text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PERRY WILLIAMS, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 88—0272
    Opinion filed November 15, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Candace A. Williams, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

A jury found defendant, Perry Williams, guilty of armed robbery, and the court sentenced him to a 20-year term of imprisonment. On appeal, defendant contends that the trial court failed to ask the venire the questions required under People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062; that the State failed to prove defendant guilty beyond a reasonable doubt due to insufficient identification testimony; and that the prosecutor made improper remarks in closing argument. We affirm.

Curtis Sims, manager of a Church’s Fried Chicken restaurant located at 2 South Pulaski in Chicago, testified at trial that on November 10, 1986, at approximately 8:20 p.m., defendant robbed the restaurant, taking $147. Sims heard the cashier call him, and he went out to the customer window where defendant stood, holding a gun, and demanding money from the register and from the extra money box kept under the counter. Defendant then came through the door into the cashier’s area. He took Sims, the cashier, the cook and a visitor to the back of the store, then to the office, where defendant took money from another cash box. Sims unlocked the back door, and defendant left.

Sims testified that about two weeks after the robbery, the police brought photographs of 14 men to his home and he identified defendant’s photograph. On December 4, 1986, Sims viewed a lineup at the police station and Sims again identified defendant. Sims later identified defendant at a preliminary hearing, and at trial. Sims testified that during the robbery he stood about a foot away from defendant for about 5 to 10 minutes. Nothing obstructed his view, and the lighting was good. Defendant was breathing “like [he was] either nervous or having an attack with something.” Sims testified that he described the robber to the police as weighing 175 to 180 pounds, measuring 5 feet 5 inches or 5 feet 6 inches tall, with a scar over his forehead, and that he was about 30 years old. Sims testified on cross-examination that he did not recall, but he “probably” told the police the offender was 5 feet 2 inches and 155 pounds. Until pointed out to him at trial, Sims never noticed a scar on the left side of defendant's neck. Defendant had worn a winter jacket during the robbery.

Tommy Jackson, the restaurant’s cook, testified for the State that defendant had committed the robbery. Jackson had initially stood about 10 to 12 feet away from defendant during the robbery. At one point, he stood one foot from defendant. He could see defendant plainly. Jackson identified defendant from 14 photographs shown to him by the police 10 days to two weeks after the robbery. “I recognized it right off the bat ***.” Jackson also identified defendant in a lineup on December 4, 1986. He denied telling the police that the robber was 5 feet 2 inches tall and weighed 155 pounds. In fact, he gave no description to the police on the night of the robbery.

Calvin Shavers, the store manager for a different Church’s restaurant, testified for the State that he was in Church’s at 2 South Pulaski on the night that defendant committed the robbery. Shavers stood eight feet from the cash register when defendant came in and demanded money. Defendant pushed Shavers and Jackson into the office. At that point, Shavers stood one foot from defendant. Shavers saw defendant for about half a minute. Shavers identified defendant in court. It was his first identification of defendant. He did not view a lineup or photographs, and only learned of the arrest about a month before trial. Shavers testified that he told the police that the offender was 5 feet 5 inches, in his late 30’s, and “had sort of like a hard time breathing.”

Lena Gholston, the 15-year-old cashier on duty in the restaurant that night, testified that a man who was breathing hard came into the store, pointed a gun at her, and demanded money. Gholston yelled for a manager, and Sims came out. The man pushed Gholston, Sims, Shavers and Jackson into the office, and demanded the extra money from the box, which they gave him. Defendant demanded that Sims unlock the back door, and defendant left. During most of the robbery, Gholston’s back was to the robber, as he held on to her shirt collar and held the gun at her back. She viewed his face for only IV2 minutes.

Gholston testified that she told the police the robber was a black male with a mustache, about 5 feet 4 inches tall, and that he was breathing heavily. She was not shown any photographs by the police. She viewed a lineup but could not identify anyone. “I didn’t want to identify anybody because I wasn’t sure who it was, and I didn’t want to send the wrong guy to jail.” On redirect examination, Gholston identified defendant in court as the robber, but also stated: “I’m not sure if that’s him, but it looks like him.” On re-cross-examination, Gholston testified that defense counsel came to her house and she told him the person in the lineup was ugly.

Margaret Krischunas, a Chicago police officer, testified that on November 10, 1986, she interviewed Sims, Jackson, Shavers and Gholston. The description of the offender was “a conglomeration of all of the information that was given” by the witnesses. The offender was described to her as a male black, between 35 and 39 years old, 5 feet 2 inches, 155 pounds, brown eyes, black hair, medium complexion, with a mustache, and “that he had had trouble breathing.”

Kanam Kuan, a Chicago police sergeant, testified that he interviewed Sims on December 1, 1987. Sims picked defendant’s picture from 14 photographs. On the same day, Kuan went to Jackson’s home, and Jackson also picked defendant’s picture out of the 14 photographs. Kuan arrested defendant on December 4, 1987. The home address which defendant gave was located about three blocks from the restaurant. Kuan observed that defendant had “a little difficulty in breathing and also [was] drooling at his mouth.” Defendant told Kuan that he had asthma. A protective search of defendant revealed a medical breathalyzer or inhalator. Kuan’s case report did not mention the breathing problem or breathalyzer. Kuan recalled the description he had described defendant as 5 feet 6 inches or 5 feet 7 inches tall and weighing 155 to 160 pounds. The supplemental report, which in-eluded information reported by defendant himself, stated that defendant was 5 feet 7 inches tall and weighed 135 pounds. Kuan noticed several scars on defendant’s face but none on the left side of his neck. Kuan testified further that Sims and Jackson separately identified defendant in a lineup. Shavers did not view the lineup because Kuan could not locate him.

Rosie Lee testified for the defense that defendant had been a boarder in her house for about one year. She believed defendant was 5 feet 6 inches tall and weighed 130 to 135 pounds. He had a scar on the left side of his neck, a scar on his right temple area, and a scar on his forehead. She never noticed a breathing problem. Defendant routinely left home at 6:30 a.m., and arrived home between 8:30 and 9 p.m. On cross-examination, Lee testified that she did not know the date on which the armed robbery occurred, and she did not know with any certainty where defendant was on that date.

The jury found defendant guilty of armed robbery.

On August 3, 1987, several weeks after the trial concluded, defense counsel appeared before the court on his motion for a new trial and stated that defendant had provided him with information that another man, Larry Pride, who looked like defendant and also had asthma, had been convicted in May 1987 of robbing eight Church’s Fried Chicken restaurants eight times in the Chicago area. The motion for a new trial continued from time to time until December 29, 1987.

At the hearing, Edmund Mook, a Chicago police officer, testified on behalf of the defense that on November 21, 1986, he arrested Larry Pride and Tyrone Robertson for the armed robbery of two Church’s Fried Chicken restaurants, one of which was robbed six times, and one of which was robbed twice. One of those restaurants was about 10 blocks from the Church’s at 2 South Pulaski. Pride lived about one mile from 2 South Pulaski.

Pride was 34 years old, 5 feet 10 inches tall and weighed 175 pounds. Mook never observed Pride suffering from any breathing problems. Pride never requested any medication. None of the eyewitnesses to the eight robberies for which Pride was tried ever mentioned Pride having trouble breathing. To the best of Mook’s knowledge, Pride was still free on November 10, 1986, the date of the robbery for which defendant here was tried.

Mook testified further that the series of eight robberies of Church’s restaurants involved Pride and an accomplice. Typically, the two men would enter the Church’s restaurant, perhaps place an order, and then announce a robbery. The offenders would then crawl over the counter, have the cashier remove the money from the register, and take the money from the extra cash box. The employees would be gathered together and directed into a bathroom, closet or rear office, and money would then be taken from the safe. The employees were locked into a room, and the offenders would exit through a rear door.

The parties stipulated that on April 6, 1987, Pride was convicted on a plea of guilty and sentenced to 15 years in prison.

The parties stipulated that Jackson had come in to view defendant’s and Pride’s photographs, and he again identified defendant as the robber.

The assistant State’s Attorney informed the court that defendant’s and Pride’s photographs had been shown to Sims, and Sims indicated “there was no doubt in his mind” that defendant was the offender, and “that the two pictures ***, he said [didn’t] look the same at all.”

The parties also stipulated, somewhat obscurely, that Gholston viewed defendant’s and Pride’s photographs, and that she identified defendant Williams as the robber. “She was further asked if [defendant] and Mr. Pride looked alike. She said, ‘Yes, they look similar. They’re both ugly.’ ” She “indicated that she thought Mr. Pride was [defendant] when she looked at the two pictures.”

The court denied the motion for a new trial. The court then sentenced defendant to a prison term of 20 years.

Opinion

Defendant first contends that the trial court failed to make the proper voir dire inquiries regarding jury bias pursuant to People v. Zehr. That case provides that jurors must “know that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held against him.” People v. Zehr, 103 Ill. 2d at 477.

Defendant failed to submit questions regarding jury bias, failed to object to the lack of inquiry and failed to raise the issue in his post-trial motion. In fact, defense counsel specifically declined to ask any questions of the prospective jurors when the court asked if he would like to do so. Thus, defendant has waived the issue for review. People v. Thomas (1989), 186 Ill. App. 3d 782, 800, 542 N.E.2d 881 (Zehr argument waived); People v. Barnett (1988), 173 Ill. App. 3d 477, 485, 527 N.E.2d 1071 (same); People v. Starks (1988), 169 Ill. App. 3d 588, 594, 523 N.E.2d 983 (same); People v. Kokoraleis (1987), 154 Ill. App. 3d 519, 525, 507 N.E.2d 146 (same); People v. Visnack (1985), 135 Ill. App. 3d 113, 124, 481 N.E.2d 744 (same); People v. Estes (1984), 127 Ill. App. 3d 642, 655, 469 N.E.2d 275 (same).

Moreover, we cannot find plain error (134 Ill. 2d R. 615(a)) exists here, in light of the overwhelming identification evidence against defendant, as discussed below. See People v. Barnett, 173 Ill. App. 3d 477, 527 N.E.2d 1071 (failure to make Zehr inquiries was not plain error, in light of overwhelming evidence against defendants); People v. Visnack, 135 Ill. App. 3d at 124 (same).

Defendant next contends that the State failed to prove him guilty beyond a reasonable doubt because Gholston could not identify him before trial, wavered on her identification of defendant during trial, and after trial was confused between defendant and Pride, and because Pride, who looked like defendant, was found guilty of robbing other Church’s restaurants in Chicago.

A criminal conviction will not be overturned unless, after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.) When defendant’s identification forms the central question in a prosecution, the testimony of a single witness is sufficient to convict if the witness is credible and if the witness viewed defendant under conditions permitting a positive identification to be made. (People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317; People v. Richardson (1988), 123 Ill. 2d 322, 353, 528 N.E.2d 612.) Minor discrepancies in the eyewitnesses’ identification testimony only go to the weight to be given the testimony. People v. Morgan (1963), 28 Ill. 2d 55, 190 N.E.2d 755.

In considering the factors which are relevant to determining whether an identification is sufficient, and in viewing the evidence in a light most favorable to the State, we find that defendant was proved guilty beyond a reasonable doubt.

The eyewitnesses had an opportunity to view the robber at the time of the incident. (See People v. Slim, 127 Ill. 2d 302, 537 N.E.2d 317.) Sims, Jackson and Shavers all viewed defendant face to face. Sims stood one to two feet from defendant for 5 to 10 minutes. Nothing obstructed his view, and the lighting was good. Jackson initially stood about 10 to 12 feet away from defendant during the robbery. At one point, he stood one foot from defendant. He could see defendant plainly. Shavers stood eight feet from the cash register when defendant came in, and at another point he stood one foot from defendant. The lighting in the restaurant was very good. (See People v. Reed (1980), 80 Ill. App. 3d 771, 400 N.E.2d 688 (viewing time of 5 to 10 seconds was sufficient).) Moreover, the eyewitnesses’ degree of attention was good. See People v. Slim, 127 Ill. 2d 302, 537 N.E.2d 317.

In addition, the witnesses’ level of certainty at the subsequent confrontation was high, and the length of time between the crime and confrontation was short. (See People v. McTush (1980), 81 Ill. 2d 513, 410 N.E.2d 861.) Sims and Jackson picked defendant’s photograph out of 14 photographs within 10 days to two weeks after the crime was committed. They identified defendant in a lineup shortly thereafter. Shavers did not identify defendant until trial, but he was certain of the identification.

The witnesses’ prior descriptions were sufficiently accurate to support the identification. (See People v. Slim, 127 Ill. 2d 302, 537 N.E.2d 317.) Defendant was apparently 5 feet 7 inches tall and weighed 135 pounds, according to the information he gave when he was arrested. He had a scar on his forehead, on his right temple, and on the left side of his neck.

Sims testified that he described the robber to the police as weighing 175 to 180 pounds, measuring 5 feet 5 inches or 5 feet 6 inches tall, with a scar over his forehead, and that he was about 30 years old. He had trouble breathing, as if he was “having an attack.”

Shavers testified that he told the police that the offender was 5 feet 5 inches, in his late 30’s, and “had sort of like a hard time breathing.”

Gholston testified that she told the police the robber was a black male with a mustache, about 5 feet 4 inches tall. He had trouble breathing.

Officer Krischunas testified that on the night of the robbery, the victims told her that the offender was a male black, between 35 and 39 years old, 5 feet 2 inches, 155 pounds, with brown eyes, black hair, a medium complexion, a mustache, and “that he had had trouble breathing.”

Officer Kuan also observed at the time of arrest that defendant had “a little difficulty in breathing and also [was] drooling at his mouth.” Defendant told Kuan that he had asthma. A protective search of defendant revealed a medical breathalyzer or inhalator. Kuan’s case report, however, did not mention the breathing problem or breathalyzer.

In contrast, Officer Mook testified after trial that Pride was 34 years old, 5 feet 10 inches tall and weighed 175 pounds. Mook never observed Pride suffering from any breathing problems.

Where the witness makes a positive identification, precise accuracy in the preliminary description is not necessary. (People v. Men doza (1978), 62 Ill. App. 3d 609, 378 N.E.2d 1318.) This is true even where there are discrepancies or inaccuracies as to height and weight. (People v. Smith (1977), 52 Ill. App. 3d 583, 367 N.E.2d 756.) The descriptions here were sufficiently similar to defendant to support the identification testimony, particularly where Sims and Jackson made positive identifications of defendant in photographic arrays and in lineups. See People v. Mendoza, 62 Ill. App. 3d 609, 378 N.E.2d 1318.

While none of the witnesses noticed a scar on defendant’s neck, they testified that defendant was wearing a ski jacket at the time. Moreover, Officer Kuan testified that he also did not notice a scar on defendant’s neck, although he did see the scar on defendant’s face. See People v. Miller (1964), 30 Ill. 2d 110, 195 N.E.2d 694 (failure of witnesses to observe defendant’s scar does not create a reasonable doubt as to his guilt).

The 15-year-old Gholston was the only eyewitness who could not identify defendant -with sufficient credibility to support a conviction. However, she had her back to defendant during most of the incident. Moreover, three other eye-witnesses offered strong identification testimony, and only a single witness is necessary. See People v. Slim, 127 Ill. 2d 302, 537 N.E.2d317.

In addition, in considering a motion for a new trial based on new evidence, defendant must show that the evidence would probably change the outcome of the case. (People v. Patterson (1980), 88 Ill. App. 3d 878, 410 N.E.2d 1115.) Defendant bears the burden of proof in showing he is entitled to a new trial on the basis of newly discovered evidence. People v. Carpenter (1979), 74 Ill. App. 3d 770, 393 N.E.2d 50.

Here, defendant failed to show that the evidence regarding Pride’s convictions for robbing Church’s restaurants eight times would probably change the outcome of the case. Jackson and Sims did not waver from their identification of defendant at all. When shown Pride’s photographs, Sims and Jackson both remained convinced that it was defendant, not Pride, who committed the robbery. For example, Sims apparently indicated “there was no doubt in his mind” that defendant was the offender, and “that the two pictures ***, he said [didn’t] look the same at all.” Gholston’s identification testimony was equivocal at best, both during trial and when she viewed Pride’s photograph after trial.

Finally, defendant contends that the prosecutor made improper comments during the State’s rebuttal closing argument. Prosecutors are afforded wide latitude in closing argument. In the absence of a clear abuse of discretion, a trial court’s determination regarding the propriety of closing arguments will not be disturbed on review. Even improper remarks will not result in reversal unless the remarks represent a material factor in that conviction. People v. Cisewski (1987), 118 Ill. 2d 163, 514 N.E.2d 970; People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Sheppard, (1990), 193 Ill. App. 3d 401, 549 N.E.2d 971.

Here, defendant points to the following comment made by the prosecutor:

“Well, there is one identification that counsel didn’t talk about, and I believe that the defense would have just as soon as talk about. That’s the identification each and every one of you were involved in. That identification that took place when Tommy Jackson, Curtis Sims, Calvin Shaver each individually took that witness stand and took an oath. That’s an identification that was made in this court under oath before God in front of each and every one of you individuals.
* * *
Obviously, counsel is very, very uncomfortable with that identification. That identification you saw. Those witnesses pointed out this defendant and told you this is the man who robbed our store on that date. Ladies and gentlemen, the burden that you get in this case is the burden beyond a reasonable doubt. I would ask that you do not let the defense make you feel guilty for doing your duty. You did not put this man here. He put himself here.” (Emphasis added.)

Defendant’s objection was overruled. Defendant complains that the argument “evok[ed] the oath ‘before God.’ ” Defendant argues this was further exacerbated when, using “the unsubtle admonishment not to ‘feel guilty,’ the prosecutor appealed to the awe of a deity” while calming the jury about returning a guilty verdict on less than sufficient evidence. Defendant maintains that the prosecutor “simultaneously bolstered the credibility of his witnesses and diminished the State’s burden of proof” by appealing to the jurors’ personal fears as a “prelude for absolving them of their sense of responsibility.”

Defendant relies on People v. Hooper (1989), 133 Ill. 2d 469, 552 N.E.2d 684, where the court remanded for a new capital sentencing hearing on the basis that the State argued that if the jurors did not impose the death penalty, they would have lied to the judge and to God. (Hooper, 133 Ill. 2d at 498-99.) The court stated: “We consider that to say that the jury would be branded with lying to the judge and lying to God if it did not vote for the death sentence could well have had the effect of diverting the jury’s attention from its consideration of the aggravating and mitigating factors.” (Hooper, 133 Ill. 2d at 499.) The comment here does not similarly attempt to convince the jurors to either find defendant guilty or they will have “lied to the judge and to God.” Instead, the comment in question here merely refers to the witnesses’ sworn testimony.

Moreover, the prosecutor here did not alter the burden of proof. Cf. People v. Jones (1982), 108 Ill. App. 3d 880, 439 N.E.2d 1011 (prosecutor improperly suggested that defendant had burden of proving a reasonable doubt and that his proof failed to create such a doubt).

We hold that no error occurred in the State’s closing argument.

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

Judgment affirmed.

MURRAY and McNULTY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNULTY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PERCY CLAYBOURN, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 88—1968
    Opinion filed November 15, 1991.

      Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and Mary Erigid Kenney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

Following a jury trial, defendant Percy Claybourn was found guilty of aggravated criminal sexual assault and armed robbery. Judgment was entered on two counts of aggravated criminal sexual assault and one count of armed robbery, and defendant was sentenced to concurrent terms of 28 years. On appeal, defendant contends that: (1) he was denied a fair trial on the charge of aggravated criminal sexual assault because the jury issues instruction on that charge omitted an essential element of the offense; (2) the prosecutor’s comments in closing argument served to shift the burden of proof, tended to call attention to the defendant’s failure to testify, and misstated the law; (3) he was denied his constitutional right to the effective assistance of trial counsel where counsel failed to object to improper argument and testimony presented by the State; and (4) he was denied his constitutional right to a conflict-free counsel at post-trial proceedings.

The evidence adduced at trial is as follows. Leon Holmes testified that July 7, 1987, he drove to Garfield Park with his girl friend, T.M. At approximately 1:30 a.m., defendant reached through the open passenger window of Leon’s car and told Leon and T.M. that if they moved, he would shoot them. Leon got his first glimpse of defendant’s face when defendant leaned into the car and held his face approximately six inches to one foot from Leon’s face. Leon saw that defendant held a knife with a three- to four-inch blade in his right hand. In addition, defendant patted his waist and said that he had a .9 millimeter pistol which he would use if Leon or T.M. moved. Leon never saw the gun.

Defendant pushed Leon’s face down and demanded money. After Leon responded that he had no money, defendant held the knife at the back of Leon’s neck while he searched Leon and the car. Defendant ordered Leon to give him his jewelry, and Leon handed defendant his two gold neck chains and two gold rings. While still holding the knife at Leon’s neck, defendant fondled T.M.’s breasts. Defendant then opened the rear passenger door and entered the car. He reached up T.M.’s dress and fondled her breasts, vagina and rectum. Defendant then ordered Leon and T.M. to undress and put their clothes in the back seat. Defendant ordered T.M. to prop her leg on the steering wheel and he rubbed her vagina for 15 to 20 minutes. Defendant then told Leon and T.M. to lie down on their stomachs, Leon on top of T.M. Defendant ordered them to remain still or he would shoot.

After Leon heard defendant walk away, he dressed and drove east looking for defendant. Leon and T.M. spotted defendant, and stopped their car. Defendant crossed in front of their car and then dove into a grey, two-door Chevy through an open window. Defendant drove away and Leon and T.M. followed. During the ensuing chase, defendant’s car caught on fire. Defendant exited the car and yelled that his car was on fire. From two car lengths away, Leon hollered at defendant to return his jewelry. Defendant put the jewelry on the ground and backed away. T.M. retrieved the jewelry, and returned to the car. Defendant then ran down the street, and Leon and T.M. pursued him in their car. Defendant escaped by jumping a fence but while doing so, his shoe came off. He retrieved his shoe and ran away limping. When Leon and T.M. returned to defendant’s burning car, the police had just arrived. Leon told the police that defendant was a black male, age 25 to 28, with short hair, a mustache, weighing approximately 160 to 165 pounds and wearing a beige jacket and blue jeans. On July 17, 1987, Leon viewed a lineup and identified defendant as the attacker.

T.M.’s testimony at trial corroborated Leon’s testimony and she also identified defendant as her attacker. In addition, T.M. testified that before she was made to undress, the defendant put his hand through the top of her panties and moved his finger in and out of her vagina for about five seconds. He then put his finger into her rectum for two or three seconds. After she undressed, defendant put his hand into her vagina while her leg was propped up against the steering wheel. T.M. also stated that when defendant jumped the fence, his foot got caught in the fence.

Officer Boudreau testified that after the fire was put out, he examined the car to determine who owned it and whether it had been reported stolen. The officer determined that the car had not been reported stolen, nor were there signs of tampering to indicate that the car had been stolen. Detective Kato testified that when he arrested the defendant on July 17, 1987, defendant had a large wound on the back of his right heel and he was limping.

Defendant stipulated that the burned car was registered to him. Defendant called Officer Jarocki to testify that defendant had reported his car stolen on July 7,1987, at approximately 3:35 a.m.

Defendant first maintains that his aggravated criminal sexual assault conviction must be reversed because the jury was not fully instructed on one element of the offense, use of a dangerous weapon. Although defendant did not object to this erroneous instruction, the failure to correctly instruct the jury on the elements of the crime charged constitutes plain error. (People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861.) We therefore address this issue.

The issues instruction given to the jury in this case reads as follows:

“To sustain the charge of aggravated criminal sexual assault, the State must prove the following propositions:
First: That the defendant committed an act of sexual penetration upon [T.M.]; and
Second: That the act was committed by the use of force or threat of force.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

It is undisputed that the instruction was deficient because it did not inform the jury that it should find defendant guilty of aggravated criminal sexual assault only if the State proved beyond a reasonable doubt the aggravating factor that “the accused displayed, threatened to use, or used a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim *** to believe it to be a dangerous weapon.” (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(a)(l).) The instruction as given only informed the jury of the elements of the lesser included offense of criminal sexual assault. We therefore reduce defendant’s aggravated criminal sexual assault conviction to a criminal sexual assault conviction. The record reveals that in imposing defendant’s sentence, the trial court considered it an aggravating factor that defendant committed two separate and distinct crimes. The trial court stated:

“After you committed that robbery, you could have walked away, and certainly armed robberies are bad and you would have disturbed the peace and society, but it would not have been as disruptive and as jarring as once you have completed your robbery, then getting in there to get your kicks.”

This aggravating factor is still present regardless of whether defendant was convicted of aggravated criminal sexual assault or criminal sexual assault. Accordingly, while we affirm defendant’s conviction and 28-year sentence for armed robbery, we vacate his 28-year sentence for aggravated criminal sexual assault and remand for the trial court to impose a new sentence within the statutory range for defendant’s modified conviction of criminal sexual assault.

Defendant next contends that the State’s comments in closing argument served to shift the burden of proof, tended to call attention to the defendant’s failure to testify on his own behalf, and misstated the law, thereby denying him a fair trial. Defendant maintains that the prosecutor called attention to his failure to testify when he began his closing argument by stating “you have heard all of the evidence in this case, that witness chair is now silent, there will be no more testimony.” Defendant also claims that the prosecutor focused on defendant’s failure to testify when he stated that the victims’ testimony of what occurred inside their car stood “uncontradicted” and that the “uncontradicted” testimony of one of the two victims was sufficient to convict defendant.

A prosecutor may not comment directly or indirectly on defendant’s failure to testify in his own behalf. (People v. Starks (1988), 169 Ill. App. 3d 588, 523 N.E.2d 983.) However, a prosecutor may describe the State’s evidence as uncontradicted, even if the defendant is the only one who could have contradicted it, provided it was not intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal right to testify. People v. Lyles (1985), 106 Ill. 2d 373, 478 N.E.2d 291.

It is often not easy to determine the line between permissible comments on testimony that stands uncontradicted and references to a defendant’s failure to testify. Here, the line is indeed close, particularly in light of the prosecutor’s comment that the witness chair is now silent. (See People v. Wollenberg (1967), 37 Ill. 2d 480, 229 N.E.2d 490 (Prosecutor made direct reference to defendant’s failure to testify when prosecutor reviewed the testimony of defense witnesses and then stated “no one else testified”).) We conclude that the prosecutor’s comment that the witness chair is now silent did draw attention to the defendant’s failure to testify, but that the error was harmless beyond a reasonable doubt because the evidence of defendant’s guilt was overwhelming. Two eyewitnesses identified defendant as the attacker. Both eyewitnesses had an adequate opportunity to view their attacker, each made an independent lineup identification, and each made an in-court identification. In addition, the victims testified that as defendant attempted to escape, he caught his foot on a fence. The arresting officer and photographs taken at the time of defendant’s arrest demonstrate that defendant did in fact have an ankle injury.

Defendant also contends that the following comment by the State improperly focused on defendant’s failure to call witnesses on his behalf.

“PROSECUTOR: Now they want you to somehow find him not guilty of armed robbery and aggravated criminal sexual assault because for some reason we didn’t have a doctor come in and talk about the injury on his leg. Well, they have subpoena powers and they can bring in a doctor or anybody to say you know what—
DEFENSE COUNSEL: Judge, the defense does not have the burden to prove anything.
THE COURT: Overruled. You raised the issue, they are entitled to comment on it.
PROSECUTOR: You know [sic] he got that, they could have called in a family doctor or anybody to say you know he got that on the 4th of July, he didn’t get that on the 7th of July, or a doctor, they could come in and say that injury is three weeks old. That didn’t happen, why because it is in a position that’s consistent with what the victims said he sustained going over that fence.”

Defendant cannot complain of statements which have been invited by his counsel. (People v. Webster (1988), 175 Ill. App. 3d 119, 529 N.E.2d 741.) While the State may not ordinarily comment on defendant’s failure to call witnesses, such comments are permitted when made solely in response to defense counsel’s own reference to the State’s failure to call those witnesses. (People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612.) The record reveals that the comment by the prosecutor in rebuttal was invited by defense counsel’s closing argument. Leon testified that when defendant escaped by hopping a fence, defendant lost his shoe and ran away limping. T.M. testified that when defendant jumped the fence, his foot got caught. Furthermore, People’s exhibits numbers 6 and 7 indicate that defendant had an anide injury when he was arrested 10 days after the attack. In closing argument, defense counsel raised the question as to the age of the wound. Defense counsel argued that the photographs mean nothing except that defendant had an ankle injury on the date of his arrest because there had been no expert testimony as to the age of the injury. Accordingly, in rebuttal, the prosecutor properly pointed out that the defense could also have called an expert or family member to testify that the injury occurred before or after the date of the assault.

Defendant also contends that the prosecutor misstated the law when he defined the offense of aggravated criminal sexual assault. In closing argument, the State made the following remarks:

“Aggravated criminal sexual assault in our State is rape. *** [A] woman can be raped *** when any part of one person makes an intrusion into the sexual organs or anus of another person. That is the definition of aggravated criminal sexual assault, and his Honor will so instruct you.
* * *
Under our law we don’t even have to have a knife for there to be a rape, we don’t have to have a gun for there to be rape because rape occurs when this intrusion takes place through the use of force or threat of force.
***
When you get the law you will see the term force or threat of force or violence as to the counts of aggravated criminal sexual assault. So even though he doesn’t have the gun, the threat of having the gun is sufficient for the charge of aggravated criminal sexual assault.”

Defendant contends that these statements of the law by the prosecutor were improper in that they fail to mention that defendant can only be found guilty of aggravated criminal sexual assault if he had a weapon. We find no error in these comments since the prosecutor was simply defining sexual penetration and explaining that criminal sexual assault is rape. Moreover, the prosecutor did discuss an aggravating factor necessary to elevate an offense from criminal sexual assault to aggravated criminal sexual assault when he stated that the defendant’s threat of having a gun is sufficient to support a conviction for aggravated criminal sexual assault.

Defendant next contends that he was denied his right to effective assistance of trial counsel. In order to establish ineffective assistance of counsel, defendant must show that counsel’s performance was so deficient as to fall below an objective standard of reasonableness and that the deficient performance so prejudiced the defendant as to deny him a fair trial. People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.

Incompetency of trial counsel is not established by mere failure of counsel to object to inadmissible evidence. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) The decision of when to object to evidence is generally considered a matter of trial strategy. People v. Clark (1987), 160 Ill. App. 3d 877, 513 N.E.2d 937.

Defendant first maintains that trial counsel performed unreasonably because trial counsel did not raise a hearsay objection during Officer Kato’s testimony. It was undisputed at trial that the offender used defendant’s car to flee from the scene of the crime. The defense presented a theory that the offender was someone who had stolen defendant’s car on the evening of the offense. Defendant reported to Officer Jarocki that his car had been stolen from his place of employment at 6644 South Ashland. However, the State elicited testimony from Officer Kato that when Kato went to the address reported as defendant’s place of employment, there was no business there and neither of the two people present at the address knew defendant. Defendant contends that Kato’s testimony of what those unidentified people told him was impermissible hearsay which prejudiced the defendant by raising the inference that defendant had lied to the police.

While this may have been impermissible hearsay, we find that it did not unduly prejudice the defendant since the record reveals other evidence which raised the inference that defendant had lied to the police. Officer Jarocki testified that defendant appeared very nervous as he was giving the officer the information on his stolen vehicle. Furthermore, while defendant originally told Officer Jarocki that his car was stolen from his place of employment, he later changed his story and said that he wasn’t sure whether he had left the car at work or at home. In addition, Officer Kato testified that there was no business located at the address given by defendant as his place of employment. Officer Jarocki also testified that the telephone number given by defendant as his work number did not correspond to the address given by defendant as his place of employment. Accordingly, we find that Officer Kato’s testimony as to the fact that the people at the South Ashland address had never heard of defendant did not unduly prejudice defendant, and trial counsel’s failure to object to such testimony did not deny defendant effective assistance of counsel. Defendant cannot establish that but for the alleged error the outcome of the trial would have been different.

Defendant also claims that he was denied effective assistance of counsel by trial counsel’s failure to object to three improper remarks by the prosecutor which improperly focused on defendant’s failure to testify. Since the characterization of evidence as uncontradicted does not always draw attention to defendant’s failure to testify on his own behalf (People v. Lyles (1985), 106 Ill. 2d 373, 478 N.E.2d 291), we conclude that it was not professionally unreasonable for trial counsel to forego any objection to the prosecutor’s characterization of the State’s case as uncontradicted. Furthermore, as we have previously noted, any error in the prosecutor’s comment that “the witness chair is now silent” is harmless beyond a reasonable doubt because evidence of defendant’s guilt was overwhelming.

Finally, defendant maintains that he was denied his right to conflict-free post-trial counsel. After learning that defendant had filed a complaint against her with the Attorney Registration and Disciplinary Commission, Assistant Public Defender Viola Rouse moved to withdraw as counsel. The court allowed Rouse’s motion to withdraw and appointed another public defender, Steven Helis, to represent defendant in the post-trial proceedings. Defendant contends that the appointment of Helis violated his right to conflict-free counsel since Helis and Rouse shared the same courtroom.

The constitutional guarantee of effective assistance of counsel includes the defendant’s right to enjoy the attorney’s undivided loyalty, free from conflicting interests or inconsistent obligations. (Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457; People v. Free (1986), 112 Ill. 2d 154, 492 N.E.2d 1269.) There is no per se conflict of interest when one public defender must argue the ineffective assistance of counsel of another public defender. (People v. Banks (1987), 121 Ill. 2d 36, 520 N.E.2d 617.) Instead, the court should determine, on a case-by-case basis, whether there are any circumstances peculiar to the case which indicate an actual conflict of interest. (Banks, 121 Ill. 2d 36, 520 N.E.2d 617.) This analysis first requires the trial court to determine whether a per se conflict exists, so as to preclude representation. Per se conflicts exist where defense counsel has professional commitments to others clearly antagonistic to the interests of the accused. (People v. Sanchez (1987), 161 Ill. App. 3d 586, 515 N.E.2d 213.) If no per se conflict exists, the defendant must show the existence of an actual conflict and actual prejudice resulting from the appointed attorney’s representation. Sanchez, 161 Ill. App. 3d at 594, 515 N.E.2d at 213.

This court examined the relationship between assistant public defenders Helis and Rouse in People v. Vaughn (1990), 200 Ill. App. 3d 765, 558 N.E.2d 479. In Vaughn, defendant filed a pro se motion to vacate his guilty plea, alleging that Rouse had rendered ineffective assistance of counsel. The trial court offered to appoint Helis to represent defendant, but defendant refused to accept representation from Helis because Helis had been Rouse’s trial partner when the case was first heard. Although the record in Vaughn did not indicate that Rouse and Helis were indeed partners at the time the case was first heard, the court took judicial notice of the record on appeal in Clayboum, the instant case, which does in fact reveal a working relationship between the two attorneys at the time in question. The court found persuasive the comment made by Rouse in the instant case in which she referred to Helis as her “partner in this courtroom.” The Vaughn court, however, stated no opinion as to the specific working relationship of the two attorneys or whether that relationship created a conflict of interest that precluded Helis from providing the defendant with unfettered advocacy. Instead, we remanded the case to the trial court for a determination as to whether their working relationship precluded Helis from providing the defendant with conflict-free representation. Vaughn, 200 Ill. App. 3d at 769.

Likewise, we remand the instant case to the trial court for a determination as to whether the working relationship between Rouse and Helis violated defendant’s right to conflict-free counsel. Should the court determine that the facts and circumstances indicate a conflict of interest precluding Helis’ representation, defendant’s sentence would be vacated and the trial court is then instructed to appoint conflict-free counsel and conduct new post-trial proceedings. Should the court find no conflict of interest, a new sentencing hearing is to be conducted only on defendant’s criminal sexual assault conviction.

Accordingly, defendant’s conviction and sentence for armed robbery are affirmed. Defendant’s conviction for aggravated criminal sexual assault is modified to a conviction for criminal sexual assault. His sentence for aggravated criminal sexual assault is vacated and this cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed and modified in part; and vacated and remanded in part.

MURRAY and GORDON, JJ., concur.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BENJAMIN VALENTINE, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 89—3495
    Opinion filed November 15, 1991.
    — Rehearing denied December 19, 1991.

      Michael J. Pelletier and Maria A. Harrigan, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Maureen A. Hartón, Special Assistant State’s Attorney, and Renee G. Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

After a jury trial, defendant Benjamin Valentine (Valentine) was found guilty of aggravated criminal sexual assault, attempted criminal sexual assault and home invasion (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 14, 8 — 4, 12 — 13, 12 — 11) and sentenced to concurrent terms of 55 years, 25 years and 7 years, respectively. He now appeals, alleging as error the following: (1) The prosecutor's violation of the so-called Bat-son rule (see Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712), (2) the trial court’s refusal to instruct the jury on voluntary and involuntary intoxication, and (3) the ineffective assistance of counsel at sentencing. For reasons that shall be discussed, we affirm defendant’s conviction and sentence.

It has become rather commonplace for the Batson error to be alleged in Cook County appeals. This situation is disturbing because it appears to reflect a dismaying lack of understanding of the tenets of the Batson decision and its progeny.

In Batson v. Kentucky the United States Supreme Court held that it was an error of constitutional dimension for prosecutors to utilize peremptory challenges to exclude one or more otherwise qualified and unbiased venirepersons based solely on race. The rationale for the rule is threefold, that purposeful discrimination in the selection of the venire (1) violates the defendant’s constitutional right to a trial by his peers, (2) violates the prospective juror’s right to participate in jury service, and (3) damages the community at large by undermining public confidence in the fairness of our system of justice. See Batson, 476 U.S. at 87-88, 90 L. Ed. 2d at 81, 106 S. Ct. at 1718; see also Powers v. Ohio (1991), 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364.

Because racial discrimination sanctioned by State action is unacceptable, we must be vigilant lest our legal system be manipulated to allow for tacit approval of such practice. Recognizing this, the Batson court attempted to find a method whereby racial discrimination in the jury selection process could be eradicated, while at the same time, the State’s historical privilege of exercising peremptory challenges could survive. To accomplish this goal, the Batson court made it encumbent upon trial courts to give meaningful and thoughtful consideration to the matter whenever a defendant objects to the prosecutor’s use of peremptories alleging that discrimination motivated the challenges.

A step-by-step process for analyzing such claims was suggested. According to Batson, the defendant would first be required to make a prima facie showing that the prosecutor utilized peremptory challenges in a purposefully discriminatory manner. (People v. Mahaffey (1989), 128 Ill. 2d 388, 412, 539 N.E.2d 1172.) Although it is no longer necessary that the defendant show that the State used peremptory challenges to remove from the venire persons who are of the defendant’s race, it is necessary for the defense to come forth with relevant circumstances that tend to support a finding that discrimination was the reason that a juror was challenged. Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364; People v. Edwards (1991), 144 Ill. 2d 108.

If the trial court determines that a prima facie showing has been established, the prosecutor must provide the rationale for having challenged the prospective juror or jurors for whom the defense has raised a question. Then the trial court must assess these explanations to determine whether they are legitimate, race-neutral, case-specific reasons which rebut the inference of discrimination or if they are merely pretextual. If, after considering all the relevant circumstances, including the explanations, an inference of racial discrimination persists, a mistrial must be declared and a new jury selected.

However, this entire process need not be a mechanical one. The overriding concern is to ensure that jury selection is not tainted by racially motivated discrimination and that the defendant is tried by a fair and impartial jury of his peers. (Hernandez v. New York (1991), 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859.) In the recent Hernandez decision, the Court held that “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” Hernandez, 500 U.S. at_, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866.

The Hernandez opinion clarified the Batson directive and reminded both trial courts and courts of review that the focus should be on the ultimate issue of whether discrimination appears evident. The Hernandez court also reinforced the idea that “ ‘official action will not be held unconstitutional solely because it results in a racially disproportionate impact,’ ” but that “ ‘[p]roof of racially discriminatory intent or purpose is required.’ ” Hernandez, 500 U.S. at_, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866, quoting Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977), 429 U.S. 252, 264-65, 50 L. Ed. 2d 450, 464, 97 S. Ct. 555, 563.

Finally, a trial judge’s findings, because they constitute a credibility determination, should be given great deference. (Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21, 106 S. Ct. at 1724 n.21; People v. Harris (1989), 129 Ill. 2d 123, 175, 544 N.E.2d 357.) Courts of review should not make an independent review of a trial court’s rejection of a Batson claim, but rather, should only overturn a trial court’s finding on the issue of discrimination if it finds the decision to be clearly erroneous. (People v. Johnson (1991), 218 Ill. App. 3d 967.) If, however, a reviewing court should find that peremptory challenges were used in a discriminatory manner, it is an error which may not be deemed harmless and reversal is required.

Keeping these standards in mind, we now turn our attention to the jury selection that occurred in this case.

The trial court was provided with a pool of 50 prospective venirepersons. Initially, the trial judge addressed the entire venire in a separate room, informing them of the charges against defendant, the names of persons involved and possible witnesses, as well as general principles of law. The names of 12 persons were then randomly selected, and these persons were brought to the courtroom for voir dire.

It is important to note that the trial court conducted the entire voir dire. As each venireperson was questioned, if any attorney had a follow-up or clarifying question for a particular venireperson, the attorney was required to approach the bench for a sidebar, relay the proposed question to the court, and the court would decide whether the question would be put to the venireperson.

Jurors were selected in panels of four. That is, the trial court called one venireperson, questioned him or her, and then decided contemporaneously, based upon that individual’s answers to the various questions, whether he or she should be excused for cause. The court then moved on to the next venireperson. Once the court interviewed, and found qualified, four venirepersons, the panel was tendered to the parties, but not for further questioning. The State and defense were only asked whether they wished to exercise any peremptories. If so, those individuals would be excused. Other venirepersons would then be called one by one, and interviewed, until a group of four venirepersons was again compiled, tendered to the parties, and found acceptable by all. Once a panel of four venirepersons was accepted, the members were sworn in as jurors and then excused for the remainder of the day. The court then proceeded with voir dire until another panel of four was selected. This process was followed until 12 jurors (three panels of four) and two alternates were selected.

Although the racial make-up of the venire is unknown, the record indicates that the court excused for cause, without objection by either side, two black males, three white males, one black female and three white females. The defense peremptorily challenged two white males and three white females and the State peremptorily challenged two black females. The jury that was accepted consisted of two black males, four white males, one black female and five white females and the alternates were both white, one male and one female.

Valentine, who is black, raised a Batson objection after the State exercised its second peremptory challenge. Defense counsel indicated that the objection was interposed at this point because “the reading of the [Batson] case said it was proper only after the second.” The only basis for the objection was that the State had exercised two peremptory challenges against black venirepersons. Defense counsel acknowledged, however, that the State had already accepted two black venirepersons on the jury. Without assessing the defense objection or determining whether a prima facie case had been set forth, the trial court asked the State to respond and the State did so, giving reasons for excusing the two persons.

Although the Hernandez decision states that the preliminary issue of whether the defendant set forth a prima facie case becomes moot once the State is asked to provide its rationale for excusing certain prospective jurors, we feel compelled to comment on the failure of trial courts to make an initial assessment. This practice of “collapsing” the Batson steps, as well as trial courts’ failure to make detailed findings of fact to clarify the record when the Batson objection is raised, needlessly adds to the number of costly appeals. The State’s use of peremptory challenges, although subject to close scrutiny, should not be unnecessarily restricted and the State should not be called upon to reveal its rationale for eliminating certain prospective jurors, or have that rationale questioned, unless the defense is able to articulate, in clear and reasonable terms, the circumstances that led it to believe that race motivated the challenges. This was not done in this case. Nonetheless, since the State was asked to provide reasons for excusing the two prospective jurors and the reasons appear on the record, we shall evaluate those reasons in the context of the entire jury selection procedure and circumstances to determine whether we find that a discriminatory purpose or intent was evident in the jury selection in this case.

Our review of the record shows that the second juror challenged by the State was the 26th person called from the venire. She informed the court that she had been married for 37 years, had a 28-year-old daughter and a 27-year-old son, and had worked as a teacher’s aide for the Chicago Board of Education for 20 years. She indicated that she had “a lot of friends” who served as police officers and that, as a result of her relationships with these persons, she was “not sure” whether her evaluation of a police officer’s testimony would be affected. She further stated that her home had been broken into at one time and she believed that a police officer knew the whereabouts of her stolen merchandise but did not return it to her. This, she indicated, left her somewhat disillusioned regarding police officers, “it kind of gave me a downslide.”

The State, when responding to the Batson claim, noted the fact that this venireperson had worked with children through the school system for a number of years and that this fact might make her more sympathetic to the defendant, who had been only 19 at the time the offenses were committed. The State also noted the venireperson’s stated bias concerning police officers.

The first venireperson peremptorily challenged by the State, whose dismissal from the jury was not objected to at the time because of defense counsel’s misconception concerning the Batson decision, was the fifth venireperson to be called. She informed the court that she had a daughter and lived at home with her mother, stepfather, sister and brother. She was unemployed and when asked what work or profession she had previously engaged in, if any, she stated “baby-sitting, helping the elderly.”

The State, in response to the subsequent Batson objection, stated that this venireperson, although 28 years old, had apparently never been employed. The State further indicated that the venireperson’s demeanor led it to believe that she was somewhat “mentally slow” or that she had a “dull personality” and would be unable to follow the case carefully.

Valentine did not, nor does he now, dispute any of the State’s comments regarding these two venirepersons or argue that they were pretextual explanations. He merely argues that the State did not seek to have these venirepersons excused for cause and so they are, somehow, insufficient reasons. However, the reason given for exercising a peremptory challenge need not rise to the level of a challenge for cause. (Batson v. Kentucky, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) Therefore, the fact that the State did not seek a venireperson’s excusal for cause prior to exercising a peremptory challenge should not be dispositive.

We note, too, that defendant does not contend that he was not tried by a jury of his peers as required by the constitution, but rather, focuses mainly on the fact that the court did not follow a methodical step-by-step procedure when assessing the Batson claim. However, as stated earlier, the procedure followed need not concern us if the relevant circumstances appear in the record so that the reviewing court can determine whether racial discrimination was evident in the jury selection process.

We find that the record is sufficient in this case and that it supports the trial court’s ruling that no Batson error was shown. A discriminatory intent was not inherent in the prosecutor’s stated explanations nor did the State’s use of peremptory challenges, in the context of the entire jury selection process and relevant circumstances, evidence a concerted effort to purposefully exclude Afro-Americans from the jury. There was nothing, other than the shared race of the two venirepersons excused, to indicate that the elimination of these prospective jurors was anything but a legitimate exercise of the State’s right to utilize its peremptory challenges. Furthermore, the record provides some basis for the State’s belief that the persons they excused were either biased or unqualified for reasons that did not stem from race.

The next issue raised by Valentine is that the trial court erred by refusing to instruct the jury on the defenses of voluntary and involuntary intoxication. Since a trial court has the discretion to refuse to tender a defense instruction on intoxication where there is insufficient evidence from which a jury could reasonably find that a defendant was so intoxicated at the time of the offense that he lacked the requisite mental state for the crime (People v. Arnold (1984), 104 Ill. 2d 209, 470 N.E.2d 981), consideration of this point requires a recitation of the sordid facts of the case. Although the public defenders used the names of the victims in their briefs, we shall abide by the convention recommended in cases of this nature by the committee on gender bias and not reveal the names of the victims.

On the evening of December 19, 1987, C.O. and her two children, a 10-year-old son, T.O., and a 12-year-old daughter, K.O., attended a church service and dinner. After they returned home to their apartment in Calumet City, K.O. fell asleep in the living room watching television and T.O. went to sleep in his mother’s bed.

At some point during the night K.O. was awakened by a noise coming from the area near the sliding glass door that led to the balcony of their second-floor apartment. K.O. sat up and turned on a light near where she was sleeping. She then got up to look around the room and was surprised to find a man crouching behind a couch in the room. K.O. asked him who he was and what he wanted. The man, later identified as Valentine, stated that he was the devil and was there to kill them. K.O. then ran to her mother’s room.

K.O. awakened her mother, C.O., and told her that there was a man in the apartment. As C.O. awoke she saw defendant enter her room and stand at the foot of the bed. Valentine stated that he was the devil, sent by God to kill them. He then jumped on the bed and began to fondle C.O.’s breasts and genital area. C.O. begged him not to rape her in front of the children and told him that she would give him money or whatever he wanted. In response he told the children to leave the room and then escorted them from the room, turning off lights in the apartment as he led them toward a back bedroom.

When Valentine left the room, C.O. ran from the bedroom and attempted to escape the apartment. But just as she opened the front door, Valentine grabbed her hair from behind. C.O. struggled with Valentine and together they fell down into the outer hallway and down a flight of stairs. They continued to struggle on the floor of the main foyer and then fell down the flight of stairs that led to the building’s garden apartment. C.O. screamed for help and clung to a wrought iron banister as Valentine hit and kicked her and tried to drag her back upstairs.

Eventually, Valentine abandoned his efforts with C.O. and ran back upstairs. C.O. followed but found that Valentine had locked himself into her apartment. C.O. then ran outside and began screaming for help. She ran to the next apartment building and began pushing all the doorbells or buzzers. Soon thereafter a police officer arrived and she informed him that there was a man in her apartment and that he was going to kill her children.

Inside the apartment, Valentine found K.O. and T.O. inside K.O.’s bedroom. He threatened to kill T.O. if he moved or made a sound and then led K.O. out into the family room where he partially disrobed her. Valentine was completely undressed as well. He then led her to another bedroom and began to have sexual intercourse with her.

As Valentine assaulted K.O., she could hear people knocking at the door, the doorbell ringing and the phone ring. Valentine left the room briefly, but upon his return he resumed his sexual assault on her. Eventually, however, police officers entered the room and pulled Valentine off of her.

Police officers Guglio, McCarthy and Thomas all testified at trial. Officer Guglio stated that he and another officer entered the apartment building from the rear and attempted to enter the apartment, but found the door locked. He remained positioned near this door while the other officer returned to the front of the apartment building. As Officer Guglio waited, a black man, later identified as defendant, opened an apartment door and stuck his head out. Guglio identified himself as a police officer and told the man to come out. Defendant just said, “huh” and then closed the door. When additional officers arrived, they tried the door and found it to be unlocked. They entered the apartment and first found T.O. in a back bedroom. They proceeded through the apartment and ultimately found Valentine and K.O. in another bedroom.

When the police officers entered the room Valentine was still engaged in intercourse with K.O. Although three officers attempted to pull Valentine from K.O., he wrapped his arms around her and refused to let go. An officer had to resort to striking Valentine on the head with his service revolver before Valentine would release her. Valentine received a small laceration to the head as a result.

K.O. was removed to safety while Valentine, who was kicking and struggling, was handcuffed. Once Valentine was subdued, Officer McCarthy questioned him. Valentine was able to give his name and address and he then told the officers that they could not arrest him because his father was a Chicago police officer.

C.O., K.O. and T.O., as well as Officers Guglio, McCarthy, and Thomas, all testified that they never detected the smell of alcohol on Valentine. Additionally, the officers testified that, because of their experience and training as police officers, they learned about and had considerable experience in dealing "with people who were intoxicated and/or under the influence of drugs. The officers testified that Valentine did not appear to be under the influence of alcohol or other drugs. Valentine was able to walk to the police car, unassisted, without staggering, stumbling or falling. He spoke coherently, without slurring his speech or mumbling words and his eyes appeared normal.

The only person who detected any smell of alcohol on Valentine was Nurse Couch at Ingalls Hospital, where Valentine was taken by the police to have his head laceration examined. Nurse Couch’s hospital report also indicated that Valentine told her at some point that he had consumed alcohol, “reefer” and hash. However, she qualified her testimony by explaining that she is very sensitive to the smell of alcohol and can often detect it when others do not. She also testified that although Valentine was verbally abusive during his stay in the emergency room and refused to cooperate, he knew who he was and seemed generally oriented as to time and place.

It is also noteworthy that C.O. testified that on two occasions prior to December 20, 1987, she had seen Valentine at her apartment building. On the first occasion Valentine rang her doorbell and attempted to gain entry into the building, asking about an upstairs resident. When C.O. left the building Valentine was still outside and he entered the building as she left. On the second occasion Valentine was already inside the building and he knocked at C.O.’s front door. He asked C.O. for some paper and a pencil, ostensibly so he could write a note to another resident. C.O. saw Valentine through the “peep hole” in her door, but did not open the door.

Valentine’s only proffered defense was his alleged chemical abuse. In furtherance of this defense, Valentine produced one witness, Arlon McClendon, who testified that he had been with Valentine on the evening of December 19, 1987. McClendon claimed that on the night of December 19, 1987, he met Valentine at a Burger King around 7 p.m. and then drove him and two other friends to a party that was to take place at a motel room near 159th and Harlem. He stated that they brought one case of beer and a half gallon of gin with them for the party.

At the motel, too many people showed up, so the proprietor of the motel asked them to leave. Upon leaving the motel, about eight people, including Valentine and McClendon, went to a friend’s house to continue partying. At this house they ate pizza and another case of beer was purchased. In addition, McClendon claimed that a few people, including Valentine, “tooted” some cocaine and that “everyone” shared two “joints” of marijuana. He claimed that he himself did not smoke the marijuana because he believed that the joints smelled as if they were “sherm sticks,” i.e., laced with PGP, a hallucinogenic drug. However, he admitted that no one ever told him that the marijuana contained PGP.

McClendon further testified that Valentine got into an argument during the party and was told to go into the other room to “cool down.” Later, when they rejoined Valentine, they “teased” him about not being able to hold his liquor. Valentine became upset because they were teasing him and decided to go outside for some fresh air. After a while they went outside and brought Valentine back in; however, when they started teasing him again, Valentine got up, got his coat, and went outside to sit on the porch. Twenty minutes later they went outside and found that Valentine was gone.

McClendon admitted that he had never come forward prior to trial to inform anyone that he had been with Valentine at a party on the night prior to the incident that was the subject of the trial. In fact, he contacted defense counsel the very same day that he testified, nearly two years after the fact. Furthermore, McClendon admitted that he could not say with certainty how much, or what, Valentine had to drink.

Based upon all the evidence presented, we find that the trial court did not abuse its discretion in ruling that there was insufficient evidence from which a reasonable jury could find that Valentine was intoxicated to the extent necessary to suspend his ability to form the requisite intent. Valentine was not entitled to have the jury instructed on the defenses of voluntary or involuntary intoxication. See People v. Arnold, 104 Ill. 2d 209, 470 N.E.2d 981; People v. Camp (1990), 201 Ill. App. 3d 330, 559 N.E.2d 26.

Despite the fact that defendant presented some evidence that he was intoxicated and/or under the influence of drugs at the time of the offense, the bulk of the evidence clearly established that defendant was capable of acting knowingly and intentionally. Even if we were to assume that McClendon was credible and that he correctly recalled attending a party with Valentine on the night in question, the evidence of intoxication, at best, established that Valentine drank a portion of two cases of beer along with approximately eight people, that he may have consumed some gin or rum and that he “tooted” some cocaine and shared, along with several others at the party, two marijuana cigarettes which may or may not have contained PCP. The amounts of the various intoxicants that Valentine actually consumed were not established.

This evidence must be balanced against the State’s evidence, which established that Valentine was capable of maneuvering sufficiently to be able to enter the victims’ residence by way of a balcony on the victims’ second-floor apartment; that he knew enough, initially, to hide behind a couch; that he responded to C.O.’s plea to not rape her in front of the children by stopping his assault on her and leading the children out of the room; and that later, when C.O. attempted to escape after struggling with her, he made a conscious decision to abandon the struggle with her and return to the children, locking C.O. out of the residence. Additionally, nearly everyone involved, including C.O., K.O., T.O. and all of the police officers at the scene, indicated that Valentine did not smell of alcohol, that he did not stagger or slur his words, and that he seemed coherent. Furthermore, the officers’ testimony established that Valentine was capable of providing them with appropriate answers to questions. This evidence supports a finding that, whatever the level of Valentine’s intoxication was, it did not suspend his ability to form a specific intent but only, perhaps, his inhibitions.

We are not unaware that much of Valentine’s behavior was strange, especially his refusal to surrender K.O. upon the arrival of the police. However, all crimes such as these defy comprehension; thus, Valentine’s unusual behavior should not be the standard upon which we measure his power to act intentionally.

Lastly, there was no evidence that Valentine was involuntarily intoxicated. Again, even assuming that McClendon’s testimony was credible and accurate, he merely testified that the marijuana cigarettes which Valentine smoked with the several other persons at the party may have contained PCP. McClendon was only able to testify to his own belief that the cigarettes contained the PCP, based upon his alleged experience with the smell of PCP-laced marijuana. Additionally, McClendon could not say whether Valentine may have known or believed that the cigarettes contained PCP. Thus, both the contention that Valentine smoked PCP-laced marijuana, as well as the contention that Valentine did so unknowingly, were mere speculation.

Furthermore, even if the cigarettes did contain PCP and Valentine was ignorant of this fact, it is questionable whether such evidence supports a finding that he was involuntarily intoxicated. Valentine voluntarily smoked the marijuana cigarettes and was not induced to do so by some trick, artifice or force of an outside entity. See People v. Larry (1986), 144 Ill. App. 3d 669, 494 N.E.2d 1212.

We now turn to Valentine’s final issue on appeal, i.e., whether he was denied effective assistance of counsel at sentencing. Valentine claims that his counsel completely failed to argue any factors in mitigation at his sentencing hearing, thereby denying him adequate representation at this critical stage of the criminal proceedings. We disagree.

There is a dual standard to be applied when assessing the effectiveness of defense counsel’s performance. A defendant must first show that his attorney’s performance was so deficient that it fell below prevailing professional norms. The evaluation of the attorney’s performance should not extend into areas involving the exercise of professional judgment or trial tactic. Next, the defendant must show that his attorney’s deficient performance actually prejudiced him so as to deny him a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; see also People v. Steidl (1991), 142 Ill. 2d 204, 568 N.E.2d 837.

In view of this standard, we believe that defendant was not denied the effective assistance of counsel at sentencing. Defendant was represented by an able and well-respected southside attorney. Although it is true that defense counsel did not make a specific sentencing recommendation to the court, he did briefly argue that consecutive and extended terms were not warranted. Additionally, despite the fact that he did not particularize certain factors in mitigation, he adequately and passionately represented Valentine’s best interests at the sentencing hearing. The record reflects that he implored the trial court to not succumb to “mob mentality” and to view the “totality of the circumstances.” He also asked the court to remember that Valentine “was not himself” on the night of the incident. It is also noteworthy that defense counsel advised defendant not to exercise his right of elocution when it became apparent that Valentine would speak contrary to his own interests.

We believe that the record clearly reflects that the trial court was well aware of the circumstances of the case, as well as the factors in mitigation, and that defense counsel zealously represented Valentine at sentencing. Furthermore, Valentine makes no argument that the sentence he received was excessive or inappropriate. Consequently, we find no merit in defendant’s argument that he received ineffective assistance of counsel at sentencing.

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

Affirmed.

GORDON and McNULTY, JJ., concur.

      Prospective jurors are not required to reveal their race and/or ethnic origins. Therefore, this information is not available or readily ascertainable. The statistics quoted by this court concerning the racial make-up of the jurors and the persons that were excused, either for cause or because of the exercise of peremptories, were placed on the record by defense counsel at the close of jury selection, and this court shall assume them to be correct. The terms “black” and “white” were used by defense counsel and shall be adopted here merely for purposes of argument. We further assume that the term “black” was used to describe those persons who appeared to be of Afro-American descent, while the term “white” was used to describe those persons who did not appear to be of Afro-American descent.