author: JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE GREEN, Defendant-Appellant.
    First District (3rd Division)
    No. 1-87-2358
    Opinion filed January 16, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Karlene Behringer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE FREEMAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant Maurice Green was convicted of murder, aggravated criminal sexual assault and unlawful restraint. (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1(a)(1), 12 — 14(a)(1), 10 — 3(a).) Defendant was sentenced to an extended term of 60 years’ imprisonment for murder, 60 years’ extended term for aggravated criminal sexual assault, to run consecutively to the term for murder, and three years’ for unlawful restraint, to run concurrently with the term for aggravated criminal sexual assault. Defendant appeals, contending that: (1) the trial court erred in instructing the jury on the proper burdens of proof for voluntary manslaughter; (2) the trial court erred in permitting certain evidence to be taken into the jury room during deliberations; (3) a combination of errors in closing arguments denied him a fair trial; (4) the trial court erred in imposing an extended-term sentence for the aggravated criminal sexual assault conviction; (5) the trial court erred in considering the death of the victim as a factor in sentencing; and (6) since the extended-term sentence of aggravated criminal sexual assault was influenced by defendant’s conviction for murder, if a new trial is ordered on the murder charge, the court should order reconsideration of the sentence for aggravated criminal sexual assault. We affirm in part and reverse in part.

The record reveals that on June 7, 1985, at about midnight, defendant visited M.H., the victim, at her apartment in Chicago. The victim shared her apartment with B.J., her 15-year-old daughter, and her stepson, R.J. Defendant and the victim had been friends for about eight years, and he knew both of her children.

Defendant and the victim went into the victim’s bedroom, where they shared some cocaine. After using all of the drugs, the couple went out to purchase more. The two separated, and defendant returned to the victim’s apartment at about 2:45 a.m. and smoked more cocaine.

At some point during the early morning of the 8th, the victim left the bedroom. While she was out of the room, defendant took a small packet of cocaine and put it in his shirt pocket. When the victim returned, she noticed that a packet was missing. She asked defendant about the missing packet, and he denied having taken it, telling her that she had miscounted the packets. The victim told defendant that he was not leaving until she found the missing packet.

The victim then reached for defendant, in a playful manner, and he pushed her away. The victim reached again and again defendant pushed her away. When the victim reached for him a third time, defendant grabbed a large glass decanter and struck her on the top of her head. The victim fell into his arms and he hit her a couple more times. The victim then fell against the bed and slid onto the floor.

Defendant then sat down on the bed and cooked another packet of cocaine. Moments later, while defendant was seated on the bed, the victim’s foot hit his leg. Defendant looked and saw the victim’s cheeks and lips were moving and he heard her moaning. He then picked up a green champagne or wine bottle and hit the victim in the head three or four more times. The bottle broke.

Defendant then left the bedroom, went into the kitchen, got a 7-Up bottle and returned to the victim’s bedroom. He removed her .32 caliber handgun from underneath her pillow and went into B.J.’s bedroom. He did not recall whether he struck the victim with the 7-Up bottle.

B.J. testified as follows. On the evening of June 7, 1985, defendant knocked on the door of the apartment and identified himself. B.J. then knocked on her mother’s bedroom door and told her of defendant’s presence. The victim told B.J. to tell defendant that she was not available. She did not want to be bothered with him.

B.J. eventually allowed defendant to come inside the apartment. Once inside, the victim invited defendant into her bedroom. Later, after B.J. had eaten, she went into her bedroom, closed the door, turned on the radio and went to sleep.

Later, she was awakened by defendant walking in and out of her room. B.J. described that at times, as defendant knelt by her bed, she could see and smell smoke. B.J. did not let defendant know she was awake.

Finally, defendant told her to wake up. She told him to leave her alone, but defendant told her to get up, that he had a gun. Defendant then raised the gun and told her that he didn’t want to kill her. On his order, B.J. touched his face. He then told her that he just wanted to put his face between her legs. Defendant continued to point the gun at her as he removed her underpants and put his tongue inside of her vagina. Defendant would leave the room, return and repeatedly sexually assault B.J. B.J. could not remember how many times this had occurred; however, she did remember that it happened more than twice. Once, after leaving the room and returning, defendant told B.J. to lie on her stomach, and he then put his tongue inside of her anus. B.J. recalled that this happened only once.

B.J. also testified that defendant lay on top of her, holding the gun down by his side, and told her to touch him. She complied. During this time B.J. heard her brother R.J. as he was starting to unlock and come in the back door of the apartment. Defendant then got up, ran to door and pushed it closed. R.J. identified himself and asked defendant what was going on. Defendant told R.J. to get away from the door. R.J. left and telephoned the apartment.

B.J. spoke with R.J. on the phone. After speaking with R.J., defendant told her to dial 911. As the 911 service rang, defendant snatched the phone away from B.J. and he spoke with the person who answered. Subsequently, at about 8 a.m., the police arrived. B.J. spoke with them on the telephone and was told that defendant was going to release her. Until the time that she was released, defendant would not allow her to leave the apartment; he kept her in a closet in the bathroom, leaving the closet door ajar.

After being released B.J. went upstairs to a neighbor’s apartment, where she met with the police and R.J. R.J. asked B.J. whether defendant had allowed her to go into her mother’s room. B.J. responded negatively. R.J. then told the police that his mother was still in the apartment.

B.J. recalled that at some time during this ordeal she asked defendant about her mother. He responded that the victim had gone out with his money and would return. B.J. identified photographs of the apartment which depicted that defendant had placed a chair in front of the entry into the apartment. She also identified a window in the kitchen of the apartment with two bullet holes shot by defendant.

Officer Dennis Banahan testified that on June 8 he responded to a call at M.H.’s apartment. Upon knocking on the door and identifying his office, defendant told him to get away and that he had a gun. Banahan asked and defendant consented for him to speak with B.J. B.J. was crying and informed Banahan that she was all right. Banahan again attempted to persuade defendant to release B.J.; however, defendant told him to get away from the door. Banahan then went outside the building and contacted the hostage barricade terrorist unit.

Thomas Johnson, a detective with the hostage barricade terrorist incident program, made telephone contact with defendant. Defendant permitted B.J. to speak with him. B.J. told Johnson that defendant was pointing a gun at her. Johnson asked to speak with defendant again. Defendant then took the phone away from B.J. and hung it up.

Several minutes later, Johnson telephoned the apartment again and attempted to persuade defendant to surrender. Defendant told Johnson that he wanted to talk to Mary because she owed him some money. Johnson asked him to release B.J.; however, defendant said that he could not. The telephone conversation lasted several minutes, then defendant hung up.

Johnson made several attempts to telephone the apartment for the next few hours. Finally, at about 8:15 a.m. defendant released B.J. Johnson continued to talk with defendant to convince him to come out. At about 9:15 a.m. defendant came to the rear door of the apartment and threw out the gun. Defendant then told Johnson that he had killed Mary over cocaine, but he refused to surrender. At about 10:25 a.m., after continued negotiations, defendant came out of the apartment. He was then handcuffed, taken back inside the apartment and given Miranda warnings.

Subsequent to defendant’s arrest he was taken to the police station, and after again being advised of his rights, he made a statement to Detectives Patrick Carroll and Michael O’Connor of the Chicago police concerning the incident. He subsequently made a second statement to Assistant State’s Attorney Mark Schroeder, which Schroeder summarized and defendant signed.

Defendant’s first contention is that the jury was improperly instructed on the burden of proof for voluntary manslaughter. He claims that the instruction placed the burden of proof on the State to prove that defendant “acted under a sudden and intense passion resulting from serious provocation by another.” He maintains, relying on People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, that placement of the burden on the State rendered the instruction invalid. Therefore, he argues, a new trial on the murder charge is required.

The State neither disputes the claimed error in the instruction nor the retroactive application of Reddick. However, the State argues that since there was no evidence to support defendant’s theory that he was acting with an unreasonable belief that the killing was justified, the error was harmless. We note, as does defendant in his reply brief, that defendant’s theory was not unreasonable belief, as the State here addresses, but serious provocation.

Here, the jury was instructed, without objection, on the then-standard instructions on voluntary manslaughter, viz., that the State bore the burden of proving that when the defendant killed, he acted under a sudden and intense passion resulting from serious provocation by another. Subsequent to defendant’s trial, our supreme court, in Reddick, held that in order to sustain a murder conviction in cases where the defendant presents sufficient evidence to raise the affirmative defense of voluntary manslaughter based on provocation, the State has the burden of disproving, rather than proving, the existence of provocation and that the jury should be so instructed.

Even assuming that Reddick is controlling in this case, we do not believe that a reasonable jury would have found that defendant acted out of serious provocation at the time of this offense. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2(a)(1).) Here, the defendant’s statement, which was introduced into evidence, described that the victim came toward him, empty handed, and when she grabbed him, he hit her in the head with a decanter. The victim fell on the bed and slid onto the floor. As the defendant sat on the bed, the victim’s leg moved and touched his foot. The defendant jumped up because he thought that the victim was dead. As the victim lay there on the floor, her face and mouth twitching, defendant picked up another bottle and began hitting her again in the head with it.

It is well settled that mutual combat or quarrel can be sufficient to support a finding of serious provocation. (See, e.g., People v. Crews (1967), 38 Ill. 2d 331, 335, 231 N.E.2d 451; People v. Neal (1983), 112 Ill. App. 3d 964, 967, 446 N.E.2d 270.) However, if the provocation is inadequate (People v. Matthews (1974), 21 Ill. App. 3d 249, 253, 314 N.E.2d 15), or if the defendant attacks the victim out of proportion to the provocation, then the crime is murder. (People v. Hood (1989), 191 Ill. App. 3d 129, 134, 547 N.E.2d 637; Neal, 112 Ill. App. 3d at 968.) Even were we to find that there was provocation, we would nonetheless find that it was in no way in proportion to the manner in which defendant retaliated. After review of the record, we are unable to conclude that the result of trial would have been different if the Reddick instruction had been given. (People v. Fierer (1988), 124 Ill. 2d 176, 187, 529 N.E.2d 972.) Therefore, we find that any error in the instruction was harmless beyond a reasonable doubt. See, e.g., People v. Harris (1989), 132 Ill. 2d 366, 547 N.E.2d 1241, cert. denied (1990), 496 U.S. 908, 110 L. Ed. 2d 275, 110 S. Ct. 2594; People v. Moleterno (1990), 199 Ill. App. 3d 15, 556 N.E.2d 703; People v. Skipper (1988), 177 Ill. App. 3d 684, 533 N.E.2d 44 (supplemental opinion).

Defendant’s second contention is that the trial court erred in permitting a vial of the victim’s blood and “gruesome autopsy” photographs of the victim to be sent into the jury room during deliberations. He argues that the blood and the photographs needlessly inflamed the emotions of the jurors.

We first address the issue of the photographs. The court, over defendant’s objections, allowed 11 color photographs of the victim to go back into the jury room during its deliberations. Contrary to defendant’s characterization of the pictures as post-autopsic, the pathologist testified these photographs (exhibits 28, 29, 30, 31, 32, 33, 35, 36, 37 and 38) showed the victim as she appeared at the time of the autopsy. According to him, these photographs depicted the various angles of multiple blunt trauma lacerations and abrasions to the top, front, back and sides of the victim’s head. The victim’s head had been shaven by the pathologist’s staff in order to make the injuries more visible. One photograph, exhibit 37, showed an area on the left side of the victim’s head where, according to the pathologist’s testimony, the margin was lifted from the surface; the scalp was separated from the skull. In another photograph, exhibit 41, the victim’s scalp had been pulled away from the left side of the skull and fracture lines are visible.

The State maintains that the photographs were introduced to show the victim’s wounds and to corroborate the pathologist’s testimony. It argues, relying on People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238, and People v. Montague (1986), 149 Ill. App. 3d 332, 500 N.E.2d 592, that photographs which establish the various wounds and their locations or which corroborate and explain the pathologist’s testimony are admissible.

“ ‘It is the rule that where photographs are relevant to establish any fact in issue that they are admissible in spite of the fact that they may be of a gruesome nature.’ ” (People v. Foster (1979), 76 Ill. 2d 365, 377, 392 N.E.2d 6, quoting People v. Speck (1968), 41 Ill. 2d 177, 202, 242 N.E.2d 208, rev’d (1971), 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct. 2279; see also People v. Shum (1987), 117 Ill. 2d 317, 353, 512 N.E.2d 1183, cert. denied (1988), 484 U.S. 1079, 98 L. Ed. 2d 1022, 108 S. Ct. 1060.) When presented with photographic evidence, the trial court must weigh the probative value and its potential prejudicial effect. (People v. Greer (1980), 79 Ill. 2d 103, 117, 402 N.E.2d 203; People v. Partin (1987), 156 Ill. App. 3d 365, 509 N.E.2d 662.) The ultimate decision as to what shall be taken into the jury room rests within the sound discretion of the trial court and, absent an abuse of that discretion, its decision will not be disturbed. (Shum, 117 Ill. 2d at 353; People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220, cert. denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364.) Obviously, photographs which have no probative value and no purpose, “other than to horrify the jurors and arouse their emotions against the defendant,” should not be admitted. People v. Coleman (1983), 116 Ill. App. 3d 28, 36, 451 N.E.2d 973, cert. denied (1987), 479 U.S. 1056, 93 L. Ed. 2d 984, 107 S. Ct. 933.

Defendant relies on People v. Landry (1977), 54 Ill. App. 3d 159, 368 N.E.2d 1334, to support his argument that photographs taken diming an autopsy are highly prejudicial. In Landry, “grisly pictures, not of [the] external injury inflicted, but of the autopsy,” were shown to the jury. (54 Ill. App. 3d at 161.) The pathologist there testified that the autopsy procedure may have exaggerated the appearance of superficial injury. To exemplify the distortion caused by the autopsy procedure, the pathologist testified that a dark area which appeared on the left side of the decedent’s face was actually his nose. The court concluded that the gruesome nature of the photographs was caused by the autopsy procedure, rather than by an act of the defendant.

Similarly, in People v. Lefler (1967), 38 Ill. 2d 216, 221-22, 230 N.E.2d 827, one photograph showed the decedent’s chest cavity after the breast bone, a portion of the ribs and the lungs, heart and main blood vessels had been removed. Another photograph showed the skull and portions of the brain after an area of the skull had been removed. The testimony there was that the gruesome nature of the pictures was caused almost entirely by the autopsy procedure. Additionally, the photographs had little probative value in view of the pathologist’s detailed testimony and the fact that the nature and extent of the injuries were not disputed. Therefore, the court held that the photographs should not have been admitted. See also People v. Jackson (1956), 9 Ill. 2d 484, 138 N.E.2d 528 (photograph which showed sutures of the autopsic incision improperly admitted).

In the present case, the pathologist testified that the cause of the victim’s death was the result of head injuries due to multiple blunt traumas. With the exception of exhibit 41, the photographs of the victim’s shaven head depicted the condition of the victim as a result of the injuries she sustained, not the autopsy. The trial court stated that it would permit exhibits 37 and 41 to go into the jury room because they were descriptive of the pathologist’s search for injuries and corroborated his testimony.

We believe that the exhibits, though gruesome, were probative on the issues of the cause of the victim’s death and the force and manner in which the injuries were inflicted. Additionally, the photographs served to corroborate the pathologist’s testimony concerning the extent and the nature of the injuries suffered. The fact that exhibit 41 showed the victim as a result of some preliminary autopsic procedure does not necessarily render the photograph prejudicial. (See People v. Yoho (1987), 164 Ill. App. 3d 17, 517 N.E.2d 329 (probative value of color photograph depicting a close-up view of the heart and its wound within what appears to be the chest cavity outweighed prejudice); People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 174, 104 S. Ct. 199 (two photographs which showed views of the left and right sides of the victim’s head, with a small area around her ear partially shaved, the wounds cleaned and brain fragments near the victim’s hair properly admitted).) While we might have disagreed with the trial court on the necessity of submitting some of the photographs, we find no abuse of discretion.

We note that defendant’s reliance on People v. Coleman (1983), 116 Ill. App. 3d 28, 451 N.E.2d 973, cert. denied (1987), 479 U.S. 1056, 93 L. Ed. 2d 984, 107 S. Ct. 933, is misplaced. The photographs in Coleman depicted the decedent’s decomposing, maggot-infested, partially autopsied body. Several teeth were missing and the brain was exposed, lying next to the head. A rag, which had been lodged in the decedent’s mouth, and had caused the suffocation death, had been removed. The reviewing court held that the cause of the decedent’s death was not in issue and, moreover, the rag, which caused the suffocation, had been removed from the decedent’s mouth.

In the present case, the photographs are not nearly as gruesome as those described in Coleman. Additionally, the photographs here, unlike in Coleman, depicted the injuries which were the cause of decedent’s death. Finally, as we have already stated, the photographs here were probative on the issues of the manner and extent of the victim’s injuries.

We next consider the admission of the vial of blood.

In its brief, the State offers no purpose for allowing the vial of blood to go to the jury. Instead, it relies on the trial court’s determination that the blood was “descriptive and part of the physical evidence recovered.” The State maintains that even if it was error to permit the vial in the jury room during deliberations, such error was harmless.

Defendant maintains that the presence of the blood during the jury deliberations aroused the emotions of the jury so as to compel a rejection of his voluntary manslaughter defense. He relies on People v. Elwell (1977), 48 Ill. App. 3d 628, 362 N.E.2d 830, to support his claim of reversible error. We find defendant’s reliance on Elwell to have been misplaced and, further, we believe that the other evidence, coupled with defendant’s post-arrest statement, are what in fact served to discredit his defense of voluntary manslaughter.

Our review of Elwell reveals that the evidence there was more closely balanced than in this case. In Elwell three men, including the defendant, were involved in a fight with two other men. While the evidence revealed that only the defendant had come in contact with the victim during the melee, no one saw the defendant stab the victim, no one ever saw a knife in the defendant’s hand, and no knife or other instrument capable of being used for stabbing was ever found. In this case, defendant made a statement admitting his involvement in the incident and the objects used to kill the victim were recovered from the scene. Moreover, as the State points out, the jury in Elwell, unlike here, deliberated over a period of several days.

However, merely because evidence is “descriptive and part of the physical evidence recovered” does not bestow upon it any probative value nor does it diminish its potential for prejudice. We fail to see any valid purpose for permitting the vial to be taken with the jury during its deliberations. The blood could not have aided the jury in its deliberations. That notwithstanding, based on the evidence presented defendant was not substantially prejudiced by the error and reversal is not required. See, e.g., People v. Lee (1990), 194 Ill. App. 3d 595, 551 N.E.2d 300; People v. Gonzales (1979), 79 Ill. App. 3d 498, 398 N.E.2d 647; People v. Seaberry (1978), 63 Ill. App. 3d 718, 380 N.E.2d 511.

Defendant’s third contention is that as a result of a combination of errors in the State’s closing argument he was denied a fair trial. He points to four separate ways in which the comments prejudiced him. Defendant first argues that the State made improper comments concerning the exercise of his constitutional rights and improperly invoked the sympathy of the jury.

The State responds that the issues have been waived for defendant’s failure to properly include the objections in his post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) We have reviewed defendant’s motion and find that the issue concerning defendant’s constitutional rights has been properly preserved for our review. However, the sympathy argument was raised neither at trial nor in the post-trial motion. Thus it is waived.

The objectional comments are as follows:

“MR. McNERNEY [Assistant State’s Attorney]: You also heard a lot about rights. The defendant has a right to a fair and impartial jury. He got one.
MR. McINERNEY [Defense Counsel]: Judge, objection. This is not rebuttal. Objection.
MR. McNERNEY [Assistant State’s Attorney]: He has a right to a fair trial. He has a right to be represented by able counsel. He has a right to confront the witnesses, the accusers against him. He has a right to remain silen[t].
MR. McINERNEY [Defense Counsel]: Objection, Judge.
MR. McNERNEY [Assistant State’s Attorney]: He has all kinds of rights.
MR. McINERNEY [Defense Counsel]: Objection, Judge.
THE COURT: Objection overruled.
MR. McNERNEY [Assistant State’s Attorney]: What about Mary Arm? Don’t the victims of crime have any rights? What about her right to live? He doesn’t think anything of that. What about B.J.’s right not to be sexually assaulted in her own home? I don’t see him crying about that.
This is nothing more than an attempt to avoid responsibility for what he’s done.”

The prosecution is permitted wide latitude in closing argument, and improper remarks will not merit reversal unless they result in substantial prejudice to the defendant. (People v. Thompkins (1988), 121 Ill. 2d 401, 445, 521 N.E.2d 38, cert. denied (1988), 488 U.S. 871, 102 L. Ed. 2d 156, 109 S. Ct. 187; People v. Cisewski (1987), 118 Ill. 2d 163, 514 N.E.2d 970.) However, it is critical, during rebuttal argument, that the prosecuting attorney not make improper arguments or assumptions not based on the evidence since, at that point, the defense is without opportunity to respond. (People v. Heidorn (1983), 114 Ill. App. 3d 933, 938, 449 N.E.2d 568; People v. Escobar (1979), 77 Ill. App. 3d 169, 395 N.E.2d 1028.) When presented with a claim of prosecutorial misconduct, arguments of both the prosecutor and defense counsel must be examined in their entirety, and the complained-of comments must be placed in their proper context. (People v. McBounds (1989), 182 Ill. App. 3d 1002, 1015, 536 N.E.2d 1225; People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174, cert. denied (1983), 461 U.S. 944, 77 L. Ed. 2d 1302, 103 S. Ct. 2121.) Absent a clear abuse of discretion, the trial court’s determination of the propriety of the argument will stand. Cisewski, 118 Ill. 2d at 175; People v. Harris (1989), 187 Ill. App. 3d 832, 543 N.E.2d 859.

Having set out the applicable legal principles, we first consider defendant’s argument concerning his reliance on his constitutional rights. Defendant claims that the State sought to penalize him for employing his rights, by encouraging the jurors to find that he was using his rights “to avoid responsibility for what he’s done.”

We have reviewed the arguments of the parties. In its closing, defense counsel, referencing expert testimony, made comments concerning the effects of cocaine abuse. He asked the jury to recall that the effects, among other things, were hallucinations and abnormal behavior. At one point in the argument, counsel stated that defendant was under the effects of cocaine and that that was why he had killed the victim.

The State does not argue, but it appears to us, that the statement concerning defendant’s rights did not purport to penalize him for the exercise of those rights. The tenor of the State’s argument up to the point of listing defendant’s rights was that defendant’s reliance on diminished capacity, due to his cocaine use, and his cooperative behavior were attempts to avoid the consequences for the offenses committed. In its proper context, we believe that the comment concerning avoiding responsibility related to defense counsel’s argument concerning the effects of cocaine use. We do not find, as in People v. Ray (1984), 126 Ill. App. 3d 656, 662-63, 467 N.E.2d 1078 (prosecutor stated “this man has hid[den] behind those rights”), that the remark here implied that defendant was taking refuge in his constitutional rights, but rather that he was attempting to use the drug abuse as an excuse. (Compare People v. Webb (1986), 143 Ill. App. 3d 427, 493 N.E.2d 52.) We conclude that the remark was proper.

Defendant next argues that comments made by the State prejudiced him in two additional ways. In its rebuttal, the State called defendant a liar, a coward, a thief, a drug abuser, a manipulator, an intimidator, an assaulter, of helpless women, a child molester and a murderer. He then stated to the jury, “God help us if you let the guy go that did this to Mary Ann.”

Defendant first argues that the State, without basis, repeatedly disparaged his character. He maintains that there was no evidence to support the State’s characterization of him. The State responds that its statements about the character of defendant were based on reasonable inferences from the evidence.

Generally it is prejudicial error for a prosecutor to characterize a defendant as a liar. (People v. King (1989), 182 Ill. App. 3d 501, 506, 538 N.E.2d 230; People v. Strange (1984), 125 Ill. App. 3d 43, 465 N.E.2d 616.) However, such conduct does not constitute reversible error where proof of guilt is supported by substantial evidence. We agree with the State that the characterizations find some support in the record. We point to the evidence that defendant stated that he had taken a packet of the victim’s cocaine, then told the victim that she had miscounted. Further, defendant stated that he told B.J. that her mother had taken his money and had left the apartment when, in fact, she lay beaten to death in her bedroom. Moreover, even were we to conclude that the characterization here was error, we would nonetheless find that the overwhelming evidence of defendant’s guilt, rather than the negative characterization, resulted in his conviction.

Defendant next argues that the prosecution frightened the jurors into convicting him of murder by drawing assumptions not based on the evidence. He claims prejudice because the jury’s option was either to find him guilty of murder or to find him guilty of voluntary manslaughter. He argues that he was not asking the jury to release him, but to find him guilty of voluntary manslaughter.

The State responds, and we find, that defendant’s argument claiming that the verdict was based on fear is not properly preserved for review. Moreover, even if the argument was properly before us, and assuming that the comments carried defendant’s assigned meaning, we would find no impropriety. The jury received an instruction on the elements to prove voluntary manslaughter and a verdict form which included an option to find defendant not guilty of both murder and voluntary manslaughter. Thus, had the evidence shown that he was not guilty of either offense, regardless of what defendant asked the jury to find, acquittal on both charges would have been required.

Defendant next contends that the imposition of the extended-term sentence for his aggravated criminal sexual assault conviction was improper. He advances two arguments in support thereof. First, in a supplemental argument, filed in this court prior to oral argument, defendant asserts that since aggravated criminal sexual assault, a Class X offense, is a lesser class offense than murder, he could not be sentenced to an extended term for the aggravated criminal sexual assault.

Defendant is correct. The statute authorizing extended terms provides, in pertinent part:

“(a) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present.” Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a).

See People v. Jordan (1984), 103 Ill. 2d 192, 203-06, 469 N.E.2d 569; People v. Holiday (1985), 130 Ill. App. 3d 753, 474 N.E.2d 1280. Compare People v. Young (1988), 124 Ill. 2d 147, 529 N.E.2d 497, and People v. Neal (1985), 111 Ill. 2d 180, 489 N.E.2d 845, cert. denied (1986), 476 U.S. 1165, 90 L. Ed. 2d 733, 106 S. Ct. 2292 (where capital sentence, as opposed to term of years, for murder imposed extended-term sentence on offense in lesser class permissible).

Second, in his opening brief, defendant maintains that the sentence was improper because the sexual assault was not characteristically brutal or heinous. We agree. However, since we find defendant’s first argument to be dispositive, we need not engage in analysis of the second. Pursuant to Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)), we reduce defendant’s sentence for the aggravated criminal sexual assault to 30 years, the maximum nonextended-term sentence for that offense. Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(3).

Defendant’s fifth contention is that the trial court improperly considered the victim’s death as a factor in sentencing him for murder. (People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.) Defendant asks that the sentence be vacated and that the case be remanded for resentencing.

We have reviewed the court’s statements during the sentencing phase of defendant’s trial. The trial judge gave a lengthy laundry list of the factors which it had considered in determining defendant’s sentence. Among the factors, the court stated that it had considered defendant’s background, his criminal history, the arguments in mitigation and aggravation, as well as defendant’s potential for rehabilitation. Finally, after stating these factors, the court stated:

“But in imposing the sentence, I am taking into consideration how your conduct caused serious harm, it caused serious harm, the worst possible loss to the victim of the murder, her life was taken.”

While it is proper to consider as an aggravating factor the force employed and the physical manner in which the victim’s death was brought about, it is improper to consider the death of the victim as an aggravating factor where the death is implicit in the offense. (Saldivar, 113 Ill. 2d at 271-72; People v. Tompkins (1987), 155 Ill. App. 3d 380, 508 N.E.2d 481.) However, as was stated in People v. Martin (1983), 112 Ill. App. 3d 486, 445 N.E.2d 795, it is unrealistic to suggest that the judge in sentencing the defendant must avoid mentioning the fact that someone has died or risk committing reversible error.

The State distinguishes Saldivar, noting that there the harm caused was the primary aggravating factor considered, while in this case other factors were considered. The State also distinguishes Tompkins on the basis that the trial court there considered the victim’s death, “in and of itself,” as an aggravating factor.

In this case we have the trial court’s express statement that it was considering the death of the victim. The court erred. However, consideration of an improper aggravating factor in sentencing does not always require remandment; resentencing is only required where the reviewing court is unable to determine the weight given to the improper factor. (People v. Bourke (1983), 96 Ill. 2d 327, 332, 449 N.E.2d 1338; People v. Watts (1990), 195 Ill. App. 3d 899, 552 N.E.2d 1048.) We have examined the trial court’s sentencing comments in their entirety. Notwithstanding the error, we believe that any consideration given to the improper factor was insignificant and that the sentence imposed was neither excessive nor inappropriately enhanced as a result.

In making this determination we consider that the court did give due consideration to the other factors presented in aggravation, including the extremely brutal nature of the offense. Further, defendant’s statement, in his presentencing investigation, that he “never wanted to be treated” for his chronic cocaine abuse, strongly indicates that the potential for his rehabilitation is minimal at best. Based on the facts in this case and for the reasons stated, we decline remandment for reconsideration of the sentence.

Finally, defendant’s sixth contention is that since the extended-term sentence for aggravated criminal sexual assault was influenced by the murder conviction, if a new trial is ordered on the murder charge, the court should order reconsideration of the sentence for aggravated criminal sexual assault.

Our determination that the murder conviction was proper and further, our vacature of defendant’s extended-term sentence for the aggravated criminal sexual assault conviction obviates the need for us to consider this argument.

For the foregoing reasons, we affirm in part and reverse in part.

Affirmed in part; reversed in part.

RIZZI and WHITE, JJ., concur.

       Justice Freeman authored this opinion prior to his election to the Illinois Supreme Court.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALLISON JENKINS, Defendant-Appellant.
    First District (4th Division)
    No. 1-87-0449
    Opinion filed January 17, 1991.
    Rehearing denied March 11, 1991.

      Michael J. Pelletier and David Goldwin, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Paula Carstensen and Thomas O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant was charged by information with delivery of a controlled substance. (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(c).) Following a jury trial, defendant was found guilty and sentenced to a term of six years in the Illinois Department of Corrections. Defendant now brings this appeal.

The following issues are before this court for review: (1) whether defendant was denied a fair trial when the court permitted the People to elicit testimony concerning a separate, uncharged attempted delivery of a controlled substance; (2) whether defendant was denied effective assistance of counsel when defense counsel failed to object to the jury instructions and failed to tender alternative instructions to limit the jury’s consideration of the uncharged alleged attempted sale of a controlled substance; (3) whether defendant was denied a fair trial when, in the closing argument, the State shifted the burden of proof, misstated the evidence, and articulated its personal opinion that the police officer witnesses were credible; (4) whether the trial court’s jury instruction that the People’s exhibit number 2 was a controlled substance constituted plain error; and (5) whether the trial court abused its discretion by sentencing defendant to six years’ imprisonment.

We affirm.

Background

Officers Lemuel Hogue and Fred Guerra were the principal witnesses for the People. Officers Guerra and Hogue were members of the Northeastern Metropolitan Drug Enforcement Group (hereinafter the MEG). The MEG is a special task force under the authority of the Cook County sheriff. MEG officers investigate drug activity and purchase drugs from alleged drug dealers in order to facilitate their arrest.

Officer Hogue testified that he met defendant, Allison Jenkins, on January 8, 1986. During this meeting, defendant gave Officer Hogue his telephone number. On January 10, 1986, Officer Hogue telephoned defendant and arranged to purchase cocaine from him for $325. The two men agreed to meet on that day at the intersection of Howard and Clark Streets in Chicago, Illinois, at 2 p.m. Later that day, Officer Hogue met defendant at the intersection. Defendant entered Agent Hogue’s car. Subsequently, Officer Hogue drove defendant to a building located at 7455 North Greenview Street in Chicago. Defendant exited Agent Hogue’s car and entered one of the apartments at that address. Several minutes later, defendant returned to the car and handed Officer Hogue a package of white powder. Officer Hogue paid defendant $325 in exchange for the package. Officer Hogue testified that after the transaction, defendant told him “the cocaine was good shit *** [and] [i]f I need to step on it, I could make another eight out of it *** and make my money back.” Then, defendant left the car and Officer Hogue drove to meet the surveillance team that observed the entire transaction.

One of the members of the surveillance group was Fred Guerra. Officer Guerra later testified that he established a surveillance unit at the intersection of Clark and Howard Streets. Officer Guerra observed Agent Hogue arrive at the intersection and speak to a black male who was in a rust-colored vehicle. Officer Guerra then witnessed the black man enter Agent Hogue’s automobile. Subsequently, Officer Guerra followed Agent Hogue and defendant to an apartment building at 7455 North Greenview Street. The officers assigned to the surveillance unit positioned themselves approximately 100 to 150 yards from the building. The witness saw defendant leave the car and return later. Upon returning, defendant and Officer Hogue had a short conversation. Defendant then left the car, and the agent drove away. Agent Guerra identified defendant as the man he saw with Officer Hogue.

After Officer Hogue purchased the powder from defendant, he tested the specimen in the La Petite Restaurant. The field test indicated that the powder contained cocaine. Agent Hogue placed the cocaine in a package and labeled the package with the number 86038MC, the initials ALCH, and the date “1-10-86.” The package was later labeled People’s Exhibit No. 2. On March 26, 1986, Officer Hogue obtained a warrant for defendant’s arrest. Defendant was arrested on March 27,1986.

Agent Hogue tendered the cocaine to Karl Larsen, a chemist at the State laboratory. Mr. Larsen testified that he tested the white powder. He performed a series of color tests, a gasro chromatography test, an infrared spectrophotometer test, and finally a polarimeter test. The results of all of these tests showed that the substance was cocaine. The parties stipulated that the powder which Officer Hogue purchased from defendant was the same powder tested by Karl Larsen. After Mr. Larsen testified, the People rested. Upon completion of the People’s case, defendant made a motion for a directed verdict which the court denied.

When the defense presented its case, defense counsel asked Officer Hogue during cross-examination whether he met with defendant at any time other than on January 8, January 10, or March 27, 1986. Agent Hogue admitted that he saw defendant upon an additional occasion, approximately two weeks after the alleged sale. Defense counsel asked Agent Hogue if he filed a report of this meeting. During a subsequent direct examination by the People, Officer Hogue testified that he attempted to complete another sale with defendant in late January, but that this sale was not completed because defendant fled after noticing one of the surveillance vehicles. Officer Hogue stated that he did not file a report of this incident because there was no sale.

Agent Hogue was also questioned about the discrepancy between the two case reports of the sale that were filed. Officer Hogue had submitted a police report and an incident report detailing the drug purchase. Agent Hogue testified to the information he wrote in the police report. The police report indicates that defendant spoke with an accent. The report also states that defendant had a scar on the right side of his forehead, that he weighed 145 pounds, and that he was 5 feet 7 inches in height. However, Officer Hogue recorded different information about defendant in his incident report. The incident report described defendant as standing 6 feet tall and weighing 185 pounds. The incident report makes no reference to a scar or an accent.

The defense also summoned Officer Guerra to testify about the discrepancy between the two reports. Agent Guerra testified that the incident report was written by his partner, Officer Slupski. Officer Guerra further testified that the report was typed and initialed by one of the secretaries in the office. Agent Guerra also stated that the police report was written by Officer Hogue and typed and initialed by a different secretary. He also stated that it is not unusual for one agent to copy the information in another agent’s report before submitting the report to be typed. When the People subsequently conducted a direct examination, Officer Guerra testified that the surveillance report and Hogue’s police report were typed by different secretaries. The defense rested.

After both sides made closing arguments, the trial court instructed the jury. The jury instructions were tendered by the People, and the defense made no objections. The jury was allowed to examine the cocaine. However, the judge ruled that the jury was not allowed to keep People’s exhibit No. 2 in the jury room because “it is a controlled substance.” The jury found defendant guilty of delivering a controlled substance.

After the verdict was rendered, defendant moved for a new trial and for an arrest of judgment. (Ill. Rev. Stat. 1985, ch. 38, pars. 116 — 1, 116 — 2.) Defendant argued that his conviction should be reversed based upon discrepancies between Officer Hogue’s testimony and his police reports, because the discrepancy in the reports showed that the People failed to prove a prima facie case. In the alternative, defendant argued that a new trial was warranted because the People violated discovery rules by not informing the defense of the attempted transaction between defendant and the MEG agents which occurred approximately two weeks after the date of the transaction for which defendant was charged. The trial court denied these motions.

At the sentencing hearing, the court heard arguments in aggravation and mitigation. The People argued, in aggravation, that defendant was an immigrant from Belize who sold narcotics instead of taking advantage of the legal opportunities available in the United States. The defense argued, in mitigation, that defendant had lived in the United States for 10 years and that this was his first arrest. The defense also stated that defendant had a wife and two children. The court then sentenced defendant to six years in the Illinois Department of Corrections. Defendant now brings this appeal.

Opinion

I

First, defendant contends that he was denied a fair trial when the court permitted the People to elicit testimony concerning another uncharged delivery of a controlled substance. Defendant believes that he was substantially prejudiced by the introduction of this evidence for the following reasons: First, defendant opines that the officer had a limited opportunity to observe the offender, and the inconsistencies between the description of the offender in the police report and defendant’s physical characteristics cast doubt on the accuracy of the identification of defendant; second, defendant maintains that there was no proof that the second meeting took place, and no satisfactory explanation as to why no report was made of the event.

In the alternative, defendant argues that the trial court should have confined the evidence regarding the meeting to the issue of defendant’s identity. Defendant relies upon People v. Olson (1981), 96 Ill. App. 3d 193, People v. Butler (1978), 63 Ill. App. 3d 132, and People v. Blakely (1972), 8 Ill. App. 3d 78, in support of his assertion.

The People maintain that defendant “opened the door” to questions about the attempted drug sale when defense counsel inquired on cross-examination about other meetings between defendant and the police witness, and where on re-cross-examination defense counsel elicited testimony from the People’s witness about the fact that no report was filed concerning the second meeting. In the alternative, the People argue that the admission of this testimony was harmless error.

The trial court has the discretion to regulate the subject of inquiry and the extent of inquiry during cross-examination. (People v. Williams (1977), 66 Ill. 2d 478, 487.) “The decision with respect to the admissibility of evidence of other crimes, wrongs, or acts will be overturned only if there exists a clear abuse of discretion” (emphasis added) (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence, §404.5, at 202 (5th ed. 1990), citing People v. Funches (1978), 59 Ill. App. 3d 71), and the admission results in manifest prejudice to the defendant. People v. Williams (1977), 66 Ill. 2d 478, 487.

“As a general rule, evidence of other offenses which are separate and distinct from the crime for which a defendant is on trial is inadmissible.” (People v. Goodman (1982), 109 Ill. App. 3d 203, 212.) Usually, evidence of other offenses is inadmissible because it is unfairly prejudicial to the defendant. (People v. Bryan (1987), 159 Ill. App. 3d 46, 51.) “Evidence of ‘other’ crimes [is inadmissible] *** unless it is first shown that the crime *** or act actually took place[,] and that the defendant committed it or participated in its commission.” (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §404.5, at 202 (5th ed. 1990), citing People v. Brozan (1987), 163 Ill. App. 3d 73; People v. Scott (1973), 13 Ill. App. 3d 620.) However, such evidence may be admissible even where defendant has not been proved guilty beyond a reasonable doubt. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §404.5, at 202 (5th ed. 1990), citing Wernowsky v. Economy Fire & Casualty Co. (1985), 106 Ill. 2d 49; see People v. Smith (1972), 3 Ill. App. 3d 958.

The Illinois Supreme Court has held that “a defendant may not interject an issue into his case and then contend that the bringing of it to the attention of the jury was erroneous.” (People v. George (1971), 49 Ill. 2d 372, 379.) Our supreme court has also mandated that “a party cannot complain that evidence which he put into the record is prejudicial to him.” (Casson v. Nash (1978), 74 Ill. 2d 164, 172.) A defendant who procures, invites, or acquiesces in the admission of improper evidence cannot complain with respect to the admission of said evidence. People v. Payne (1983), 98 Ill. 2d 45, 50.

However, there is an exception to the aforementioned rule. In People v. Goodman (1982), 109 Ill. App. 3d 203, this court found that the fact that defense counsel asked questions to counter negative inferences raised by the People did not open the door to extensive testimony concerning other crimes for which defendant was not charged (Goodman, 109 Ill. App. 3d at 213), and that the admission of this information constituted reversible error (Goodman, 109 Ill. App. 3d at 214). The court reasoned that “the erroneous admission into evidence [by defendant,] of another offense with which defendant had been charged and acquitted[,] and the State’s prejudicial comments during closing argument were sufficiently egregious to have deprived defendant of a fair trial.” Goodman, 109 Ill. App. 3d at 214.

We find that the admission of evidence of a second attempted sale was harmless error. Harmless error is “an error committed in the progress of the trial below *** which was not prejudicial to the rights of the party assigning it.” (Black’s Law Dictionary 487 (5th ed. 1979).) Harmless error is error whereby “[defendant] could not have been legally entitled to prevail” even if the error had not been committed. (Black’s Law Dictionary 487 (5th ed. 1979).) “This court has stated that the allowance of inadmissible evidence can or will be held to be harmless error if ‘the alleged erroneously admitted evidence did not prove an element of the crime not established by other properly admitted evidence.’ ” (People v. Lee (1987), 162 Ill. App. 3d 972, 981, quoting People v. Bundy (1979), 79 Ill. App. 3d 127, 134.) Harmless error is “not sufficient in nature or effect to warrant reversal, modification, or retrial.” Black’s Law Dictionary 487 (5th ed. 1979).

We find that the admission of evidence of the additional attempted sale by the trial court constituted harmless error. In this case, as in People v. Goodman (1982), 109 Ill. App. 3d 203, the trial court admitted evidence, elicited on cross-examination, of defendant’s involvement in another criminal act. Furthermore, negative inferences were created by the testimony. However, the error committed by the trial court in Goodman was far more egregious than the error committed by the trial court in the case at bar. The case at bar is distinguishable from Goodman. The instant case is distinguishable because the information elicited about defendant’s other act was elicited by the defense from a witness for the People; whereas, in Goodman the State elicited the fact that defendant was involved in another crime. The case at bar is also distinguishable from Goodman because defendant in the instant case was never arrested or charged for the second attempted sale. See Goodman, 109 Ill. App. 3d at 213.

Therefore, the trial court’s error was harmless. Evidence of defendant’s guilt was overwhelming, and even if the error had not been committed, defendant would not have been entitled to prevail. Furthermore, the evidence admitted did not prove an element of the crime not established by the other properly admitted evidence. Although the trial court could have confined the evidence regarding the second meeting to the issue of defendant’s identity, we find that the trial court’s failure to do so was not reversible error. Therefore, we cannot disturb the court’s finding.

II

Second, defendant alleges that he was denied the effective assistance of counsel when counsel failed to object to jury instructions concerning the jury’s consideration of the uncharged attempted delivery of a controlled substance, or to tender his own appropriate instructions. Defendant maintains that his counsel’s deficiency prejudiced his right to a fair trial. Defendant relies upon Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

The People maintain that defendant received effective assistance of counsel because the totality of counsel’s performance at trial was reasonable and within the range of competence demanded in a criminal case. We find that defendant received effective assistance of counsel at trial.

The United States Supreme Court and the Illinois Supreme Court have established general standards for determining whether a defendant received effective assistance of counsel at trial. The United States Supreme Court has held that in order for a defendant to prove that he has received assistance so ineffective as to require reversal of a conviction, defendant must prove (1) that his counsel made errors so serious, and his performance was so deficient, that he was not functioning in a manner commensurate with the standard established by the sixth amendment, and (2) that these deficiencies so prejudiced defendant as to deprive him of a fair trial with a reliable result. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) The proper standard for attorney performance is that of reasonably effective assistance pursuant to prevailing professional norms. (Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693-94, 104 S. Ct. at 2064-65.) “[A] guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not ‘a reasonably competent attorney’ and the advice was not ‘within the range of competence demanded of attorneys in criminal cases.’ ” (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) In order to establish a deficiency, defendant must overcome the strong presumption that the challenged action, or lack of action, might be the result of “sound trial strategy.” (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.) Even assuming a deficiency, a defendant must still demonstrate prejudice. A defendant who demonstrates that his counsel’s trial performance fell below prevailing professional norms must also show that there is a “reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69.

In the instant case, defense counsel’s performance fell well within the range of competence required for attorneys in criminal cases. Defense counsel actively participated in the jury selection process and filed his answer to discovery. Furthermore, counsel made a motion to exclude witnesses. In addition, the People’s witnesses, Officers Hogue, Guerra, and Larsen, were all cross-examined by the defense attorney. Defense counsel also made timely objections, participated in a sidebar conference concerning the admissibility of testimony, and made a motion and argued for a directed verdict. In addition, defense counsel made a motion for, and argued for, a new trial. Finally, during the sentencing hearing, defense counsel argued in mitigation that defendant had been in the United States for 10 years, that he had never been arrested, and that he had a wife and two children.

We also find that defendant failed to demonstrate prejudice. Defendant has failed to show that the fact finder would have had a reasonable doubt respecting guilt. The jury would have found defendant guilty beyond a reasonable doubt because of the facts of the instant case. The police, who were eyewitnesses to the crime, identified defendant, there was unrefuted evidence offered by a chemist that the substance purchased by the police was cocaine, and, finally, the parties stipulated that the powder which Officer Hogue purchased from defendant was the same powder tested by the chemist.

The Illinois Supreme Court has stated that effective assistance of counsel refers to competent, not perfect, representation and that mistakes in trial strategy, or tactics, or in judgment, do not of themselves render representation incompetent. (People v. Stewart (1984), 104 Ill. 2d 463, 491-92.) The actions of the trial attorney could be considered trial strategy. A reading of the record shows that the strategy of the attorney was to discredit the police officers by showing inconsistencies between the official reports and the actual physical characteristics of defendant. Counsel further sought to discredit the police officers in this case by establishing that they failed to document the third meeting in any of their reports. For the aforementioned reasons, we find that defendant received effective assistance of counsel.

Ill

Third, defendant alleges that he was denied a fair trial when, in the closing argument, the State shifted the burden of proof, misstated the evidence, and articulated its personal opinion with respect to the police officer witnesses in order to bolster their credibility. Defendant maintains that the People shifted the burden of proof to defendant when the prosecutor made the following statement:

“[I]f you believe counsel, you are telling the police officers they are lying, ***. *** [Wjhen [Officer Hogue] said that on the stand that’s the man who sold the cocaine to me, he lied. And I don’t believe that Hogue would do that.” (Defense objection sustained.)

Defendant asserts that the trial court’s admission of this statement constituted plain error.

The People allege, pursuant to People v. Enoch (1988), 122 Ill. 2d 176, defendant waived any objection regarding the first two remarks by failing to raise them in his post-trial motion. Defendant counterargues that the People’s waiver argument is inconsistent with the purpose of the waiver rule and is misplaced in the present case. Defendant relies upon People v. Amos (1985), 140 Ill. App. 3d 14.

The People maintain in the alternative that defendant’s contention is unfounded, that defendant received a fair trial based upon the overwhelming nature of the evidence. The People argue that this may be demonstrated by a proper reading of the full statement in the record. The People correctly assert that defendant’s version of the statement is incomplete, and that the full statement in the record correctly reads as follows:

“These police officers are doing a job. You basically have two things, police officers either did poor paperwork, and that is what they did, or, if you believe counsel, you are telling the police officers you are lying, because they either sold it to a man five foot seven, 155 as listed in the arrest report, because if this man they sold it to was six feet, 185 when he said that on the stand that’s the man who sold the cocaine to me, he lied. And I don’t believe that Hogue would do that.” (Defendant’s objection was sustained.)

We find that defendant waived any objection regarding the first two remarks by failing to raise them in his post-trial motion. Defendant waives appellate review of an issue if he fails to make an objection at trial and submit a written post-trial motion raising the issue of an alleged error. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) “Failure to specify grounds for a new trial in writing in a motion for a new trial has been held *** to constitute waiver of the issue on the review in the absence of plain error.” (Enoch, 122 Ill. 2d at 187.) In the instant case, defendant failed to mention these remarks in his post-trial motion. Furthermore, the People’s remarks did not constitute plain error because the statements were not so prejudicial as to affect defendant’s substantive rights. Accordingly, defendant has waived review of these remarks by this court.

Second, we find that the prosecutor committed harmless error when he asserted his personal opinion with respect to the credibility of Officer Hogue. As a general rule, a prosecutor may not personally vouch for the credibility of a witness. (People v. Martin (1975), 29 Ill. App. 3d 825.) However, improper prosecutorial arguments “generally do not constitute reversible error unless they result in substantial prejudice to the accused.” People v. Baptist (1979), 76 Ill. 2d 19, 29.

In a similar case, the Illinois Supreme Court considered all of the evidence at trial and the court’s instruction to the jury after defendant’s objection was sustained. The court also considered whether “the verdict in the action would have been different absent this single isolated remark.” (People v. Shum (1987), 117 Ill. 2d 317, 347.) The court concluded that the verdict would not have been different absent the prosecutorial arguments and that the prosecutorial arguments did not constitute reversible error.

Similarly, in the case at bar, the court sustained defendant’s objection and properly instructed the jury. Furthermore, in view of the nature of the evidence in this case, as to the guilt of defendant, it is clear that the verdict in this case would not have been different even absent this single isolated remark. The argument did not result in substantial prejudice to the accused in this case. Therefore, the prosecutor’s remarks constituted harmless error.

Finally, defendant alleges that he was denied a fair trial because the prosecutor misstated the evidence in his closing argument. In general, the prosecutor is allowed great latitude in his closing argument. (See People v. Dominique (1980), 86 Ill. App. 3d 794.) Although a prosecutor’s comments may exceed the bounds of proper comment, the verdict may not be disturbed unless the remarks resulted in substantial prejudice to the accused. (People v. Baptist (1979), 76 Ill. 2d 19, 28-29.) Statements based upon facts and circumstances proved, or upon legitimate inferences therefrom, do not exceed proper debate. (People v. Palmer (1970), 47 Ill. 2d 289, 298.) If based upon the evidence, a prosecutor may properly comment upon the credibility of the witnesses. People v. Braxton (1980), 81 Ill. App. 3d 808, 818.

We find that the comments made by the prosecutor in the case at bar were based upon the evidence. There was a discrepancy between Officer Hogue’s paperwork and his testimony. Furthermore, defendant has failed to prove that he was substantially prejudiced by the prosecutor’s remarks. Therefore, we will not disturb the trial court’s verdict.

For the aforementioned reasons, we rule that defendant was not denied a fair trial because the prosecutor’s remarks constituted harmless error, and the prosecutor did not misstate the evidence. Accordingly, we will not disturb the trial court’s ruling.

IV

Fourth, defendant contends that the court committed plain error when it instructed the jury that the People’s exhibit number 2 was a controlled substance when the identity of the substance delivered was to be determined by the jury. Defendant relies upon People v. Santucci (1962), 24 Ill. 2d 93. The People contend that this did not constitute error because the remarks were neither harmful nor prejudicial to defendant. We find that the judge’s comments constituted harmless error.

In People v. Santucci (1962), 24 Ill. 2d 93, the Illinois Supreme Court stated that the “[ultimate decisions of fact must fairly be left to the jury[,] *** it is not the province of the judge, in a criminal case, to convey his opinions on such matters to the jurors by word or deed.” (Santucci, 24 Ill. 2d at 98.) The jury in the instant case was properly instructed that “[a] person who [sic] commits the offense of delivery of a controlled substance when he knowingly delivers a controlled substance.” One element of this offense is that the substance delivered must be a controlled substance. Whether the substance delivered was a controlled substance was an ultimate decision of fact for the jury to determine. We find that the trial judge’s statement constituted error.

In order “[f]or comments by a trial judge to constitute reversible error, the defendant must show that the remarks were prejudicial and that he or she was harmed by the comments.” (People v. Heidorn (1983), 114 Ill. App. 3d 933, 937.) “The verdict will not be disturbed unless the judge’s remarks constituted a material factor in the conviction^] or unless prejudice to the defendant appears to be their probable result.” Heidorn, 114 Ill. App. 3d at 937.

In the instant case, we find that the judge’s remarks did not constitute a material factor in the conviction or bring prejudice or harm to defendant. The record shows that Officer Hogue purchased a substance from defendant, and tests showed that the substance contained cocaine. Furthermore, the parties stipulated that the substance tested by Mr. Larsen, the chemist, was the same substance that Officer Hogue purchased from defendant. In light of this evidence, defendant would have not been entitled to prevail had the judge not erred. Therefore, the trial judge’s statement constituted harmless error.

V

Finally, defendant contends that the trial court abused its discretion by sentencing defendant to six years’ imprisonment. The People maintain that defendant’s sentence was proper because it was within the statutory limits and that sentencing is within the discretion of the trial judge. We find that the sentence was proper.

The trial judge’s decision with respect to sentencing is entitled to great deference and weight and will not be disturbed on appeal absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 154.) The Illinois Unified Code of Corrections provides that a defendant found guilty of the Class 2 felony of the delivery of a controlled substance may be sentenced to a three- to seven-year term of incarceration. Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1.

The Unified Code of Corrections also lists several factors which the trial court must consider in aggravation and mitigation with respect to minimizing or imposing a more severe sentence of imprisonment. Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 5—3.1,1005—5—3.2.

Although a sentencing court must consider factors in mitigation, it is proper for a sentencing court to sentence a defendant with no criminal record to a substantial term of imprisonment for supplying cocaine. People v. Bergman (1984), 121 Ill. App. 3d 100; People v. Atencia (1983), 113 Ill. App. 3d 247.

In making a sentence determination, section 11 of article I of the 1970 Constitution provides that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Emphasis in original.) (People v. Waud (1977), 69 Ill. 2d 588, 596.) However, the objective of restoring the offender to useful citizenship shall not be given greater consideration than the seriousness of the offense. Waud, 69 Ill. 2d at 596.

In the case at bar, the sentencing judge considered all of the appropriate factors in determining defendant’s sentence. The judge stated:

“[Hjaving considered the facts that I heard during the trial of this case which was before a jury, having considered all [of] the information contained in this pre-sentence investigation, also concerning the arguments both in aggravation and mitigation I have heard in this court, *** I will impose a sentence that I feel is appropriate in this particular case.
In taking those into consideration, I do not believe that the maximum sentence [for] incarceration *** is appropriate in this case.
But I do believe that a period of incarceration is necessary. It’s necessary to deter this individual from this type of act in our society. The sale, delivery of controlled substances.
It is necessary to deter other individuals ***.
I believe that this individual, because of the crime he committed[,] *** is making money from society’s weaknesses. And that must be punished.
Accordingly, I will impose a sentence I feel is appropriate *** [and] the sentence will be one of 6 years ***.
Even though the Defendant has no prior convictions, this defendant has come to this country, taken advantage of the benefits of this country, but yet he has committed a serious crime ***.”

The record reflects that the sentencing judge reached his decision after a great deal of careful thought and deliberation. It is not the function of a reviewing court to serve as a sentencing court. We may not substitute our judgment for that of the trial court merely because we might have imposed a different sentence had the function to sentence defendant been delegated to us. (People v. Waud (1977), 69 Ill. 2d 588, 596.) The judge properly considered factors in aggravation and mitigation and the seriousness of the offense. Furthermore, the sentence of six years is permitted by the statute. Accordingly, we find that defendant has failed to show the trial court abused its discretion by sentencing him to a term of six years in the Illinois Department of Corrections.

For the aforementioned reasons, we affirm defendant’s conviction. As a part of our judgment, we grant the People’s request for costs of $50 for defending this appeal pursuant to People v. Nicholls (1978), 71 Ill. 2d 166. In addition, we grant the People’s request for $25 for the oral argument pursuant to People v. Agnew (1985), 105 Ill. 2d 275.

Affirmed.

LINN and McMORROW, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD GILES, Defendant-Appellant.
    First District (4th Division)
    No. 1-89-0221
    Opinion filed January 17, 1991.

      Anita Rivkin-Carothers, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David R. Butzen, and Howard D. Weisman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a bench trial, defendant, Reginald Giles, was found guilty of attempted first degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4, 9 — 1), aggravated battery (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 4(b)(1), (b)(8)), and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2). Defendant was sentenced to 16 years’ imprisonment and fined $4,500 on the respective counts.

On appeal, defendant seeks reversal of his conviction or, in the alternative, reversal of his conviction and remand of the cause for a new trial. Defendant raises the following issues for our review: (1) whether he was denied effective assistance of counsel, and (2) whether his retrial was barred by double jeopardy.

We affirm.

Defendant was charged by indictment with attempted first degree murder, aggravated battery, and armed violence as a result of allegedly shooting Steven Winbush. Winbush was shot on a street in the vicinity of 45th Street and Cottage Grove Avenue, in Chicago. The incident occurred on October 16, 1987, at approximately 6:30 a.m.

Defendant’s bench trial commenced on September 21, 1988. Opening statements were waived by the parties. The first witness the State called to testify was Geraldine Claytor. Claytor had known Winbush for six years and was with him the morning of the shooting. She testified that she had requested Winbush’s assistance in moving some of her personal effects from Winbush’s trailer to her new apartment located near 45th Street and Cottage Grove Avenue. Winbush had begun moving the items from his trailer the evening of October 15, 1987.

At approximately 5 a.m. on October 16, Winbush left Claytor’s apartment. Sometime thereafter, Claytor left her apartment to look for Winbush. As she approached the newsstand at 45th Street and Cottage Grove Avenue, she heard Winbush call to her. When she saw Winbush, she began walking toward him. At that time, she also saw defendant getting out of a small compact car. Claytor testified that defendant also proceeded to walk toward Winbush.

At this point in the trial, Claytor’s testimony was interrupted by the trial judge. The trial judge called the attorneys into his chambers to determine whether defendant’s counsel was intoxicated. Defendant’s counsel admitted that he had been drinking since the night before trial. The trial judge then asked defendant if he wanted to continue with the trial, as his attorney was under the influence of alcohol. Defendant responded that he did not wish to continue with the trial. The trial judge then declared a mistrial.

Defendant’s counsel was then told to have his partner, Leonard Schultz, assume defendant’s representation at the new trial. A five-minute recess was called, and shortly thereafter defendant’s trial was again commenced with Schultz conducting the defense. Claytor was once again called by the State to testify. She essentially repeated her testimony from the first trial. She also testified that she saw defendant shoot Winbush four or five times. Claytor was standing approximately 20 feet away from the parties when the shooting began. Defendant shot Winbush at point-blank range. After shooting Win-bush, defendant pointed the gun at Claytor and stated, “You better watch out.” Defendant then fled.

The next witness the State called was Steven Winbush, who corroborated Claytor’s testimony. He testified that he had no gang affiliations but he was aware that defendant’s brother had been shot by an unknown assailant on October 15, 1987. Winbush testified that he did not shoot defendant’s brother.

As a result of the shooting, Winbush underwent a series of operations. He lost his spleen and part of his colon. He also sustained injuries to his kidneys, stomach, and upper and lower intestines. One of the bullets is still lodged in his body. Winbush testified that defendant was the man who shot him. After Winbush’s testimony, the State rested.

The defense called Keisha Pulliam, defendant’s niece. Keisha testified that she was at Billings Hospital, located at 59th Street and Cottage Grove Avenue, the morning of October 16, 1987, from 4 a.m. until she left for school between 6:30 and 7 a.m. She was at the hospital because one of her other uncles, Frank Bradley, had been shot the previous night. According to Keisha, defendant joined her at the hospital between 4 and 4:30 a.m. Keisha testified that defendant was still at the hospital when she left to attend school.

Karee Cooks, defendant’s sister, testified that she was also at the hospital with defendant the morning of October 16, 1987. According to Cooks, defendant was at the hospital from 4:30 until 8:30 a.m.

Defendant chose to testify in his own defense. He stated that on the morning of October 16, 1987, he was at his place of employment. Defendant is a security guard at Cesar’s Palace. He left Cesar’s Palace at approximately 3:30 a.m. and arrived at Billings Hospital at approximately 4 a.m., where he remained until 8:30 or 9 a.m. Defendant denied shooting Winbush.

At the close of the evidence, defendant was found guilty of all counts in the indictment and sentenced to 16 years to be served in the Illinois Department of Corrections. He was also fined $4,500. The trial court arrived at its decision based upon the testimony of Geraldine Claytor and Steven Winbush. Defendant now appeals from the the trial court’s decision.

The first issue defendant raises is that he was denied effective assistance of counsel. He posits five theories to support this contention. In Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, the United States Supreme Court set forth the following two-prong test to determine whether a defendant has been denied effective assistance of counsel: (1) the defendant must show that counsel’s representation fell below an objective standard of reasonableness, and (2) the defendant must show that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

Moreover, there is a strong presumption that counsel’s conduct falls within the reasonableness standard; defendant must also overcome the presumption that the chaUenged conduct might be considered sound trial strategy under the circumstances. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.) There must be a reasonable probability that the outcome would have been different had it not been for counsel’s ineffective representation. (People v. Bryant (1989), 128 Ill. 2d 448, 458.) We do not find that the outcome of the instant case would have been different but for defense counsel’s conduct in any of the five instances of ineffective representation that defendant alleges. Nor do we find that the cumulative effect of these alleged instances would warrant a finding of ineffective representation by defendant’s counsel.

First, defendant contends that original trial counsel was able to conduct his defense and should not have been dismissed from the case. He also argues that his original counsel’s failure to object to the sua sponte declaration of a mistrial is tantamount to actual incompetence. We disagree. Defendant’s original trial counsel admitted that he was under the influence of alcohol. The trial judge observed that defendant counsel could not even walk. If counsel had trouble with his equilibrium, he certainly could not be expected to conduct a trial. We find that the trial judge, in dismissing defendant’s original counsel, was protecting defendant’s right to a fair trial with competent representation.

Furthermore, prior to declaring a mistrial, the trial judge asked defendant whether he wanted to continue his trial with his current attorney. Defendant responded that he wanted a retrial. Defendant cannot now fault counsel for failure to object to the mistrial when it was defendant’s choice not to continue with the trial. In effect, defendant is now asking this court to override his previous decision.

Defendant’s contentions are contradictory: on one hand, he argues that his original counsel was competent to conduct his defense, while, on the other hand, he argues that it was incompetent of his original counsel not to have objected to the declaration of a mistrial. We find defendant’s arguments contradictory, and we will not, here, reconcile such conflicting theories. Defendant’s contentions are without merit with respect to this issue.

Second, defendant argues that his new trial counsel was generally unprepared to try the case. He contends that counsel should have asked for a continuance to prepare for trial. He reasons that the additional time would have allowed counsel to adequately interview his two alibi witnesses. However, after carefully reviewing the record, we do not find that defendant’s new counsel was unfamiliar with the case. We note that not only was Schultz a partner of the original trial counsel, but it was Schultz who responded to the State’s discovery request prior to the start of trial.

The record also reveals that Schultz interviewed both of the so-called alibi witnesses prior to their testimony. More importantly, we note that neither alibi witness told the police or the State’s Attorney that she was with defendant during the time that Winbush was shot. According to alibi witness Karee Cook, she told Schultz three days prior to her testimony that she was with defendant at the time of the shooting. Alibi witness Keisha Pulliam told Schultz of defendant’s alibi the day before her testimony.

The issue then becomes not whether defendant’s trial counsel was ineffective, but, rather, whether these alibi witnesses provided credible testimony. Witness credibility is a matter for the trier of fact to determine. Determinations as to the weight and credibility given to a witness in a nonjury trial are an exclusive function of the trial court. People v. Reynolds (1983), 94 Ill. 2d 160, 165.

The trial court found defendant guilty based upon the eyewitness testimony of Steven Winbush and Geraldine Claytor. Winbush and Claytor identified defendant as the assailant. The testimony of these witnesses was credible. The court chose not to give weight to the alibi testimony. “Where identification of the accused is at issue, *** the testimony of a single witness is sufficient to support a conviction even in the presence of contradictory alibi testimony, provided that the witness is credible and viewed the defendant under circumstances which would permit a positive identification.” (People v. Spicer (1987), 163 Ill. App. 3d 81, 92.) We defer to the trial court’s judgment with respect to this credibility issue.

Third, defendant alleges ineffective assistance of counsel for failure to call Mrs. Janie Walker as an alibi witness. Defendant claims that Mrs. Walker, who was a nurse at Billings Hospital and who has since died, would have testified that defendant was at his brother’s bedside at the time of the shooting.

Original defense counsel had a list of defendant’s alibi witnesses. There were three alibi witnesses. Two of the alibi witnesses were called to testify; the third, Mrs. Walker, was not called upon to testify. As the State correctly argues, decisions as to whether or not to call certain witnesses are considered to be a matter of trial strategy and, thus, are beyond the scope of review. (People v. Spicer (1987), 163 Ill. App. 3d 81, 93.) Defendant has not rebutted the strong presumption that his counsel’s decision was not merely a matter of strategy. (Strickland v. Washington (1984), 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694-95, 104 S. Ct. 2052, 2065.) Further, had defense counsel elected to have Mrs. Walker testify and if she had corroborated defendant’s alibi, the testimony would have only been cumulative.

Defendant also claims ineffective assistance of counsel for failure to interview Mrs. Walker. However, even if Mrs. Walker had consented to an interview, the result in the instant case would not have been different due to the overwhelming eyewitness testimony against defendant. There must be a reasonable probability that the outcome would have been different had it not been for the alleged ineffective representation. People v. Bryant (1989), 128 Ill. 2d 448, 458.

Fourth, defendant argues that Schultz did not provide him with effective assistance of counsel because he failed to investigate Winbush’s criminal history prior to trial. Defendant contends that such information could have been used to impeach Winbush or to show Winbush’s propensity to violence. Defendant specifically refers to the fact that Winbush was charged with carrying a gun one month after the occurrence in this case. This charge, however, did not result in a conviction.

Moreover, the fact that Winbush was carrying a gun is irrelevant to the issues raised by defendant. Carrying a gun is not necessarily indicative of a violent or aggressive nature. It is conceivable that Winbush carried the gun as a means of protection as he had just been shot the previous month for no apparent reason. Even assuming, arguendo, that it was error not to bring this fact out at trial, based on the overwhelming evidence against defendant, the error was harmless. The impeachment would not have resulted in defendant's acquittal. We, therefore, find this contention without merit.

Defendant’s fifth and final argument with respect to his ineffective assistance of counsel claim is that counsel did not ask for a recess prior to defendant’s testimony. Defendant contends that a recess should have been requested in order to prepare his testimony. We, however, after carefully examining the record, do not find that defense counsel’s direct examination of defendant to be deficient.

Furthermore, it was at defendant’s request that he be allowed to testify; defendant did not request any time to prepare for his own testimony. Moreover, during the direct examination of defendant, Schultz elicited testimony detailing his alleged alibi. Schultz also brought out the positive aspects of defendant’s background and allowed defendant to explain the negative aspects of his past. We also find this contention to be without merit.

The second issue defendant raises is whether his retrial should have been barred by double jeopardy. The United States Constitution guarantees that no person shall be put in jeopardy twice for the same offense. (U.S. Const., amend. V.) Defendant contends that his constitutional rights were violated when after the State’s first witness had been sworn, and testimony begun, the trial judge declared a mistrial.

The declaration of a mistrial, however, does not bar a retrial in all circumstances. (People v. Escobar (1988), 168 Ill. App. 3d 30, 36-37.) There is no barrier to reprosecution if the mistrial was “attributable to the defendant by virtue of his motion or consent.” (People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 508.) However, defendant reasons that his failure to object to the trial court’s sua sponte declaration of a mistrial was not a consent to the mistrial.

Defendant analogizes his case to People v. Camden (1986), 140 Ill. App. 3d 480, in which the appellate court held that, as a matter of law, “[djefendant’s silence and failure to object to the court’s declaration of a mistrial sua sponte does not constitute consent to a mistrial so as to permit retrial.” Camden, 140 Ill. App. 3d at 485.

This decision, however, was reversed by the Illinois Supreme Court. (See People v. Camden (1987), 115 Ill. 2d 369.) Our supreme court held that defendant had implicitly consented to the mistrial as evidenced by his failure to object to the mistrial and his course of conduct after the mistrial was declared. Camden, 115 Ill. 2d at 378-79.

In the instant case, defendant explicitly consented to a mistrial. We, therefore, find that double jeopardy does not bar reprosecution of defendant under the facts of this case.

Although the issue of defendant’s fine of $4,500 was not raised on appeal, this court may review the propriety of this penalty. (People v. White (1972), 5 Ill. App. 3d 205, 207.) As we find no basis in the record for this fine, we vacate this penalty pursuant to Supreme Court Rule 615(b)(4), which provides: “On appeal the reviewing court may reduce the punishment imposed by the trial court.” 107 Ill. 2d R. 615(b)(4); see also People v. Tecza (1972), 4 Ill. App. 3d 1058, 1061.

For the foregoing reasons, we affirm the trial court’s finding of guilt and we vacate the $4,500 fine. As part of this judgment, we grant the State’s request that defendant be assessed $75 as costs and fees for this appeal pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nicholls (1978), 71 Ill. 2d 166.

Judgment affirmed; fine vacated.

JIGANTI, P.J., and McMORROW, J., concur.