author: PRESIDING JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMALJAH ALIWOLI, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—1052
    Opinion filed November 12, 1992.

      Rita A. Fry, Public Defender, of Chicago (Lisa S. Ottenfeld, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Jamaljah Aliwoli was found guilty but mentally ill on three counts of attempted first degree murder in the shooting of three Chicago police officers. He was sentenced to 60 years, 30 years and 30 years to run consecutively.

Defendant argues that the trial court erred: (1) in allowing the prosecutor to incorrectly state the law, introduce inadmissible evidence, make personal attacks on the defendant and defense counsel, and incite the jury’s passion with religious and racial prejudice; (2) in rejecting defendant’s tendered instructions which state the consequences of a not guilty by reason of insanity (NGRI) verdict and included the offense of attempted second degree murder; (3) in allowing the jury to hear the “911” tape without proper foundation where the tape was partially unintelligible and the contents were irrelevant and inflammatory; and (4) in abusing its discretion in sentencing defendant to 120 years in prison.

On March 29, 1988, defendant was arrested in connection with the shooting of Chicago police officers Daniel Duffy, Gregory Matura and Dennis Mertz. On that day, Officers Duffy and Matura were in their marked squad car when Duffy observed a taxi pass a stopped school bus that had its red lights on and its stop sign extended. When the officers attempted to curb the driver, defendant Jamaljah Aliwoli, he initially refused to stop but finally pulled over after two blocks.

Upon Officer Duffy’s request, defendant exited the cab and stood behind it to stay out of the way of traffic. Officer Duffy informed the defendant that he had been stopped for unlawfully passing a school bus and asked to see defendant’s driver’s license. Defendant then reached into his jacket in a manner that led both officers to believe he was drawing a weapon from a shoulder holster. The officers drew their guns, ordered defendant to remove his hand from his coat and he complied. As Officer Duffy began a body search, defendant yanked his right arm away, pushed Duffy and then began punching Officer Matura in the head. Officer Duffy grabbed defendant from behind and directed Officer Matura to call for assistance.

As Officer Matura called for help, he saw the defendant withdraw a chrome-plated revolver from a shoulder holster he wore underneath his jacket. Officer Matura then attempted to restrain defendant and retrieve defendant’s gun while Officer Duffy still held defendant from behind. Defendant shot Officer Matura, and the bullet passed through the officer’s hand. Defendant then lifted Duffy off his feet and Duffy saw that defendant still had a gun pointed at Officer Matura, approximately one foot away from his head. Officer Duffy grabbed defendant’s wrist as he fired, averting a second shot from hitting Officer Matura, but defendant then wrested himself away from Duffy, spinning and shooting Duffy once in the chest as Duffy attempted to withdraw his own revolver.

After Officer Duffy, who was wearing a safety vest, fell to the ground on all fours and dropped his gun, defendant then shot Duffy two times in the lower back and buttocks as Duffy attempted to run to safety. Defendant picked up Duffy’s gun, exchanged more shots with Officer Matura, then chased Matura down the street. Officer Duffy drew a second gun and fired five shots at defendant, who returned two shots. Officer Matura had reloaded his gun and fired more shots at defendant, who then ran back towards Duffy. Officer Duffy then ran to the intersection of 69th and Elizabeth Streets and fell in front of Ann Claxton, a passerby, who told him to stay down between two parked cars. A moment later, defendant reappeared, going from one side of the street to the other, with his gun pointed, looking for Duffy. Ms. Claxton got his attention and pointed, falsely indicating that Duffy had gone in the opposite direction. Defendant then reentered his taxi, again looked at Ms. Claxton, who repeated her earlier indication and defendant drove off in that direction.

Another police car gave chase while a second car attempted to block defendant’s path. Defendant drove past the second police car, firing shots at Officer Mertz and wounding him in the hand and leg. After defendant’s car veered into a park, crashed into a building and came to a stop, defendant continued to fire at police who approached. Defendant then slumped over, having been shot four times in the arms, neck and chest. Officer Martinez disarmed defendant and observed that he wore a black shoulder holster and carried a chrome-plated revolver.

Dr. Phyllis Amabile testified for defendant, stating that she conducted an examination of him and in her opinion, he suffered from a delusional disorder of a persecutory type focusing on the Chicago police department and, to a lesser extent, his co-workers at the cab company. Dr. Amabile described the condition, which she estimated defendant had had for approximately 12 to 14 years, as a persistent but not bizarre belief that he is being followed, maligned and persecuted or harassed in some way, despite the fact that there is no reasonable evidence to support that belief. Dr. Amabile based her opinion on psychological tests and reports and an interview with defendant. The doctor testified that reports indicated that defendant became estranged from his family when he became a Black Muslim. While the doctor did not ask defendant if his beliefs as a Black Muslim had an impact on his dealings with police, she found that his paranoia was not instilled in him by his religious beliefs. Dr. Amabile believed defendant to be insane at the time of the shooting but fit to stand trial.

Drs. Steven Patt and Robert Reifman also testified for defendant and formed substantially the same opinion as Dr. Amabile. They believed that defendant was not creating a mental illness in order to escape responsibility for his actions. They both found defendant legally insane at the time of the shooting.

Dr. Henry Lahmeyer, a physician and psychiatrist, testified for the prosecution, stating that he examined defendant and heard defendant describe the same incidents with the police that the other doctors related, but that he did not believe defendant was insane at the time of the shooting, despite defendant’s concern about the police. Dr. Lahmeyer based his opinion on the fact that defendant had never before acted upon his supposed delusions of persecution. The doctor thought it significant that defendant had, at various times prior to the shootings, gone to the police for aid, such as when his car was stolen. Dr. Lahmeyer further noted as important that defendant had no prior psychiatric history and that the hospital which held him for observation after the shootings never reported any evidence of psychotic behavior or thought patterns.

At trial, defendant acknowledged the shootings but denied that he was insane at the time. He testified that there existed a conspiracy among some police officers to kill him. He believes that the conspiracy began in 1970 when he shot at two officers. Defendant believes that police have broken into his house, stolen his car and slashed his tires, even though he did not see these acts committed. Defendant acknowledged that he served six years in prison for shooting at police officers.

Defendant first contends that the prosecutor misrepresented the law to the jury in his closing argument by implying that an NGRI verdict would allow defendant to “walk out the door a free man.” The prosecutor stated, “What they are trying to do ladies and gentlemen is flimflam you so that he can go laughing out that door of this courtroom.” When defense counsel objected, the court overruled the objection.

Upon rebuttal, the State further argued:

“I am not going to tell you that the defendant will walk out the door at any point because I don’t think you’ll get that far in your deliberations.
* * *
To buy the defense of mental disorder in this case would basically say that all you have to do is commit an outrageous crime, such as the attempted murder of three Chicago police officers, find one or more psychiatrists who are willing to believe it and you are home free.”

Defendant contends the State knowingly misstated the law, and such misstatement was exacerbated by the court’s refusal to instruct the jury on the consequences of an NGRI verdict.

A prosecutor is given great latitude in making closing arguments, and the trial court’s determination of the propriety of the argument will stand absent a clear abuse of discretion. (People v. Cisewski (1987), 118 Ill. 2d 163, 175, 514 N.E.2d 970.) While a prosecutor may not make arguments or assumptions which have no basis in evidence, improper comments or remarks are not reversible error unless they are a material factor in the conviction or result in substantial prejudice to the accused. People v. Tipton (1990), 207 Ill. App. 3d 688, 699-700, 566 N.E.2d 352.

Where there are allegations of prosecutorial misconduct, arguments .of both the prosecutor and defense counsel must be reviewed in their entirety, and complained-of comments must be placed in their proper context. Tipton, 207 Ill. App. 3d at 701.

We first find that defendant has waived argument regarding the prosecutor’s remarks upon rebuttal since he failed to object to them during trial. People v. Reid (1990), 136 Ill. 2d 27, 38, 554 N.E.2d 174; People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

We examine the other remarks in context of the entire record, including the fact that the jury was properly instructed that it could find defendant not guilty, not guilty by reason of insanity, guilty, or guilty but mentally ill. While the prosecutor’s remarks were an inappropriate attempt to persuade the jury to find defendant guilty, we determine that there was no substantial prejudice to defendant’s rights.

Further, defense counsel in his closing argument asked the jurors to “hold [defendant] responsible and brand him as an insane person suffering from a dangerous mental illness. *** These police officers as they sit right before you won’t be in danger of this man ever again.” The trial court overruled the State’s objections to the argument, allowing the jury to infer from defense counsel’s statement that defendant would not be immediately released if he were found not guilty by reason of insanity.

The trial court also instructed the jurors as to the burden of proof and the fact that they were not to concern themselves with the ultimate disposition of the case. The evidence supporting the jury’s verdict of guilty but mentally ill is certainly overwhelming.

Defendant cites People v. Stack (1984), 128 Ill. App. 3d 611, 470 N.E.2d 1252, People v. Wilson (1983), 120 Ill. App. 3d 950, 458 N.E.2d 1081, and United States ex rel. Alerte v. Lane (N.D. Ill. 1989), 725 F. Supp. 936, in which prosecutorial remarks were held improper. However, we find the present case distinguishable.

While the Wilson court found improper the prosecutor’s repeated statements during closing arguments that defendant would automatically be released if he was found not guilty by reason of insanity, the court’s decision to reverse rested upon the fact that defendant’s expert witnesses were excluded from testifying. (Wilson, 120 Ill. App. 3d at 960.) We find no similar situation in the present case.

In Stack, the prosecutor repeatedly remarked that society would “have to live with” defendant if the jury allowed him to escape responsibility. That court appears to have erroneously relied upon Wilson that any such remarks made by the prosecutor are improper and would be error (Stack, 128 Ill. App. 3d at 620), a proposition with which we disagree, given our duty to examine the remarks in the context of the entire record. Tipton, 207 Ill. App. 3d at 701.

The United States District Court reversed Alerte on a habeas plea where it found reversible error in the prosecutor’s repeated statements that defendant’s insanity defense was a sham and that finding him guilty of murder instead of not guilty by reason of insanity would be the “one deterrent” that would stop defendant from murdering others. The court determined that the remarks were not invited by the defense, that the first two remarks came before defense counsel’s closing argument, that objections to the comments were not sustained and that defense counsel was not allowed to effectively respond to the comments. Alerte, 725 F. Supp. at 943.

We find defendant’s case distinguishable since here the trial judge allowed both sides latitude in their closing arguments. Defense counsel was allowed to argue to the jury that defendant would not walk free even if he were found not guilty by reason of insanity.

In reviewing the evidence and the comments in the context of the entire record, we find defendant was not substantially prejudiced by the prosecutor’s comments.

Defendant also contends that the prosecutor improperly remarked in his closing argument that defense counsel used trickery and that defendant lied. Defendant alleges that the comments were not based upon the evidence, inflamed the passion of the jury and denied him a fair trial.

The assistant State’s Attorney argued to the jury:

“Don’t be flimflammed by this insanity self-defense mixture that they are trying to whip by you. *** [They are trying to] whip a game on you here, to try and trick you and confuse you *** [they are trying to] flimflam you so that he can go laughing out that door of this courtroom.”

In their closing, defense counsel refuted the prosecutor’s remarks and pointed out that all four experts thought defendant was not fabricating a mental disorder.

Upon rebuttal, the State argued that defendant’s testimony was a “master performance” which he had rehearsed, that it was a game “from the first doctor.”

It is improper for a prosecutor to accuse defense counsel of attempting to create confusion or of fabricating a defense. (People v. Harris (1989), 129 Ill. 2d 123, 160, 544 N.E.2d 357.) However, a prosecutor is entitled to comment on the evidence, draw inferences therefrom, and comment on the accused’s credibility. (People v. Manley (1991), 222 Ill. App. 3d 896, 910, 584 N.E.2d 477; People v. Spiezio (1989), 191 Ill. App. 3d 1067, 1075, 548 N.E.2d 561.) Again we are mindful that we must examine the comments in the context of the entire record. Tipton, 207 Ill. App. 3d at 701.

While defense counsel maintained an insanity defense, at trial defendant testified that his actions toward the police were in self-defense, although we find no facts to justify such a conclusion. The prosecutor could properly comment on the contradictory nature of the two defenses and defendant’s credibility.

It is not reversible error for a prosecutor to characterize a defendant as a liar where proof of guilt is supported by substantial evidence. People v. Green (1991), 209 Ill. App. 3d 233, 246, 568 N.E.2d 92; People v. Stiff (1989), 185 Ill. App. 3d 751, 757, 542 N.E.2d 392.

During the commission of the crime, defendant obeyed the commands of the officers to remove his hand from inside his jacket and he understood and acted responsively to what Ann Claxton told him. Because the evidence demonstrated that defendant’s actions during the course of the crime appeared to contradict his insanity defense, the State could properly argue that it was a reasonable inference that defendant was lying. (People v. Carter (1988), 177 Ill. App. 3d 593, 601, 532 N.E.2d 531; People v. Strange (1984), 125 Ill. App. 3d 43, 46, 465 N.E.2d 616.) There is an evidentiary basis that contradicts defendant’s theory, and we believe the prosecutor’s remarks do not serve as an appropriate basis for reversal.

Defendant next argues that the State used his race and religion to inflame the passions of the jury against him. Defendant contends that the State improperly implied that he shot the officers because of his Black Muslim beliefs.

In opening argument, the State announced that defendant was a Black Muslim. Later, the assistant State’s Attorney questioned Drs. Amabile and Reifman regarding defendant’s religious beliefs.

When the State asked Dr. Amabile if defendant’s Black Muslim religion encompassed an anti-authority stance, she disagreed with that idea. The State asked several other questions of Dr. Amabile relating to Black Muslims and their views of the police, but the doctor denied any inference that defendant’s religion may have provided a motive for the shootings.

In its cross-examination of Dr. Reifman, the State asked if he was familiar with a 1984 article in American Psychologist Publication regarding African-Americans’ socialization in American society. The State inquired whether the doctor was familiar with the article which the assistant State’s Attorney described as stating that African-Americans have a “healthy cultural paranoia” and that they view every white person “as a potential enemy and every social system [as] an opponent.” Dr. Reifman stated that he was not familiar with that article and did not agree with that statement.

The prosecutor continued to question Dr. Reifman regarding African-Americans and what defendant had told him about his Muslim faith. The doctor stated that he had interviewed many African-Americans and many paranoids in 25 years and that he found defendant to be a typical paranoid with delusions. Dr. Reifman specifically stated that he did not find defendant’s religion to be a pertinent factor in the shootings, that defendant was motivated by his delusions that all police officers, both African-American and white, were involved in a conspiracy against him.

The State also cross-examined defendant about his religion, whether Black Muslims thought of white people as devils, whether defendant knew that in the late 1960s and early 1970s, the Black Muslim newspaper, Muhammad Speaks, referred to police as “pigs.” Defendant replied that while he did not read that paper, he was aware that police have been referred to as such, but denied ever hearing a Muslim use it. Defendant also testified on cross that his religion taught him to treat everyone peacefully and fairly.

Defendant contends that the State’s questions were intended to inflame prejudice in the jury and defendant was denied due process because of them.

A prosecutor may not attempt to arouse racial fear or animosity to malign a defendant who is black. People v. McKay (1985), 138 Ill. App. 3d 446, 138 N.E.2d 446; People v. Lurry (1979), 77 Ill. App. 3d 108, 395 N.E.2d 1234.

However, the defendant has put his mental state in issue and wide latitude is allowed in the cross-examination of an expert witness and there is a broad scope of inquiry into the basis of an expert’s opinion. (People v. Wheeler (1990), 194 Ill. App. 3d 178, 550 N.E.2d 1170.) An expert may be cross-examined for the purpose of explaining, modifying or discrediting the expert’s testimony, or to determine which factors were taken into account and which ones were disregarded in arriving at a conclusion. People v. Williams (1991), 214 Ill. App. 3d 499, 510-11, 574 N.E.2d 62; People v. Fields (1988), 170 Ill. App. 3d 1, 14, 523 N.E.2d 1196.

Although defendant failed to object to the disputed line of questioning regarding Dr. Amabile, we will examine this issue under the plain error rule. (Reid, 136 Ill. 2d at 38.) We find that the State’s questions of Dr. Amabile did not prejudice the jury against defendant or deny him due process. The questions regarding defendant’s religion properly followed from the doctor’s testimony that defendant’s family stated that his conversion to the Black Muslim religion appeared to create a change in his personality and caused him to be estranged from them. In an attempt to explain the doctor’s opinion, the State then inquired whether Dr. Amabile had taken defendant’s religion into account in her psychiatric examination, as suggested by the psychiatric tests upon which the doctor based her findings. Any improper insinuation by the State that defendant’s religion per se caused him to be hostile to authority figures was emphatically denied by Dr. Amabile.

In reviewing the State’s cross-examination of Dr. Reifman, defendant argues that People v. Lampkin (1983), 98 Ill. 2d 418, 457 N.E.2d 457, is analogous. In Lampkin, the supreme court reversed defendant’s conviction for three counts of murder where the State introduced evidence that defendant, upon his arrest six years prior, had said “You white honky coppers are [expletive deleted] with us now, and we will get you later.” (Lampkin, 98 Ill. 2d at 424.) The court held that the remarks should have been excluded because they had no probative value since they were not directed toward anyone in particular and were likely to arouse prejudice in the jury. Lampkin, 98 Ill. 2d at 428.

However, we find the present case distinguishable for two reasons. First, the remark in Lampkin was gratuitous. It had no relevance to the issues of the case and could not have provided insights to the jury about the defendant. However, in the case at bar, defendant has put his mental state at issue, allowing the prosecutor wide latitude to explore defendant’s mental processes with each expert. Second, any possible prejudice engendered by the State’s questions was sufficiently defused by Drs. Amabile’s and Reifman’s consistent and adamant denials that defendant’s affiliation with Black Muslims influenced him to shoot the officers and the trial court’s jury instruction to ignore defendant’s race and religion in reaching a verdict.

We also determine that the cross-examination of defendant was not grounds for reversal. In the total context of the testing of the expert witnesses, we believe that the basis for the State’s questioning of defendant regarding his Black Muslim beliefs was to establish a motive for defendant’s crime and to test the validity of the psychiatric examinations upon which the experts relied. We give credence to this view since the State never mentioned defendant’s religion in closing argument, where any statements intended as prejudicial would likely have their greatest impact upon the jury.

Defendant admits the shootings and the experts on both sides were unanimous in their opinion that defendant suffers from a delusional disorder regarding the police. Paralleling the testimony of Drs. Amabile and Reifman, defendant categorically denied any inference by the prosecution that his religion influenced him to violence.

The trial judge was in the best position to observe the demeanor, mood and tone of the prosecutor during the disputed cross-examination and determine whether it was hostile or merely seeking explanation of the expert’s opinions. (See United States v. Hernandez (7th Cir. 1989), 865 F.2d 925, 927.) In the present case, the jury was instructed to ignore defendant’s race and religion in reaching its verdict and a reviewing court is reluctant to disturb the trial court’s finding where such an instruction has been given. Hernandez, 865 F.2d at 928 n. 2.

While we readily denounce any attempt to infuse religious or racial prejudice into a defendant’s case, we find that in this instance, defendant was not denied due process, he received a fair trial and the jury reached a reasonable verdict, given the evidence.

Defendant next argues that the State’s exhibition of Officer Duffy’s scars to the jury was irrelevant and inflammatory; that the scars were not probative of the injuries inflicted upon Duffy by defendant; that there were other scars from the surgery visible; and that the display was gruesome.

Defendant was charged with attempted first degree murder, and the nature and seriousness of the injury are essential elements of the charge. (People v. Chatman (1982), 110 Ill. App. 3d 19, 24, 441 N.E.2d 1292.) Intent may be inferred when the State shows defendant committed a substantial step toward the commission of murder: when he shoots and wounds his victim. Chatman, 110 Ill. App. 3d at 24; People v. Pearson (1972), 4 Ill. App. 3d 462, 281 N.E.2d 422; People v. Rodgers (1972), 3 Ill. App. 3d 85, 279 N.E.2d 72; People v. Cunningham (1966), 73 Ill. App. 2d 357, 218 N.E.2d 827.

While defendant argues that there was ample evidence to prove intent to kill and that the surgical scars altered the appearance of the original wounds, the State has a right to prove every element of the crime and defendant had an opportunity to cross-examine Duffy as to the nature and appearance of the original scars. Chatman, 110 Ill. App. 3d at 25.

The trial court’s decision to allow evidence of Duffy’s scars was not an abuse of discretion since evidence of the wounds was relevant to establish defendant’s intent to kill him. Chatman, 110 Ill. App. 3d at 24; Pearson, 4 Ill. App. 3d at 465; Rodgers, 3 Ill. App. 3d at 98; Cunningham, 73 Ill. App. 2d at 364-65.

Defendant also argues that the prosecution wrongfully used defendant’s understanding and waiver of his Miranda rights to prove defendant sane, thus violating his constitutional right to remain silent.

While we are aware of cases which hold that the State may not constitutionally use as evidence of defendant’s sanity: (1) his post-Miranda silence (People v. Ahmad (1990), 206 Ill. App. 3d 927, 565 N.E.2d 137; Wainwright v. Greenfield (1986), 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634), (2) his post-Miranda statements of intent to remain silent (People v. Stack (1986), 112 Ill. 2d 301, 493 N.E.2d 339), and (3) his post-Miranda request for counsel (People v. Vanda (1982), 111 Ill. App. 3d 551, 444 N.E.2d 609), we find no support for defendant’s proposition.

A closer case is People v. McCleary (1990), 208 Ill. App. 3d 466, 480, 567 N.E.2d 434, in which the court found no violation of defendant’s rights where officers testified that defendant stated immediately after his arrest that he wanted his rights read to him and where the State did not argue to the jury that such a request evidenced his sanity.

In the present case, defendant stated that he understood his rights but chose to waive them, including his right to remain silent. Thereafter, he gave a statement to the officer who secured the waiver. Unlike Ahmad and Vanda, no reference was made to this waiver or to his Miranda rights during closing argument and the State did not attempt to employ the circumstances surrounding that waiver to evidence defendant’s sanity.

The officer was questioned about his conversation with the defendant after waiver of defendant’s Miranda rights and was asked his opinion as to defendant’s sanity. While such a question might be subject to objection without a proper foundation, no such objection was interposed by the defense and no subsequent reference was made to the conversation which resulted from the Miranda waiver.

Defendant also charges that the State improperly used the psychiatrists’ findings of defendant’s fitness to stand trial to establish sanity at the time of the offense. However, defendant failed to object to such questioning at trial or raise the issue in his post-trial motion, and we decline to review it on appeal. Reid, 136 Ill. 2d at 38; Enoch, 122 Ill. 2d at 186.

We believe that a finding of fitness to stand trial is not competent as evidence at trial (People v. McCullum (1977), 66 Ill. 2d 306, 362 N.E.2d 307; People v. Bechtel (1921), 297 Ill. 312, 130 N.E. 728), and cross-examination regarding defendant’s fitness to stand trial is irrelevant and should not have been permitted. People v. Littlejohn (1986), 144 Ill. App. 3d 813, 494 N.E.2d 677.

However, in closely examining Littlejohn, we find the court there was concerned that confusion might be wrought upon the jury since the experts did not agree that defendant was fit to stand trial and there was substantial confusion as to the definition of insanity. Needless to say, the instruction defining insanity and mental illness refers to the time of the conduct or commission of the crime. Even if we did not believe the issue waived, we would consider it harmless error.

We also reject defendant’s contention that he was denied a fair trial by the cumulative impact of the prosecution’s misconduct, since we find there was no prejudicial misconduct in any instance.

In addition to the errors during testimony, defendant argues that it was error for the trial court to reject his tendered instructions which (1) stated the consequences of a not guilty by reason of insanity verdict and (2) which included the offense of attempted second degree murder.

Generally, a trial court is not required to give a jury an instruction which relates the consequences of a not guilty by reason of insanity verdict. People v. Glenn (1992), 233 Ill. App. 3d 666; People v. Liberg (1985), 138 Ill. App. 3d 986, 990, 486 N.E.2d 973; People v. Alerte (1983), 120 Ill. App. 3d 962, 458 N.E.2d 1106, habeas corpus granted United States ex rel. Alerte v. Lane (N.D. Ill. 1989), 725 F. Supp. 936; People v. Ford (1983), 118 Ill. App. 3d 59, 62, 454 N.E.2d 1095; People v. Parker (1983), 113 Ill. App. 3d 321, 329, 447 N.E.2d 457; People v. Hebein (1982), 111 Ill. App. 3d 830, 837-40, 444 N.E.2d 782; People v. Pitts (1982), 104 Ill. App. 3d 451, 456, 432 N.E.2d 1062; People v. Upshaw (1981), 103 Ill. App. 3d 690, 698, 431 N.E.2d 1138; People v. La Fiura (1981), 92 Ill. App. 3d 714, 719, 415 N.E.2d 1365; People v. Meeker (1980), 86 Ill. App. 3d 162, 407 N.E.2d 1058.

Glenn, very recently decided by this appellate district, correctly observes that no Illinois case has reversed a conviction for failure to instruct as to consequences.

However, at least two of the cited cases considered the applicability of a “special circumstances exception” requiring an instruction regarding the consequences of a verdict of not guilty by reason of insanity. In both Hebein and Alerte, the defendants argued that special circumstances exist where the prosecutor’s remarks imply that the defendant will be set free if he is found insane. Alerte, 120 Ill. App. 3d at 972-73; Hebein, 111 Ill. App. 3d at 838-39.

The Hebein court, acknowledging such a narrow exception might exist, determined that it was not applicable in that case since there was no direct comment on the consequences of a verdict of not guilty by reason of insanity. The court also noted that the failure to give the instruction even where special circumstances exist would be harmless error absent a showing that there is a reasonable possibility that the error might have contributed to the jury’s finding. Hebein, 111 Ill. App. 3d at 839-40.

In Alerte, the defendant contended that the prosecutor’s remarks warranted special circumstances:

“[Assistant State’s Attorney]: You decide. Are we going to let Frank Alerte skate? Are w'e going to let him get a slap on the wrist again and walk out of this courtroom and—
[Defense Counsel]: Objection.
[Assistant State’s Attorney]: —and scoff at all of us?
[THE COURT]: Punishment is left up to me.
[Assistant State’s Attorney]: We are going to slap him on the wrist and let him walk out because of somebody like [defendant’s psychiatrist expert]?”

These remarks closely mirror those of the prosecutor in the case at bar. Both refer to “walking out” and both disparage the testimony of the psychiatric experts. If anything, the remarks which we must consider here are more tempered than those of Alerte. Moreover, defense counsel’s clear statement to the jury, “Don’t be misled by anyone telling you he will walk out that door if you find him not guilty[,] [i]t’s not true” provided a level of fairness similar to the court’s observation in Alerte that “punishment is left up to me.”

We find no special circumstances to warrant defendant’s consequences instruction.

We also find no error in the trial court’s denial of defendant’s instruction on attempted second degree murder. In 1987 the Illinois General Assembly replaced the statutory offense of voluntary manslaughter with the offense of second degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—2). The new statute requires the State to prove the elements of first degree murder beyond a reasonable doubt (that defendant knowingly or intentionally killed without legal justification) and thereafter the defendant has the burden to prove by a preponderance of evidence a mitigating factor, either (1) a sudden and intense passion resulting from serious provocation, or (2) at the time of the killing, the accused believes the circumstances to be such that, if they existed, would justify the killing, but his belief is unreasonable. Ill. Rev. Stat. 1987, eh. 38, pars. 9—2(a)(1), (a)(2). See People v. Drakeford (1990), 139 Ill. 2d 206, 211, 564 N.E.2d 792.

We believe there is no evidence of mitigation in the case at bar that justifies the giving of the instruction even if the crime of attempted second degree murder existed in Illinois. Defendant failed to validly prove a sudden and intense passion or that he was seriously provoked by the officers’ routine stop for passing a school bus. The evidence adduced at trial was that defendant was either insane or that he had a longstanding mental illness, neither of which is a mitigating factor under the statute. (Ill. Rev. Stat. 1987, ch. 38, pars. 9—2(a)(1), (a)(2).) An unproved insanity defense was not intended to be a mitigating factor in the crime of second degree murder. (See People v. Pecina (1985), 132 Ill. App. 3d 948, 954, 477 N.E.2d 811 (where the court rejected defendant’s instruction on voluntary manslaughter even though there was evidence that tended to support the defenses of insanity and voluntary intoxication).) The predatory conduct of the defendant in searching out his victims would negate the notion of self-defense. We find no abuse of discretion by the trial court rejecting the tendered instruction because of a lack of evidence to support such an instruction if such a crime exists.

Further, we determine that the legislative history of the second degree murder statute demonstrates that attempted second degree murder does not exist.

The second degree murder statute was fashioned to replace voluntary manslaughter, and before the 1987 enactment, the crime of attempted voluntary manslaughter did not exist. (People v. Reagan (1983), 99 Ill. 2d 238, 457 N.E.2d 1260.) Voluntary manslaughter required the State to prove the mitigating circumstances. The court in Reagan rejected the curious dichotomy that attempted voluntary manslaughter would require the defendant to specifically intend to kill with unreasonable belief, and found that a defendant could not intend an unreasonable belief and that the crime of attempted voluntary manslaughter did not exist.

In examining the legislative history of section 9—2, we find that in debates and analysis, members of the General Assembly indicated their belief that the only change from voluntary manslaughter to second degree murder was a shift in the burden of proving the mitigating factors from the State to the defendant.

We considered the existence of the crime of attempted second degree murder in People v. Williams (1991), 220 Ill. App. 3d 460, 581 N.E.2d 113, and determined that this crime predicated on an imperfect self-defense theory was not created by the legislature. Williams acknowledged that the Third District of the Illinois Appellate Court recognized attempted second degree murder based on sudden and intense passion. (People v. Moore (1990), 204 Ill. App. 3d 694, 562 N.E.2d 215.) Moore is thoughtfully reasoned and based upon the conclusion that the statute requires that the jury first find all of the elements of first degree murder and then consider whether defendant acted under a separate and intense passion resulting from serious provocation.

The intent element is, therefore, unrelated to the mitigating factor of provocation and the Moore court reasons that the crime of attempted second degree murder exists.

In a split opinion, the second district followed Moore in People v. Austin (1991), 215 Ill. App. 3d 323, 574 N.E.2d 1297, which agreed that the separation of intent from mitigating factors or provocation was sufficient to allow a defendant to be convicted of attempted second degree murder. Austin, 215 Ill. App. 3d at 332.

However, the concurring opinion in Austin argued, we think persuasively, that Reagan continued to apply and control these issues and rejected the notion that the legislature had created the offense of attempted second degree murder. We agree with Justice Nickels’ observation in the concurring opinion that

“[t]he legislature in enacting the 1987 second degree murder statute renamed voluntary manslaughter and, more importantly, substantively realigned the burden of proof so that a defendant must now prove either provocation or unreasonable belief by a preponderance of the evidence, rather than the State disprove either beyond a reasonable doubt.” Austin, 215 Ill. App. 3d at 336 (Nickels, J., specially concurring).

Justice Nickels stated that, based solely on that change, Moore found that the second degree murder statute transformed voluntary manslaughter into a specific intent crime because the State must first prove a defendant guilty of a specific intent crime of first degree murder and that voluntary manslaughter also required the State to first prove each of the elements of murder; thus, the legislature neither changed the essential, nonspecific nature of the offense of second degree murder nor diminished the applicability of Reagan. Austin, 215 Ill. App. 3d at 336 (Nickels, J., specially concurring).

The authorities in Illinois are of a different mind and this case is the fourth to address the existence of the crime of attempted second degree murder. Commentators are similarly at odds. However, we follow Williams (220 Ill. App. 3d 460, 581 N.E.2d 113) and find that the crime of attempted second degree murder is not a crime in Illinois.

Defendant next claims it was error for the trial court to allow the jury to hear the “911” tape because no proper foundation was laid, the tape was partially unintelligible and the contents were irrelevant and inflammatory.

Sound recordings that are otherwise competent, material and relevant are admissible into evidence if a proper foundation has been laid to assure the authenticity and reliability of the recording. People v. Gaurige (1988), 168 Ill. App. 3d 855, 863, 522 N.E.2d 1306.

Adequate foundation for the admission of a tape recording is established when a witness to the material recorded testifies that the tape, as it exists in court, accurately portrays the conversation in question. People v. Rogers (1989), 187 Ill. App. 3d 126, 132, 543 N.E.2d 300; People v. Cochran (1988), 174 Ill. App. 3d 208, 212, 528 N.E.2d 253; People v. Williams (1985), 109 Ill. 2d 327, 338, 487 N.E.2d 613.

A partially inaudible tape recording is admissible unless the inaudible portions are so substantial as to render the recording untrustworthy as a whole, and the admission of a partially inaudible recording is a matter within the trial court’s discretion. Rogers, 187 Ill. App. 3d at 132; People v. Dougherty (1987), 160 Ill. App. 3d 870, 876, 513 N.E.2d 946.

The trial court in the present case stated that the tape was relevant as evidence to rebut defendant’s self-defense theory and that it was excited utterance evidence.

The tape demonstrates that when defendant was in no immediate danger of serious bodily harm, he shot at police officers from his car after he had left the area of the original altercation, wounding a third officer.

Further, a proper foundation was laid when Officer Hertz, a party to the conversation, testified that he had listened to the tape and that it was an accurate recording of the police radio transmissions that day. Defendant also stipulated that it was an accurate reproduction. We reject defendant’s offhand claim that it was ineffective assistance of counsel for his attorney to stipulate to the accuracy of the recording.

Defendant finally argues that the trial court abused its discretion in sentencing defendant to an extended term of 60 years for the shooting of Officer Duffy and 30 years each for the shootings of Officers Matura and Hertz, sentences to run consecutively.

A trial court’s decision with respect to sentencing is entitled to great deference and weight (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344), and will not be altered upon review absent an abuse of discretion (People v. Andrews (1989), 132 Ill. 2d 451, 464, 548 N.E.2d 1025), since it is the trial court that is in a superior position to determine the appropriate sentence based on such factors as the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age. People v. Streit (1991), 142 Ill. 2d 13, 19, 566 N.E.2d 1351; People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.

Attempted first degree murder is a Class X felony with a sentence of not less than six years but not more than 30 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(3).) We find that given the unique circumstances in this case, the trial court did not abuse its discretion in sentencing defendant to 30 years each for the shootings of Officers Matura and Mertz. The trial court rightfully concluded that public safety was an issue, since defendant was now guilty of three incidents of violence directed against law enforcement officers.

We further find that it was not error for the trial court to sentence defendant to an extended term of 60 years for the shooting of Officer Duffy.

An extended term of between 30 and 60 years may be applied if the trial judge determines that even one aggravating factor is present, as set out in section 5—8—2(a)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—2(a)(2)). (People v. Woods (1984), 122 Ill. App. 3d 176, 182, 460 N.E.2d 880.) Defendant claims that the State has not proved that the offense was accompanied by brutal and heinous behavior. Heinous has been described as “hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal,” while brutal conduct has been described as “grossly ruthless,” “devoid of mercy or compassion: cruel and cold-blooded.” Andrews, 132 Ill. 2d at 465.

While defendant contends that his conduct was not as brutal or heinous as in other cases, we point out that each sentence is determined by the circumstances of the individual case (People v. Bishop (1989), 179 Ill. App. 3d 99, 103, 534 N.E.2d 401) and that even a single stab wound has been determined to be brutal. People v. Diamond (1992), 229 Ill. App. 3d 48, 54, 593 N.E.2d 753; see also People v. Barfield (1989), 187 Ill. App. 3d 190, 202, 543 N.E.2d 812.

We find that defendant’s actions in his repeated shooting of Officer Duffy and in returning to search for Duffy after he had shot him indicated a cold-blooded and ruthless desire to kill Duffy. Ann Claxton testified that defendant roamed from one side of the street to the other with his gun drawn, searching for Officer Duffy. Defendant appeared to be so mercilessly focused on pursuing Duffy that he followed Ms. Claxton’s false information as to which direction Duffy had taken when he left the scene in his taxicab. The trial court did not abuse its discretion in sentencing.

For all of the foregoing reasons, defendant’s conviction and sentence are affirmed.

Affirmed.

RIZZI and CERDA, JJ., concur.

       Other cases that have found racial comments not grounds for reversal: People v. Hayes (1990), 139 Ill. 2d 89, 144, 564 N.E.2d 803 (defendant’s unobjected-to statement to witnesses that “brothers you all be cool” because the victims were “honkies” not plain error); People v. Sanchez (1990), 206 Ill. App. 3d 90, 105-06, 563 N.E.2d 1127 (defendant’s statement made weeks before the victim’s death, that he would get rid of a group of Mexican immigrants that included the victim, was admissible since it was not so general or impersonal and its probative value outweighed it prejudicial effect); People v. McKay (1985), 138 Ill. App. 3d 446, 452-53, 485 N.E.2d 1257 (prosecutor’s closing argument comment that accused did not belong in the area of the charged burglary because he lived elsewhere was proper comment on facts regarding absence of valid reason for accused’s presence and did not raise improper inference that defendant committed burglary merely because he was black and present in the area).
      While defendant cites several Federal cases, none found defendant was denied a fair trial: United States v. Hernandez (7th Cir. 1989), 865 F.2d 925 (prosecutor’s reference in closing argument to defendant as a “Cuban drug dealer” was not an intentional attempt to prejudice the jury); United States v. Krohn (10th Cir. 1978), 573 F.2d 1382 (court found no error in admitting defendant’s comment that a person was “a poor black bastard” where the comment was relevant evidence of defendant’s acknowledgement that the person had been defrauded); United States v. Goldman (1st Cir. 1977), 563 F.2d 501, 504 (prosecutor’s comment in closing argument that defendant “defamed, defiled and scandalized” the Jewish religion did not require automatic reversal and the trial judge gave curative instructions).

       At least 24 jurisdictions have required such an instruction: See Schade v. State (Alaska 1973), 512 P.2d 907; People v. Moore (1985), 166 Cal. App. 3d 540, 211 Cal. Rptr. 856; People v. Thomson (1979), 197 Colo. 232, 591 P.2d 1031; State v. Wood (1988), 208 Conn. 125, 545 A.2d 1026; Taylor v. United States (D.C. Cir. 1955), 222 F.2d 398; Roberts v. State (Fla. 1976), 335 So. 2d 285; Spraggins v. State (1988), 258 Ga. 32, 364 S.E.2d 861; State v. Amorin (1978), 58 Haw. 623, 574 P.2d 895; State v. Hamilton (1975), 216 Kan. 559, 534 P.2d 226; State v. Babin (La. 1975), 319 So. 2d 367; Erdman v. State (1989), 315 Md. 46, 553 A.2d 244; Commonwealth v. Mutina (1975), 366 Mass. 810, 323 N.E.2d 294; People v. Cole (1969), 382 Mich. 695, 172 N.W.2d 354; Hill v. State (Miss. 1976), 339 So. 2d 1382; State v. Pike (Mo. App. 1974), 516 N.W.2d 505; Novosel v. Helgemoe (1978), 118 N.H. 115, 384 A.2d 124; State v. Krol (1975), 68 N.J. 236, 344 A.2d 289; People v. Bassik (1981), 53 N.Y.2d, 425 N.E.2d 873; Kuk v. State (1964), 80 Nev. 291, 392 P.2d 630; State v. Hammonds (1976), 290 N.C. 1, 224 S.E.2d 595; Commonwealth v. Mulgrew (1977), 475 Pa. 271, 380 A.2d 349; Matlock v. State (Tenn. Crim. 1978), 566 S.W.2d 892; State v. Shickles (Utah 1988), 760 P.2d 291; State v. Nuckolls (1980), 166 W. Va. 259, 273 S.E.2d 87.

       Other Illinois cases which have found a voluntary manslaughter or second degree murder instruction was not warranted by the evidence include: People v. Handley (1972), 51 Ill. 2d 229, 282 N.E.2d 131 (beating death of victim over period of time by a number of assailants did not involve sudden and intense passion resulting from serious provocation); People v. Lewis (1992), 229 Ill. App. 3d 874, 594 N.E.2d 414 (no evidence that defendant was a willing participant in mutual combat in which defendant stabbed the victim in self-defense); People v. Brown (1991), 222 Ill. App. 3d 703, 584 N.E.2d 355 (defendant’s testimony that he had a verbal disagreement with the victim, coupled with witness testimony that he threatened to kill the victim, showed insufficient provocation, and the wounds to the back of the victim’s head contradicted defendant’s self-defense theory); People v. Villegas (1991), 222 Ill. App. 3d 546, 584 N.E.2d 248 (second degree murder instruction properly refused where defense theory was based upon misidentification rather than sudden and intense passion, and defendant’s deadly response was not an appropriate amount of retaliation given the evidence); People v. Newbern (1991), 219 Ill. App. 3d 333, 579 N.E.2d 583 (no evidence of serious provocation was established where an eyewitness testified to friendly behavior between defendant and victim immediately prior to the attack and only the victim sustained bruises and stab wounds); People v. Dower (1991), 218 Ill. App. 3d 844, 578 N.E.2d 1153 (improper instructions were harmless where there was no evidence of self-defense against a victim who allegedly threatened defendant with a knife); People v. Harris (1984), 123 Ill. App. 3d 899, 463 N.E.2d 1030 (defendant who shot estranged wife not entitled to voluntary manslaughter instruction since he knew of her boyfriend for approximately one month prior to the shooting and the couple were merely together in the same house when defendant shot them); People v. Barnes (1982), 107 Ill. App. 3d 262, 437 N.E.2d 848 (no evidence that defendant acted in the heat of sudden and intense passion when he threw an iron at the victim and its cord allegedly wrapped around the victim’s throat); People v. Toth (1982), 106 Ill. App. 3d 27, 435 N.E.2d 748 (victim who hit defendant with paintbrush and brandished a steak knife did not pose sufficient self-defense threat or provide sufficient provocation inciting sudden and intense passion).

       “We’re going to be eliminating the term ‘voluntary manslaughter.’ We’re going to have murder 1 and murder 2. And what we’re doing, however, is not to change the elements of the offense of voluntary manslaughter, but we’re basically changing the burden of proof to the defendant.” 84th Ill. Gen. Assem., House Proceedings, June 23,1986, at 72 (statements of Representative Cullerton).
      “[I]n those cases where there are mitigating circumstances, such as serious provocation, that would serve as a justification for reducing a murder charge to a voluntary manslaughter, and now a first degree murder charge to a second degree murder charge that the defendant, and not the state, would bear the burden of proving the mitigating circumstances.” 84th Ill. Gen. Assem., House Proceedings, June 23, 1986, at 71 (statements of Representative Homer).
      “What we are attempting to do here is just divide it into first and second degree murder, and therefore, we think that prosecutors will charge when it is a manslaughter case the way they properly should.” 84th Ill. Gen. Assem., Senate Proceedings, May 23,1985, at 38 (statements of Senator Sangmeister).

       Several writers claim parentage of the 1987 legislative enactment. James B. Haddad, a professor of law at Northwestern University, initially considered the statutory change in Haddad, Allocation of Burdens in Murder-Voluntary Manslaughter Cases: An Affirmative Defense Approach, 59 Chi. Kent L. Rev. 23 (1982).
      Professor Haddad’s concepts were embodied in legislation considered but not enacted in 1983. Additionally, he has written a critical analysis of the impact of the new statute and has clearly stated that the mere change in name from voluntary manslaughter to second degree murder does not resolve the question of whether attempted second degree murder should be recognized. Professor Haddad believes that the same reasons applied to deny recognition of a crime called attempted second degree murder were applicable when the Illinois Supreme Court considered Reagan. Haddad, Second Degree Murder Replaces Voluntary Manslaughter in Illinois: Problems Solved, Problems Created, 19 Loy. U. Chi. L.J. 995,1023 (1988).
      A contrary conclusion is drawn by professor Timothy P. O’Neill in An Analysis of Illinois’ New Offense of Second Degree Murder, 20 J. Marshall L. Rev. 209 (1986). Professor O’Neill fashions himself as the real father of section 9—2. On the other hand, the Honorable Robert J. Steigmann holds himself out to be, if not the father of the legislation, then at least its midwife.

        In an article entitled First and Second Degree Murder in Illinois, 75 Ill. B.J. 494 (1987), Judge Steigmann, in detailing his own lobbying efforts on behalf of the legislation, states “As this author explained in testimony before the House and Senate Judiciary Committees, the statute defining second degree murder was written with the specific intention of retaining all of the substantive law, both statutory and case law, previously applicable to the statute defining the offense of voluntary manslaughter.” (Steigmann, 75 Ill. B.J. at 495.) A page or two later in the article, Judge Steigmann advises us that Reagan is no longer applicable and that the offense of attempted second degree murder “does now exist in Illinois law.” Steigmann, 75 Ill. B.J. at 498, 511.
      In addition, Judge Steigmann testified before the Illinois House of Representatives, Judiciary II Committee, on April 2,1986, and in support of HB 522 stated:
      “I would like to emphasize that I have in no way changed the substance or definition of this at all. I have not changed a syllable of what we have previously defined 25 years ago and have come to understand the offenses of murder and voluntary manslaughter to be[J *** What we have done is to change the burden of proof to make the law more consistent and understandable and to put the burden where it should be.” 84th Ill. Gen. Assem., House Judiciary II Committee Proceeding, April 2,1986, tape recording.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RIGOBERTO MORENO, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—2034
    Opinion filed November 20, 1992.

      Rita A. Fry, Public Defender, of Chicago (Evelyn G. Baniewicz, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Barbara Jones, and Brian Holmes, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Rigoberto Moreno, was convicted of the first degree murder of Michael Marrone (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)) and was sentenced to a term of 25 years. On appeal, defendant contends that (1) the trial court erred in instructing the jury on the law of accountability; (2) the State misstated the evidence and the law of accountability during its closing argument, depriving defendant of a fair trial; (3) the State failed to prove that defendant had the requisite “concurrent, specific” intent to commit murder; (4) the trial court erred in admitting testimony concerning a fight between the deceased and a codefendant which occurred six months prior to the murder; (5) the trial court abused its discretion in allowing the jury to view during deliberations photographs of three codefendants; and (6) the trial court abused its discretion by refusing to further question a prospective juror as to her opinion about gangs after defendant challenged the juror for cause.

This murder occurred as the result of certain gang members being stranded in a rival gang’s territory. On January 13, 1989, the deceased was with his friends Oscar Rodriquez, Vince Tostado, and Paul Garza. All except Tostado were members of the C-Notes street gang. Garza testified at trial that the four were at Rodriguez’s house drinking beer. At around midnight, the group went out to buy more beer. As they were walking, a friend of Tostado’s by the name of Jose drove up and offered them a ride.

Subsequently, the men in Jose’s car were confronted by four individuals in a Scirocco who were screaming at them and making obscene gestures. (These four individuals have never been identified.) Jose attempted to avoid them, but the Scirocco cut Jose off and forced him to stop in the middle of the street. The men emerged from the Scirocco, displayed a badge and gun, and started searching the deceased and his companions. They then scattered various personal items belonging to the deceased and the others onto the street before locking the keys to Jose’s automobile in the trunk and departing.

The Spanish Cobras street gang was a rival of the C-Notes gang. When the Scirocco stopped Jose’s car, they were in the Spanish Cobras’ neighborhood. Defendant was sitting in a car with Rosalio Najera, Bennie Chavez, and Louis Vela, watching the men in the Scirocco search the deceased and his friends. Najera testified that their car was parked in a vacant lot about 30 feet from Jose’s car when the two cars pulled up. Vela informed defendant and the others that the individuals in Jose’s car were C-Notes. At this point, according to Najera, he and defendant left to go get some of their own gang members to tell them that C-Notes were stranded in Spanish Cobra territory.

They went to a nearby bar and found codefendant Horatio Cosme, nicknamed “June Bug,” out in front. Defendant and Cosme went into the bar while Najera remained outside. After a few minutes, defendant and Cosme came out of the bar accompanied by codefendant Danny Leal. All three were Spanish Cobras. Cosme and Leal instructed defendant to tell Najera to leave. Najera left the bar and returned to where their car was parked in the vacant lot.

While defendant and Najera were at the bar, their companions Vela and Chevez gave the deceased and his friends a knife and crowbar to use to get their keys out of the trunk. Once the trunk was opened, the deceased and the others began picking up their belongings off the street. Garza, Rodriquez, and the deceased then entered the car and sat in the back seat. The deceased sat behind the passenger’s seat. Jose and Tostado sat in the front seat, but got out to look for Jose’s wallet.

While the two were looking for the wallet, six or seven men carrying baseball bats and sticks approached the vehicle. Najera testified that Leal, Cosme, and codefendant Felipe Rosales were among them. Rosales, who was also a Spanish Cobra, pointed to the deceased, who was inside the car, and stated, “I know you, you’re a C-Note.” Garza had earlier testified that six months prior to the murder, he and the deceased were walking along the lakefront when they encountered Rosales, at which time Rosales and the deceased engaged in a fist fight. He did not recall defendant being present when this fight occurred.

The group of men who were with Rosales began hitting the car with baseball bats, sticks, bottles, and bricks. Rosales hit the deceased’s side of the car and broke one of the -windows with a bat while Leal broke out the front windshield. A couple of other men chased Tostado and Jose down the street. Still others were hitting the car and throwing bricks and bottles at the car, while Rosales was yelling, “You are C-Notes!” Najera testified that while he was watching the men beat on the car, he heard three shots and saw “flashing” coming from the passenger’s side of the car. Najera did not see who fired the shots, but he noticed Rosales and Cosme standing next to each other on the passenger side of the car. Najera did not see defendant near the car, but did see a second group of people standing farther away.

Garza testified that the whole time the men were hitting the car, he kept his head down because “glass was flying all over.” Eventually, Tostado jumped into the car, started it, and drove down the block to pick up Jose. The deceased was in the car bleeding badly.

Detective Dennis Keane was assigned to investigate the murder. From January 16 to January 23, 1989, he attempted to locate defendant to question him about the events leading up to the murder. On January 23, defendant and Leal voluntarily came to police headquarters. After advising defendant of his Miranda rights, Keane and Detective Gregory Baiocchi interviewed him. Defendant initially denied any knowledge or participation in the shooting and stated that he was out visiting a friend at the time of the incident. Later that day, after being shown statements given by other suspects, defendant acknowledged he was present and agreed to tell the police what happened.

Subsequently, defendant spoke with Assistant State’s Attorney LeFevour. In the presence of Keane and Baiocchi, LeFevour advised defendant of his Miranda rights and took down a six-page statement given by defendant, which defendant read and signed. LeFevour informed defendant that he could change, any part of the statement that he found to be incorrect; defendant made several corrections and initialed them. Defendant signed his name at the end of each page, as did LeFevour, and the two detectives.

In his statement, defendant stated that he was in a parked car drinking beer when the incident between the Scirocco and Jose’s car occurred. Defendant was a member of the Spanish Cobras street gang, and his gang is a rival of the C-Notes street gang. He saw the Scirocco drive by and pull Jose’s car over. He then saw the passengers of the Scirocco get out and search the individuals in the second vehicle; he saw them search the second vehicle’s trunk, remove a baseball bat, close the trunk, and leave.

Defendant went to look for fellow gang members. He found Cosme and Leal. Defendant told them that there were rival gang members “stuck with their car over on Erie.” Cosme told defendant he was going to get a gun. Defendant returned to Jose’s stranded car, followed by codefendants Cosme, Rosales, Leal, and Velasquez. Rosales began hitting the car with his hand, then pointed at the deceased and said that he was a C-Note. Defendant picked up a brick and threw it at the passenger window, while Leal smashed the windshield with a board. The driver of the car was trying to start it when defendant heard two clicks from a gun and then two shots fired from the gun. Defendant looked to see where the shots came from and saw a gun in Cosme’s hand. Defendant ran and spent the night at Velasquez’s house. Subsequently defendant turned himself in to police.

During the jury instructions conference, defense counsel objected to the form of the accountability instruction offered by the State. The instruction was given to the jury over that objection.

Defendant first contends that the trial judge erred in giving the jury an accountability instruction which mirrored the language of Illinois Pattern Jury Instructions, Criminal, No. 5.03 (2d ed. Supp. 1989) (hereinafater IPI Criminal 2d). IPI Criminal 2d No. 5.03 (Supp. 1989) states:

“A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid or attempts to aid the other person in the planning or commission of [(an) (the)] offense.
[The word ‘conduct’ includes any criminal act done in furtherance of the planned and intended act.]”

The Committee Note following IPI Criminal 2d No. 5.03 (Supp. 1989) gives the following guidelines:

“Use the bracketed word ‘an’ and use the bracketed paragraph when the offense charged is different than the planned and intended offense, but done in furtherance of it. People v. Kessler (1974), 57 Ill. 2d 493, 315 N.E.2d 29; People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746.”

In this case, “an offense” was used in the instruction given to the jury. Defendant argues that in allowing the State to use “an offense” instead of “the offense” in its accountability instruction, the jury was improperly permitted to hold defendant legally responsible for Cosme’s shooting of the deceased based on a showing that defendant and Cosme planned to commit some offense other than first degree murder. Although the State contends that its theory was that defendant planned and intended to commit battery or, at the least, criminal damage to property, defendant maintains that the State’s theory at trial was actually that defendant planned and intended to murder the deceased. Thus, defendant argues, since the planned and intended offense by defendant was murder, and since the sole charge against defendant was murder, according to the Committee Notes to IPI Criminal 2d No. 5.03 (Supp. 1989), use of “an offense” in the jury instruction was improper because the charged offense and the planned and intended offense, namely murder, were the same.

It is true that the sole charge against defendant was first degree murder. However, our reading of the facts leads us to conclude that on the night of January 13, defendant planned and intended to commit any number of offenses other than the first degree murder of the deceased, making the accountability instruction, as given, proper.

As the facts indicate, defendant was a member of one street gang, which was a rival of the street gang to which the deceased belonged. When the car in which the deceased was a passenger was stopped by the men in the Scirocco, they were in the Spanish Cobras’ neighborhood. Defendant witnessed the confrontation between the men in the two cars. When the Scirocco drove off, defendant knew that the deceased and his companions were stranded and that they were rival gang members.

Rather than assist the deceased and the others in retrieving their car keys from the trunk of their car, as Vela and Chevez did, defendant actively sought out fellow gang members in the area to inform them that rival gang members were stranded in their neighborhood. He located Cosme, the shooter, and Leal. He told Cosme and Leal that some rivals were “stuck with their car over on Erie.” Cosme told defendant he was going to get a gun. Defendant made no attempt to withdraw from the impending confrontation, but instead returned to where the deceased and the others were stranded, followed by codefendants Cosme, Rosales, Leal, and Velasquez. They beat on the car in which the deceased was sitting, and defendant picked up a brick and threw it at the passenger window of the car. The deceased was seated closest to that window. Defendant heard two clicks from a gun and then two shots fired from the gun, which he saw was in Cosme’s hand. Defendant ran from the scene and hid. His written statement to police substantiated his participation in the events leading to the deceased’s murder.

We find from the evidence that defendant, at the very least, planned and intended, and in fact committed, the offense of criminal damage to property by throwing a brick through the car window. We find further that defendant planned and intended, along with his associates, to commit the offense of battery against the deceased and his companions. These findings support the conclusion that the accountability instruction, as given, was proper.

In People v. Terry (1984), 99 Ill. 2d 508, 514, 460 N.E.2d 746, our supreme court reiterated the long-established “common-design rule.” (See also People v. Kessler (1974), 57 Ill. 2d 493, 315 N.E.2d 29; People v. Armstrong (1968), 41 Ill. 2d 390, 243 N.E.2d 825.) That rule provides, “where two or more persons engage in a common criminal design or agreement, any acts in the furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences of such further acts.” (Kessler, 57 Ill. 2d at 496-97, 315 N.E.2d at 32.) Thus, under this rule, an accomplice can be held accountable for murder even without a showing of an intent to kill. In Terry, the court affirmed the defendants’ convictions for murder and armed violence based on a showing that they had conspired with others to commit the offense of battery. The court held that since the result of their concerted acts was murder, though the defendants themselves did not actually do the killing, under the common-design rule, all were legally accountable for the murder. (Terry, 99 Ill. 2d at 515, 460 N.E.2d at 749.) We see no reason why a similar result should not issue here.

We reject defendant’s contention that he could not have been found guilty of first degree murder absent a showing that he possessed the concurrent, specific intent to promote or facilitate the commission of that offense. In support, defendant cites People v. Taylor (1991), 219 Ill. App. 3d 47, 579 N.E.2d 383. There, the court held that the defendant’s conviction for involuntary manslaughter could not stand absent proof that he intended to promote or facilitate the commission of that offense. The State, however, argued that the defendant’s guilt was established by showing he was engaged in a common criminal design. The court acknowledged the “common-design rule” but concluded that it was inapplicable in that case because there was no evidence that the defendant was engaged with others in any sort of illegal activity prior to the group committing the offense for which he was found guilty, namely, involuntary manslaughter. (Taylor, 219 Ill. App. 3d at 50, 579 N.E.2d at 385.) Here, on the other hand, defendant set in motion the events which would eventually culminate in the death of the deceased. He rounded up other gang members to attack the deceased and his companions. Then, while his cohorts were beating on the car in which the deceased was sitting, defendant hurled a brick through the passenger window closest to the deceased, and, after Cosme fired the shots, fled the scene and hid from police for 10 days before turning himself in.

Moreover, contrary to what defendant argues, in determining the propriety of the instruction, it is irrelevant that defendant was not charged, with any other offense besides first degree murder. That he planned and intended to commit some offense, whether charged or not, is sufficient to hold him accountable for the deceased’s murder.

Defendant next contends that the State in its closing argument misstated both the evidence and the law of accountability, which served to deprive him of a fair trial. It is well settled that a prosecutor has great latitude in presenting his closing argument. (People v. Wheatley (1989), 183 Ill. App. 3d 590, 539 N.E.2d 276; People v. Franklin (1976), 42 Ill. App. 3d 408, 355 N.E.2d 634.) Further, a prosecutor has the right to comment on the evidence that has been adduced at trial and make all legitimate inferences therefrom. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.) In determining the propriety of a closing argument, the reviewing court will generally follow the trial court’s ruling absent a clear abuse of discretion. (People v. Smothers (1973), 55 Ill. 2d 172, 302 N.E.2d 324.) Further, improper remarks made by a prosecutor do not automatically require reversal unless they substantially prejudice a defendant. A defendant suffers substantial prejudice when the result of his trial would have been different had the improper comments not been made. Wheatley, 183 Ill. App. 3d 590, 539 N.E.2d 276.

Defendant cites as error several statements made by the prosecutor during opening and rebuttal closing arguments. Each will be addressed separately.

Initially, defendant contends that the following remark made by the prosecutor during her closing argument was error:

“MS. O’BRIEN [Assistant State’s Attorney]: Now, you know that while he [defendant] is there he hears Cosme say I’m going to go get the gun and that’s what he wanted to happen, he wanted that—
MR. SARLEY [Defense Attorney]: Objection. There is no evidence of that, your honor.
THE COURT: The jury heard the evidence. Proceed.”

Later, the prosecutor stated that defendant brought other gang members to the street “where the victims [were] like sitting ducks.” Based on the evidence of defendant’s participation in the events leading to the murder, we find that defendant in fact intended that some harm come to the deceased and his companions, and consequently, that the prosecutor’s comments were reasonable inferences properly based on that evidence. Wheatley, 183 Ill. App. 3d 590, 539 N.E.2d 276.

Next, defendant argues that the prosecutor improperly placed defendant next to the shooter and to the car in which the deceased was sitting:

“MS. O’BRIEN [Assistant State’s Attorney]: [Y]ou know that the defendant is standing right next to Cosme when that gun is fired, and I submit that you know that because of what his statement says about being able to see that gun, he was standing on that passenger side, he is standing right next to Cosme—
MR. SARLEY [Defense Attorney]: Objection, your Honor. That is not the evidence from anywhere.”

We find that this statement likewise was a reasonable inference based upon the evidence. Defendant in his written statement to police admitted that he threw a brick at the passenger’s window. Defendant then stated that he “heard two clicks from the gun” and “then two shots from the gun.” (Emphasis added.) He stated that he looked to see where the shots came from and saw a gun in “Junebug’s” (Cos-me’s) hand. Further, Garza testified that the deceased was seated in the back of the car on the passenger’s side. Collectively, the evidence establishes that defendant was on the passenger side of the car, and that Cosme likewise had to be on that side to have shot the deceased. Furthermore, it is reasonable to infer that the two were close enough to one another because defendant heard the clicks and shots coming from the gun.

Defendant next cites as error several comments made by the State in its closing rebuttal argument. Defendant argues that the prosecutor’s comments emphasizing the immediacy of Cosme’s firing the gun following defendant’s throwing the brick through the car window were improper, particularly since they were designed to suggest to the jury the existence of a plan between Cosme and defendant to kill the deceased, which was unsupported by the evidence. We believe, however, that the comments represented reasonable inferences that were adequately supported by the evidence. (Wheatley, 183 Ill. App. 3d 590, 539 N.E.2d 276.) We give great weight to defendant’s own recollection of the events, specifically that he threw the brick at the passenger window, and then heard two clicks from the gun and then two shots. Given this, one could reasonably infer that the shots were fired relatively close in time to defendant’s throwing of the brick.

Finally, defendant argues that the prosecutor in closing argument misstated the law of accountability in an effort to remove proof of a plan from the State’s burden. Specifically, in describing the law of accountability, the prosecutor stated:

“MR. BARBARO [Assistant State’s Attorney]: I will give you an example, how about two guys, they decide we [sic] are going to beat this guy up, he’s been giving us a hard time, we don’t want to kill him, we just want to beat him up. They [sic] go over there and during this incident or whatever one of them pulls out a knife and stabs the guy and kills him, the other guy says hey, I didn’t intend to kill anybody, all I wanted to do was commit a battery.
The fact is they are both guilty of murder because they went there with the intent to commit a crime, that is the fact. Common sense tells us that is what [defendant] did, and even if there was no plan and two guys start to beat up another guy both of them are throwing blows and one guy pulls out a knife and kills the man they are still guilty of murder.
MR. SARLEY [Defense Counsel]: Objection, your honor.
MS. LAMBERT [Defense Counsel]: Objection. That’s not the law.
THE COURT: Sustained. I will instruct the jury as to the law.” (Emphasis added.)

We find that the prosecutor did, in fact, misstate the law of accountability by stating that even absent a plan, the individuals in his example would still be guilty of murder. As stated, the law of accountability requires a showing that defendant planned to participate with another in some criminal activity, which would make him accountable for any acts committed in furtherance of that activity. However, we find the erroneous remark to be harmless in light of the fact that the trial judge admonished the jury that he would “instruct the jury as to the law,” and later did in fact properly instruct the jury on the law of accountability. See Terry, 99 Ill. 2d 508, 460 N.E.2d 746.

Defendant next cites as error the testimony concerning the fight between the deceased and Rosales which occurred six months prior to the shooting. Prior to trial, defense counsel moved unsuccessfully to bar the admission of this testimony. The trial court allowed the evidence in because defendant was being tried under an accountability theory together with his codefendants, one of whom was Rosales.

In People v. Smith (1990), 141 Ill. 2d 40, 56, 565 N.E.2d 900, 906, our supreme court stated that “when the State undertakes to prove facts which the State asserts constitute a motive for the crime charged, it must be shown that the accused knew of those facts.” Here, the State failed to produce any evidence that defendant knew about the fight. At trial, Garza testified that defendant was not present when the fight occurred, and there was no testimony that defendant was ever made aware of the incident. Absent defendant’s knowledge of the fight, we cannot see how the fight was relevant to show a possible motive on defendant’s part for the murder or how it tended to reflect on defendant’s guilt. That defendant was being tried on an accountability theory with Cosme and the others is insufficient to justify admission of evidence of the fight, because implicit in this theory is that defendant knew about the fight and intended to retaliate against the deceased. There was no proof of that here.

Although it was error for the trial court to allow in evidence of the fight, under these circumstances, the error was harmless. An error is harmless when it could not reasonably have affected the result or contributed to the defendant’s conviction (People v. Sullivan (1978), 72 Ill. 2d 36, 377 N.E.2d 17), or where properly admitted evidence was so overwhelming that no fair-minded jury would reasonably have voted to acquit. (People v. Carlson (1982), 92 Ill. 2d 440, 442 N.E.2d 504.) Here, if the trial court had excluded the testimony about the fight, the remaining evidence would still have overwhelmingly supported defendant’s guilt under an accountability theory.

Defendant further argues that the trial judge committed error by allowing photographs of codefendants Rosales, Leal, and Cosme into the jury room during deliberations. The State argues that the photographs were relevant to corroborate Najera’s testimony putting the three codefendants at the scene with defendant. Because this point was undisputed, however, we believe that the testimony of Najera on this issue was sufficient. Nevertheless, we find that the inclusion of the photographs during deliberations was harmless error.

Finally, defendant contends that the trial court abused its discretion by refusing to question a prospective juror as to her opinion of gangs after defendant challenged the juror for cause. At trial, defendant requested that potential jurors be questioned regarding their possible biases against street gangs. The trial court agreed to this request and specifically questioned each venireperson regarding his or her possible prejudice toward street gangs or those affiliated with gangs. During voir dire, the following colloquy took place between the court and venirewoman M.T.:

“[THE COURT]: Have you ever been accused, a complainant, or a witness in a criminal case?
[M.T.]: No.
[THE COURT]: You’ve never been a victim of a crime, nor have any of your immediate family or close friends right?
[M.T.]: No.
[THE COURT]: The principles of law that I referred to, [M.T.], do you have any quarrel with any of these?
[M.T.]: No.
[THE COURT]: Okay. This question regarding gangs and gang affiliation, does that set you off thinking one way or the other before you’ve heard any evidence?
[M.T.]: No. Well, I don’t know.
[THE COURT]: Well, I mean, that fact standing alone, would that start you off thinking one way or the other before you heard any evidence from the witness stand?
[M.T,]: No.
[THE COURT]: The — if [defendant] chose not to testify, would you hold that against him?
[M.T.]: No.” (Emphasis added.)

Later, defense counsel challenged M.T. for cause based on her initial reluctance when answering the gang question. The trial court denied the motion and then denied a request by counsel to ask her the question again. Defendant maintains that in precluding defense counsel from excusing M.T. for cause, he was forced to use one of his peremptory challenges to excuse her, which he might have used on one of the remaining two jurors who had close family members murdered. Consequently, defendant argues, he was deprived of a fair trial.

The determination of whether a prospective juror possesses the state of mind which will enable him or her to give the accused a fair and impartial trial rests within the sound discretion of the trial court. (People v. Thomas (1980), 89 Ill. App. 3d 592, 411 N.E.2d 1076.) We find no abuse of discretion by the trial judge’s refusal to permit defense counsel to excuse M.T. for cause or to allow further inquiry of her on the question of gangs. After M.T. responded, “No. Well, I don’t know,” to the initial question regarding gangs, the trial judge clarified the question for her and in return received a definitive response demonstrating her impartiality on this issue. The trial judge was in the best position to judge M.T.’s certainty and sincerity in her responses, and we do not believe defendant was prejudiced by the trial judge’s handling of this juror.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

EGAN, P.J., and RAKOWSKI, J., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    PATRICIA WOLOWINSKI, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee (Chicago Transit Authority, Defendant).
    First District (4th Division)
    No. 1—92—0108
    Opinion filed November 5, 1992.

      Allen M. Gunn, of Sullivan & Associates, Ltd., of Chicago, for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Bobbie McGee Gregg, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

This appeal arises from a negligence action brought by the plaintiff, Patricia Wolowinski, against the defendants, the City of Chicago (City) and the Chicago Transit Authority (CTA). On the City’s motion, the trial court granted summary judgment in favor of the City and against the plaintiff. The action against the CTA remains pending in the trial court. The plaintiff appeals from the grant of summary judgment in favor of the City, contending that she was an intended and permitted user of the street where she was injured and that the City therefore owed her a duty of care.

The plaintiff alleged in her complaint that on October 1, 1989, she was a passenger on a CTA bus. When the bus stopped at a designated bus stop on Belmont Avenue near Sacramento Street, she exited through the rear door. The plaintiff stated in her deposition that “[w]hen I opened the door I could see there were pot[holes] — we were approximately, I would say, a good four or five feet from the curb.” The plaintiff stepped off the bus into one of the potholes and injured her leg. The plaintiff was not within a marked pedestrian crosswalk.

The issue before this court is whether the City owed the plaintiff a duty to maintain the street within the designated bus stop in a reasonably safe condition for pedestrians.

To properly state a cause of action for negligence, the plaintiff must establish that the defendant owed a duty of care, a breach of that duty, and an injury proximately caused by the breach. (Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 421, 592 N.E.2d 1098.) Factors that a court considers in determining the existence of a duty are: the foreseeability of the injury; the likelihood of injury; the magnitude of the burden of guarding against the injury; and the consequences of placing that burden upon the defendant. (Lamkin v. Towner (1990), 138 Ill. 2d 510, 522, 563 N.E.2d 449.) Foreseeability alone is not an adequate foundation upon which to base the existence of a legal duty. Lamkin, 138 Ill. 2d 510, 563 N.E.2d 449.

The determination of whether a duty exists is a matter of law to be made by the trial court and is subject to de novo review on appeal. (Mitchell v. City of Chicago (1991), 221 Ill. App. 3d 1017, 1020, 583 N.E.2d 60.) Summary judgment is desirable when, according to the pleadings, affidavits, and depositions on record, no genuine issue of material fact exists. Ill. Rev. Stat. 1989, ch. 110, par. 2—1005.

The plaintiff contends that the City owed her a duty of care because she was an intended and permitted user of the street and the designated bus stop. This argument is based upon section 3—102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 3—102(a)), which states as follows:

“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used * * * >>

The factual situation in the case at bar is virtually identical to the one addressed by this court in Vance v. City of Chicago (1990), 199 Ill. App. 3d 652, 557 N.E.2d 494. There the plaintiff alleged that while exiting the bus at a bus stop, she stepped off the bus into a pothole in the street and twisted her ankle. She was not within a marked crosswalk, and the pothole was located in the street approximately one foot from the sidewalk. The court in Vance upheld a summary judgment in favor of the City on the grounds that the City owed no duty to the plaintiff. The court relied upon section 27—276(c) of the Chicago Municipal Code in concluding that the City did not intend bus passengers to use the street within a bus stop. That section provides as follows: Section 27 — 276(b) of the Code states that “[t]he driver of a bus shall not stop such vehicle upon any street at any place for the purpose of loading or unloading passengers other than at a designated bus stop, bus stand, passenger loading zone, or bus terminal except in case of an emergency.” Chicago Municipal Code §27 — 276(b) (1982).

“The driver of a bus shall enter a bus stop or passenger loading zone on a public street in such a manner that the bus when stopped to load or unload passengers shall be in a position with the right front wheel of such bus not further than eighteen inches from the curb and the bus approximately parallel to the curb so as not to unduly impede the movement of other vehicular traffic.” (Chicago Municipal Code §27 — 276(c) (1982).)

We agree with the reasoning of the City and the court in Vance that by requiring buses to discharge passengers within approximately 18 inches of the curb, the City evinced its intent that passengers step directly from the bus to the curb rather than use the street. Therefore, the plaintiff was not an intended and permitted user of the street under section 3—102(a) of the Tort Immunity Act. Ill. Rev. Stat. 1985, ch. 85, par. 3-102(a).

The plaintiff also contends that the trial court erred in granting the City’s motion for summary judgment because there existed genuine issues of material fact. Rather than stating what those facts are and how they are material to the instant cause, the plaintiff merely lists a series of questions. A reviewing court is entitled to have issues clearly defined with pertinent authority cited and cohesive arguments presented, and arguments not adequately presented on appeal may be waived. (Holmstrom v. Kunis (1991), 221 Ill. App. 3d 317, 325, 581 N.E.2d 877.) A reviewing court will not become an advocate for, as well as the judge of, points the appellant seeks to raise. (Holmstrom, 221 Ill. App. 3d 317, 581 N.E.2d 877.) The plaintiff’s list of questions gives us little assistance in our determination of whether the court improperly granted summary judgment. We do not believe this argument merits our consideration on appeal.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.