words, a psychosis.”

At another point in his testimony Markos stated:

“[T]he mere existence of a psychotic illness does not make somebody legally insane. It has to be shown beyond a reasonable doubt that as a result of this mental illness or psychosis he or she could not appreciate the criminality and was not able to conform his or [sic] behavior.”

It is essential that a jury be correctly informed of the burden of proof. (People v. Lewis (1969), 112 Ill. App. 2d 1, 13, 250 N.E.2d 812.) In order to establish an insanity defense, defendant is only required to show by a preponderance of evidence that he was insane at the time of the offense. (Ill. Rev. Stat. 1985, ch. 38, par. 6—2(e).) Therefore, Markos inaccurately stated the law and significantly heightened defendant’s burden of proof by making references to the reasonable doubt standard and by attaching an erroneous numerical value of 70 percent to the standard. Although the jury was properly instructed as to the standard of proof by the trial court at the conclusion of the trial, this did not cure the prejudice to defendant that may have resulted from the expert witness’ improper statements. The likelihood that the jury was misled by these statements was increased by the fact that the witness testified as to his expertise in psychiatry and the law. (People v. Eckhardt (1984), 124 Ill. App. 3d 1041, 1043, 465 N.E.2d 107.) We also conclude that this issue was reviewable despite defendant’s failure to object under the plain error rule, and that his failure to object may have even increased the magnitude of the error by leaving the jury with the impression that the witness correctly stated the law. *(Eckhardt, 124 Ill. App. 3d at 1043.) Because we find that this error was prejudicial and that the evidence of defendant’s sanity was close, we conclude that it was reversible error. (People v. Johnson (1981), 102 Ill. App. 3d 122, 129, 429 N.E.2d 905.) We also note that defendant has failed to address whether it was even proper for Dr. Markos to, in effect, instruct the jury on a matter of law. Because we have already determined that Dr. Markos’ testimony caused reversible error, we decline to address this issue.

Accordingly, the judgment of the circuit court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

LaPORTA, P.J., and EGAN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS BRIAN KEEN, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—1764
    Opinion filed November 30, 1990.

      Williams & Marcus, Ltd., of Chicago (John F. Dziedziak and James I. Marcus, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Gayle Terry, and Margaret Iwerbon, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a jury trial, defendant Thomas Keen was found guilty of delivering a controlled substance to an undercover narcotics agent on September 18, 1986. Defendant was at the same time acquitted of the same charge based on a sale which took place on August 4, 1986. Defendant was sentenced to a six-year term of imprisonment. On appeal, defendant requests that this court reverse his conviction, contending: that the evidence is insufficient to prove defendant guilty beyond a reasonable doubt; that the trial court erred in excluding testimony relating to an informant’s threats to defendant; that an unauthorized communication between a deputy sheriff and the jury deprived defendant of a fair trial; that the State’s evidence of other crimes deprived defendant of a fair trial; and that the prosecutor’s conduct during closing argument was improper. We affirm.

The following facts were elicited at trial. Agent John McQuinn testified that on August 4, 1986, he was on an undercover assignment from the Metropolitan Police Enforcement Group. At about 5 p.m., Agent McQuinn received a call on his beeper, which upon McQuinn’s returning the call, he learned originated from defendant. Defendant asked Agent McQuinn if McQuinn was interested in purchasing an ounce of cocaine. McQuinn said that he was interested in purchasing 3.6 grams of cocaine, and the two agreed to meet at 6:30 p.m. that day at the Steak & Egger restaurant.

McQuinn met with defendant as planned. Other surveillance agents, whom McQuinn had informed of the meeting, observed the meeting. Defendant handed McQuinn a clear plastic bag, which was subsequently found to contain cocaine. McQuinn paid defendant $270 for the bag of cocaine. At the time, defendant produced another bag, which he said was the ounce of cocaine he had earlier offered to sell McQuinn. McQuinn left open the possibility that he would purchase larger amounts of cocaine from defendant in the future if McQuinn was satisfied with the quality of the 3.6 grams. According to McQuinn, defendant told him that defendant was ready to sell cocaine whenever McQuinn wished to purchase it.

Agent McQuinn further testified that on September 18, 1986, defendant again contacted him on his beeper. At this time, defendant asked if McQuinn wanted to purchase a pound of cocaine. McQuinn stated that he wished to do so, and defendant stated that he would contact McQuinn later that evening after defendant obtained the cocaine from his “connect.” Later that day, defendant again paged McQuinn, informing him that he could obtain eight ounces of cocaine, and it was agreed that the two would meet at a gas station at 171st and Harlem in Tinley Park.

The two met as planned. Defendant handed McQuinn a box, which was tested on the spot and revealed to contain cocaine. After conducting the field test, McQuinn activated a prearrest signal to alert a surveillance team to arrest defendant. The surveillance team then arrested defendant. Two other agents, who observed the August 4 and September 18, 1986, transactions, testified at trial and confirmed McQuinn’s testimony.

McQuinn testified that Gary Giusfredi was a police informant who worked for him in 1986. Giusfredi had been an informant for about a month prior to August of 1986. Giusfredi told McQuinn that defendant would contact McQuinn. In August and September of 1986, McQuinn said that he and Giusfredi discussed defendant about 10 to 20 times. The arrest of defendant was the first arrest that had resulted from Giusfredi’s efforts as an informant. McQuinn stated that, based on his conversations with Giusfredi, he was aware that defendant was calling Giusfredi about selling McQuinn the cocaine and that defendant was anxious for McQuinn to buy cocaine from defendant.

Giusfredi testified that he had known defendant for about 10 years, he and defendant having been introduced through a mutual friend, Steve Skryd. Giusfredi had used cocaine with both defendant and Skryd on several occasions, the last time being several years ago. Giusfredi had been hospitalized in 1983 in connection with his Valium usage and continued to undergo counseling. Giusfredi stated that he was angry with defendant for starting Steve and David Skryd’s younger brother, Bobby Skryd, on marijuana. Bobby Skryd testified later at trial, however, that he had never used marijuana or any other drug with defendant and that defendant never gave him cocaine or marijuana.

Giusfredi was introduced to Agent McQuinn through his friend David Skryd, who was an attorney. This introduction occurred two oí three months prior to defendant’s arrest. Giusfredi was asked to “set up” defendant as a favor to David Skryd. Giusfredi was not paid to be an informant and did not profit from defendant’s sales.

Giusfredi told defendant that he had lost some money which he had loaned a friend when the friend died. Giusfredi told defendant that he was out several thousand dollars and that he could make some of the money back if defendant would deliver cocaine to Giusfredi’s friends. Giusfredi did not tell defendant that the friends he referred to were agents. Giusfredi stated that he asked defendant to deliver the cocaine as a favor and had several conversations with defendant to persuade him to deliver the cocaine before he agreed to do so. Giusfredi gave defendant Agent McQuinn’s beeper number. Giusfredi testified that he was in Utah on August 4, 1986, and that defendant telephoned him that day to inform him how well the deal had gone. Giusfredi acknowledged that he asked defendant to deliver a full pound of cocaine, but that as of August 4, 1986, he no longer asked defendant to deliver cocaine as a favor. Giusfredi also acknowledged that he told defendant that if the pound of cocaine was delivered, he would be reimbursed some of the money he had lost. Giusfredi testified that he never threatened defendant with physical violence or told defendant that he would make life miserable for him. Giusfredi did not direct defendant to a supplier of cocaine and was in Utah at the time of both transactions. Giusfredi said that he never told defendant that he was in desperate need of money. Giusfredi testified that defendant was willing to make the delivery and was “looking to make money,” but Giusfredi did not reveal any agreement that he would pay defendant for making the deliveries.

Defendant testified in his own behalf at trial. Defendant had at one time washed cars for Giusfredi. Defendant stated that he and Giusfredi first discussed defendant’s obtaining cocaine around May of 1986. Defendant initially told Giusfredi that he did not have the ability to help Giusfredi. According to defendant, Giusfredi made the request that defendant obtain cocaine between 50 and 100 times over the next few months. During some of these conversations, Giusfredi threatened defendant and defendant’s friend, Steven Skryd, with bodily harm if defendant backed out of the contemplated transaction. Defendant stated that on August 4, 1986, Giusfredi gave defendant Agent McQuinn’s beeper number about 15 minutes before defendant called McQuinn. While defendant had used cocaine before, he had never sold or delivered cocaine before. He obtained the cocaine for both sales from friends of friends, with “great difficulty.” Defendant did not have the cocaine himself at the time. Defendant testified that the person from whom he got the cocaine gave it to him without charge and expected that defendant would give the money defendant received to the person from whom defendant got the cocaine.

Defendant further testified that on August 14, 1986, after the first delivery, Giusfredi contacted defendant, demanding that defendant deliver a pound of cocaine to McQuinn and another person. (This other person was represented to defendant by Giusfredi as “Bob Novak,” who, unbeknownst to defendant, was also an undercover agent.) Defendant again said that he could not help Giusfredi. Defendant met with Giusfredi, McQuinn and Novak that evening. Giusfredi told defendant that McQuinn and Novak expected a delivery of cocaine, and that if this did not occur, defendant would “suffer great bodily harm” and that Giusfredi would make defendant’s life “miserable.” Hoping to appease them, defendant delivered a gram of cocaine, which was left over from the August 4, 1986, delivery. McQuinn and Novak left the meeting, and according to defendant, Giusfredi told defendant that Giusfredi and the others had spent the afternoon “thinking of appropriate ways to deal with” defendant for his failure to supply the cocaine. Defendant further testified that between August 14, 1986, and September 18, 1986, Giusfredi contacted defendant at least eight times, urging defendant to deliver the cocaine and threatening defendant.

Steve Skryd testified that Giusfredi had threatened him. As early as January of 1986, Giusfredi began calling Skryd, sometimes two or three times a day. The trial court sustained objections to Skryd’s testifying as to the “nature” of conversations between Giusfredi and defendant.

During Agent McQuinn’s testimony, McQuinn stated that he had a hard time locating defendant because defendant was driving a stolen car with stolen plates. Defense counsel’s objection was sustained, and the court told the jury to disregard the remark. During closing argument, the prosecutor laid an exhibit — a bag containing one-half ounce of cocaine — on the jury rail. Defendant objected to this, but the trial court overruled the objection.

At the hearing on defendant’s post-trial motion, defendant’s attorney submitted an affidavit wherein the attorney stated that Deputy Sheriff Linda Mangano told him that the jury wanted to know when they would be fed (while deliberating). According to defendant’s attorney, Mangano told him that she told the jury that if the jury did not reach a decision by dinner, they would be fed, and if the jury did not reach a decision by 9 p.m. they would go to a motel. Mangano testified that she told the jurors that they would be fed at 5:30 or 6 o’clock, but that she did not tell the jurors anything else. Defendant’s attorney requested a continuance for the purpose of calling the jury foreman as a witness, but the court denied the request for a continuance and denied defendant’s motion for a new trial.

The first issue we resolve is whether the defendant was proven guilty beyond a reasonable doubt. At trial, defendant raised the defense of entrapment. The question of whether entrapment exists is one for the finder of fact and will not be disturbed on appeal unless the reviewing court concludes that entrapment exists as a matter of law. (People v. Tipton (1980), 78 Ill. 2d 477, 487, 401 N.E.2d 528.) The Illinois entrapment statute provides as follows:

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.” (Ill. Rev. Stat. 1987, ch. 38, par. 7—12.)

The critical inquiry in an entrapment case, then, is whether the criminal purpose originated with the defendant. (People v. Cross (1979), 77 Ill. 2d 396, 404, 396 N.E.2d 812.) If some evidence on the issue of entrapment is raised, the State must prove beyond a reasonable doubt that defendant was not entrapped, as well as proving all other elements of the offense. People v. Andreano (1978), 64 Ill. App. 3d 551, 556, 381 N.E.2d 783.

Entrapment is established when the criminal design originates with government officials, they implant in the mind of an innocent person the disposition to commit the offense, and induce its commission in order to prosecute. (People v. Collins (1990), 199 Ill. App. 3d 163, 167, 556 N.E.2d 835, citing Sorrells v. United States (1932), 287 U.S. 435, 442, 77 L. Ed. 413, 417, 53 S. Ct. 210, 212-13.) Where a defendant already has an intent to commit a crime, and does so merely because an officer affords him an opportunity to commit the crime or purposefully aids and encourages him in its perpetration, there is no entrapment. (People v. Gaytan (1989), 186 Ill. App. 3d 919, 925, 542 N.E.2d 1163.) A defendant’s predisposition to commit a crime is one of the crucial elements of the entrapment defense. (People v. Schillaci (1988), 171 Ill. App. 3d 510, 517, 526 N.E.2d 871.) For an entrapment defense to succeed, the evidence must disclose an improper inducement on the part of the public officer or employee and a lack of predisposition to commit the crime on defendant’s part. People v. Katsigiannis (1988), 171 Ill. App. 3d 1090, 1097, 526 N.E.2d 508.

In arguing that he was entrapped as a matter of law, defendant relies heavily on the case of People v. Fisher (1979), 74 Ill. App. 3d 330, 392 N.E.2d 975. In Fisher, the court held that the People failed to rebut the defendant’s evidence of entrapment beyond a reasonable doubt. (Fisher, 74 Ill. App. 3d at 335.) Critical factors in the court’s analysis included that the agent was not able to procure any drugs from defendant on occasions other than the one occasion which prompted defendant’s arrest, and that the defendant had “no prior record of drug offenses.” (Fisher, 74 Ill. App. 3d at 335.) The court concluded that defendant was an “unwary innocent” whose participation in the criminal activity was initiated by the State. Fisher, 74 Ill. App. 3d at 334.

Here, defendant himself testified that he had done cocaine “many times,” and defendant procured and delivered cocaine on more than one occasion. Moreover, perhaps the most important distinguishing feature of the Fisher case is that there, defendant was repeatedly requested to sell the officer amphetamines, but in fact only sold the agent tablets which were not a controlled substance. Thus, the conviction in Fisher was for the unlawful delivery of what was represented to be a controlled substance. Here, the defendant was able to obtain and sell the real thing.

While defendant testified at length about harassing and threatening behavior on the part of Giusfredi, and that defendant made the sale only to appease Giusfredi and the agents and to get them “off his back,” this testimony is contradicted by Giusfredi. Giusfredi testified that he did not call defendant nearly as often as defendant claimed. Giusfredi specifically denied threatening defendant in any way, or telling defendant that he, Giusfredi, was in severe financial distress. Giusfredi testified that defendant often called him and that defendant was willing to make the sales and was looking to make money.

• 4 Generally, predisposition is established by a defendant’s willingness to participate in criminal activity before defendant’s initial exposure to government agents. (People v. Connor (1988), 176 Ill. App. 3d 900, 906, 531 N.E.2d 966.) The determination of predisposition rests upon the facts of the case. (Katsigiannis, 171 Ill. App. 3d at 1097.) Factors to be considered in assessing predisposition include defendant’s initial reluctance or willingness to commit the crime, the defendant’s familiarity with drugs and his willingness to accommodate the needs of drug users, the defendant’s willingness to make a profit from the illegal act, the defendant’s prior or current use of drugs, and the defendant’s participation in the testing or cutting of drugs. (Schillaci, 171 Ill. App. 3d at 517-18.) Whether defendant had ready access to a drug supply may be considered. (People v. Beavers (1986), 141 Ill. App. 3d 790, 795, 491 N.E.2d 438.) The fact that defendant has no prior criminal record is a factor as well. Andreano, 64 Ill. App. 3d at 557.

Applying these factors to the present case, it is clear that whether defendant was entrapped was a question for the jury to consider, and the jury’s rejection of the entrapment defense should not be disturbed. While defendant testified that he was reluctant to make the sales of cocaine, Giusfredi’s testimony suggested defendant’s willingness to engage in the transaction and that defendant was looking to make a profit. To be sure, defendant had no record of selling drugs before and testified that he never did sell drugs before. Yet, defendant had used cocaine on numerous occasions in the past. While defendant stated that it took him months to obtain the cocaine and that he obtained the cocaine with “great difficulty,” neither Giusfredi nor McQuinn directed defendant to the source of the cocaine, and defendant was able to obtain the cocaine through friends of friends.

The evidence in this case reveals two fundamentally different stories related by defendant, on the one hand, and Giusfredi and McQuinn on the other. Where such evidence is conflicting on the question of entrapment, it is for the jury to determine whether entrapment has occurred, and the finding should not be set aside where there is sufficient evidence for the jury to determine that defendant was predisposed to commit the offense. See Tipton, 78 Ill. 2d at 487-88; People v. Terry (1976), 38 Ill. App. 3d 795, 797-98, 349 N.E.2d 129.

At oral argument, defendant urged this court to accept the proposition that as defendant was acquitted of the August 4, 1986, charge, defendant must necessarily have been entrapped as a matter of law as to the second charge, based on the September 18, 1986, sale. We are not persuaded by this argument. That a defendant has been found not guilty as to an initial delivery of a controlled substance in a case where defendant raises the defense of entrapment does not mandate a finding that defendant was entrapped as to a subsequent delivery. See People v. Washington (1987), 154 Ill. App. 3d 648, 654, 506 N.E.2d 1387.

Moreover, key factual differences in the two deliveries would support the jury’s finding that there was no entrapment as to the second offense. For instance, McQuinn testified that at the time of the first delivery, defendant attempted to sell a pound of cocaine and told McQuinn that he could sell cocaine whenever McQuinn wanted to buy. Giusfredi testified that he no longer requested that defendant deliver cocaine as a favor after the first delivery. Giusfredi also testified that defendant called him after the first delivery, and defendant said he had a new “connect.” Whether or not an initial entrapment continues through a series of criminal transactions is a question for the trier of fact to decide (Washington, 154 Ill. App. 3d at 653), and the jury was properly allowed to resolve the issue in this case.

Defendant next contends that the trial court erred in excluding the testimony of Steven Skryd on the grounds that Skryd’s testimony was inadmissible hearsay.

Evidence, whether oral or written, of an out-of-court statement that is offered to establish the truth of the matter asserted is hearsay because its value as evidence depends on the credibility of an out-of-court asserter for whom there is no opportunity for cross-examination. (People v. Rogers (1980), 81 Ill. 2d 571, 577-78, 411 N.E.2d 223.) Where, however, the evidence is offered for a purpose which is other than establishing the truth of the matter asserted, the statement is not hearsay. In this case, defense counsel sought to elicit testimony from Steve Skryd regarding the nature of conversations between Giusfredi and defendant. The State objected and the trial court sustained the objections. No specific ground for the objection was made, and no offer of proof was made.

Defendant contends that the trial court sustained the objection, improperly, on hearsay grounds. The State argues that, in fact, the testimony was properly excluded by the trial court based on a lack of proper foundation as to when the conversations occurred. Given that no ground was stated for the objection, this court cannot know the trial court’s reason for sustaining the objection. If, as defendant contends on appeal, the testimony sought to be elicited was testimony about Giusfredi threatening defendant, such testimony would not be properly excludable as hearsay, because defendant’s state of mind is clearly at issue. People v. Poulos (1990), 196 Ill. App. 3d 653, 660, 554 N.E.2d 448.

However, it is not clear to this court that defendant was seeking to introduce evidence of Giusfredi’s threats. Skryd testified that defendant would often be at Skryd’s house when Giusfredi called, and Skryd would get on the phone with them, or defendant would tell Skryd of the conversations afterward. When defense counsel asked Skryd about the “nature” of the conversation, the State’s objection was sustained. Defense counsel next asked Skryd if Giusfredi ever said anything to defendant about cocaine. This question was also objected to and the objection was sustained. It is thus apparent that the questions, as posed, do not mention threatening conduct on the part of Giusfredi. Defendant is, in effect, asking this court to assume a fact that has not been established.

The very purpose of an offer of proof is to reveal the nature and substance of the proffered testimony, so as to enable the trial judge to rule on the objection. (People v. Duarte (1979), 79 Ill. App. 3d 110, 398 N.E.2d 332.) The offer of proof will preserve the issue for appeal and enable the appellate court to review the propriety of the trial court’s ruling of exclusion. (People v. Johnson (1977), 47 Ill. App. 3d 362, 372-73, 362 N.E.2d 701.) Here, the initial question was unclear as to the date of the conversation at issue, the type of conversation (whether it was conversation Skryd overheard or conversation defendant related to Skryd), and the question allowed for a response concerning any number of matters in addition to whether Giusfredi threatened defendant. An offer of proof is required when it is not clear what the witness will testify to and it is not clear what purpose the testimony will serve. (See People v. Míreles (1979), 79 Ill. App. 3d 173, 193, 398 N.E.2d 150; People v. Robinson (1977), 56 Ill. App. 3d 832, 837, 371 N.E.2d 1170.) This court concludes that the exclusion of Skryd’s testimony was not error. See also People v. Gordon (1980), 82 Ill. App. 3d 906, 914, 403 N.E.2d 570.

Defendant next contends that he was denied a fair trial based on the deputy sheriff’s alleged improper communication with the jury while the jury deliberated. At the hearing on defendant’s motion for a new trial, defendant’s attorney produced his own affidavit, which stated that a deputy sheriff, Linda Mangano, told defendant’s attorney that she had a conversation with the jury. According to the affidavit, Mangano told the attorney that at about 4 p.m. the jurors “buzzed” her and asked when they would be fed. She told the jury that if they did not reach a decision by dinner, they would be fed, and that if they did not reach a decision by 9 p.m., they were going to a motel. The affidavit further averred that at about 4:17 p.m., the jury returned a verdict which jurors later said was a compromise verdict.

Mangano was called to the witness stand. She acknowledged telling the jury that they would be fed at 5:30 or 6 o’clock, but she denied that she told the jury that they would be going to a motel if a verdict was not reached by 9 p.m. Defendant requested a continuance to call the testimony of the jury foreman to rebut Mangano’s testimony. The court denied the continuance, however, and denied defendant’s motion for a new trial. The trial court allowed defendant’s attorney’s representations as to what the testimony of the foreman would have been (to the effect that Mangano communicated with the jury as defendant’s attorney stated in his affidavit) to stand as an offer of proof.

The settled rule is that before a jury verdict will be set aside due to an unauthorized communication with the jury, the defendant must show that he has been prejudiced. People v. Simms (1976), 38 Ill. App. 3d 703, 707, 348 N.E.2d 478, citing People ex rel. Walker v. Pate (1973), 53 Ill. 2d 485, 505, 292 N.E.2d 387.

A number of issues are presented by defendant’s motion for a new trial on this ground and the trial court’s denial of the motion for continuance. Defense counsel’s assertion in his affidavit was incompetent. The statement that jurors later said that they returned a “compromised” verdict is not only conclusory, but ambiguous as well. No indication is made as to who the jurors were who said this and what is meant by a compromised verdict.

Also, it appears from the record that the trial judge did not consider whether defendant may have been prejudiced by the alleged statement, but rather based his denial of a continuance on his belief that the jurors could not impeach their verdict. Yet, the purpose of calling the jury foreman to testify was not to impeach the verdict, but presumably was rather to determine if the alleged remarks may have hastened the jury to reach a verdict.

The record reveals that the trial judge was willing to accept as true that the sheriff had informed the jury not only that they would be fed at dinner time, but that she told the jury they would be taken to a hotel at 9 p.m. if a decision was not reached at that time. Therefore, it is necessary to examine case law involving unauthorized communications of the nature involved here.

Defendant cites People v. Kawoleski (1924), 313 Ill. 257, 145 N.E. 203, which is clearly distinguishable. In Kawoleski, the bailiff had a conversation with jurors where the bailiff stated “it should not take more than two or three minutes to convict that bird.” The court held that the comment was so flagrant and manifestly intended to influence the jury that the conviction was reversed. (Kawoleski, 313 Ill. at 259-60.) Obviously, we are dealing with a different type of comment in this case — one much less manifestly intended to influence the jury.

Probably the earliest Illinois case involving similar facts is McIntyre v. People (1865), 38 Ill. 514. In McIntyre, the trial judge informed the deliberating jury at 9 p.m. that if there was no possibility of a verdict within the next 30 minutes, the court would be adjourned until morning. In fact, the court was adjourned until morning, and after several hours of further deliberation, the jury returned a verdict. The Illinois Supreme Court held that defendant’s claim that the verdict may have been hastened was belied by the jury’s further deliberation. The court also stated “[n]or do we perceive, that with men qualified to act as jurors, having in charge the life of a fellow being, that such a consideration could have produced such a result.” McIntyre, 38 Ill. at 520.

In another early case, Rafferty v. People (1874), 72 Ill. 37, the Illinois Supreme Court considered an alleged improper communication from the court to a jury during deliberation. The judge sent the deputy sheriff to the jury at about 9 p.m. to tell the jury that the judge would meet the jury at 7 the next morning. The sheriff, however, told the jury not only this, but also that if a verdict was not reached by the next morning, the jury would be held together until the ensuing Monday (over Thanksgiving weekend). The sheriff even testified that he knew that this hastened the jury’s verdict (which was agreed to at a few minutes of 7 a.m. the next day). The court observed that, though improper, there was no way the judge’s message as intended could have prejudiced the defendant. Regarding the sheriff’s comments to the jury, however, the court observed “[tjhis communication on the part of the officer was highly improper. We are unwilling to give the slightest sanction to such practices, and, this being a capital case, if the evidence of guilt had been less clear, in any substantial degree, we should not hesitate to set the verdict aside, on account of the probable prejudice the message might have occasioned by hastening the verdict of the jury.” (Rafferty, 72 Ill. at 48.) Rafferty, of course, involved the potential of a much longer sequestration over a holiday weekend.

More recent cases, however, have tended to hold that informing a jury that it will be sequestered after a certain time cannot necessarily be considered coercive. See People v. Thomas (1989), 185 Ill. App. 3d 1050, 1057-58, 542 N.E.2d 100; People v. Baggett (1983), 115 Ill. App. 3d 924, 930, 450 N.E.2d 913, appeal denied (1983), 96 Ill. 2d 542, cert. denied (1984), 465 U.S. 1032, 79 L. Ed. 2d 698, 104 S. Ct. 1298. But see People v. Friedman (1986), 144 Ill. App. 3d 895, 903-04, 494 N.E.2d 706.

In this case, the trial court had not previously notified the jury about the possibility that they would be taken to a hotel for the night if a verdict was not reached by a certain point in the evening. We are inclined to agree with our supreme court’s earliest observation that such hasty deliberation for the sake of avoiding sequestration would not be expected of qualified jurors. It seems highly unlikely, moreover, that the information was prejudicial in this case, as the jury returned its verdict with several hours remaining before the time the jury was allegedly notified that sequestration would occur. We therefore hold that the trial court’s denial of defendant’s motion for a mistrial on this ground and its denial of a continuance were not reversible error.

Defendant further contends that he was denied a fair trial due to the improper introduction of evidence suggesting that defendant had committed other crimes. Specifically, defendant complains of the testimony of Agent McQuinn, who told the jury that he had a “hard time finding where [defendant] was living because [defendant] was driving a stolen car with stolen plates.” Defense counsel promptly objected and requested that the jury be instructed to disregard McQuinn’s statement. The trial judge granted these requests, but denied defense counsel’s request for a mistrial. Moreover, at the close of the evidence at trial, the jury was instructed to disregard all stricken evidence and to consider only admitted evidence.

In People v. Johnson (1973), 11 Ill. App. 3d 745, 297 N.E.2d 683, an investigator referred to defendant’s “criminal history sheet,” which reference the defendant contended deprived defendant of a fair trial. The Johnson court analyzed the situation thusly:

“At the time, however, defense objection to the statement was sustained and the judge immediately instructed the jury to disregard the officer’s remark. An instruction to disregard evidence ordinarily cures error in its admission. [Citation.] This is particularly true when the improper testimony is not directly responsive to the question and is promptly stricken, with an instruction to the jury to disregard it. [Citations.] In the present case, the witness’ reference to defendant’s ‘criminal history sheet’ was not solicited by the State’s Attorney’s question in a calculated attempt to prejudice the jury. Rather, it appears as an inadvertent remark which went beyond the question asked and was then quickly stricken by the court and the jury was instructed to disregard it. We find that the prompt action by the judge relieved the remark of any substantial prejudicial effect. [Citation.]” Johnson, 11 Ill. App. 3d at 749.

See also People v. Edgeworth (1975), 30 Ill. App. 3d 289, 300-01, 332 N.E.2d 716.

It is apparent that the testimony as to defendant’s driving a stolen car with stolen plates was, like that in Johnson and Edge-worth, relieved of any substantial prejudicial effect, and did not deprive defendant of a fair trial.

Last, defendant contends that the prosecutor’s “inflammatory conduct” during closing argument deprived defendant of a fair trial. During closing argument, the prosecutor laid one of the exhibits, a bag containing one-half pound of cocaine, on the jury rail. Defendant’s attorney objected and requested a sidebar conference, but the court overruled the objection and denied the request for a sidebar. It is this conduct that defendant contends was improper and inflammatory.

Substantial latitude is accorded attorneys in presenting closing argument, and a new trial is not to be granted unless the prosecutor’s remarks are so prejudicial as to materially contribute to a defendant’s conviction. (People v. Collins (1984), 127 Ill. App. 3d 236, 241, 468 N.E.2d 1343.) It is clear that a prosecutor may handle properly admitted exhibits during argument. (See People v. Eckles (1980), 83 Ill. App. 3d 292, 301, 404 N.E.2d 358 (prosecutor referred to photograph of victim during closing argument).) Defendant does not contend that the bag of cocaine was not properly admitted into evidence and has advanced no case law or other authority to support sacrosanct treatment of the jury rail.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

LaPORTA, P.J., and McNAMARA, J., concur.


author: PRESIDING JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES NELSON, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—0694
    Opinion filed April 12, 1991.

      Michael J. Pelletier and Anne Meyer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Caren Ambrust, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Following a bench trial the defendant, James Nelson, was convicted of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(1)) and sentenced to natural life imprisonment. On appeal he contends (1) that the trial court erred in finding that his conduct was exceptionally brutal or heinous as defined under section 5—8—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(1)(b)); (2) that the trial court abused its discretion in sentencing him to natural life imprisonment; and (3) that he was denied his right to an impartial judge at his post-trial motion and sentencing hearings.

On December 15, 1986, 16-year-old Nathaniel Perry was staying at his mother’s apartment at 6215 South Wabash in Chicago, Illinois, while she was away. About 12:30 p.m. Robert Perry, Michael Ruth, Kenneth Brewer and Steven Perkins, other teenagers, were also present. Nathaniel’s mother was married to defendant, but she testified that she had been separated from the defendant for about three weeks before the incident, although he still had a key to the apartment.

Robert Perry, the brother of Nathaniel, testified that he left the apartment about 12:45 p.m. to go to the store. He returned 30 minutes later. Michael Ruth and Steven Perkins testified that at about 1 p.m. someone banged on the apartment door. Nathaniel looked out the peephole and announced that the defendant, who was his stepfather, was at the door with a gun and that everyone should hide. Kenneth Brewer was playing music in a bedroom at this time. Michael Ruth stated that he went into another bedroom and heard someone enter the apartment. From his hiding place under the bed Ruth saw feet, legs and a gun go past the bedroom. Michael Ruth then heard the defendant say, “Come out from there,” and ask where his car was. Ruth heard Nathaniel reply, “I don’t know nothing about your car.” The defendant then accused Nathaniel of stealing the car. The defendant told Nathaniel to find out who stole the car. Nathaniel stated that he did not know. Michael Ruth testified that he heard defendant say, “I am fixing to blow your brains out.” After hearing a gunshot, Ruth ran out of the apartment and called the police. Ruth stated that the music was turned off before defendant entered the apartment.

Steven Perkins testified that he ran into the bedroom where Kenneth Brewer had been playing records. Perkins saw Nathaniel Perry run into the bedroom of his sister, Patrice Perry. Perkins and Brewer hid in the closet and closed the bedroom door because the closet did not have a door. Both Perkins and Brewer testified that when the door to the bedroom was opened, they saw defendant with a gun in his hand.

Kenneth Brewer heard defendant say, “Where are you?” and then accuse Nathaniel Perry of stealing defendant’s car. Brewer testified that defendant said “Why are you talking this way? You know I am going to blow your head off.” Brewer heard Nathaniel respond, “If that’s what is going to happen, its going to happen.” Steven Perkins testified that he heard the same conversation and saw defendant and Nathaniel facing each other. Brewer heard a shot and glass breaking, while Perkins saw defendant point the gun at Nathaniel’s face and shoot him. Perkins testified that at the time he was shot, Nathaniel’s hands were at his side and he never made a quick movement. Perkins saw defendant kick Nathaniel’s feet after shooting him.

Kenneth Brewer testified that once he heard defendant leave the apartment, he locked the door and watched defendant through the kitchen window as defendant entered apartment 907. Brewer further testified that defendant was “smiling, laughing like it was a joke” when the police took defendant out of the apartment building. Brewer yelled at defendant, and defendant threatened Brewer by saying that if defendant had caught Brewer, Brewer would be dead, too.

Robert Perry testified that when he returned to the apartment from the store, he found Nathaniel shot through the eye and lying on the bedroom floor. Robert Perry also testified that several days before the shooting he informed defendant- that Nathaniel would be staying at the apartment while his mother was out of town.

Chicago police sergeant John Kelly testified that he investigated the shooting and saw Nathaniel Perry’s body, which appeared to have sustained a shot in the eye. Kelly testified that he was informed that defendant shot Perry and was in apartment 907. When Sergeant Kelly went to the apartment, he found defendant sitting on a kitchen chair underneath which was a pistol. Kelly advised defendant of his Miranda rights, and defendant responded by saying, “Is that sucker still alive, is he dead yet?” Kelly further testified that defendant said, “I don’t want to go through this business for nothing. I did society a favor by killing him and getting him off the block.” Kelly also testified that defendant appeared to have been drinking.

Officer John Blackman accompanied Kelly to apartment 907, and he testified that he found defendant sitting on a kitchen chair. Blackman recovered a five-shot, .38 caliber gun from underneath the defendant’s chair. The gun had four live rounds and one empty chamber. After defendant was advised of his rights, Blackman heard defendant say, “I know all of that shit; business is business; hell, I done the community a favor by killing him.”

Officer Charles Cleveland testified that he searched defendant in the interview room at the police station. During the search an expended shell case fell from the defendant’s pants, and defendant put the casing into his mouth and attempted to swallow it. Officer Cleveland, however, was able to recover the casing from defendant’s mouth.

The State and the defendant stipulated that Dr. Korpics pronounced Nathaniel Perry dead at 1:56 p.m. on December 15, 1986. The parties also stipulated that Dr. Awn did the post-mortem examination of Perry and the medical examiner’s report indicated that the cause of Perry’s death was a gunshot wound to the face, lacerating the brain. It was also stipulated that Richard Chenow, a firearms examiner for the Chicago police department, examined the bullet removed from Nathaniel Perry’s body and found that it was not suitable for comparison.

After the trial court denied defendant’s motion for a directed finding, defendant testified. Defendant stated that he was 37 years old, graduated from high school, worked as an accounting clerk for three years, then did a four-year boilermaker apprenticeship to qualify for his present occupation as a boilermaker. Defendant testified that he lost an eye in 1975 as a result of being struck by a pipe. Defendant testified that he married Teresa Perry in August 1984 and had disagreements with her son, Nathaniel Perry.

Defendant testified that on December 15, 1986, he had three or four shots of whiskey and a beer with friends and then went home. Defendant stated that he was not intoxicated. Defendant denied knocking on the door of the apartment because he lived there and had a key. Defendant testified that his purpose in going to the apartment was to see if Robert Perry went to school that day. Defendant admitted that he had a gun, but maintained that it was in his pocket. Defendant testified that after entering the apartment, he walked into a bedroom, heard something behind him, pulled out the pistol, turned around, saw a figure and fired over his shoulder. Defendant stated that he was not looking for Nathaniel Perry and never intended to kill him. Defendant claimed that he did not recognize the person before shooting his gun, but when he saw who it was, defendant went to his friend’s apartment to call for help. There he put the gun on the floor and sat down.

On cross-examination, defendant could not recall what he said to the police, but remembered asking if Nathaniel was alive. Defendant admitted that he may have said, “he didn’t want to go through this for nothing,” but the police took the statement out of context. While defendant admitted putting the shell casing in his mouth, he said that he took it from his coat pocket. Defendant testified that it was inconceivable that another family member could be in Patrice’s bedroom, and he just fired at a silhouette. In response to a question by the court, defendant stated that he walked to the apartment because his car was in the auto pound.

The State and defendant stipulated that if Chicago police officers Morrissey and Zigler were called to testify, they would state that they interviewed Michael Ruth, Kenneth Brewer and Steven Perkins shortly after the shooting. Morrissey and Zigler would testify that their police reports did not indicate that Michael Ruth heard the conversation between defendant and Perry regarding the stolen car or that Ruth saw defendant with a gun. The officers’ reports also did not indicate that Kenneth Brewer heard defendant say “where are you?” two times, saw defendant with a gun or confronted defendant outside the building when defendant was arrested. The officers’ reports did not reveal that Steven Perkins heard the defendant say “where are you?” or saw defendant with a gun in his hand.

At the conclusion of all the evidence, the court found that the three young witnesses for the State were convincing and it did not believe defendant’s story. Specifically, the court determined that the defendant confronted Nathaniel Perry after defendant knew his car was in the auto pound and the homicide occurred as the State’s witnesses testified. The court believed Kenneth Brewer’s statement about the confrontation after defendant’s arrest and found defendant’s statements to the police officers were reprehensible and showed a malignant heart. The trial judge stated that defendant slanted his testimony in favor of a lesser charge, but the judge did not believe defendant’s story. The court found defendant guilty of two counts of murder. Judgment was entered on both counts.

After trial, defendant alleged that he was denied effective assistance of counsel and an attorney from the Chicago Bar Association was appointed. At the post-trial motion hearing, defendant testified that his attorneys failed to conduct a reasonable investigation of certain facts for a defense and failed to raise the issue of self-defense. Defendant said that the broken mirror was an alleged weapon. Defendant also testified that his attorney, Mr. Brownfield, was aware of the self-defense claim, but he was questioned by Ms. Lyon, another one of his attorneys, and she was unaware of this defense. Defendant also alleged that his attorneys failed to secure all statements of the State’s potential witness, Treva Nelson, and were unable to prepare a proper defense. The court requested information on the two defense witnesses who would have sustained defendant’s claim of self-defense, but defense counsel candidly stated that the one witness who was present to testify for defendant would not offer probative testimony on that point. The court also commented that based on defendant’s testimony at the hearing, defendant had probably perjured himself by saying that he acted in self-defense.

Defendant stated that his wife was aware Nathaniel Perry was in the apartment on December 15, 1986. Moreover, defendant stated that his wife could have been impeached. Defendant told the court that his wife set up this whole “farce” and his stepson Nathaniel always brought difficulty to defendant’s home. Defendant then alleged that his witnesses would testify that his wife lied when she said that she was out of town during the shooting while actually she was in Chicago setting this up, and that they had not been separated for three weeks. The court found that defendant’s witnesses had no relevant testimony to offer on an ineffective-assistance-of-counsel claim. The court also concluded that all motions and memoranda filed by defendant were without merit and denied defendant’s motion for a new trial.

The matter proceeded to a sentencing hearing. The court refused to look at the victim-impact statements. In aggravation, the State asserted that the facts of the case were brutal. The State also pointed out that this was a revenge killing, defendant had a lack of remorse throughout the proceedings and he did not help his stepson after shooting him. The State maintained that the defendant was eligible for an extended-term or natural life sentence because of the brutal and heinous nature of the crime. The State asked that defendant be sentenced to natural life.

In mitigation, Clementine White testified that she has known defendant for over 20 years, and he was a nice person who helped her out; she had never seen defendant do anything cruel or abusive. Ms. "White was not aware of the facts of the present case. A letter from Mr. Black in support of defendant was submitted to the court, and the parties stipulated that Reverend Vance would testify that he had known defendant for years and considered defendant an upstanding member of the community. He had no knowledge of the facts of the present case.

Defense counsel then argued that defendant had no prior criminal record and that the facts did not support a finding that the offense was accompanied by extremely brutal or heinous behavior or wanton cruelty. Defendant counsel requested that the court combine justice with mercy, reject the extended term and sentence defendant based on the lack of criminal record.

Defendant then stated that at the time of the shooting he was looking for a job. Defendant denied making the statement “[i]s that sucker dead?” to the police, and defendant expressed his sorrow that Nathaniel was dead. However, defendant persisted that his action was not intentional or premeditated, regardless of the contrary evidence.

Before imposing sentence, the court stated that it considered the evidence in the case, the presentence report, the factors in aggravation and mitigation, the sentencing alternatives and defendant’s statement. The court stated that in order to sentence defendant to life imprisonment, it must find defendant’s behavior was exceptionally brutal or heinous and indicative of wanton cruelty. The court then stated that it found defendant’s conduct to be grossly ruthless, devoid of mercy or compassion and cruel and cold-blooded. The court stated that even after hearing factors in mitigation and the sentencing alternatives, the case warranted a sentence of life imprisonment without parole.

Defendant made a motion to reduce the sentence. After hearing defense counsel’s argument, the court denied the motion and stated that it gave long and lengthy consideration to defendant’s rehabilitative potential before imposing the sentence. The court stated that considering all the circumstances, defendant had not shown any rehabilitative potential. The court further found that defendant lacked remorse and would do whatever he wanted to at all times. The court also stated that defendant changed his story under oath and was incapable of telling the truth at any time during the proceedings.

The defendant first contends that the trial court erred in finding that his conduct was exceptionally brutal or heinous.

The imposition of a sentence is a matter of judicial discretion, and absent an abuse of this discretion, the sentence of the trial court may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.) If the trial court finds that a murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, it may sentence the defendant to a term of natural life imprisonment. Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(1)(b).

In People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, the court addressed the defendant’s contention that the statutory language permitting the imposition of a natural life imprisonment sentence where conduct is “accompanied by exceptionally brutal or heinous behavior, indicative of wanton cruelty” authorizes that sentence only if he had inflicted torture or unnecessary pain upon his victim. The supreme court found that the statute did not limit the imposition of a sentence of natural life imprisonment to only those murders involving torture or the infliction of unnecessary pain. The court, citing Webster’s Third New International Dictionary, defined “heinous” as “ ‘hatefully or shockingly evil: grossly bad: enormously or flagrantly criminal’ and defined “brutal” as “ ‘grossly ruthless,’ ‘devoid of mercy or compassion: cruel and cold-blooded.’ ” (La Pointe, 88 Ill. 2d at 501.) A single act which causes death or injury may be sufficient to demonstrate exceptionally brutal or heinous behavior. People v. Taylor (1987), 164 Ill. App. 3d 938, 943, 518 N.E.2d 409.

Both defendant and the State cite to many cases reversing or upholding life-term sentences. Although we are aware that the statutory sections allowing for life-term sentences were not intended to convert every murder conviction into an extraordinary offense subject to a life-term sentence (see People v. Andrews (1989), 132 Ill. 2d 451, 466, 548 N.E.2d 1025), absent a clear abuse of discretion, a trial court’s decision regarding sentencing will not be disturbed on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.) We are unable to conclude that a life-term sentence in the present case was an abuse of discretion.

In Andrews the court found an abuse of discretion where, although the victim and the defendant were strangers to each other and the murder occurred during an armed robbery, even though the victim was cooperative and acceding to defendant’s demands, at sentencing defendant expressed sincere remorse and sorrow.

In his petition for rehearing, defendant cites the cases of People v. Anderson (1990), 201 Ill. App. 3d 75, 559 N.E.2d 267, and People v. Hernandez (1990), 204 Ill. App. 3d 732, 562 N.E.2d 219, for their analyses of the statutory language of section 5—8—1(a)(1)(b) (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(1)(b)), “exceptionally brutal or heinous behavior indicative of wanton cruelty” which would justify imposition of an extended-term sentence.

In Anderson the defendant and the victim were strangers to each other. When defendant tried to touch the victim around the waist, she pushed defendant to the floor and his gun fell out of his pocket. Allegedly, as they struggled for the gun, it discharged and the victim was shot twice in the neck. When apprehended, defendant admitted that he was involved in the shooting but contended that it was an accident. There were no eyewitnesses to the murder. In reviewing the extended-term sentence imposed by the trial court, the appellate court commented that the trial judge’s comments at sentencing do not reflect a finding that the murder was exceptionally brutal or heinous and that the record does not support such a conclusion. The court found that the murder did not rise to the higher level of cruelty so as to warrant imposition of an extended-term sentence. Anderson, 201 Ill. App. 3d at 80.

The Hernandez case is factually different from Anderson in every respect. The defendant and the victim had a sexual relationship for five or six years prior to the murder and had a child together. They separated approximately six months prior to the murder but continued to see each other. Two days before the murder, the victim acknowledged to defendant her involvement with another man. On the day of the murder, defendant determined the other man’s address, went to the apartment, picked up a pipe “for protection,” listened at the door of the apartment and, upon hearing the victim’s voice, broke through the door. The victim ordered the defendant out of the apartment, whereupon defendant punched her in the face. A struggle ensued and defendant used a pair of scissors from the apartment to stab the victim in the face, eyes, neck and chest, and by his own statement to the police, he “just kept stabbing her and couldn’t stop.” (Hernandez, 204 Ill. App. 3d at 743.) The trial court rejected defendant’s theory that he acted under sudden intense passion. The reviewing court agreed, concluding that defendant literally stalked the victim on the evening of the murder, that the record supported a conclusion that the murder was premeditated and that the “manner in which [the victim’s] death was accomplished stands virtually as a definition of the phrase ‘exceptionally brutal or heinous behavior indicative of wanton cruelty’ which far outweighs the mitigating factors.” (204 Ill. App. 3d at 743.) The reviewing court found the extended-term sentence imposed by the trial court was not excessive or an abuse of discretion even though defendant was a first-time offender and had entered a guilty plea to murder and attempted murder in exchange for the prosecution’s nolprossing of 14 other counts. Hernandez, 204 Ill. App. 3d at 739.

Somewhere between the two extremes of conduct in Anderson and Hernandez are other circumstances and conduct which fall within the definition of exceptionally brutal or heinous behavior indicative of wanton cruelty. We find the defendant’s conduct here falls within the definition. The State argued this was a revenge killing and that there was a lack of remorse by defendant for his actions.

The evidence established the following facts: the victim was unarmed and defenseless and did not provoke defendant’s behavior; the defendant accused the victim of stealing his car and announced “I am fixing to blow your brains out”; the defendant shot the victim, his 16-year-old stepson, once in the face at close range; after the victim fell, the defendant kicked him; he did not help his stepson but walked out of the apartment and when found was sitting in apartment 907 on a kitchen chair with his gun on the floor. When confronted by the police and advised of his Miranda rights, defendant stated, “Is the sucker *** dead yet? I did society a favor by killing him and getting him off the block.” Based on these facts, including defendant’s lack of remorse for his conduct, the trial court did not abuse its discretion in concluding that the murder was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. See People v. Taylor (1987), 164 Ill. App. 3d 938.

The defendant next contends that the trial court abused its discretion by ignoring his strong rehabilitative potential and sentencing him to life imprisonment.

A trial court’s decision with respect to sentencing is entitled to great weight and deference. (People v. La Pointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344.) The trial court is in a superior position to tailor a sentence to the needs of each individual case. (People v. Hicks (1984), 101 Ill. 2d 366, 375, 462 N.E.2d 473.) Absent a clear abuse of discretion, a trial court’s decision regarding sentencing may not be disturbed on review. People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.

At the sentencing hearing the court reviewed the presentence investigation report and made it part of the record. Defense counsel argued factors in mitigation and presented testimony in support of defendant’s good character. Defendant made a statement in allocution, and the trial court indicated that it had considered those factors before imposing the sentence. Decisions have held that when mitigation evidence is before the trial court, there is a presumption that the court considered the evidence, absent some indication, other than the sentence imposed, to the contrary. People v. Duncan (1990), 196 Ill. App. 3d 343, 345, 553 N.E.2d 774; People v. Goodman (1983), 116 Ill. App. 3d 125, 127, 451 N.E.2d 607.

Even though this was defendant’s first offense, the trial court determined that defendant’s rehabilitative potential was minimal or nonexistent. This was based on the heinous nature of the offense and defendant’s complete lack of remorse for his act. See People v. Johnson (1987), 159 Ill. App. 3d 991, 513 N.E.2d 852.

The defendant next argues that he was denied his right to an impartial judge at his post-trial motion and sentencing hearing. Defendant’s argument is based on the fact that the trial court commented that defendant’s claims at his motion for a new trial indicated that he perjured himself at trial and the trial court’s emphasis on the heinous nature of the crime.

A defendant is entitled to have the issues in his case resolved by an open-minded, impartial judge who arrives at conclusions from a calm, unbiased consideration of the facts of the case. However, the mere expression by a judge of an opinion, or the fact that a judge has strong feelings on an issue, does not amount to bias or prejudice. (People v. Hooper (1989), 133 Ill. 2d 469, 513, 552 N.E.2d 684.) There must be an active personal animosity, hostility, ill will or distrust towards the defendant. People v. Vance (1979), 76 Ill. 2d 171, 390 N.E.2d 867.

The defendant testified at trial that the death of his stepson was an accident. At his hearing on his motion for a new sentence defendant alleged that counsel was ineffective for failing to call witnesses and should have raised the issue of self-defense. He also attempted to give the court irrelevant information to any self-defense claim.

Defendant based his claim that the trial court was biased against him on the fact that when he alleged ineffective assistance of counsel, the court commented that new counsel would be appointed for defendant because of a “very ridiculous appellate court case.” In this respect, the case at bar is similar to People v. Hooper (1989), 133 Ill. 2d 469, 552 N.E.2d 684. In Hooper, prior to a Bat-son hearing, the trial court commented on the difficulties raised by Batson, its unhappiness with the decision, and its belief that part of the holding was unclear. (Hooper, 133 Ill. 2d at 512.) The defendant alleged that these comments proved that the judge was biased against him. (Hooper, 133 Ill. 2d at 512.) The Illinois Supreme Court determined that defendant failed to show actual prejudice by the court’s statements. (Hooper, 133 Ill. 2d at 513.) Moreover, the court held that the fact the judge disagreed with the holding in Batson did not mean that he was unwilling or unable to apply it to the case before him, and the judge stated he had no preconceived ideas about the case prior to hearing the argument of counsel. (Hooper, 133 Ill. 2d at 513-14.) Likewise, when the trial court in this case referred to a “ridiculous appellate court case,” it did not reflect any bias it had against defendant, but only expressed a view of the law. The court never suggested that it would not follow the law.

Defendant cites People v. Mae Rae (1979), 78 Ill. App. 3d 266, 397 N.E.2d 509, for the proposition that hostility of a trial judge to an appellate court opinion suggests that the trial judge was biased. Mac Rae is inapplicable to the case at bar because it involved the rejection of the mandate from the appellate court in the same case. (Mac Rae, 78 Ill. App. 3d at 267.) The defendant in Mac Rae appealed his sentence and the appellate court remanded the case with instructions that the trial court consider probation as a possible sentence. The trial court’s comments indicated that it rejected the appellate court’s ruling and imposed the same sentence on the defendant. This is not the situation in the present case because the trial court did not have a mandate from a reviewing court ordering that new counsel be appointed for defendant. The comment the court made in this case made about the “ridiculous appellate court case” clearly does not demonstrate hostility towards defendant.

Defendant also contends that the impatient and abrupt attitude of the trial court, coupled with the persistent refusal to allow a full explanation of the post-trial motions, showed the court’s hostility toward him. In support of this argument, defendant points out that during the sentencing hearing, the court accused defendant of perjuring himself and said that it should cite defendant for contempt. What defendant overlooks in this argument is that he attempted to give contradictory testimony, and the court commented on this. During trial, defendant testified that he did not see whom he was shooting and just shot at a silhouette. However, at the hearing on the post-trial motion, defendant testified that the issue of self-defense should have been raised and that his stepson intended to use the broken mirror as a weapon. That testimony is clearly at odds with defendant’s earlier testimony. Furthermore, at the same hearing, defendant’s attorney admitted that upon review of the transcript of the trial, none of defendant’s testimony resembled a basis for self-defense. Even defendant acknowledged at trial that his defense was that the shooting had been an accident.

Defendant argues that he did not change , his defense theory because he gave notice of raising a self-defense claim both before trial and in his post-trial motion. Defendant alleges that the trial court ignored this notice when it stated defendant should be cited for contempt. However, defendant fails to explain why, when questioned at trial, he did not testify that he saw his stepson threatening him with a broken mirror, but instead testified that he fired over his shoulder at a figure. The court’s observation that defendant contradicted his earlier testimony does not demonstrate hostility, but rather the court made a correct assessment that defendant potentially perjured himself.

The trial court also did not display personal animosity toward defendant when it questioned defendant while defendant was giving the court background information on the new witnesses who could substantiate his claim of self-defense. A judge may act to clarify and expedite the questioning of a witness without prejudicing a defendant. (People v. Wells (1982), 106 Ill. App. 3d 1077, 1086-87, 436 N.E.2d 688.) Reversible error is committed only where it is shown the judge has made prejudicial statements and defendant can show that he has been harmed by the remarks of the judge. (People v. Carrasquilla (1988), 167 Ill. App. 3d 1069, 1079, 522 N.E.2d 139.) The questions the trial court asked defendant were designed to move the proceedings along and to get to the heart of the issue. When it became clear that defendant’s new witnesses could only offer information on irrelevant issues, the court terminated defendant’s testimony and ruled on the motions.

Finally, although the trial court made numerous references to the defendant’s “black heart,” the trial court stated that its disdain was based more on the facts of the case than on the defendant. We believe the comments were merely directed at the brutal and senseless nature of the case and defendant’s total lack of remorse. We do not find that the trial court was biased against the defendant.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

EGAN and RAKOWSKI, JJ., concur.