author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL BRYANT, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—1822
    Opinion filed August 16, 1990.

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

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Michael Bryant, and codefendant Donald Elam were convicted of murder, attempted murder, armed robbery, home invasion, and residential burglary. Bryant was sentenced to 80 years’ imprisonment for the murder conviction; 30 years’ imprisonment for the attempted murder, armed robbery, and home invasion convictions; and 15 years’ imprisonment for the residential burglary conviction. The 15- and 30-year terms were to run concurrently with each other, but consecutive to the 80-year term. On appeal, defendant raises the following issues for review: (1) his fifth amendment right to the assistance of counsel was violated when the trial court admitted into evidence uncounseled, incriminating statements which were elicited after he had invoked his right to counsel; (2) defendant was denied a fair trial when the trial court improperly admitted evidence of other charges against defendant, which were not material to the pending case and which may have led the jury to believe he had a propensity to commit crimes; (3) defendant was denied a fair trial where the trial court summarily rejected the jury’s request for a copy of the transcript of the complaining witness’ testimony, and the court refused the jury’s request to define “abet”; and (4) the trial court used the wrong standard to evaluate defendant’s objection to the State’s use of its peremptory challenges. Defendant also claims that the extended-term sentencing structure under which the court sentenced him is unconstitutionally vague.

We affirm.

Background

Lee Cavanaugh testified that he was sitting in the kitchen of his apartment when his wife, Imogene, returned home from work at approximately 6 p.m. on the evening of February 7, 1986. Cavanaugh recalled that when his wife entered the apartment, she was accompanied by a man (later identified as Donald Elam) who was holding a knife to her throat. Cavanaugh also recollected that his wife’s hands were handcuffed behind her back. Several minutes later, another man (later identified as defendant) entered the Cavanaughs’ apartment. Defendant was also carrying a knife. Shortly after defendant entered the apartment, he began to stab Cavanaugh, who then grabbed a knife from the kitchen to defend himself. While Cavanaugh and defendant were “cutting at each other,” Elam told Cavanaugh that he would slit his wife’s throat if Cavanaugh did not surrender. Cavanaugh surrendered and gave his knife to the intruders.

Elam and defendant tied Cavanaugh’s hands behind his back.

They laid Cavanaugh on the front room floor next to his wife. Elam and defendant then searched the apartment for money and valuables.

Next, Elam and defendant took Cavanaugh into the couple’s bedroom. They tied Cavanaugh’s feet together with a belt and stabbed him 10 to 15 times in the chest and back before leaving the room. A short time later, Cavanaugh was able to loosen the belt around his feet, and he began kicking the floor. His attackers returned to the bedroom and stabbed Cavanaugh repeatedly around the throat.

Shortly thereafter, the assailants left the apartment. When Cavanaugh realized that Elam and defendant had departed, he dragged himself up from the floor. Cavanaugh went to the front hall and kicked his neighbor’s front door. The neighbor’s child opened the door, and Cavanaugh asked him to call the police and fire department. Cavanaugh was subsequently taken to the hospital, where he remained for “three to four months.”

Chicago police officer Phillip Kelly testified that on February 7, 1986, he and his partner, Alfred Schultz, were dispatched to the Cavanaughs’ apartment to investigate the report of “a man bleeding.” Kelly testified that the Cavanaughs’ apartment had been ransacked and was splattered with blood. Kelly found Imogene Cavanaugh lying on the bedroom floor in a pool of blood. She was wearing her winter coat, her hands were handcuffed behind her back, and she was unconscious. After the paramedics removed Imogene Cavanaugh’s coat, the police officers noticed that a butcher knife was protruding from her rectum.

Assistant Cook County Medical Examiner Dr. Tae An testified that her post-mortem examination of Imogene Cavanaugh revealed two stab wounds. Dr. An noted that Imogene Cavanaugh had been stabbed underneath the chin and in the rectum. Dr. An concluded that Mrs. Cavanaugh had died from stab wounds which had lacerated her carotid artery, rectum, and vagina.

Everett Andre Smith testified that on February 12, 1986, at approximately 10:20 p.m., defendant, defendant’s sister, and Elam came to his home. At this time, Elam was carrying a stereo receiver. After some discussion, Smith gave $40 for the stereo receiver. Approximately three hours later, defendant and Elam returned to Smith’s home. At that time, defendant and Elam asked Smith if he wanted to buy some watches, diamond earrings, and a pistol. Smith declined to purchase these items. Earlier during the trial, Lee Cavanaugh had identified the stereo receiver and the watches as his property.

Chicago police detective Patrick Mokry testified that on March 19, 1986, he and several other police officers conducted a lineup at Little Company of Mary Hospital so that Lee Cavanaugh could view and possibly identify the offenders who had invaded his home. Mokry recalled that after Cavanaugh viewed the lineup for the second time, he identified Elam and defendant as the offenders.

Chicago police detective Barry Costello testified that on February 13, 1986, he arrested defendant in connection with an unrelated armed robbery and aggravated battery. Costello also served defendant with a warrant on an unrelated burglary.

Chicago police detective Stephen Brownfield testified that on March 19, 1986, he picked up defendant from Cook County jail pursuant to a court order and transported him to Area Two Police Headquarters for questioning on the instant offense.

Assistant State’s Attorney McNerney testified that on March 19, 1986, he was participating in the investigation relating to Imogene Cavanaugh’s murder. McNerney spoke to the police officers who were investigating the Cavanaugh murder and reviewed their reports of the incident. Later that afternoon, McNerney had two separate discussions with defendant. During the first discussion, defendant informed McNerney that he was hungry and thirsty. Defendant was then given some food and a soda. Later that afternoon, at approximately 4 p.m., McNerney returned to question defendant about his involvement in the Cavanaugh murder. Before McNerney questioned defendant, he read him his Miranda rights. McNerney thereafter obtained a statement from defendant which was recorded and transcribed by a court reporter.

Defendant’s statement set forth his role in the attack on the Cavanaughs. Before trial, defendant moved to suppress this confession on the grounds that the police violated his fifth amendment right to have counsel present during the custodial interrogation in which he inculpated himself. The trial court denied defendant’s motion to suppress, and defendant’s statement was read into the record at trial.

During questioning, defendant stated that he and Elam followed Mrs. Cavanaugh home from the bus stop on the evening of February 7, 1986, because they wanted to “snatch her purse.” Defendant recalled that when they arrived at the vestibule of the Cavanaughs’ apartment building, Elam handcuffed Mrs. Cavanaugh. Elam and defendant then accompanied Mrs. Cavanaugh into her apartment, where Lee Cavanaugh was waiting for her to return home from work. The intruders tied Cavanaugh’s hands behind his back with a telephone cord. Elam and defendant then ransacked the apartment in their search for money and valuables.

Later, Elam and defendant took the Cavanaughs into separate rooms. Elam directed defendant to stab Cavanaugh. The defendant stabbed Cavanaugh in the side, and then Elam stabbed Cavanaugh with a butcher knife. After Elam bagged some of the Cavanaughs’ valuables, the pair left the apartment. Later that evening, Elam told defendant that he had had sex with Mrs. Cavanaugh and then stabbed and killed her and her husband.

Opinion

I

In order to address defendant’s fifth amendment argument, we first set forth the facts relevant to the resolution of this issue. The record discloses that on February 13, 1986, defendant was arrested and charged with armed robbery and aggravated battery. Later that day, the court appointed counsel to represent defendant on those charges. On March 19, 1986, Detective Brownfield picked up defendant from Cook County jail, where he was being held on the armed robbery and aggravated battery charges, and transported defendant to Area Two Police Headquarters to be interrogated about the murder of Imogene Cavanaugh. After Assistant State’s Attorney McNerney twice advised defendant of his Miranda rights, defendant gave both an oral and a court-reported statement that implicated him in the instant offense. These are the statements which defendant now seeks to suppress.

Defendant maintains that he invoked his fifth amendment right to counsel when he accepted counsel at the time formal proceedings were initiated on the armed robbery and aggravated battery charges. Defendant claims that his invocation of his fifth amendment right to counsel remained in effect while he was custodially interrogated about the Cavanaugh murder. Defendant therefore reasons that his fifth amendment right to counsel was violated when the police questioned him about the Cavanaugh murder outside of the presence of his previously appointed attorney.

In response, the State maintains that defendant’s statements inculpating him in the instant offense were not obtained in violation of his fifth amendment right to counsel merely because defendant was in custody at the time on an unrelated charge and had retained counsel to defend him on the first set of charges.

The fifth amendment guarantees that “[n]o person *** shall be compelled in any criminal case to be a witness against himself.” (U.S. Const., amend. Y.) The fifth amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations. Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.

In Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, the Supreme Court implemented a rule to ensure the integrity of the fifth amendment:

“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612.

The Miranda Court further noted that if the accused indicates “at any stage of the process that he wishes to consult with an attorney before speaking[,] there can be no questioning.” (Miranda v. Arizona, 384 U.S. at 444-45, 16 L. Ed. 2d at 707, 86 S. Ct. at 1612.) In implementing this rule, the Court was concerned that some confessions might not be procured voluntarily, but, rather, through “interrogation practices which are likely to exert such pressure upon an individual as to disable him from making a free and rational choice.” Miranda v. Arizona, 384 U.S. at 464-65, 16 L. Ed. 2d at 718, 86 S. Ct. at 1622-23.

Defendant cites several cases to support his claim that his fifth amendment right to counsel was violated when the State interrogated him about the Cavanaugh murder outside of the presence of his previously appointed counsel. Defendant relies, in part, on Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093, to support his contention that his fifth amendment right to counsel was violated because he had already requested the assistance of counsel with respect to the first set of charges when he was custodially interrogated about the Cavanaugh murder.

In Roberson, the defendant was arrested for burglary. A police officer advised the defendant of his Miranda rights. In response, the defendant informed the police officer that he wanted to speak to an attorney before he answered any questions. Although the arresting officer noted this fact in his written report of the incident, the defendant was not given an opportunity to consult with an attorney. Three days after the initial interrogation, and while the defendant was still in custody, another police officer advised the defendant of his Miranda rights and questioned him about an unrelated burglary. The second police officer was unaware that the defendant had requested an opportunity to speak with counsel when he was questioned about the first burglary charge. During this second interrogation, the defendant made an incriminating statement about the second burglary which he later sought to have suppressed.

The Supreme Court determined that the defendant’s incriminating statement was obtained in violation of his fifth amendment right to counsel. The Court held that the rule enunciated in Edwards v. Arizona precluded the authorities from interrogating an accused following the accused’s request for counsel in the context of a separate investigation. (Roberson, 486 U.S. at 682, 100 L. Ed. 2d at 714, 108 S. Ct. at 2098.) The Court specifically noted that “the presumption raised by a suspect’s request for counsel — that he considers himself unable to deal with the pressures of custodial interrogation without legal assistance — does not disappear simply because the police have approached the suspect, still in custody, still without counsel, about a separate investigation.” Arizona v. Roberson, 486 U.S. at 683,100 L. Ed. 2d at 715, 108 S. Ct. at 2099.

Arizona v. Roberson is distinguishable from the case at bar in at least one important respect. After the police officer advised Roberson of his Miranda rights, Roberson declined to answer any questions before he met with an attorney. However, before an attorney was appointed to represent Roberson, the second police officer again advised Roberson of his Miranda rights, reinterrogated him, and obtained from him the incriminating statement which he later sought to have suppressed. Here, in contrast, the defendant was not only advised of his right to counsel with respect to the first set of charges — he requested, and obtained, counsel to represent him at the proceedings relating to this first set of charges. Later, when defendant was questioned about the Cavanaugh murder while still in custody on the first charges, he was again advised of his Miranda rights. However, defendant then waived these rights, answered the questions posed to him, and thereafter incriminated himself.

The instant record clearly indicates that defendant did not request that his previously appointed attorney be present while he was being interrogated about the Cavanaugh murder. Further, the record does not indicate that the police pressured or “badgered” defendant into confessing that he was involved in the Cavanaugh murder. We therefore reject the defendant’s argument that Arizona v. Roberson is dispositive of his fifth amendment claim.

The defendant also relies on United States ex rel. Espinoza v. Fairman (7th Cir. 1987), 813 F.2d 117. Specifically, defendant argues that by requesting and accepting the representation of counsel on the unrelated charges, he invoked both his fifth amendment right to counsel, which applies to custodial interrogations, and his sixth amendment right to counsel, which attaches once formal criminal proceedings are initiated.

In Espinoza, the accused was arrested on a weapons charge. He was subsequently represented by counsel at the arraignment on this charge. While the defendant was in custody on the weapons charge, police officers advised him of his Miranda rights and thereafter questioned him about a murder. The defendant was not represented by counsel at this interrogation, during which he confessed to the murder.

The Seventh Circuit determined that the defendant’s confession to the murder was inadmissible because he had earlier invoked his fifth amendment right to counsel; that the invocation remained in effect because the custodial interrogation occurred while the defendant remained in continuous police custody; and that because the State initiated the interrogation, the defendant was incapable of waiving his right to counsel. Espinoza, 813 F.2d at 122.

We note that the Espinoza decision conflicts with the Illinois Supreme Court’s decision in People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228, cert, denied (1984), 469 U.S. 935, 83 L. Ed. 2d 270, 105 S. Ct. 334. In Martin, the defendant was arrested and was taken into custody on a rape charge. A public defender was appointed to represent the defendant on that charge. While the defendant was still in custody on the rape charge, he was taken from one part of the jail to another for questioning on an unrelated murder charge. At first, the defendant stated that he did not know anything about the murder. Later, the defendant admitted that he had participated in the murder. Following this oral statement, the assistant State’s Attorney assigned to the case read the defendant his Miranda rights, questioned the defendant further, and then took a written statement from him.

In addressing the defendant’s fifth amendment claim, the Martin court focused on whether the defendant was properly advised of his fifth amendment right to counsel, and, if so, whether he knowingly and voluntarily waived this right. The defendant in Martin relied, in part, on Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, to support his claim that he did not knowingly and voluntarily waive his fifth amendment right to the presence of counsel while he was being custodially interrogated on the unrelated murder charge.

The Illinois Supreme Court declined to apply Edwards to the facts in Martin. The court noted that Edwards held that once a suspect invokes his right to counsel during custodial interrogation, he cannot be questioned further until counsel has been made available, unless the suspect himself initiates further dialogue. (Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.) However, the court determined that since the defendant in Martin did not invoke his right to counsel either in response to the Miranda warnings or at any time while he was being interrogated for murder, the Edwards rule did not apply. Further, the court noted that the defendant in Martin was advised of his Miranda rights prior to questioning, stated that he understood those rights, and proceeded to make oral and written statements without requesting an attorney or indicating that he wished to remain silent. Therefore, based on the facts and circumstances presented, the Martin court found that the defendant was properly advised of his fifth amendment right to counsel and that he knowingly and voluntarily waived this right.

The Illinois Supreme Court’s decision in People v. Hicks (1989), 132 Ill. 2d 488, 548 N.E.2d 1042, cert, denied (1990), 495 U.S. 938, 109 L. Ed. 2d 515, 110 S. Ct. 2187, is consistent with Martin. In Hicks, the defendant made incriminating statements about his involvement in a burglary while a police officer was driving him to a correctional center several days after the court had appointed an attorney to represent the defendant at his arraignment on this charge. Hicks inculpated himself after the police officer had already advised Hicks that he could not talk to him about the case because an attorney had been appointed to represent him.

In addressing Hicks’ fifth amendment claim, the Illinois Supreme Court determined that Hicks knowingly and intelligently waived his fifth amendment right to counsel. (People v. Hicks, 132 Ill. 2d at 495-96, 548 N.E.2d at 1045.) The court reached this result after noting that the police officer had advised Hicks of his Miranda rights on several occasions, and Hicks was sufficiently familiar with the criminal justice system to realize that “he had the right to keep quiet until his attorney was present.” 132 Ill. 2d at 493, 548 N.E.2d at 1044.

Further, the Supreme Court’s recent decision in Butler v. McKellar (1990), 494 U.S. 407, 108 L. Ed. 2d 347, 110 S. Ct. 1212, is consistent with the approach taken by the Illinois Supreme Court in Martin and Hicks. In Butler, the defendant was arrested on assault and battery charges. The defendant retained counsel, who represented him at the bond hearing held on these charges. The defendant was later taken from jail to the police department for questioning about an unrelated murder. After receiving his Miranda warnings, the defendant indicated that he understood his rights and signed two written waivers. He did not request that his previously appointed attorney be called. The defendant confessed to the murder during this interrogation. At trial, he unsuccessfully sought to have this confession suppressed because it was obtained in violation of his fifth amendment right to counsel.

After the defendant was convicted of murder, he filed a petition for Federal habeas relief, which the district denied. The Fourth Circuit Court of Appeals affirmed. (Butler v. Aiken (4th Cir. 1988), 846 F.2d 255.) In addressing the defendant’s fifth amendment claim, the Fourth Circuit noted that

“a properly initiated interrogation on [an] entirely different chargef ] [did] not intrude into an accused’s previously invoked rights but [instead] offers [the] accused an opportunity to weigh his rights intelligently in light of changed circumstances. When, as occurred in this case, the accused then freely waives any constitutional right to counsel and provides voluntary statements of an incriminating nature, there is no justification for undermining the search for [the] truth by suppressing those statements.” Butler, 846 F.2d at 259.

The Supreme Court affirmed the Fourth Circuit’s decision that the defendant’s confession was not obtained in violation of his fifth amendment right to counsel. Butler v. McKellar (1990), 494 U.S. 407, 108 L. Ed. 2d 347, 110 S. Ct. 1212.

In light of the Supreme Court’s decision in Butler v. McKellar, we find that the reasoning employed by the Illinois Supreme Court in People v. Martin remains sound. Martin is therefore controlling on the case at bar. In fact, Martin and the instant case are, on their facts, virtually indistinguishable from one another. As was the case in Martin, defendant in the case at bar was initially arrested and taken into custody on charges unrelated to those on which he was later questioned. A public defender was appointed to represent both Martin and defendant in the instant case. As was also the case in Martin, defendant, while still in custody on the first charges, was given his Miranda rights when the police questioned him about the Cavanaugh murder. The defendant waived his Miranda rights and thereafter implicated himself in the Cavanaugh murder.

Our review of the instant record discloses that defendant’s admissions regarding his role in the Cavanaugh murder were not obtained in violation of the fifth amendment because he was admonished under Miranda on two occasions. Significantly, defendant did not invoke his right to counsel after Assistant State’s Attorney McNerney advised defendant of his Miranda rights or at any time during questioning. The record indicates that defendant understood the meaning and import of the Miranda rights and that he was aware of the nature of the questioning. Further, because defendant had requested and received counsel to represent him at the bond hearing on the armed robbery and aggravated battery charges, it is apparent that he was familiar with the role which an attorney would play during interrogation. Also, the record does not disclose that defendant asked the authorities to cease questioning at any point so that his previously appointed attorney could be summoned. Based on the foregoing evidence, we conclude that defendant knowingly, voluntarily, and intelligently waived his fifth amendment right to counsel when he was questioned about the Cavanaugh murder. See, e.g., People v. Pittman (1973), 55 Ill. 2d 39, 52, 302 N.E.2d 7, 14; People v. Brooks (1972), 51 Ill. 2d 156, 164, 281 N.E.2d 326, 332 (when an individual has been admonished of his rights and indicates that he understands them, his giving of a statement without requesting a lawyer is some evidence that he has chosen to waive a known right); see also People v. Jackson (1990), 198 Ill. App. 3d 831, 844 (defendant waived his fifth amendment right to counsel when he was advised of his Miranda rights before being questioned on an unrelated offense and did not indicate that he was unable or unwilling to deal with police questioning without the aid of counsel).

II

Next, defendant challenges two aspects of the trial court’s rulings on the admissibility of certain evidence and testimony. First, defendant argues that the trial court improperly allowed Detective Costello to testify that he initially arrested defendant on charges of armed robbery and aggravated battery, and that, at the same time, he also served a warrant on defendant for another unrelated offense. Second, defendant alleges that the trial court improperly admitted into evidence, and allowed the jury to take back to the jury room, a copy of the order authorizing Detective Brownfield to pick up defendant from jail and transport him to Area Two Police Headquarters for questioning about the Cavanaugh murder. In response, the State maintains that the trial court properly admitted this evidence and testimony so that the jury could understand the steps taken in the investigation of the homicide which led to the defendant’s arrest and the circumstances surrounding his confession to the Cavanaugh murder.

The trial court has the discretion to decide which evidence is admissible; this court will not reverse the trial court’s decision unless it has abused its discretion. (People v. Guyon (1983), 117 Ill. App. 3d 522, 530, 453 N.E.2d 849, 857.) In deciding whether to admit evidence of an unrelated crime which defendant allegedly committed, the trial court must balance the relevancy of the evidence offered against its tendency to inflame or prejudice the jury. (People v. Copeland (1978), 66 Ill. App. 3d 556, 559, 384 N.E.2d 391, 394.) The evidence is inadmissible if it is offered merely to establish the defendant’s propensity to commit crime. People v. Stewart (1984), 105 Ill. 2d 22, 60, 473 N.E.2d 840, cert, denied (1985), 471 U.S. 1131, 86 L. Ed. 2d 283, 105 S. Ct. 2666.

Our review of the instant record indicates that the trial court did not abuse its discretion in allowing Detective Costello to testify that an unrelated burglary warrant was outstanding on defendant at the time he was arrested on the armed robbery and aggravated battery charges. Contrary to defendant’s assertion, the record does not disclose that the State offered this evidence merely to establish the defendant’s propensity to commit crime. Rather, Detective Costello’s testimony was relevant to establish the steps that led to defendant’s arrest, detention, and subsequent questioning on the instant charge. Further, this testimony was important because it set forth the chronology leading to defendant’s confession to the instant offense on March 19, 1986, more than one month after he was initially arrested. If the jurors had not been informed that defendant was initially arrested on an unrelated offense, they might have been left with the erroneous impression that defendant was arrested and jailed until he confessed to the instant offense. Because Detective Costello’s testimony was relevant to establish the facts leading to defendant’s confession to his involvement in the Cavanaugh murder, we conclude that the trial court properly admitted this testimony. See People v. Guy on (1983), 117 Ill. App. 3d 522, 453 N.E.2d 849 (informing the jury of the consequential steps in the investigation of a crime is necessary and important to the full explanation of the State’s case); People v. Williams (1977), 52 Ill. App. 3d 81, 367 N.E.2d 167 (facts describing the State’s investigation of a crime are properly received into evidence).

In a related argument, defendant also maintains that the trial court improperly admitted into evidence, and allowed the jury to take back to the jury room, the court order authorizing Detective Brownfield to transport defendant from Cook County jail to Area Two Police Headquarters for questioning on the instant offense. Defendant maintains that because the trial court sustained his objection, on relevancy grounds, to Detective Brownfield’s testimony concerning this court order, there was no foundation for the admission of the order into evidence. Defendant therefore reasons that because a proper foundation was not laid for this court order, the trial court improperly admitted it into evidence.

In response the State acknowledges that defendant objected to Detective Brownfield’s testimony about the court order on relevancy grounds, and that the trial court sustained several of these objections. However, the State points out that defendant did not object to the introduction of the court order into evidence because a proper foundation had not been laid. The State also notes that defendant did not raise this issue in his motion for a new trial. Accordingly, the State reasons, the defendant has waived this argument.

We agree with the State’s position on this issue. Our review of the record reveals that defendant objected, on relevancy grounds only, to Detective Brownfield’s testimony about the court order. The record further discloses that although defendant objected to the trial court’s decision to allow the jury to review the court order, defendant did not specifically object on the grounds that no proper foundation was laid for admission of this exhibit into evidence. Significantly, defendant did not challenge the trial court’s ruling on the admissibility of Detective Brownfield’s testimony or the trial court’s decision to allow the jury to view the court’s order in his motion for a new trial or in any other post-trial motion. We therefore conclude that defendant waived this argument. 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 (to properly preserve an issue for review, both a trial objection and a written post-trial motion raising the issue are required); People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183, cert, denied (1988), 484 U.S. 1079, 98 L. Ed. 2d 1022, 108 S. Ct. 1060 (the defendant’s failure to object to an issue during trial or to raise it in a written post-trial motion specifying the grounds supporting the motion constitutes a waiver of that issue).

Ill

Defendant also argues that the trial court denied his right to a fair trial when it summarily rejected the jury’s request for a copy of the transcript of Lee Cavanaugh’s testimony and refused the jury’s request to define the word “abet.” In response, the State maintains that defendant waived this argument because he failed to object at trial and failed to include the alleged error in a post-trial motion.

Our review of the record reveals that defendant did not object to the court’s response to the jury’s requests and did not raise this issue in his motion for a new trial. We therefore conclude that defendant waived this argument. See 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.

IV

Defendant also argues that this court should remand this case so that the trial court can conduct a Batson hearing in order to determine whether the State improperly used its peremptory challenges to exclude blacks from the jury. Defendant points out that during voir dire, the prosecution improperly exercised its peremptory challenges to remove five black prospective jurors solely on the basis of their race. Defendant also maintains that the trial court applied the wrong standard in ruling on defendant’s motion for mistrial based on the State’s discriminatory use of its peremptory challenges. Specifically, defendant maintains that the trial court improperly relied on the “systematic exclusion” standard enunciated in Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, instead of the “purposeful discrimination” standard enunciated in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.

In response, the State argues that the totality of the circumstances fails to show that the State exercised its peremptory challenges in a racially discriminatory manner.

The equal protection clause forbids a prosecutor from peremptorily challenging potential jurors solely on account of race or on the assumption that black jurors as a group will be unable to impartially consider the prosecutor’s case against a black defendant. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) A defendant alleging that the prosecution’s exercise of a peremptory challenge was racially motivated has the burden of showing purposeful discrimination. Batson, 476 U.S. at 94, 90 L. Ed. 2d at 86, 106 S. Ct. at 1722; People v. Young (1988), 128 Ill. 2d 1, 538 N.E.2d 453.

In order to establish a prima facie case of purposeful discrimination under Batson,

“the defendant first must show that he is a member of a cognizable group *** and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race [solely on the basis of their race].” Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.

In the instant case, the trial court denied defendant’s motion for a mistrial based on the State’s discriminatory use of its peremptory challenges after finding no evidence of “systematic exclusion.” While it is true that the “purposeful discrimination” standard enunciated in Batson has replaced the “systematic exclusion” standard set forth in Swain, we do not find that the trial court’s reliance on the Swain standard constitutes reversible error. For reasons that we explain below, the State’s use of its peremptory challenges did not demonstrate a discriminatory intent under either Swain or Batson.

In the case at bar, defendant, who is black, has demonstrated that the State exercised five of its six peremptory challenges to excuse black jurors. However, these factors do not establish a prima facie case of purposeful discrimination. Defendant must also establish that the State removed black venire persons solely because they were black.

In determining whether the State improperly exercised its challenges solely on the basis of race, a court must look to the totality of the circumstances surrounding the jury selection. (People v. Young (1988), 128 Ill. 2d 1, 538 N.E.2d 453.) Our review of the record discloses that the voir dire consisted of two separate venires. 29 of the 62 jurors examined were removed for cause. Of the remaining 33 jurors, the prosecution exercised five of its six peremptory challenges to excuse blacks. However, the record also indicates that defense counsel also removed two prospective black jurors acceptable to the prosecution. Significantly, the resulting jury was composed of seven white and five black jurors. This factor indicates that blacks were proportionately represented on the jury. Finally, we note that defendant, the victim, and all of the witnesses except the law enforcement personnel were black. Any racial issue inherent in the selection of the jury is therefore minimal. (People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360, cert, denied (1990), 490 U.S. 1113, 104 L. Ed. 2d 1036, 109 S. Ct. 3175 (in a case involving noninterracial crime, court noted that specific racial groups are not prone to take sides of prejudice).) After considering these circumstances, we conclude that defendant failed to establish that the State exercised its peremptory challenges in a racially discriminatory fashion.

y

Next, defendant argues that this court should vacate his extended-term sentence because it was based on an unconstitutional provision of our Unified Code of Corrections, section 5—5—3.2(b)(2) (Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2(b)(2)).

In pertinent part, section 5—5—3.2(b)(2) provides that a defendant can be sentenced to an extended-term sentence where the defendant was convicted of any felony and the court finds that the offense was “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.”

Defendant, relying on the United States Supreme Court’s decision in Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853, challenges the constitutionality of this provision. Defendant contends that under Maynard, section 5—5—3.2(b)(2) is unconstitutionally vague.

In Maynard, the Supreme Court held that an Oklahoma criminal statute in which the death penalty was imposed if the murder was “especially heinous, atrocious, or cruel” was unconstitutionally vague under the eighth amendment because it failed to provide sufficient guidance to the sentences Maynard, 486 U.S. at 363-64, 100 L. Ed. 2d at 382,108 S. Ct. at 1859.

The Illinois Supreme Court has recently considered the validity of a criminal code section cast in language nearly identical to that in section 5—5—3.2(b)(2). In People v. Kidd (1989), 129 Ill. 2d 432, 544 N.E.2d 704, and People v. Odie (1988), 128 Ill. 2d Ill. 538 N.E.2d 428, the court addressed whether section 9—1(b)(7) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9— 1(b)(7)) was constitutional.

In pertinent part, this provision allows the death penalty to be imposed where the victim’s death “resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty.” In Kidd and Odie, the court determined that section 9 — 1(b)(7) did not suffer from the same constitutional infirmity as did the statute in Maynard because the Illinois statute was much more specific. People v. Kidd, 129 Ill. 2d at 456, 544 N.E.2d at 714; People v. Odie, 128 Ill. 2d at 140, 538 N.E.2d at 428.

The court’s decisions in Kidd and Odie control this case. Section 5 — 5—3.2(b)(2) specifically describes the conduct which qualifies an accused for an extended-term sentence. The conduct must not only be exceptionally brutal or heinous; it must also be such that it is indicative of wanton cruelty. Because this language is sufficiently specific, we reject defendant’s contention that section 5—5—3.2(b)(2) of the Unified Code of Corrections is unconstitutional. See also People v. Fyke (1989), 190 Ill. App. 3d 713, 722, 546 N.E.2d 1101, 1108 (court held that language of section 5—5—3.2(b)(2) was “sufficiently indicative of the type of contact which warrants an extended-term sentence”).

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

Judgment affirmed.

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

      Prior to trial, the trial court granted the defendants’ joint motion to sever. Separate jury trials were thereafter held for each defendant.

      The sixth amendment right to counsel attaches when judicial proceedings have been initiated against the accused, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. (Brewer v. Williams (1977), 430 U.S. 387, 398, 51 L. Ed. 2d 424, 436, 97 S. Ct. 1232, 1239.) Unlike the fifth amendment right to counsel, the sixth amendment right is limited to charges on which judicial proceedings have been initiated. The right has not been extended to provide counsel during questioning on unrelated charges. (United States v. Gouveia (1984), 467 U.S. 180, 81 L. Ed. 2d 146, 104 S. Ct. 2292; Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877.) Therefore, defendant’s argument that his previously invoked sixth amendment right to counsel extends to the custodial interrogation on the Cavanaugh murder is not well taken.

      This court is not bound by the Seventh Circuit’s decision in Espinoza. See United States ex rel. Lawrence v. Woods (7th Cir. 1970), 432 F.2d 1072; City of Chicago v. Groffman (1977), 68 Ill. 2d 112, 368 N.E.2d 891 (because lower Federal courts exercise no appellate jurisdiction over State courts, decisions of lower Federal courts are not conclusive in State courts, except insofar as the decision of the lower Federal court may become the law of the case).

      In so doing, the Court did not actually address the merits of the defendant’s fifth amendment claim. Bather, the Court declined to apply Arizona v. Roberson (which it decided on the same day the Fourth Circuit denied Butler’s petition for rehearing) to Butler because Roberson announced a new rule which was inapplicable to cases on collateral review. (Butler v. McKellar, 494 U.S. at 415, 108 L. Ed. 2d at 357, 110 S. Ct. at 1218.) Further, the Court determined that the Roberson rule did not come within either of the exceptions under which a new rule, is available on collateral review. Butler v. McKellar, 494 U.S. at 415,108 L. Ed. 2d at 357,110 S. Ct. at 1218.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID McCarthy, Defendant-Appellant.
    First District (5th Division)
    No. 1—85—2485
    Opinion filed August 17, 1990.

      Randolph N. Stone, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth McCurry, and Mark A. Shlifka, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

This case comes to this court on remand from the Illinois Supreme Court. In the initial appeal in this case we reversed McCarthy’s conviction and 34-year sentence for murder and remanded for a new trial based on our finding that the trial court erred by failing to instruct the jury on the lesser included offense of voluntary manslaughter. (People v. McCarthy (1989), 181 Ill. App. 3d 208, 213-14, 536 N.E.2d 917.) Although McCarthy’s initial appeal also questioned the adequacy of his trial counsel, this court did not reach that issue, having found that the trial court’s refusal to give the tendered instruction mandated a new trial.

The State sought leave to appeal the decision of this court to the Illinois Supreme Court and leave was granted. The supreme court reversed this court’s opinion, concluding that a voluntary manslaughter instruction was not warranted by the facts of this case. (People v. McCarthy (1989), 132 Ill. 2d 331, 547 N.E.2d 459.) However, rather than affirm McCarthy’s conviction, the supreme court remanded the case to this court so that we could consider whether McCarthy received effective assistance of counsel at trial.

The facts of the case have been set forth in detail in our initial opinion and in the opinion delivered by the supreme court. However, we shall recount them here briefly.

Defendant, David McCarthy, was charged with, and eventually convicted for, the shooting death of Adrianne Neal, a girl with whom he had once enjoyed a romantic relationship. McCarthy and Neal began dating in high school in 1974 and, although they never married, lived together from 1978 or 1979 until 1983, except for some brief separations. They also had two children, one in 1978 and another in 1981. In April 1983, however, their relationship ended, at which time Neal and her children moved out of defendant’s apartment and, eventually, into their own apartment.

About 11:45 p.m., on June 7, 1983, defendant broke into Neal’s apartment. Neal’s sister, Anita, and Anita’s boyfriend, Woodrow McGuire, were in the kitchen, while Neal and Neal’s new boyfriend, Winfred Johnson, were in Neal’s bedroom. When defendant entered the kitchen, he knocked Anita to the floor and then held a gun to her head. Woodrow asked defendant not to shoot, and defendant released Anita. He then went to Neal’s bedroom, where he fired several shots, injuring Johnson and killing Neal. Neal’s autopsy revealed that she died from a bullet wound to the head and that she suffered a total of five gunshot wounds, several at close range.

After initially attempting to elude police by leaving the State, defendant later surrendered himself to the authorities. He did not deny shooting Adrianne Neal, perhaps because it would have been unreasonable if he had in light of the number of witnesses to the incident. Rather, it was defendant’s contention that he did not commit the offense of murder because he did not have the requisite intent. At trial, in his opening statement, McCarthy’s counsel conceded that defendant shot his “common law wife” but asserted that the shooting was manslaughter resulting from the provocation of seeing her in bed with another man. Defendant testified at trial consistently with this theory of defense, stating that he had become despondent since his break-up with Neal and that he had gone to her apartment in the hopes of reconciling with her. He claimed that he brought the gun, intending to shoot himself if she refused to reconcile with him, but upon seeing his “wife” in bed with another man, killed her in the heat of passion.

As stated earlier, the trial court refused to instruct the jury on the offense of voluntary manslaughter, ruling that the category of serious provocation recognized in instances of spousal adultery could not be extended to unmarried persons who shared a marital-type relationship. This court reversed McCarthy’s conviction, finding that the trial court’s refusal to instruct the jury on voluntary manslaughter was reversible error. But on appeal to the supreme court the trial court’s ruling concerning the giving of the instruction was affirmed.

Now, on remand, we must decide whether defendant was denied the effective assistance of counsel. It is defendant’s contention that his right to competent counsel was denied because his attorney admitted that he shot and killed Neal and urged the jury to find him guilty of voluntary manslaughter when this defense was not available to him. Defendant argues that his counsel, by admitting to the killing, in effect pleaded him guilty to the charge of murder. We disagree, and for reasons we shall state below, we affirm defendant’s conviction and sentence.

Generally, any claim of ineffective assistance of counsel must be considered in light of the standard set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and adopted by our supreme court in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. According to Strickland, a review of the record must be made to determine (1) whether defense counsel made any serious errors or whether his performance was so deficient that he did not function as the “counsel” guaranteed by the sixth amendment of the United States Constitution, and (2) whether defendant was actually prejudiced by his representation. (People v. Johnson (1989), 128 Ill. 2d 253, 265-66, 538 N.E.2d 1118.) However, in rare instances, where counsel entirely fails to subject the prosecution’s case to a meaningful adversarial testing, the bifurcated test of Strickland may be abandoned and ineffective assistance of counsel may be presumed. United States v. Cronic (1984), 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039.

In the present case defendant contends that his claim of ineffective assistance of counsel need not meet the two-part Strickland test but that a denial of competent counsel should be presumed. As support for his position he relies upon People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513, and People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290.

In Hattery our supreme court found that the facts of that case constituted a per se denial of the right to counsel guaranteed by the sixth amendment. In that case the defendant’s trial attorneys stated in their opening statement to the jury:

“We are not asking you to find Charles Hattery not guilty. At the end of your deliberations, you will find him guilty of murder. We are asking you to consider the evidence that you hear today and in the next few days to explain why he did the horrible thing that he did. Once you have found him guilty, we will proceed and you will find him eligible for the death penalty. The question, and the only question facing you, will be whether to impose the death penalty on Charles Hattery for trying to save the life of his family.” (Emphasis omitted.) Hattery, 109 Ill. 2d at 458-59.

It is clear that the admission made by defense counsel in Hattery was wholly inconsistent with a plea of not guilty. However, the admissions made by defense counsel in the present case do not parallel those in Hattery. In this case defendant’s trial counsel stated:

“David is presumed innocent. He is presumed innocent now, throughout the entire trial and even when you go back into that room to deliberate.
His presumption is more precious than gold and I am going to caution you to listen to the evidence. We are telling you that David shot and killed Adrianne but we are saying that it was not murder, that there is [sic] sufficient facts that you will hear testimony about to show heat of passion, to show that he killed her only when he saw her in bed with another man.”

Even in closing argument, after learning that the trial judge had ruled against the tendered instruction on manslaughter, defense counsel continued to represent his client as innocent of murder, focusing his argument on defendant’s lack of intent to commit the offense.

Consequently, we do not find that defendant’s trial counsel failed to subject the prosecutor’s case to a meaningful adversarial testing and so defendant’s claim of ineffective assistance of counsel may not be presumed. Rather, the two prongs of the Strickland test must be proven for defendant to obtain a reversal of his conviction based on his claim of ineffective counsel.

We note, too, that while defendant attempts to analogize his case to Chandler, Chandler does not support his claim that a denial of counsel should be presumed. In Chandler the court made clear that its decision in Hattery “did not hold that it is per se ineffectiveness of counsel whenever an attorney concedes his client’s guilt to offenses and the record fails to show the client’s consent, if there is overwhelming evidence of that guilt.” (Chandler, 129 Ill. 2d at 246. See also People v. Johnson (1989), 128 Ill. 2d 253, 269.) Additionally, the Chandler court acknowledged that a defendant faced a “high burden” before the Strickland test could be forsaken. The court then went on to decide that the facts of that case did not warrant abandoning the Strickland test, but that when applying the Strickland test defendant showed that he was prejudiced by the serious errors of his trial counsel.

We find, however, that Chandler, too, is distinguishable from the present case. In Chandler the defendant was charged with four counts of murder, including felony murder. Yet defense counsel made no attempt to refute the evidence that defendant was present at the scene of the murder, which occurred during the course of a residential burglary in which defendant apparently participated. Counsel did not cross-examine several witnesses or present any witnesses for the defense. Moreover, the defendant was not called, despite the fact that counsel told the jury in opening statement that he would testify. In short, in light of the well-settled law on accountability, defendant made no attempt to present any legal theory of innocence for the felony murder charge.

Significantly, in the case at bar, defense did not ignore well-settled principles of law, but rather, attempted to adopt and extend them to the facts of the case. Defense counsel, obviously aware that voluntary manslaughter is a partial exoneration for the charge of murder, attempted to show that this client was guilty of that offense, having acted in the heat of passion provoked by the infidelity of his “common law wife.” While this theory of defense had not been established in instances where the victim and the accused were not legally married, it was unclear whether a nonmarital relationship could be recognized as a basis for the serious provocation category heretofore recognized in instances of spousal adultery. In fact, this question is still not answered since the supreme court did not reach this issue, having found that the instruction on voluntary manslaughter was not available in this case because the relationship between McCarthy and Neal had terminated prior to the killing. (People v. McCarthy, 132 Ill. 2d at 342.) Additionally, defendant apparently agreed with this theory of defense since he testified at trial consistently with this theory.

We do not believe that the subsequent ruling that the facts of this case did not fall within the presently accepted legal boundaries defining the offense of manslaughter requires a finding that defense counsel’s representation was deficient. Surely a counsel’s legitimate and reasonable effort to obtain exoneration for his client, even partial exoneration, should not be evaluated by its ultimate success.

There is an old saying that a legal genius will tell his client that he will look at the law to determine the facts of the case, while a good lawyer will say that he will examine the facts of the case and determine how the law applies. The sixth amendment guarantees a defendant a good lawyer who investigates the facts of the case and the prevailing status of the law and then presents a defense according to the results of that investigation and inquiry. The sixth amendment does not guarantee a legal genius, nor a seer of the future, who can foretell the actions of the court.

Finally, we note once again that trial counsel, when faced with the trial court’s decision to omit the voluntary manslaughter instruction, raised the key issue in the case, i.e., intent, arguing to the jury that McCarthy’s mental condition at the time of the killing warranted a finding of not guilty to the offense of murder. Consequently, we find no evidence that defense counsel was incompetent or that his representation was deficient. Nor do we believe that defendant was prejudiced by the representation he received. Perfection is not the standard by which counsel must be measured (People v. Hillenbrand (1988), 121 Ill. 2d 537, 521 N.E.2d 900) and competency is not synonymous with the ability to secure a client’s acquittal.

For all the reasons stated above, we affirm McCarthy’s conviction and sentence.

Affirmed.

COCCIA, P.J., and GORDON, J., concur.

      This case was remanded from the supreme court on January 11, 1990.

      Justice R. Eugene Pincham participated in this case prior to his resignation. Since that time, Justice Joseph Gordon was designated the third member of the panel and has read the record and briefs and has listened to the oral argument tape.


author: JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDALL BATCHELOR, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—3618
    Opinion filed August 17, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Paul D. Bellendir, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Sara Dillery Hynes, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court;

Following a jury trial, defendant Randall Batchelor was found guilty of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(1)) and sentenced to a term of 35 years.

On appeal, he contends that: (1) the State racially discriminated during jury selection; (2) the court made rulings which denied defendant a fair trial by (A) limiting defendant’s opening statements and cross-examination, (B) limiting defendant’s impeachment efforts, and (C) allowing a photo of the dead victim to go to the jury; (3) the court improperly gave instructions on accountability; (4) the State made improper remarks in closing; (5) the court refused to send the jury additional instructions; and (6) the court improperly sentenced defendant to 35 years’ imprisonment. We affirm.

On February 16, 1986, Batchelor, his codefendant Ricky Walls, and Tyrone Bufkin were walking in the vicinity of 101st and Luella in Chicago. A .38 caliber revolver was fired and Bufkin was killed.

The following facts are undisputed. One witness told police he had seen the three boys together shortly before the shooting and that Batchelor had a gun. Two other witnesses told police they had seen three people, had heard shots, and had seen two people flee. After the shooting, Walls and Batchelor went to the home of Charles Joseph. Both Joseph and his cousin William Johnson were present and later testified that Batchelor told them he had shot a boy. Batchelor left a gun at the Joseph home. Later the police recovered bullets from Bufkin’s body which matched bullets from that gun.

Defendant was tried twice. At the first trial, the State introduced a confession by Batchelor, and the defense argued that the confession was the product of police coercion. That trial ended with a deadlocked jury and a mistrial.

At the beginning of the second trial, the judge told the jury that the indictment charged both Ricky Walls and Randall Batchelor with the murder of Tyrone Bufkin. He further explained that the defendants were being tried separately for legal reasons. Shortly afterward, the court granted the State’s motion to exclude Ricky Walls from the courtroom.

Dr. Mitra Kalelkar, deputy medical examiner for Cook County, described the findings of her autopsy on Bufkin including the location of four entrance wounds and the identification of two bullets recovered from his body. She gave her expert opinion that Bufkin died of multiple gunshot wounds.

Batchelor testified in his own defense and stated that, on the night of the killing, he was walking Tyrone Bufkin home with codefendant Ricky Walls lagging behind. When they reached the corner of 101st and Luella, Walls asked Bufkin why he had “flipped” (joined another gang). Bufkin replied that he hadn’t and, besides, what did Walls plan to do about it. At that point, Batchelor testified, Walls pulled out a gun and started shooting. Batchelor fled with Walls to the home of Charles Joseph.

In the defense closing, counsel suggested that Ricky Walls was in command on the night of the killing and that witnesses Joseph and Johnson had been intimidated by Walls. Defense counsel also showed the jury a picture of Bufkin and argued that the wounds in the picture simply did not support the story of Batchelor shooting Bufkin in the back.

I

Batchelor first alleges that the State discriminated by excluding three black jurors during four peremptory challenges. He contends that the State did not meet its burden of establishing race-neutral reasons for excluding black jurors.

The State maintains that Batchelor waived this issue by failing to preserve an adequate record so that a reviewing court could determine whether discrimination occurred. People v. Mitchell (1987), 163 Ill. App. 3d 58, 69, 516 N.E.2d 500.

We find Mitchell to be distinguishable from the instant case. In Mitchell, the defendant failed to preserve any record about the racial makeup of the venire except the fact that one or more blacks had been excluded from the selected jury. In this case, defendant failed to preserve the makeup of the original venire, his own six peremptory challenges and the final two selected jurors. He did, however, preserve the record for the 10 jury members selected up to the point of his challenge and the four peremptory challenges made by the State. See, e.g., People v. Mays (1988), 176 Ill. App. 3d 1027, 1045, 532 N.E.2d 843.

Furthermore, Illinois policy and law on waiver apply the plain-error rule “where the record clearly shows *** an alleged error affecting substantial rights.” (People v. Young (1989), 128 Ill. 2d 1, 46, 538 N.E.2d 461; see also 107 Ill. 2d R. 615(a).) This rule serves the dual purposes of “correcting serious injustices” and preserving “the integrity and reputation of the judicial process.” Young, 128 Ill. 2d at 46.

We will review the Batson issue here because the right to an unbiased jury is so intimately related to justice and the integrity of the court system that we will not consider it waived simply because the defendant failed to preserve all relevant details for review.

In Batson v. Kentucky (1986), 476 U.S. 79, 82, 90 L. Ed. 2d 69, 77, 106 S. Ct. 1712, 1714-15, the Supreme Court examined “the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State’s use of peremptory challenges to exclude members of his race from the petit jury.”

First, the defendant must make out a prima facie case by showing that “the totality of the relevant facts gives rise to an inference of discriminatory purpose.” (Batson, 476 U.S. at 94, 90 L. Ed. 2d at 86, 106 S. Ct. at 1721, citing Washington v. Davis (1976), 426 U.S. 229, 239-42, 48 L. Ed. 2d 597, 607-09, 96 S. Ct. 2040, 2047-49.) To establish his prima facie case, the defendant: (1) must show that he is a member of a cognizable racial group; (2) must demonstrate that the prosecutor exercised his peremptory challenges to remove members of the group; (3) may rely on the fact that peremptory challenges constitute a jury selection practice which permits discrimination by those “who are of a mind to discriminate”; and (4) must show “that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723; see also People v. Mahaffey (1989), 128 Ill. 2d 388, 412-13, 539 N.E.2d 1172.

The relevant circumstances for a prima facie showing of racial exclusion include but are not limited to: a disproportionate use of peremptory challenges against blacks; the absence of any common traits among the excluded blacks except their race; and the race of the defendant, the victim, and the witnesses. (Mahaffey, 128 Ill. 2d at 413.) Mere numbers do not establish the prima facie case. Nor does the fact that a trial court invited the State to give reasons for the questioned challenges. (Mahaffey, 128 Ill. 2d at 414.) Furthermore, racial issues in jury selection are minimized when both the defendant and victims are black. People v. Holman (1989), 132 Ill. 2d 128. 177. 547 N.E.2d 124.

If a court has determined that the defendant failed to meet his prima facie burden, this finding will not be overturned unless it is against the manifest weight of the evidence. Mahaffey, 128 Ill. 2d at 413, citing People v. Evans (1988), 125 Ill. 2d 50, 71, 530 N.E.2d 1360.

Once the defendant has met his prima facie burden, the burden shifts and the State must demonstrate that “ ‘permissible racially neutral selection criteria and procedures have produced the monochromatic result.’ ” (Batson, 476 U.S. at 94, 90 L. Ed. 2d at 86, 106 S. Ct. at 1721, quoting Alexander v. Louisiana (1972), 405 U.S. 625, 632, 31 L. Ed. 2d 536, 542, 92 S. Ct. 1221, 1226.) The prosecutor must show more than an intuitive judgment that black jurors will favor black defendants. Even so, his explanations “need not rise to the level justifying exercise of a challenge for cause.” (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) Instead, the prosecutor need only “articulate a neutral explanation related to the particular case to be tried.” Batson, 476 U.S. at 98, 90 L. Ed. 2d at 89,106 S. Ct. at 1724.

The jury traits which may justify a peremptory challenge include but are not limited to: courtroom demeanor, employment status and type of job, connections with those who do criminal defense work, social relationships with judges and lawyers, age, status as renter or homeowner, and arrest record. (People v. Mack (1989), 128 Ill. 2d 231, 240-43, 538 N.E.2d 1107.) The State’s use of one of these traits to exclude blacks is not race neutral if the State retains white veniremen having that same trait and there is no additional trait to distinguish the white veniremen who were retained from the black veniremen who were challenged. On the other hand, prosecutors usually challenge jurors because of a combination of traits, so that a trait which might justify exclusion of one juror might be acceptable in another who has a different combination of traits. Mack, 128 Ill. 2d at 239.

If a trial court has determined that the State met its burden in a Batson challenge, the appropriate standard for reviewing the trial court’s ruling is whether the court’s decision is against the manifest weight of the evidence. (Mack, 128 Ill. 2d at 238.) The Mack court noted that because “ ‘the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.’ ” Mack, 128 Ill. 2d at 238, quoting Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21, 106 S. Ct. at 1724 n.21.

On appeal, Batchelor effectively concedes that the trial court did not make an explicit finding about whether he had met his prima facie burden. Instead, Batchelor cites cases from other jurisdictions to argue that he met his burden by showing that three of the four peremptory challenges used by the State excluded blacks and, furthermore, that the court made an implicit finding when it inquired about the State’s justification for these exclusions.

Under Mahaffey, neither mere numbers, especially the incomplete numerical count presented here, nor the fact that the trial court examined State rebuttal evidence is sufficient in itself for a prima facie finding. However, even if Batchelor did meet his initial burden, this court cannot find reversible error unless the State failed to meet its burden of rebuttal.

The State offered several reasons for the exclusion of each of the three black veniremen. These reasons included experience as a crime victim, having a convicted felon in the family, location of residence near the home of the defendant, having a son near defendant’s age, courtroom demeanor, and previous experience on two felony juries.

Batchelor argues that these reasons were pretextual because selected white jurors had some of the same traits. The State points out that many of the so-called similar traits were actually different. For instance, some whites had daughters near the defendant’s age whereas the blacks had sons. One white juror had been convicted of a misdemeanor offense, while the black juror’s daughter was convicted of a felony. Furthermore, the combination of traits was important. The white male with the criminal record answered questions directly. The black woman whose daughter had a record did not always address the State’s questions and fixed her eyes on the defendant even while she was being questioned.

For these reasons, we find that the State met its burden of providing racially neutral explanations for the peremptory challenges and this finding was not against the manifest weight of the evidence.

II

Batchelor claims that the trial court deprived him of a fair trial when it: (A) granted the State’s motion in limine to bar the defense from commenting, during either opening statement or cross-examination, about certain inculpatory statements made by Batchelor; (B) said in front of the jury that Batchelor could not impeach a witness simply by reading his noncontradictory answers from the transcript of the previous trial; and (C) submitted a photo of the dead victim to the jury.

A

Motions in limine permit a party to obtain an order before trial which excludes inadmissible evidence and prohibits interrogation about such evidence. (Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 549, 416 N.E.2d 268.) These motions are encouraged in criminal cases to exclude collateral or extraneous matters. People v. Clark (1984), 129 Ill. App. 3d 374, 377, 472 N.E.2d 814.

These powerful motions must be granted with caution, however, because they carry the dangerous potential to unduly restrict the opposing party’s presentation of its case. (Reidelberger, 83 Ill. 2d at 550.) See, for example, the cases cited by defendant: People v. Brumfield (1979), 72 Ill. App. 3d 107, 111-12, 390 N.E.2d 589 (the motion precluded the entire defense of involuntary intoxication); People v. Williams (1978), 60 Ill. App. 3d 529, 531-33, 377 N.E.2d 367 (the exclusion of 17 areas of evidence was overbroad and prohibited any meaningful opening statement by defendant, any showing of witness bias, and any challenge to witness credibility); and People v. Richardson (1977), 48 Ill. App. 3d 307, 309, 362 N.E.2d 1104 (the motion prohibited the defense from presenting evidence that the complaining witness wanted to withdraw his complaint or terminate prosecution).

In reviewing the grant of a motion in limine, a court must consider whether the motion unduly restricted the presentation of a case and whether all parties had “an accurate understanding of its limitations.” (Reidelberger, 83 Ill. 2d at 550.) A reviewing court will not overturn a trial court’s grant or denial of a motion, in limine, however, unless there was “a manifest abuse of discretion.” People v. Downey (1987), 162 Ill. App. 3d 322, 334, 515 N.E.2d 362.

Batchelor contends that he was deprived of a fair trial because the court granted the State’s motion in limine and ordered him to conduct his opening statement and cross-examination without reference to the three inculpatory statements which had been made by Batchelor, one of which had been made to Assistant State’s Attorney (ASA) Semrow in the presence of a court reporter, and two of which were made to police detectives. The State had used these statements in the first trial but did not plan to use them in the second. This prohibition, he claims, precluded him from presenting the defense that these statements had been coerced. Additionally, if the court’s order did not preclude presentation of direct examination evidence, it was inconsistent since it did exclude mention of the evidence in defendant’s opening statement.

When the State offered its motion at trial, the court granted the motion and told defendant “there is no need to comment on evidence that will not be offered in the case.” Defense counsel Donald Hubert protested on the grounds that his client was being denied the right to “confront witnesses against him.” The judge then pointed out that there would not be any witnesses testifying about the confessions, hence no need for confrontation. Hubert protested further that he wanted to go into “something wrong that happened at the police station relative to my client.” The judge told him that there would “be no cross examination regarding evidence not offered.” During this entire colloquy, Hubert never mentioned bringing in this evidence through direct examination of defense witnesses.

Prior to his own case in chief, Batchelor made a motion in limine to prohibit the State from using “reference to. any statements taken from my client.” At that time, Hubert tried to clarify that “the Court has ordered me not to [make references to Batchelor’s admissions to the ASA and the police], so that I am bound not to.” The court replied: “I ordered you not to in opening statements.” Hubert argued that the court’s position was inconsistent because it prohibited references to evidence in opening statements but allowed the evidence in later. The court explained: “All that *** you have been precluded from doing is referring to what the state’s evidence might have been. *** When the defense begins your defendant is not limited to what he can testify to. *** You can do anything you want with the statements if it’s admissible within — .”

At trial and on appeal, Batchelor argues that he was prevented from presenting important evidence for his case in chief. The short answer to this contention is that he was not. Even if Batchelor was confused after the State’s motion in limine, the court clarified its position before the defense began its case in chief. In the court’s words, Batchelor was “not limited to what he” could testify about “if it’s admissible.”

It is clear to us that the court, using these comments, did not preclude Batchelor from presenting any specific testimony or evidence. The court did not tell Batchelor what he could or could not introduce. It merely informed him that questions concerning admissibility would be addressed at the proper time.

Batchelor also contends that even if the court did eventually allow him to introduce this evidence, the court erred by changing direction in midtrial. In other words, he had been excluded from referring to evidence in his opening statement that he would introduce at trial and, therefore, he had been prevented from making a proper introduction to the jury for his theory at the trial. In support of this theory, Batchelor argues that evidence of police coercion regarding his confession could lead to an inference that witnesses Joseph and Johnson may have suffered similar coercion forcing their testimony against Batchelor.

While Batchelor makes this argument on appeal, he never advanced it to the trial court. During the motion in limine conference, Hubert never addressed the admissibility of the evidence. From the record, it is clear that the gist of the first motion in limine conference was whether the defense, in its opening argument, could comment on evidence that the State did not intend to introduce. The trial court properly held that it could not. Thus, the court granted the State’s motion for the legitimate purpose of limiting the opening statement to comments on evidence which would be presented in court. People v. Thompkins (1988), 121 Ill. 2d 401, 421-22, 521 N.E.2d 38.

Had Batchelor intended to present this evidence during the defense case in chief, he should have disclosed this fact to the court so the judge could have determined whether or not such evidence would be admissible. Furthermore, Batchelor made no attempt to use this evidence at trial either in his own direct examination or in cross-examination of other witnesses. These facts lead us to conclude that there was “no prejudice to defendant sufficient to constitute reversible error.” People v. Kline (1982), 92 Ill. 2d 490, 504-05, 442 N.E.2d 154.

Finally, we do not accept the defense argument, citing People v. O’Neal (1984), 104 Ill. 2d 399, 407-08, 472 N.E.2d 441, that somehow the State waived its right to defend this issue on appeal because of possible misunderstandings and failures to clarify when the motion was originally made. In O’Neal, the State objected to a specific jury instruction at trial, did not raise the issue on appeal, and, finally, raised a different objection about jury instructions before the supreme court. Under those circumstances, the issue was waived. Here, by contrast, the State had no reason to raise an objection at trial when its understanding of the issue was, eventually, the same as the court’s. Now, on appeal, the State is simply defending against a point raised by defendant.

For these reasons, we find that there was no error here.

B

Parties may impeach a witness by using the witness’ prior inconsistent statements. (People v. Henry (1970), 47 Ill. 2d 312, 320, 265 N.E.2d 876.) Such an inconsistency can occur through omission, that is, “the omission of a witness to state a particular fact under circumstances rendering it incumbent upon him to, or likely that he would, state such fact, if true, may be shown to discredit his testimony as to such fact.” (Henry, 47 Ill. 2d at 321.) For example, when a witness testifies at trial that an accident vehicle had only one headlight, he can be impeached by a transcript of inquest testimony in which he failed to mention this key fact (Carroll v. Krause, 295 Ill. App. 552, 560-62, 15 N.E.2d 323); or when a policeman testifies that an eyewitness knew the defendant and could identify him, counsel should be allowed to impeach the policeman by showing that he failed to include this information, which he would know was very important, in his report. People v. Gonzalez (1983), 120 Ill. App. 3d 1029, 1038, 458 N.E.2d 1047.

The court may make comments which respond to defendant’s arguments about impeachment in the presence of the jury. For example, the court can suggest that the impeachment effort is pure speculation (People v. Harris (1988), 123 Ill. 2d 113, 137, 526 N.E.2d 335) or that there is not enough discrepancy between the testimony and the attempted impeachment (People v. Morgan (1963), 28 Ill. 2d 55, 62-63, 190 N.E.2d 755). Furthermore, a trial court’s comments do not constitute reversible error unless they “constituted a material factor in the conviction or were such that an effect on the jury’s verdict was the probable result.” Harris, 123 Ill. 2d at 137.

It is also within the court’s discretion to question witnesses in an attempt to clarify points of testimony (People v. Gross (1988), 166 Ill. App. 3d 413, 422, 519 N.E.2d 1043) or eliminate confusion and curtail repetition (People v. Wells (1982), 106 Ill. App. 3d 1077, 1086, 436 N.E.2d 688).

Batchelor cites Carroll and Gonzalez and contends that the trial court erred when it refused to allow defense counsel Hubert to impeach Johnson by showing that he had not testified to all the details of Batchelor’s admission at the first trial. According to Batchelor, the court compounded the error when it told the jury “[tjhere was nothing impeaching here” and when it later rehabilitated Johnson.

At the second trial, Johnson testified that Batchelor told him about shooting Tyrone Bufkin as he “turned his back.” During cross-examination, Hubert asked if “Randall told you that he shot Tyrone Bufkin in the back” and Johnson agreed. Hubert then read 13 questions and answers from the first trial to impeach Johnson by showing that he had not mentioned the shot “in the back” at the first trial. The court stopped Hubert on the grounds that the transcript answers did not contradict any important, points made by Johnson at the second trial and, therefore, there was no impeachment.

It is true that Johnson did not say Batchelor had confessed to shooting the victim in the back at the first trial. As the court pointed out, however, he did not testify to that at the second trial either except to agree with a leading question by Hubert on cross-examination. In both direct examinations, Johnson simply told the court that Batchelor admitted shooting the victim when the victim was turned away. Unlike the policeman in Gonzalez, Johnson was not an experienced professional who failed to complete his first report properly. Unlike the witness in Carroll, Johnson did not spontaneously add details to his testimony at the second trial. Johnson was a teenager who phrased his facts in his own way on direct examination and allowed Hurbert to restate them on cross. Then Hubert based the impeachment on Johnson’s response to the question on cross-examination. The ruling that “[t]here was nothing impeaching here” made in front of the jury simply stated the law as applied to Hubert’s protracted impeachment attempt.

The record further shows that the court questioned Johnson to clarify a contradiction in his testimony concerning whether he was or was not a friend of Batchelor at the time of the shooting. In the course of this questioning, the court did suggest that Johnson “did not understand the question” when he first heard it and denied any friendship with the defendant. Nonetheless, Johnson was not fully rehabilitated because the implication remained that he either could not understand simple questions or he changed his answers to suit the occasion.

In addition, Johnson’s testimony merely confirmed the testimony of Charles Joseph. This witness saw Walls and Batchelor in his home, helped hide the gun, and heard the same statements by Batchelor.

For the reasons above, we find that the trial court acted within its discretion in ruling on the impeachment of Johnson and in clarifying the existence of his friendship with Batchelor. Furthermore, even if error had occurred, Batchelor has not met his burden of showing that the alleged error was a material factor in his conviction, and, therefore, we would hold it harmless.

C

The decision as to whether evidence should be taken into the jury room “rests within the discretion of the court, whose decision will not be disturbed absent a showing of prejudicial abuse.” (People v. Shum (1987), 117 Ill. 2d 317, 353, 512 N.E.2d 1183.) Prejudicial abuse has been shown, for example, when the State reopened its case just for the purpose of introducing a photo and the photo included autopsy incisions in addition to the wounds which caused death (People v. Jackson (1956), 9 Ill. 2d 484, 491, 138 N.E.2d 528), when the photo depicted a gruesome head wound and the defendant had already admitted the offense (People v. Garlick (1977), 46 Ill. App. 3d 216, 224, 360 N.E.2d 1121), and when the photos depicted grisly autopsy details without shedding light on a disputed issue (People v. Fierer (1987), 151 Ill. App. 3d 649, 657, 503 N.E.2d 594; People v. Phillips (1987), 159 Ill. App. 3d 142, 149, 512 N.E.2d 734). Photographs of the dead victim are permitted, however, to show the condition of the victim after the crime. People v. Kubat (1983), 94 Ill. 2d 437, 494-95, 447 N.E.2d 247; People v. Williams (1983), 97 Ill. 2d 252, 290-91, 454 N.E.2d 220.

Batchelor argues that the State inflamed the passions of the jury by allowing the jury to have a “death photo at the morgue.” Defendant cites Phillips, Fierer, and Garlick to argue that the probative value of a “macabre morgue photo” of Bufkin’s dead face was greatly outweighed by its prejudicial effect.

In this case, the court allowed the jury to have a photo of Bufkin which had been taken after death but before the autopsy. Unlike the photos in the defendant’s cases, the one used here did not depict autopsy incisions or any other gruesome wounds beyond those inflicted by the killer.

For these reasons, we hold that the court did not abuse its discretion in allowing the photograph of Bufkin to go to the jury.

Ill

Defendant argues that the court erred when it gave Illinois Pattern Jury Instructions, Criminal, No. 5.03 (2d ed. 1981) (hereinafter IPI Criminal 2d), on “Accountability,” and included with IPI Criminal 2d No. 7.02 an additional statement on accountability as an issue for proof. Defendant so argues because the State had conducted its case in chief with the theory that Batchelor was the principal.

For a conviction under an accountability theory, the State must prove that the defendant: “(1) solicited, aided, abetted, agreed or attempted to aid, another person in the planning or commission of the offense; (2) did so either before or during the commission of the offense; and (3) did so with concurrent, specific intent to promote or facilitate the commission of the offense. [Citations.]” People v. Calvillo (1988), 170 Ill. App. 3d 1070, 1076, 524 N.E.2d 1054; see also Ill. Rev. Stat. 1987, ch. 38, par. 5— 2(c).

Accountability requires more than mere presence at the scene or knowledge that a crime is being committed (People v. Owens (1975), 32 Ill. App. 3d 893, 895, 337 N.E.2d 60), but does not require full, active participation in the offense (People v. Bolden (1978), 59 Ill. App. 3d 441, 449, 375 N.E.2d 898). One can be “held accountable if he attaches himself to a group which commits an unlawful act to which it appears all assented.” (People v. Ivy (1979), 68 Ill. App. 3d 402, 405, 386 N.E.2d 323.) Flight from the scene of the crime is not a culpable action, but may be evidence tending to show guilt if flight appears motivated by the desire to avoid capture. Ivy, 68 Ill. App. 3d at 405.

Although submission of an instruction on accountability in the absence of supporting evidence is error (People v. Banks (1962), 26 Ill. 2d 259, 262, 186 N.E.2d 338), it is proper to instruct the jury on principal action and accountability where the evidence supports both theories. (People v. Lusietto (1976), 41 Ill. App. 3d 205, 207, 353 N.E.2d 385, citing People v. Stark (1966), 33 Ill. 2d 616, 312 N.E.2d 503.) Evidence, however slight, on accountability along with evidence of action as a principal offender is sufficient to support both instructions regardless of whether both theories were advanced in the State’s case in chief. People v. Faysom (1985), 131 Ill. App. 3d 517, 527-28, 475 N.E.2d 945.

Batchelor cites Lusietto and People v. Umphers (1971), 133 Ill. App. 2d 853, 858, 272 N.E.2d 278, for the propositions that accountability instructions should not be given when the evidence establishes that the defendant was a principal and that the State may not change its theory to one of accountability after the evidence is presented. In both of these cases, however, the court found no evidence to support an accountability theory. Thus, the cases do not negate the rule that instructions may be given if there is some evidence, however slight, to support the theory. See, e.g., People v. Jarvis (1987), 158 Ill. App. 3d 415, 430-41, 511 N.E.2d 813; Faysom, 131 Ill. App. 3d at 527.

At Batchelor’s trial, the State presented evidence to show that he was carrying a gun in the company of Walls and Bufkin shortly before Bufkin was shot, that two people fled from the scene after the shooting, and that Batchelor left a gun, which proved to be the murder weapon, with Joseph and Johnson in the Joseph home. In defense, Batchelor admitted he was present when the murder occurred but blamed his codefendant for committing it. Since Batchelor had a gun before the shooting, there is some evidence for a theory of accountability in which he gave the gun to Walls who, in turn, committed the murder with his-assent. The fact that Batchelor fled with Walls and later gave the gun to others to hide adds some plausibility to the theory that his help began before the crime occurred.

For these reasons, we hold the court did not commit error in giving instructions on accountability. Furthermore, error would have been harmless because sufficient evidence exists to find Batchelor guilty as a principal. See People v. Dukett (1974), 56 Ill. 2d 432, 451, 308 N.E.2d 590, cert, denied (1974), 419 U.S. 965, 42 L. Ed. 2d 180, 95 S. Ct. 226, citing People v. Clements (1963), 28 Ill. 2d 534, 540, 192 N.E.2d 923; Faysom, 131 Ill. App. 3d at 528; Lusietto, 41 Ill. App. 3d at 208.

IV

Batchelor claims that the State deprived him of a fair trial by making improper remarks during closing argument.

Prosecutors have wide latitude to comment on evidence and draw reasonable inferences therefrom and, absent a clear abuse of discretion, a court’s rulings on the propriety of these comments will not be disturbed on review. (People v. Rockman (1986), 144 Ill. App. 3d 801, 813, 494 N.E.2d 688.) Prosecutors may not, however, misstate facts or argue facts not in evidence. (People v. Beier (1963), 29 Ill. 2d 511, 516, 194 N.E.2d 280.) Even so, these remarks do not mandate a reversal “unless they are so prejudicial as to constitute a material factor in defendant’s conviction.” People v. Townsend (1985), 136 Ill. App. 3d 385, 394, 483 N.E.2d 340, citing People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.

Batchelor contends that the State made three improper remarks which, cumulatively, amount to reversible error (citing People v. Whitlow (1982), 89 Ill. 2d 322, 337-43, 433 N.E.2d 629). First, the State referred to the absence of Ricky Walls at the trial even though the State had excluded him from the courtroom earlier. Second, the State made a remark about Dr. Kalelkar’s testimony which, defendant argues, suggested that the defense had been hiding the evidence or trying to confuse the jury. Finally, the State referred to accountability in closing even though accountability was not the State theory of the case.

The State notes that defendant failed to make contemporaneous objections and thus failed to preserve the second and third issues for appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) In this case it does not appear that “the evidence is closely balanced or the error is of such magnitude that the commission thereof denies the accused a fair and impartial trial or sentencing hearing. [Citations].” (People v. Young (1989), 128 Ill. 2d 1, 47, 538 N.E.2d 461.) Thus, the plain-error exception to the waiver rule does not apply.

Even assuming arguendo that the last two remarks were not waived by defendant’s failure to make a contemporaneous objection, the State’s closing did not exceed the latitude for drawing reasonable inferences from trial testimony. The State did refer to possible confusion over Dr. Kalelkar’s testimony. The prosecutor who introduced a summary of her testimony began by saying: “Remember when Dr. Kalelkar left the witness stand and drew some pictures to show you how bullets traveled? She told you, you might be confusing them, let me explain it.” He then went on to discuss Kalelkar’s testimony. Thus, any suggestion that the defense had confused the jury or hidden evidence was contained in the comment made by Kalelkar herself and paraphrased by the prosecutor in closing. Furthermore, the State’s remarks about accountability were proper comments about a theory supported by evidence.

The other alleged error in the State’s closing was a statement about the absence of Ricky Walls at the trial. This remark was in rebuttal to the defense closing, which had suggested that Walls was the killer. Even if the State’s remark was improper, any prejudicial effect was eliminated by instructions reminding the jury that Walls had been excluded from Batchelor’s trial for legal reasons. People v. Cisewski (1987), 118 Ill. 2d 163, 178, 514 N.E.2d 970, citing People v. Carlson (1980), 79 Ill. 2d 564, 577, 404 N.E.2d 233.

In addition, defendant has not shown that any of these remarks, singularly or cumulatively, resulted in substantial prejudice or constituted a material factor in his conviction. (People v. Morando (1988), 169 Ill. App. 3d 716, 733, 523 N.E.2d 1061.) Therefore, any error would have been harmless.

For these reasons, we hold the State did not commit reversible error during the closing argument.

V

Batchelor contends that the trial court erred when it refused to submit a written answer to a note from the jury and send an additional paragraph of instructions about the point at which a crime ends under an accountability theory.

The State argues that defendant waived this issue on appeal by failing to tender written instructions (citing People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248; People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513). In this case, however, unlike the ones cited, the instructions involve answers to jury questions during deliberations and the judge specifically told defense counsel that no further instructions should be written at that point. Therefore, the issue is not waived.

Under Illinois case law: “Where a jury has raised an explicit question on a point of law arising from the facts over which there is doubt or confusion, the court should attempt to clarify the question in the minds of the jury members.” (People v. Kucala (1972), 7 Ill. App. 3d 1029, 1035, 288 N.E.2d 622.) However, the decision to give non-IPI instructions is “a matter for the discretion of the trial court.” (People v. Sanchez (1986), 115 Ill. 2d 238, 282, 503 N.E.2d 277.) It is also a matter of discretion for the trial court to give additional instructions when the ones already tendered extensively detail the elements and definition of the offense. People v. Glass (1984), 128 Ill. App. 3d 869, 872, 471 N.E.2d 597.

Batchelor cites Kucala for the proposition that it is reversible error to fail to instruct the jury on the time frame during which accountability can occur. In that case, defendant and several others were involved in a flight with three men. At one point defendant acted either in self-defense or in the defense of a friend when he hit one of the men who had threatened the defendant and others with a knife. In the fracas, objects were thrown and blows were struck. Two of the men fled from the scene. Kucala and others pursued these two men and someone killed one of them. Under those circumstances, the trial court’s refusal to tell the jury whether the forcible felony began with the acts of self-defense or with the later pursuit of two fleeing men was reversible error.

In the case here, by contrast, the original instructions defined accountability in terms of the defendant’s actions “before or during the commission of an offense” which help in the “planning or commission of the offense.” The jury requested additional instructions about whether the crime of murder ended with the shooting or with the hiding of the gun. The court then called the jury and told them to follow instructions as already given. In short, the court simply refused to repeat or elaborate upon previous unambiguous instructions after jury deliberations had begun.

For these reasons, we hold that the trial court did not err in refusing to give additional instructions to the jury.

VI

Finally, Batchelor states that the trial court abused its discretion in sentencing him to 35 years’ imprisonment because this sentence was excessive for a first offender given his good record and his rehabilitative potential.

Under Illinois law, murder carries a sentence of not less than 20 nor more than 40 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8— 1(a)(1)(a).) A reviewing court has the power to reduce sentences under Supreme Court Rule 615(b)(4), but should not alter a sentence on review unless the trial court has abused its discretion. 107 Ill. 2d R. 615(b)(4); People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.

Batchelor argues that he should have received a shorter sentence. At the sentencing hearing, he presented childhood problems, including a father who died when he was two and a mother who began her Ph.D. program when he was 12. He also noted his past drug and alcohol use and his age (15 at the time of the crime) as reasons why he should receive a shorter sentence. He reviewed the problems of fatherless black males who often suffer self-hatred and low self-esteem and live in neighborhoods infested by gangs and drugs. The State stressed the callous violence with which Batchelor had gunned down a boyhood friend simply because the other boy was joining another gang. The court reviewed the presentence investigation. The court also stated that Batchelor chose to commit “murder of a very young boy for practically no reason at all. *** There is no reason not to impose the maximum sentence, except, perhaps, the defendant’s age.”

We hold that, under the circumstances, a sentence of 35 years for murder is not an abuse of discretion.

For these reasons, we affirm the judgment of the circuit court of Cook County. As part of our judgment, we grant the State’s request and assess the defendant $50 as costs for this appeal and $25 for the costs of oral argument.

Judgment affirmed.

McNAMARA, and EGAN, JJ., concur.