author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK BROWN, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—1530
    Opinion filed September 22, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Jennifer A. Kuhn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Allie Larkin was beaten and robbed in her home in Chicago on October 4, 1988; she later died from her injuries. A jury convicted defendant Patrick Brown, then a 16-year-old neighbor of Ms. Larkin, of first degree murder and residential burglary, and the circuit court sentenced him to concurrent terms of 45 years for the murder and 15 years for the residential burglary. He appeals, claiming (1) the circuit court erred in finding that his custodial statement was voluntary; (2) the prosecutor’s remarks during his rebuttal argument denied him a fair trial by distorting the function of the jury and appealing to its sympathy for Ms. Larkin; (3) the circuit court erred in refusing to redact portions of his custodial statement concerning his two co-offenders’ plans for the proceeds of the burglary; (4) his murder sentence was excessive in light of his age and remorse; and (5) the circuit court improperly sentenced him on three counts of murder for the death of a single victim. We affirm the convictions and the sentences, but we remand for entry of an order showing a single conviction for first degree murder.

Certain facts are not in dispute.

Ms. Larkin’s neighbor saw two young men he recognized leaving her house through a side window a few minutes after she had gone inside. The police were called, and when they arrived, they found Ms. Larkin on the floor of her home, bound, gagged, and bleeding profusely but still alive. Police picked up the two young men late that night; after questioning them, the police began looking for defendant. Early the next afternoon, aware that the police were seeking him, defendant and his mother, along with his girl friend, were leaving his house on their way to the police station when the police arrived. Defendant was placed in one police car; his mother and girl friend were transported in another.

At the Area 1 Violent Crimes office (Area 1), on the second floor of the police station building, police officers and an assistant State’s Attorney questioned defendant at approximately 1:30 p.m. (the 1:30 p.m. interrogation). At 7 p.m. he was questioned again by police and the assistant State’s Attorney (the 7 p.m. interrogation), and he gave a statement to a court reporter implicating himself in Ms. Larkin’s murder. He then signed it in the presence of his mother and a youth officer, both of whom signed it as well. He had been given nothing to eat or drink during his six hours at Area 1 and had not slept the night before.

Prior to trial, defendant moved to suppress his custodial statement. In his motion, he claimed that he had not been given Miranda warnings prior to the 7 p.m. interrogation and that his custodial statement was the result of physical, mental, and psychological coercion and thus was inadmissible because it was involuntary.

At the hearing on the motion, Sergeant James Swistowicz testified that defendant arrived at Area 1 at approximately 1 p.m. on October 5, 1988. He first talked with defendant at 1:15 p.m. for about 15 or 20 minutes; another police officer, Detective Armata, and an assistant State’s Attorney were present, but not a youth officer. Defendant’s mother was present also, and she was in the room “the whole time.” The assistant State’s Attorney told defendant that she was not his attorney and recited the Miranda warnings from memory; when she asked defendant if he understood each one, he replied that he did. She did not, however, obtain a written Miranda waiver. When she asked defendant if he would agree to make a statement to a court reporter, he responded affirmatively. Defendant did not ask to consult an attorney, nor did he say he wished to remain silent. Swisto-wicz, Armata, and the assistant State’s Attorney went to the crime scene after talking to defendant. When Swistowicz returned, defendant’s mother was sitting in the same place she had been sitting when he left. Swistowicz did not strike defendant in the jaw, nor did defendant complain to him at any time about such treatment by others. Neither he nor anyone in his presence told defendant that if he did not tell what had happened the day before “they would kick his ass and beat him up.” He also denied taking defendant’s clothes and refusing any request by defendant to talk with his mother. At one point he testified that he did not recall whether defendant had been handcuffed, but later said that he did not believe so. He did not speak again with defendant after the 1:30 p.m. interrogation, and thus he was not present for the statement to the court reporter.

Detective Ronald Armata’s testimony mirrored Sergeant Swisto-wicz’s. He stated that he, Swistowicz, the assistant State’s Attorney, and defendant’s mother had been present for the 1:30 p.m. interrogation, which he said had lasted 30 or 45 minutes. The assistant State’s Attorney recited the Miranda warnings from memory and told defendant that she was not his attorney. Afterward, Armata, Swistowicz, and the assistant State’s Attorney went to the crime scene, returning to Area 1 at 3 or 3:30 p.m. He did not believe that he talked again to defendant, nor did he know if anybody else did. He did not recall defendant’s mother asking to see her son. Neither he nor anyone in his presence struck defendant either at the 1:30 p.m. interrogation or during the statement to the court reporter, nor had anyone threatened him; defendant did not complain about such conduct by others. Armata responded “not to my knowledge” when asked if defendant had been handcuffed to the wall. He stated that a youth officer was not notified of defendant’s presence until after the 1:30 p.m. interrogation, but he was unable to say when the youth officer had been notified or arrived.

Assistant State’s Attorney Mary Beth Kinnerk testified next. She stated that at approximately 1:30 p.m., after speaking briefly with the officers, she entered the room where defendant was being held. She interviewed him for approximately 30 minutes, first telling him that she was not his attorney and reading the Miranda warnings “[f]rom the FOP book as [she] always do[es],” pausing after each one to ask if he understood, which he said he .did. She did not ask defendant to sign a written Miranda waiver form. Defendant’s mother and the police officers were present throughout. After the 1:30 p.m. interrogation, she asked to go to the crime scene; when she returned to Area 1 at approximately 3:30 p.m., defendant was in the same room in which she had conducted the earlier interrogation. Kinnerk advised defendant’s mother of what she had learned from her visit to the Larkin home, and she then spoke with defendant in his mother’s presence, but with no police officers in the room, for approximately 30 or 45 minutes (the 3:30 p.m. interrogation). During this conversation, defendant’s mother, who was “a very active participant,” told defendant to tell the truth, and he agreed to make a statement to a court reporter. Kinnerk noticed no facial bruising or bleeding, nor did she ever see a police officer strike defendant. Defendant did not ask her for medical attention. She had no knowledge whether defendant had been handcuffed or whether defendant’s clothes had been taken from him. Later, before calling the court reporter, Kin-nerk returned briefly, alone, to ask defendant about force or other mistreatment “to assure for [her]self that the statement was in fact being given voluntarily.”

Youth officer Alberta Gordon’s stipulated testimony was that she arrived for her shift at 4:30 p.m. on October 5, but she was not asked to assist in this case until 6:30 p.m.

Over defendant’s objection, the court permitted the State to introduce portions of the statement that negated defendant’s motion, including his agreement that Kinnerk had earlier advised him of his constitutional rights, that he nevertheless would speak with her and the police on the record, that no threats or promises had been made to him in return for the statement, and that the statement was made “of [his] own free will.”

Defendant’s first witness was his mother. She stated that he was 16 years old in October 1988 and was in the 10th grade. After she arrived at Area 1, she was permitted to remain near the room in which defendant was being held, but when she asked to see her son right after they all arrived, she was told that he “was being processed”; she received the same answer on at least three other occasions. She was able to talk to defendant alone for only five minutes, just before the 7 p.m. interrogation. When she saw police officers with defendant’s clothes and asked why they had them, the officers replied that they were testing them for blood. She conceded that she signed defendant’s statement to the court reporter, in which he said he made the statement of his own free will and he had no complaints of his treatment, but stated that she did so only because defendant in fact said these things in her presence during the 7 p.m. interrogation. She also testified that defendant was struck by the police after, but not before, making the statement.

Defendant’s 15-year-old girl friend testified next. She stated that defendant’s mother had not been permitted to speak with defendant until 7 p.m. despite three earlier requests to do so. She too testified that police officers had taken defendant’s clothes during the afternoon, but they returned them before the 7 p.m. interrogation. She said that from where she was sitting at Area 1, she could see and hear defendant and police officers shouting at each other, but she could not discern what they were saying.

Defendant also testified on his own behalf. He said that in the police car on the way to Area 1, the police did not talk about the case or threaten him, but they “told [him] what they would do to [him]” and then said “yeah, we got your ass.” When he arrived at Area 1, the police handcuffed him to a rail and talked to him for 5 or 10 minutes without first giving Miranda warnings, but they did not question him about the incident. When defendant asked to have his mother present for questioning, the police replied “no, your mom can’t help you now.” The three officers also “told [him] that [he] better go along with them of *** they would kick [his] ass.” The officers then left the room and returned with Kinnerk. Defendant did not recall whether Kinnerk informed him that he had the right to remain silent and that any statement could be used against him in court, and he denied that Kinnerk told him he had the right to an attorney and that, if necessary, one would be appointed. Defendant also stated that Kinnerk never met with him alone and that a police officer struck him in the mouth after he gave the statement. Defendant had asked to see his mother, but he had not been permitted to do so until the 7 p.m. interrogation. He first saw the youth officer at the same time. During the 7 p.m. interrogation, he answered Kinnerk’s questions of his own free will “on certain occasions” but not always; he also said that the statement was “all false” and that the police told him half of it. He conceded that he had said he had not been threatened, but he testified that he had done so because he did not want to be beaten by the police.

The circuit court denied the motion to suppress. The court found “noteworthy” that defendant’s mother and girl friend had been brought to Area 1 rather than left downstairs in the police station. It also held that there was “no question” that defendant had been advised of his rights during the 1:30 p.m. interrogation, specifically stating that it “believe[d] and accept[ed]” Kinnerk’s testimony, nor was there any question that defendant had seen his mother prior to the 7 p.m. interrogation or that the youth officer and defendant’s mother were present for that questioning. The court commented that the length and intensity of the questioning was “nothing close” to that in cases in which a confession had been held to be involuntary, and that defendant “seem[ed] to be of intelligence above his years in view of his appearance here in this courtroom.” The court concluded that “considering the totality of the evidence, this statement was freely and voluntarily given.”

At trial, defendant filed a motion in limine to delete from his statement mention that the other two young men planned to use the burglary proceeds to purchase sports attire and to buy drugs for later sale. Defendant argued that the statements of his co-offenders were not probative of his own guilt or innocence and that the mention of drugs and the “shallow light” cast by the other purchases would have a highly prejudicial effect. He also argued orally that the co-offenders’ statements were inadmissible as double hearsay, conceding that his own side of the conversation was admissible as an admission. The court commented:

“I respectfully have a problem with starting to redact somebody’s statement ***. I don’t think we should get into the habit of starting to redact statements. Then it’s not his statement and I think the Jury has a right to hear the entire statement in light of the fact that we have ruled that the statement is admissible.”

The court then denied the motion, but it said it was willing to reconsider it, commenting “I just do not think that the prejudice if any would be that extreme ***.”

At trial, Charles Walker testified that he and Ms. Larkin, his next-door neighbor, had been talking on her front porch from about 12:15 p.m. to about 1 p.m. in the early afternoon of October 4, 1988. Ms. Lar-kin then unlocked her door and went inside, and Walker went home. Just a few minutes later, while in his garden, Walker saw the two young men, both of whom he recognized, climbing out a side window of Ms. Larkin’s home. He knocked on the door of the basement apartment in Ms. Larkin’s building and asked the tenant, Sandra Garth, to call the police from his apartment. After trying Ms. Larkin’s door and finding it locked, Walker kept watch by Ms. Larkin’s window until the police arrived. He had not seen defendant, nor anyone other than the two young men he recognized, come out the window.

Ms. Garth testified that after calling the police, she looked for Ms. Larkin at the latter’s other building up the block. When she was on her way back to Ms. Larkin’s home, she saw defendant at the end of the alley.

The State also introduced defendant’s statement to the court reporter. In it, he said he and the two young men, one of whom was his cousin, had made plans earlier to rob Ms. Larkin. The other two entered Ms. Larkin’s house through a side window, which he had found unlocked, and then let defendant in the front door. When Ms. Larkin entered and walked down the hallway, one of the other boys wielded a crowbar “like a baseball bat” and hit Ms. Larkin in the back of the head. The other two then went back to look for money in the bedroom, and defendant remained in the hallway. When Ms. Larkin began to rise, defendant told the other two. The one young man returned and hit her again with the crowbar; she was moaning. Defendant then left by the front door and went around to the alley, where he saw Ms. Garth.

The trial testimony of the witnesses who had testified at the suppression hearing was substantially similar to their earlier testimony. Additional evidence included defendant’s fingerprints found on the outside of the window at the victim’s house; a bloody crowbar found outside under the side window; and testimony by the medical examiner, who stated that Ms. Larkin’s injuries were caused by at least six or seven blows by a blunt instrument, that Ms. Larkin’s ankles bore bruises consistent with being bound, and that something recovered from the back of Ms. Larkin’s mouth also contributed to her death.

At the close of the trial, defendant moved for a directed verdict, but the court denied the motion. After receiving an instruction on accountability, the jury returned general verdicts of guilty on the charges of residential burglary and first degree murder. Defendant moved for a new trial for, among other reasons, the denials of the motion to suppress and the motion in limine and prosecutorial misconduct, but the court denied this motion too.

At the sentencing hearing, the State asked for a sentence of natural life for “a murder that was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty.” It conceded, however, that who and how many of the three young men had inflicted the blows was unknown; it also suggested an extended term of 100 years. Defense counsel objected to both options, claiming that neither could be imposed on a minor. She then stressed that defendant had been only 16 at the time of the murder, that he had no significant criminal background, had been in school until his arrest and continued his studies while awaiting trial, had had summer employment, and showed remorse. Defendant himself also addressed the court. He acknowledged that he had been “young and foolish ignoring [his] parent’s guidance and advice and doing [his] own thing” and “running around the wrong types of people.”

The circuit court reviewed the factors it considered in aggravation and mitigation, described more fully below in Part IV. It then sentenced defendant to concurrent terms of 45 years for the murder and 15 years for the residential burglary.

I

Defendant first contends that the court should have found that the statement to the court reporter was involuntary and granted the motion to suppress it because (1) defendant was given no food or drink for the six hours he was in custody before his statement to the court reporter; (2) the police refused to allow defendant’s mother to speak with him, despite her requests to do so; and (3) the arresting officers did not promptly contact a juvenile officer, in violation of the Juvenile Court Act of 1987 (Pub. Act 85 — 601, eff. Jan. 1, 1988, now codified at Ill. Rev. Stat. 1991, ch. 37, par. 801 — 1 et seq.). An inculpatory statement must be voluntary to be admissible, he observes, and given the above facts, his statement was involuntary and thus the circuit court’s denial of his motion was improper.

Defendant begins by pointing out that he was only 16 at the time of his arrest, with only a 10th-grade education and little familiarity with the criminal justice system. He also was kept in a locked room for the six hours prior to his statement to the court reporter and given nothing to eat or drink. In addition, although he recognizes that a juvenile has no per se right to consult with an adult, he urges this court to hold that mere physical proximity is not enough, in contrast with the circuit court’s emphasis on the fact that defendant’s mother was permitted to remain physically near her son. Moreover, defendant contends that the police testimony that his mother was present for the earlier interrogations is unbelievable. Not only is it in direct conflict with testimony by his mother, his girl friend, and himself that she was not given any opportunity to speak to defendant until the 7 p.m. interrogation, but Sergeant Swistowicz’s police report is devoid of any mention of her presence, unlike the report for one of the other co-offenders, which states that family members were present during questioning. He argues that it defies common sense to conclude that his mother peijured herself on this point when she was truthful about other facts in spite of the obvious prejudice to her son. Lastly, he stresses that no juvenile officer was notified prior to or present for the questioning that occurred before the 7 p.m. interrogation, a circumstance condemned by other courts. The passage of over five hours’ time before notification of the youth officer was particularly egregious, he continues, because the youth officer’s office was just down the hall from where defendant was being held and, in addition, he arrived at Area 1 at midday, when a youth officer likely was readily available. Although he acknowledges that this improper police conduct alone will not warrant a finding of involuntariness, he warns that to absolve the police for this statutory violation would render the statute meaningless.

The Illinois Supreme Court recently had occasion to address the propriety of denial of a motion to suppress on the ground of involuntariness. In People v. Melock (1992), 149 Ill. 2d 423, the court first commented on the limited scope of review of a circuit court’s ruling on a motion to suppress, stating that “[ajbsent a determination that the trial court’s finding was manifestly erroneous, we will not disturb it. [Citation.] Further, *** it is the function of the trial court to determine the credibility of the witnesses and to resolve any conflict in their testimony. [Citation.]” (Melock, 149 Ill. 2d at 432.) With regard to suppression motions based on alleged coercion, the court then stated that

“[i]t is a fundamental principle of criminal procedure that a confession must be voluntary; otherwise, it is inadmissible. [Citations.] ‘The test of voluntariness is whether the statement was made freely, voluntarily and without compulsion or inducement of any sort, or whether the defendant’s will was overcome at the time he confessed.’ [Citations.] A determination of voluntariness requires consideration of the totality of the circumstances. [Citations.] Factors to be considered in making the determination include the age, education and intelligence of the accused, the duration of the questioning, and whether he received his constitutional rights or was subjected to any physical punishment. [Citations.] No single fact is dispositive; the question must be answered on the facts of each case. [Citations.]
The established standard of review of a trial court’s finding on a question of the voluntariness of a confession is whether the finding is contrary to the manifest weight of the evidence.” Melock, 149 Ill. 2d at 447-48.

See also In re D.C. (1st Dist. July 17, 1992), No. 1 — 90—0981, slip op. at 9-10.

Courts scrutinize custodial statements by juvenile suspects with particular care, given that the potential for coercion is enhanced. (People v. Cole (1987), 168 Ill. App. 3d 172, 179, 522 N.E.2d 635, 639, appeal denied (1988), 122 Ill. 2d 582, 530 N.E.2d 253.) In such cases, a court must take “utmost care *** to insure that the confession is voluntary and not coerced, suggested or the result of the juvenile’s ignorance of his rights or his adolescent fantasy, fright or despair.” (In re J.S. (1984), 121 Ill. App. 3d 927, 936, 460 N.E.2d 412, 418.) To this end, additional factors come into play, including time of day and the presence of a parent or other adult interested in the juvenile’s welfare. (People v. McGhee (1987), 154 Ill. App. 3d 232, 507 N.E.2d 33, appeal denied (1987), 116 Ill. 2d 570, 515 N.E.2d 120.) Because a juvenile is “an easy victim of the law,” his self-incriminating statement will be deemed inadmissible if an examination of the facts reveals that it was “a confession wrung from a child by means which the law should not sanction.” Haley v. Ohio (1948), 332 U.S. 596, 599, 601, 92 L. Ed. 224, 228-29, 68 S. Ct. 302, 304 (opinion of Douglas, J., joined by Black, Murphy, and Rutledge, JJ.).

Applying the above factors to the evidence adduced at the suppression hearing in this case, and giving due deference to the circuit court’s resolution of factual questions in light of its ability to observe firsthand the witnesses’ credibility and demeanor, we hold that there is sufficient evidence to support the circuit court’s determination that under the totality of the circumstances here, the statement was voluntary. Although it is true that defendant was only 16 years old and in the 10th grade at the time of the incident, the circuit court expressly described him as someone who “seem[ed] to be of intelligence above his years in view of his appearance here in this courtroom.” In addition, the 1:30 p.m. and 3:30 p.m. interrogations together took, at most, only 75 minutes of the six midday hours defendant was in custody prior to the 7 p.m. questioning, unlike cases in which a confession was deemed involuntary because an accused was subjected to relay teams of interrogators from dusk to dawn. Too, although no one disputes that defendant was given nothing to eat or drink while he was at Area 1, so too no one suggests that he asked for anything.

The most compelling aspect of defendant’s argument is that the statement should be suppressed because he was not given Miranda warnings prior to the first two interrogations and was denied access to his mother for the six hours between their arrival at Area 1 and the 7 p.m. interrogation. If these allegations were true, this case would be factually almost identical to People v. Brown (1989), 182 Ill. App. 3d 1046, 538 N.E.2d 909, in which the court sustained the circuit court’s decision to suppress the defendant’s statement because, in combination, the lack of Miranda warnings and the absence of a parent despite repeated requests provided sufficient support for the circuit court’s ruling. Here, defendant testified that he did not receive Miranda warnings at the two earlier interrogations, and he, his mother, and his girl friend all testified that he was not permitted to confer with his mother until just prior to the 7 p.m. interrogation, but according to the police officers and Kinnerk, defendant was given Miranda warnings prior to each interrogation and his mother was present each time. The conflicting testimony thus placed the question “in equilibrium” (Brown, 182 Ill. App. 3d at 1052, 538 N.E.2d at 912-13), and the circuit court chose to believe the State’s witnesses. Because a reviewing court may not overturn the circuit court’s credibility determinations unless they are so lacking in evidentiary support that they are manifestly erroneous, we cannot do so here.

Moreover, unlike cases in which a juvenile suspect was picked up without his parent’s knowledge of the crime or the arrest, defendant was with his mother for the five or six hours prior to his arrest and they both were aware that the police wanted to talk with him about his role in the events of the day before. Therefore, defendant and his mother had ample opportunity to confer prior to the 1:30 p.m. interrogation. Furthermore, even if police do not fulfill their dual affirmative duties of informing those questioning a juvenile of a parent’s request to see her child and of halting the questioning upon request to allow a juvenile and parent to confer (Brown, 182 Ill. App. 3d at 1053-54, 538 N.E.2d at 913), this is not dispositive of the question of voluntariness; instead, it is only one of many factors to be taken into account.

As for the statutory violation, section 5 — 6 of the Juvenile Court Act of 1987 (Pub. Act 85 — 601, art. V, §5 — 6, eff. Jan. 1, 1988, now codified at Ill. Rev. Stat. 1991, ch. 37, par. 805 — 6) applies when police arrest someone under 17 years of age without a warrant but with reasonable cause to believe the minor has violated State law. It provides that

“[a] law enforcement officer who takes a minor into custody without a warrant *** shall, if the minor is not released, *** without unnecessary delay take the minor to the nearest juvenile police officer designated for such purposes in the county of venue or shall surrender the minor to a juvenile police officer in the city or village where the offense is alleged to have been committed.” Ill. Rev. Stat. 1991, ch. 37, par. 805 — 6(2).

In his argument, defendant relies on cases in which this provision’s precursor was violated and a confession was found inadmissible. In each of these cases, however, the court’s decision was predicated on evidence of additional factors as well, most often an illegal arrest: People v. McGhee (1987), 154 Ill. App. 3d 232, 507 N.E.2d 33 (no probable cause for arrest); People v. Cole (1988), 168 Ill. App. 3d 172, 522 N.E.2d 635 (same, plus no attempt to notify parent); and People v. Travis (1984), 122 Ill. App. 3d 671, 462 N.E.2d 654 (same as Cole, with two illegal detentions and no written statement). These other decisions are consonant with the rule that because voluntariness is determined by the totality of the circumstances, a delay in presenting a juvenile suspect to a youth officer will not by itself render a statement involuntary, especially when, as here, the youth officer is notified and the defendant is given Miranda warnings prior to making the statement. (In re J.S. (1984), 121 Ill. App. 3d 927, 460 N.E.2d 412.) Instead, a delay in notifying a youth officer is only one factor in determining whether a confession is involuntary (People v. Creach (1979), 69 Ill. App. 3d 874, 889-90, 387 N.E.2d 762, 774, aff’d in part & rev’d in part on other grounds (1980), 79 Ill. 2d 96, 402 N.E.2d 228, cert. denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564), and here, it is the only one that exists in defendant’s favor. Thus, even though it is undisputed that no youth officer was summoned until 6:30 p.m., when defendant had been at Area 1 for over five hours and interrogated briefly, this violation of the Act alone will not warrant suppression of the statement. We agree with defendant that the statutory guarantee becomes hollow without a method of enforcement, but the legislature has provided no sanctions for noncompliance, other than its tacit agreement that a violation is one of the factors to consider when determining whether such statements are voluntary.

In sum, our review of each of the factors that courts consider when determining whether a juvenile’s statement is voluntary compels us to conclude that the circuit court’s decision that the statement was voluntary is well supported by the record and thus may not be reversed.

II

Defendant acknowledges that a prosecutor has wide latitude in argument, but he emphasizes this does not permit the State to attempt to inflame a jury’s passion nor arouse its prejudice. Such comments warrant reversal because they deny a defendant a fair trial and here, he argues, the prosecutor misstated and distorted the function of the jury by commenting at the end of his rebuttal argument, “[Defense counsel] stated to you [the jury] that on October 4, 1988, [the victim] was alone, elderly, and helpless. And she met her death alone. Ladies and gentlemen, in this courtroom she is no longer alone. She has you.” The defendant objected, and the court sustained the objection, but defendant argues that the error was not cured because the court did not instruct the jurors to disregard the remark. Even though the objection was sustained, he continues, the prosecutor persisted in this improper comment, next saying, “[the victim] has a common sense jury.” The prosecutor also stated at closing “[a]nd this incident took a whole lot more from [the victim] than it could possibly take from [defendant].” The court sustained the objection to this remark as well, but defendant argues that the comment was intended to arouse the jury’s passions and was identical to an earlier one that the prosecutor had been warned not to pursue. Defendant characterizes as ludicrous the State’s contention that the prosecutor merely rebutted his own counsel’s argument or had been invited to commit misconduct by his counsel’s own remarks. As for the “alone and lonely” comment, defense counsel was stating facts, not arguing, he reasons, so there was no argument to rebut; with regard to inviting the “took a whole lot more” remark, the State’s comments were not merely rebuttal of argument; instead, they were impermissible repetition of previously barred matter.

We agree that any error could not be cured merely by the circuit court’s having sustained the objections because the court did not admonish the jury to disregard the comments after sustaining the objections. (People v. Tyson (1985), 137 Ill. App. 3d 912, 921, 485 N.E.2d 523, 530.) Nevertheless, as the Illinois Supreme Court recently observed, “[a]n improper comment during closing argument may constitute reversible error where it is shown that had the comment not been made, the verdict would have been different.” (People v. Leger (1992), 149 Ill. 2d 355, 399.) In our view, these comments do not warrant reversal because we find it highly unlikely that, absent the comments, the verdict would have been different. Here, the jury heard defendant’s custodial statement, in which he described how he and the other two young men planned and committed the burglary; it knew that his fingerprints had been found at the scene; and it heard Ms. Garth’s testimony that she saw him at the end of the alley just after the crimes had been committed. In light of the quantum of direct evidence of defendant’s complicity in the crimes, the error here, if any, is not reversible.

Ill

Defendant insists that the statements of his co-offenders concerning their plans for their share of the proceeds of the burglary should have been redacted because they were hearsay, irrelevant, and even if relevant, extremely prejudicial to him. The statements were irrelevant, he claims, because they had no bearing on his own guilt or innocence and the court compounded its error by giving the jury no limiting instruction as to the purpose for which such statements could be offered. Defendant describes the State’s argument that the others’ statements are relevant to defendant’s motive for participation as “feeble” and “outlandish,” particularly given that defendant’s presen-tence investigation report shows that his last, and only, drug use was marijuana three years prior to the crime. “Prejudice is prejudice,” defendant argues, so even if relevant, the statements must have been prejudicial enough to warrant redaction. Too, defendant asserts, the statements were made by out-of-court declarants and, as such, were inadmissible as hearsay because even though the plans were made in defendant’s presence, there is no evidence that he adopted them.

Addressing the last argument first, we note that although the remarks were made by out-of-court declarants, they were not being offered for the truth contained therein. As such, they were not hearsay, which by definition is an out-of-court statement offered in court for the truth of the matter asserted. (Hengels v. Gilski (1984), 127 Ill. App. 3d 894, 912, 469 N.E.2d 708, 723.) Accordingly, the admission of these remarks did not violate the rule against hearsay.

The threshold for admissibility on relevance grounds is whether the evidence “tends to establish a fact in controversy or to render a proposition in issue more or less probable”; a circuit court’s determination as to relevance will be reversed only if it represents an obvious abuse of discretion. (Betts v. Manville Personal Injury Settlement Trust (1992), 225 Ill. App. 3d 882, 922, 588 N.E.2d 1193, 1219 (abuse of discretion to admit evidence of established facts because irrelevant to controverted issues).) Here, as defense counsel stated at the hearing on the motion, at issue was the extent of defendant’s involvement in the crimes. Given that the State’s theory was accountability, evidence concerning defendant’s recounting of conversations among the three young men when planning the burglary, including defendant’s awareness of and thus tacit agreement with his co-conspirators’ plans for the proceeds, made it more probably true than not that defendant shared their motive and that he intentionally and knowingly acted in concert with the others in the planning and execution of the burglary. As such, the challenged portions of the statement were relevant. Regarding defendant’s argument concerning the lack of a limiting instruction, we note that defendant made no request for one.

Even if relevant, however, evidence will be excluded if the prejudicial effect outweighs its probative value; a circuit court’s ruling on this question, as with relevance, will not be reversed absent an abuse of discretion. (People v. Brown (1991), 214 Ill. App. 3d 836, 844-45, 574 N.E.2d 190, 195, appeal denied (1991), 141 Ill. 2d 547, 580 N.E.2d 121 (circuit court properly admitted evidence of prior sexual assaults because probative value as to defendant’s modus operandi outweighed prejudicial effect).) Here, as explained above, the evidence at issue was highly probative of the extent of defendant’s involvement in the planning and commission of the burglary; in contrast, the prejudicial effect was slight because the challenged portions of defendant’s statement concerned only three questions and answers from a 15-minute interrogation and, in comparison with the evidence of the brutality with which Ms. Larkin was beaten, this fleeting reference to the others’ plans to buy and then sell unspecified drugs would not likely have distracted the jury from the question of defendant’s guilt or innocence of the crimes for which he was on trial. Thus, on balance, under the circumstances here, the potential prejudicial effect on defendant was far outweighed by the probative value of the comments, so the circuit court did not abuse its discretion in refusing to redact them.

IV

Defendant acknowledges that a circuit court’s sentencing decisions are entitled to deference, but he argues that the 45-year sentence here, though less than the maximum allowed, conflicts severely with the purpose and spirit of the law and thus was an abuse of discretion. The Illinois Constitution, he notes, mandates balancing retribution with rehabilitation, and incarcerating a young man for at least 221/2 years is inconsistent with this goal. Courts look at' a defendant’s age, demeanor, education, and criminal history as well as the crime and a defendant’s role, he argues, and the sentence here, only 15 years less than the maximum, is “extremely long.” He also contends that the court did not take into account his remorse or the lack of evidence that he alone was the killer.

As defendant correctly notes,

“[a] trial court’s sentencing decisions are entitled to great deference and weight. [Citation.] A trial judge is in a far better position than an appellate court to fashion an appropriate sentence, because such judge can make a reasoned judgment based upon firsthand consideration of such factors as ‘the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age’ [citations]; whereas the appellate court has to rely entirely on the record [citation].
Nonetheless, the discretion of a trial court in making sentencing decisions is not totally unbridled. Reviewing courts are empowered under our Rule 615(b)(4) [citation] to reduce sentences. The standard of review is whether a trial court has abused its discretion in imposing a sentence; if it has, the sentence may be altered upon review. [Citations.] When reviewing courts examine the propriety of sentences imposed by trial courts, they should proceed with great caution and care. [Citation.] A reviewing court must not substitute its judgment for that of a sentencing court merely because it would have weighed the factors differently.” People v. Streit (1991), 142 Ill. 2d 13, 18-19, 566 N.E.2d 1351, 1353.

Here, the circuit court began by observing that it would take into account the statutory aggravation and mitigation factors as well as “the competing goals or factors or elements that we might consider^] those being protection of society, punishment, deterrence, and rehabilitation.” It then painstakingly described each factor that affected its determination of defendant’s sentence, including both aggravation and mitigation factors, such as the age of the victim, the lack of provocation, deterrence of others, and the deliberate nature of defendant’s conduct along with defendant’s age and lack of a history of delinquency. It also indicated its belief that the age of the victim qualified defendant for an extended term under section 5 — 8—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005— 8 — 2), and it commented that defendant was legally responsible for the conduct of his two companions as well as his own. The court then sentenced defendant to a term of 45 years, and after doing so, it emphasized that it believed that the sentence was “appropriate and just under the circumstances.”

Here, the circuit court’s thoughtful analysis indicates that, contrary to defendant’s argument, it quite carefully attempted to strike a balance between what it called the “competing goals” of sentencing, including deterrence and rehabilitation. From its comments, again contrary to defendant’s interpretation, it is apparent that the court also specifically took into account that defendant might not have been directly responsible for the murder here. Further, given that the court could observe defendant’s demeanor throughout the trial, as well, as his expressions of remorse only moments before it imposed the sentences, defendant’s contention that the court did not consider these factors is unreasonable. For these reasons, and because the sentence here is almost precisely in the middle of the statutory range for the crime of first degree murder, we cannot say under the circumstances here that the circuit court failed to take into account defendant’s age, remorse, and potential for rehabilitation or that the court abused its discretion.

V

Defendant contends that because the indictment contained three counts of murder, because the jury returned a general verdict of first degree murder, and because the sentence was 45 years, the circuit court must have based its sentence on three convictions for murder. Because multiple convictions based on the same physical act are improper, he reasons, two counts must be vacated and the case remanded for resentencing, even if the original sentence was appropriate, so long as the sentence is more than the minimum. Defendant contends that the error in the sentencing order is far more significant than the State claims. In People v. Williams (1988), 176 Ill. App. 3d 73, 81, 530 N.E.2d 1049, for example, the court vacated two counts of the conviction because the order, like the one here, “indicate[d] that the defendant was sentenced on three counts.” He notes that even though the State contends that it is absurd to think that the court’s sentence was based on three convictions, defendant’s counselor at Menard Correctional Center considers him to be serving three concurrent murder sentences along with the burglary sentence.

It is true that the sentencing order at issue lists all three counts, but unlike the cases cited in support by defendant, the sentencing order followed a single verdict and a single conviction, not multiple convictions for the same act under different theories. From the record before us, we see no possibility whatsoever that the sentence was influenced by more than a single conviction because the circuit court, which had presided at the trial, mentioned only one victim at the sentencing hearing and stated “[w]e sentence you to the Illinois Department of Corrections on the charge of first degree murder, forty five years’ [sic]” (emphasis added), recognizing that only one conviction had been obtained. Nevertheless, we recognize that the wording of the sentencing order, which cites three different subsections of the first degree murder statute, could easily be interpreted by those unfamiliar with the facts of this case as the result of three convictions and that, at some later date, this latent ambiguity could adversely affect defendant. Therefore, we agree that remand for entry of a new sentencing order reflecting the single murder conviction, as well as the residential burglary conviction, is in order here.

VI

Defendant filed a pro se brief, contending that his trial counsel did not bring to the circuit court’s attention the fact that he had not signed a Miranda waiver and that this lapse constituted ineffective assistance of counsel. The record, however, reveals that his attorney elicited testimony about the lack of a written waiver from both Swistowicz and Kinnerk at the suppression hearing, and in her closing argument at the motion, his attorney twice mentioned the lack of a separate signed waiver.

For the reasons stated above, we affirm the circuit court’s denial of defendant’s motions to suppress the entire custodial statement and to redact portions of it. We also affirm defendant’s convictions and sentences, but we vacate the sentencing order and remand for an order reflecting only one murder conviction as well as the residential burglary conviction.

Affirmed in part; vacated in part and remanded.

HARTMAN, P.J., and SCARIANO, J., concur.

      According to the presentence investigation report, defendant’s sole prior conviction was for “riding in a stolen vehicle,” for which he received probation.

      Although defendant claims that the delay violated section 3 — 8 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1991, ch. 37, par. 803 — 8), that provision applies to minors taken into custody for authoritative intervention or other reasons not implicated here. The wording of section 3 — 8 is substantially similar to that of section 5— 6, and both have the same precursor, section 3 — 2 of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 703-2).


source: Caselaw Access Project

author: PRESIDING JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND NICHOLS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—91—0992
    Opinion filed September 22, 1992.

      Dennis A. Giovannini and Herbert L. Goldberg, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Brian Clauss, and George J. Arnold, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant appeals his conviction by a jury of murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1(a)(1), 9 — 1(a)(2)), and attempted murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4, 9 — 1). He questions whether (1) the court erred in admitting evidence and extensive State comment regarding his gang affiliation and involvement, and the prevalence of gangs in the area of the occurrence; (2) he was denied his right to due process and a fair trial when the State elicited testimony and commented during closing arguments regarding the connection between gangs and drug trafficking in the area of the offense; (3) the court improperly denied his motion in limine to exclude evidence of the location of his arrest; and (4) the court erred in allowing the State to inquire about his failure to call a supposedly exonerating witness.

Defendant was charged by indictment with two counts of first degree murder, three counts of aggravated battery and one count of attempted first degree murder. The case was tried on the murder and attempted murder counts. Defendant’s motions in limine to exclude evidence of the nature of his prior conviction for possession of a controlled substance with intent to deliver, and to bar reference to the fact that he was exiting a courtroom when police arrested him, were denied.

At trial, Chicago police officer Barbara Pillows testified that about 9:25 p.m., January 3, 1990, she responded to a call of a man shot at 7204 South Green Street, where she found the decedent, Farrell Lamont Lee, lying near the curb, who appeared to be dead. Pillows learned there was another man inside the house, Robert Prince, who also had been shot. Decedent was pronounced dead on arrival at the hospital.

Robert Prince testified that about 9 p.m. on the evening of the occurrence he left his home with his cousin Socrates Houston and the decedent and drove to Houston’s home at 7204 South Green. The three men exited the car and were conversing outside Houston’s home, when they saw defendant and another youth walking towards them on Green Street. Defendant shouted “BD,” meaning “Black Disciples,” and then pulled a gun out of his pants and began firing in the direction of Prince, Houston and decedent. Prince heard additional gunfire as he fled into the Houston house; he subsequently felt weak and realized he had been shot. The decedent was lying dead on the sidewalk. Prince was later treated for gunshot wounds to the liver and colon. On March 7, 1990, Prince positively identified defendant in a lineup. Prince never “hung out” in the area of 72nd and Green, and testified the decedent had never been there prior to the occurrence.

Prince testified that neither he nor decedent had ever known defendant before the date of the shooting, nor had they known Quin-táis Taylor, the youth who had accompanied defendant that night. Prince denied that he or the decedent were street-gang members. He knew the meaning of “BD” because he was surrounded by it on the south side. Although he was unable to remember exactly what defendant or his companion was wearing the night of the shooting, he would never forget their faces.

The parties stipulated that if called, Dr. Mary Jumbelic, a forensic pathologist, would testify that decedent died as a result of a gunshot wound to the neck and the manner of death was homicide.

Kevin Green testified that he lived in the area of 72nd and Green from the time he was 5 years old until age 19, and moved back to 7210 South Green in August of last year. Green, who was a funeral director, described the area in January 1990 as having gang activity, being “drug ridden” and “like a war zone.” Over defense objections, Green described characteristics of the neighborhood gangs around the time of the offense: there were “BD,” or Black Disciples, and “GD,” or Gangster Disciples; both gangs were “folks,” and their colors were black and blue; and both gangs were aligned under the six-point star symbol. The term “BD” was “common knowledge” in the neighborhood because it was heard very frequently. Green had conducted Black Disciples’ funerals, where it was common to see the gang colors as well as wreaths in the shape of a six-point star.

On the night of the occurrence, Green was entering his home when he heard gunshots coming from the direction of the home of his neighbor, Socrates Houston. Green subsequently saw a man who “looked like he was dead” lying on the ground in front of Houston’s house. Green did not know anyone named Robert Prince or Quintáis Taylor, nor did he know defendant. On cross-examination, Green stated that the “vast majority” of young men in his area belonged to street gangs. He did not know whether Houston was a gang member.

Socrates Houston substantially corroborated Prince’s testimony as to the events leading up to the shooting. He heard a male voice holler “BD,” but did not turn around because he “hear[s] it every day around there.” He denied being a member of a street gang.

Cassandra Brown testified that in December Í989, she resided in an apartment at 7108 South Green -with Kim Smith and Kim’s baby. Defendant “got” the apartment for Kim and Cassandra, and initially paid rent. Defendant was a member of the BD street gang. In early January 1990 defendant came to the apartment and unloaded and then reloaded a gun he kept in the apartment closet. When Brown heard sirens and saw an ambulance on Green Street, defendant said-“he just killed some pussy motherfuckers down the street.” Defendant later stated the police would have to kill him before they took him back to jail, and instructed Brown to wear royal blue silk tó his funeral. Brown moved out of the apartment in February 1990. She was beaten up by five men, four of whom she recognized as friends of defendant, on February 26,1990.

Quintáis Taylor testified that he has known defendant about two years. Taylor denied ever being in a gang, or that he knew the meaning of “BD” or Black Disciples. Taylor resided for the past year at 7005 South Carpenter, “not too far” from the shooting, and previously resided about one block from the shooting for approximately three years. Taylor denied seeing defendant on the day of the occurrence, or that he knew the decedent or Prince.

Taylor admitted testifying before the grand jury that he was with defendant the day of the occurrence; that defendant yelled “BD” to a group of people who responded “GD,” after which defendant fired his gun about five times; and that he knew the initials “BD” designated a street gang. Taylor did not know whether black and blue were “gangster colors,” but acknowledged that he wore those colors the previous day.

Chicago police officer James Hardaway testified that on February 26, 1990, during a conversation with Brown regarding an incident unrelated to the shooting, she provided him with information that prompted him to contact Area 3 violent crimes.

Chicago police officer John O’Mara testified he received this call from Officer Hardaway and interviewed Brown, who gave him the names of defendant and Quintius Taylor. On March 7, 1990, having obtained a warrant for defendant’s arrest, O’Mara and his partner, Officer Phillip Collins, proceeded to a courthouse on Chicago Avenue, after learning defendant was there. When they arrived, defendant was already in custody of Officer Craig Cegielski. Cegielski was breathing heavily, his clothing was disheveled, and his glasses were broken. Defendant was transported to headquarters and viewed in a lineup by Prince.

Chicago police officer Phillip Collins testified he was Officer O’Mara’s partner and was present at the lineup. When Prince saw defendant, he jumped up and said “[tjhat’s him, that’s the son of a bitch *** I’ll never forget his face.”

Officer Craig Cegielski testified that on March 7, 1990, being aware that a warrant had been issued for defendant’s arrest, he went to the courthouse on Chicago Avenue when he learned defendant was there. He saw defendant in the hallway, informed him of the warrant, and instructed him to put his hands on the wall. Defendant initially complied; but as Cegielski reached for his handcuffs, defendant turned and punched him in the face, rib cage, and knee, and attempted to kick him in the groin. A struggle ensued, but Cegielski eventually subdued defendant. Officers Collins and O’Mara subsequently arrived and assisted in transporting defendant to headquarters.

Defense witness Chicago police officer Martin Lee testified that, in the emergency room following the shooting, Prince described his assailants simply as two male blacks, one of whom wore an eskimo coat. Lee was uncertain whether the term “eskimo coat” was actually used by Prince or was his interpretation of Prince’s description.

Greg Jackson, called by the defense, testified that he resided in an apartment on the northeast corner of 72nd and Green. About the time of the occurrence, Jackson saw a group of men conversing near his apartment while another two men approached on Green Street. One of the two men, wearing a “sky-blue jacket,” raised his arm and began shooting. Jackson was unable to see the men’s faces and was unable to identify defendant as the shooter.

The State inquired on cross-examination “what type of neighborhood” it was and Jackson responded “terrible,” that there were drugs and gangs; he had heard the terms “BD” and “folks” before, and heard them “every day” walking down his street.

Defendant testified on his own behalf. On the date of the occurrence, he lived at 6859 South Throop Street with his girlfriend, Edna Johnson. He is a member of the Black Disciples street gang. It is not unusual for people his age in his neighborhood to be involved with gangs. Defendant denied knowing decedent, denied shooting decedent or Prince, denied being in the area of 72nd and Green when the shooting occurred, but could not recall where he was at that time. Defendant admitted knowing Taylor, who is also a Black Disciple. Defendant requested that Brown move out of 7108 South Green because she was stealing items from the apartment.

Defendant testified to the circumstances of his arrest, stating that he was in a courthouse on March 7, 1990, when someone grabbed him by the back of his neck. The man was not uniformed and did not identify himself as a policeman. Defendant turned around and hit him. Defendant denied telling Brown that “the police aren’t going to take me alive,” or words to that effect.

After the jury found defendant guilty of murder and attempted murder, he was sentenced to 45 years’ imprisonment for murder, and 25 years for attempted murder.

I

Defendant contends that the State’s repeated reference to the pervasiveness of gangs in the area of the shooting, and to defendant’s gang membership, was extremely prejudicial and totally irrelevant in light of the scant evidence suggesting the offense was gang-related. Specifically, defendant disputes the extensive testimony by Green regarding gang classification, colors, symbols and funerals; Brown’s testimony of defendant’s membership in the Black Disciples; the cross-examination of Taylor concerning gang initials and colors; and defendant’s cross-examination regarding initials, colors, slogans, symbols, tattoos and the like.

Although a deep and widespread public prejudice may exist against street gangs, gang-related evidence will not necessarily be excluded if it is otherwise relevant and admissible. (People v. Gonzalez (1991), 142 Ill. 2d 481, 489, 568 N.E.2d 864; People v. Smith (1990), 141 Ill. 2d 40, 58, 565 N.E.2d 900; People v. Hairston (1970), 46 Ill. 2d 348, 372, 263 N.E.2d 840.) “An accused may not insulate the trier of fact from his gang membership where it is relevant to a determination of the case, simply because prejudice attaches to that revelation.” (People v. Rivera (1986), 145 Ill. App. 3d 609, 618, 495 N.E.2d 1088.) Evidence indicating defendant’s gang affiliation or involvement in gang-related activity is admissible to show common purpose or design, or to provide a motive for an otherwise inexplicable act. (Smith, 141 Ill. 2d at 58; People v. Hairston, 46 Ill. 2d at 372.) Such admissibility is premised, however, upon proof that gang membership or activity is related to the crime charged. (Smith, 141 Ill. 2d at 58.) It is the circuit court’s function to weigh the probative value of such evidence against its prejudicial effect in determining whether it should be admitted; the court’s decision on this issue will not be reversed on appeal absent an abuse of discretion. See Gonzalez, 142 Ill. 2d at 489.

The State has no obligation to prove motive to sustain a murder conviction; nevertheless, any evidence tending to show that an accused had a motive for killing the deceased is probative because it makes more probable the fact that the accused did kill the deceased. (Smith, 141 Ill. 2d at 56.) Such evidence is competent when it tends to establish the existence of the motive relied upon; when the State undertakes to prove facts purportedly demonstrating motive, the accused must be shown to have known of these facts. Smith, 141 Ill. 2d at 56.

Initially, we note that defendant has waived any dispute regarding his cross-examination by failing to object thereto either at trial or in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 199, 522 N.E.2d 1124.) Although an exception to the waiver rule will be applied when the evidence is “closely balanced,” in order to correct grave errors involving fundamental fairness (People v. Thurman (1984), 104 Ill. 2d 326, 329-30, 472 N.E.2d 414), this exception is inapplicable here, because the evidence in this case was overwhelming despite defendant’s cross-examination testimony. Additionally, it is not likely that the evidence prejudiced defendant, in light of his cavalier admission on direct examination, that he was a member of the Black Disciples, which, having thousands of members, was “one of the largest” gangs around.

The assailant’s identity was a critical issue in the case at bar, and the most telling evidence of this question was the fact that the shooter shouted “BD” before firing his weapon. The evidence regarding the Black Disciples, including the extent of their activity in the neighborhood, was therefore relevant not only to give meaning to the term “BD,” but to establish a motive for a seemingly unprovoked, inexplicable killing. Further, Brown’s testimony that defendant, a Black Disciple, had bragged around the time of the occurrence that he had “just killed two pussy motherfuckers” served to link defendant to the gang as well as to the occurrence. For these reasons, the gang evidence was properly admitted.

Defendant also claims excessive reference was made to gangs during closing and rebuttal argument, and disputes the State’s characterization of him as “the big bad bragging gangbanger” and “the big stuff gangbanger.”

Again, defendant failed to raise these objections before the circuit court, and therefore waived them; in any event, his claims lack merit. Prosecutors are allowed great latitude in closing argument, and the circuit court’s determination of the propriety of argument will be upheld absent a clear abuse of discretion. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 322, 379 N.E.2d 847.) Both parties have a right to comment on the evidence and to draw any legitimate inferences therefrom. (Weatherspoon, 63 Ill. App. 3d at 322.) If evidence regarding gangs and gang membership was properly admitted during the trial, it is subject to comment during closing argument. See Gonzalez, 142 Ill. 2d at 491.

The record shows that each of the disputed remarks was simply a review of properly admitted evidence. As stated above, gang evidence was relevant to establish the shooter’s motive and identity, and there was nothing in closing argument that constituted an unjustified characterization of the evidence here. This case involved 14 witnesses and much evidence; the State gave equal attention to all this evidence in its closing. The reference to gang colors and to defendant as a “big bragging gangbanger” derived from his alleged admission to Brown that he just killed two “motherfuckers,” and from his subsequent comment that she wear “royal blue silk” to his funeral.

Assuming, arguendo, that the gang evidence was somewhat cumulative, it seems highly unlikely that this prejudiced defendant in light of his own admissions, both to Brown and on the witness stand. In response to his own attorney’s questioning, defendant admitted his gang membership, and responded without objection to each of the State’s questions regarding gang colors, slogans and whether he wore a gang tattoo; indeed, the record indicates he wore gang colors on each day of the trial. His argument, therefore, is without merit.

II

Defendant next alleges error in the State’s inquiry, over his objection, during his cross-examination as to whether a past gunshot wound, unrelated to the charges at bar, was due to his gang activity.

The State commenced its cross-examination of defendant with the following:

“Q. Anybody ever shoot at you, Raymond?
A. No.
Q. No?
A. I’ve been shot, [but] nobody ever shot at me. * * *
* * *
Q. You say you have been shot?
A. Yes, I have.
Q. Was that as part of your gang activity?
MR. GIOAANNINI [Defense counsel]: Objection, Judge.
THE COURT: Overruled.
THE WITNESS: Excuse me?
Q. [Assistant State’s Attorney]: Was that as part of your gang activity that you were shot?
A. No, it wasn’t.
Q. Had nothing to do with gangs?
A. No, it did not.
Q. Did you ever tell anybody that shooting had something to do with gangs?
A. No, I did not.
MR. GIOAANNINI: Objection.
THE COURT: Oh, I’ll allow the answer to stand.”

Defendant contends this questioning had no relevance to this cause, conveyed to the jury that defendant had a propensity toward violence, and only served to compound the error in allowing extensive testimony relating to gangs and gang membership. Further, defendant contests the State’s failure to perfect this questioning by introducing rebuttal evidence to support it.

Evidence of other crimes or misconduct is admissible only if relevant to show criminal intent, common design, identity and motive, rather than a mere propensity on defendant’s part to commit the offense charged. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292; People v. Henenberg (1976), 37 Ill. App. 3d 464, 346 N.E.2d 11.) Even if relevant, such evidence is only admissible if its probative value clearly outweighs its prejudicial effect. (People v. Gordon (1981), 94 Ill. App. 3d 764, 767, 419 N.E.2d 66.) A reference to prior criminality does not require reversal in all circumstances; unless there is a reasonable probability that improperly admitted evidence contributed to the conviction or influenced the jury’s determination of guilt, reversal is unnecessary. (Schneble v. Florida (1972), 405 U.S. 427, 432, 31 L. Ed. 2d 340, 345, 92 S. Ct. 1056, 1059-60; Henenberg, 37 Ill. App. 3d at 469; see also People v. Tranowski (1960), 20 Ill. 2d 11, 17, 169 N.E.2d 347.) Application of the harmless error rule here requires an assessment of the probable impact of the evidence on the minds of the average jury. (Henenberg, 37 Ill. App. 3d at 469.) Reversal is unwarranted where the evidence otherwise proves defendant’s guilt beyond a reasonable doubt. Tranowski, 20 Ill. 2d at 17.

Initially, we note that the State did attempt to introduce evidence to prove up defendant’s impeachment here, albeit in a somewhat untimely manner. Based upon defendant’s objection, however, the court disallowed the evidence finding that it was collateral. In any event, assuming arguendo that the questioning was improper, the error was harmless. As demonstrated above, the evidence of defendant’s guilt here was overwhelming. Furthermore, defendant admitted he was a member of the Black Disciples. He testified regarding the gang symbol and colors, admitted he wore gang tattoos, and wore gang colors during trial. He bragged to Brown about his gang membership. In light of defendant’s statements and conduct, the questions casting light on defendant’s own victimization caused no further prejudice. See Henenberg, 37 Ill. App. 3d 464, 346 N.E.2d 11.

Ill

Prior to trial, defendant moved in limine to exclude for impeachment purposes any reference to the nature of his prior felony conviction, which was for possession of a controlled substance with intent to deliver. The circuit court denied the motion, finding that the crime was not sufficiently similar to the crime charged to prejudice defendant.

On appeal, defendant does not assign error to the denial of this motion; rather, he argues he was deprived of his right to a fair trial and due process when the State subsequently elicited testimony from Green and Jackson linking gangs with drug dealing in the neighborhood, and commented on this connection twice during closing argument.

In People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, the supreme court held that evidence of a prior felony conviction is admissible to attack the credibility of a witness as long as the conviction or defendant’s release from confinement occurred no more than 10 years prior to the trial in which the felony evidence is proffered. (Montgomery, 47 Ill. 2d at 516, 519; see also Ill. Rev. Stat. 1989, ch. 38, par. 155 — 1.) Introduction of such evidence is limited to the purpose of impeachment, and not to prove the defendant’s propensity to commit the crime charged; when the conviction shows propensity more than lack of credibility, the evidence should not be allowed. (People v. Siebert (1979), 72 Ill. App. 3d 895, 902, 390 N.E.2d 1322.) Defendant concedes that the ruling on the motion in limine was “perfectly logical” at the time it was made “in light of the fact that there should have been absolutely no mention of drugs, drug dealing, or their connection with local gangs” in this case. Once the State knew of the ruling, however, it succeeded in “bringing through the back door” an inference that because defendant was a convicted drug dealer and gang member, and the local gangs were the source of drug dealing and the cause of the offense at bar, the defendant was the “perfect suspect” for this crime.

Defendant principally relies on Green’s description of the neighborhood as a “drug ridden war zone,” “infested with gang activity.” The record suggests, however, that the State did not purposefully elicit this testimony and, in any event, that the testimony probably did not harm defendant. Green gave the above responses when the State asked him generally to describe the neighborhood around the time of the offense; the inquiry made no allusion to drugs. Green’s answer did not link defendant, or even the gangs, to this chronic drug dealing. It simply described the neighborhood. Moreover, following a defense objection, the State never again mentioned drugs during Green’s testimony.

Defendant also complains of the cross-examination of defense witness Jackson, who described the neighborhood as “terrible,” as having “drugs and everything which is in every neighborhood,” as well as “gangs.” Again, the questions merely asked for a description of the witness’ neighborhood; they did not necessarily link drugs to gangs, or to defendant. It requires a strained inference to construe this testimony as demonstrating that defendant had a propensity to commit murder.

Defendant similarly takes issue with a statement in the State’s closing argument, in relevant part as follows:

“But he doesn’t just throw away the gun he still has the gun [sic], he is a gangbanger, he’s not going to throw away a good gun he’s just going to get rid of the shells he used.
But, in any event, no one said this guy is smart. He is nothing like Kevin Green from that same neighborhood. I mean, does he sound real smart, you heard him on the stand, the type of character he is. I mean you know a little bit about him now, you know a little bit about his background. You know about his felony conviction for possession of controlled substance with intent to deliver.”

Defendant’s argument lacks merit. Soon after this statement, the State suggested that the felony evidence was to be considered on the issue of defendant’s credibility. The comment itself refers to defendant’s conviction in context of his character. Defendant also attacks a subsequent statement in which the State said drug trafficking in the neighborhood, along with gangs, was a “way of life.”

Defendant does not allege prosecutorial misconduct, but merely implies that the resulting effect of the cumulative evidence prejudiced him. Neither this comment alone, nor the witness’ testimony regarding the instance of drugs, portrayed defendant as having a tendency toward murder. Accordingly, this argument is unpersuasive.

IV

Defendant next contends the court erred in denying his motion in limine to exclude reference to the fact that he was exiting a courtroom located above a police station at the time of his arrest, because he was present there for an offense totally unrelated to the case at bar. Defendant argues that this error “aggravates and compounds” the errors alleged above.

Evidence of other crimes or misconduct by an accused is not admissible if offered simply to show he is criminally predisposed. (Henenberg, 37 Ill. App. 3d at 468.) In considering what constitutes “other crimes” evidence, direct proof of a criminal act is not necessary; it is sufficient that the evidence could lead the jury to infer prior criminality on defendant’s part. (Henenberg, 37 Ill. App. 3d at 468.) Illinois courts have denounced evidence which, without independent relevance, implies that defendant was well known by police because of frequent presence both at headquarters and in court. People v. Blakely (1977), 50 Ill. App. 3d 536, 542-44, 365 N.E.2d 996; see also People v. Cherry (1971), 130 Ill. App. 2d 965, 267 N.E.2d 744.

In the case at bar, Brown testified that defendant told her on the night of the shooting that the police would have to kill him in order to take him back to prison. To corroborate this testimony, the State presented evidence of defendant’s arrest, during which he punched and kicked Officer Cegielski. In denying defendant’s motion to exclude reference to the location of the arrest, the court stated as follows:

“I will allow them to indicate the location of the arrest and to describe the circumstances ***.
Again if you want I will certainly give the jury a limited instruction at that point that the location of the arrest is not to be considered in any way other than establishing where the arrest occurred. But I think under those circumstances I would allow [sic] because it is a circumstance to attempt to flee maybe on the street is different than attempting to plea [sic] in a courthouse although I will certainly indicate that the State cannot go into the fact as to why he was there.”

According to the State, the court properly found relevance in the fact defendant resisted arrest in a courthouse, because this deterred defendant from having a gun as he had predicted in his conversation with Brown.

At trial, brief references to the courthouse or police station were made in the testimony of Officers O’Mara, Collins, and Cegielski in context of the circumstances leading to the arrest. The State made similar references in its closing and rebuttal arguments. Nevertheless, no mention was made of the reason defendant was at the courthouse; there was no suggestion that he was present in response to allegations against him. When the testimony was first commenced, the court interrupted to instruct the jury that the evidence was to be received for a limited purpose, and that no significance was to attach to the fact that it was a court facility. Defendant’s mere presence in a courthouse on one occasion does not require an inference of criminal activity on his part. Defendant’s argument here lacks merit.

V

Defendant lastly argues that the court erred in overruling his objection to the State’s “repeated questioning,” during his cross-examination, regarding his failure to call a potentially exonerating witness.

Defendant testified during direct examination that he could not recall his whereabouts on January 3, 1990, at the time of the occurrence. On cross-examination, defendant admitted he told police the night of his arrest that he was at home with his girlfriend, Edna Johnson, at the time of the shooting, and stated that he “misspoke” at that time. The following colloquy then took place:

“Q. Edna Johnson?
A. Right.
Q. She was your girlfriend?
A. Right.
** *
Q. Is she here today?
A. I don’t see her.
Q. The person that you say you were with at home January the 3rd, 1990, the night that you don’t remember is not here. You don’t see her, right?
MR. GIOYANNINI: Objection, Judge *** [ajsked and answered.
THE COURT: Overruled, [sic] it has been asked and answered.”

Defendant maintains this questioning was reversible error because he had not asserted an alibi defense, and “the obvious inference” raised by these questions was that, since she was not present in court, her testimony would have been unfavorable to him.

When a party specifically objects to certain evidence, all grounds not specified are waived. (People v. Eyler (1989), 133 Ill. 2d 173, 549 N.E.2d 268.) As the foregoing reveals, defendant objected only on the ground that the question had been asked and answered. Therefore, he waived the issue on appeal. 134 Ill. 2d R. 615(a).

Were we to consider this issue, any error in the State’s questioning was harmless in light of the overwhelming evidence against defendant, and in view of the fact that the State ceased all reference to the absence of the witness after defendant’s objection.

For the foregoing reasons, the jury’s conviction of defendant cannot be disturbed and the judgment of the circuit court must be affirmed.

Affirmed.

DiVITO and McCORMICK, JJ., concur.


author: JUSTICE CERDA

text:
    PHILLIPS ELECTRIC COMPANY, INC., Plaintiff-Appellant, v. SEKO MESSENGER SERVICE, INC., Defendant-Appellee.
    First District (3rd Division)
    No. 1—91—1453
    Opinion filed September 23, 1992.

      Buikema, Hiskes & Dillner, of South Holland, for appellant.
    Madler, Peldyak & Kripton, of Chicago, for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Phillips Electric Company, Inc. (Phillips), sued defendant, Seko Messenger Service, Inc. (Seko), for a breach of contract resulting from Seko’s failure to deliver an electrical bid by a specified time. Phillips sought consequential damages for its alleged loss of profits. Seko filed a motion for summary judgment, contending that its tariff, which was on file with the Illinois Commerce Commission, limited its liability to $100. The trial court granted the summary judgment. We affirm. The main issue in this case is whether a carrier is liable for consequential damages for loss of profits for failure to deliver a package on time when the carrier did not request the shipper to declare a value or inform it that its tariff limited claims for consequential damages.

At 8:20 a.m. on February 12, 1987, Phillips telephoned Seko, requesting that a bid package be delivered before 5 p.m. Seko’s orderta-ker was told that the package would be ready after 12 noon that day. Seko agreed to deliver the package, which was a construction bid, to Balluff & Balluff Architect and Engineers in Elmhurst, Illinois. Seko did not tell Phillips that it needed to declare a value of the package or that its tariff barred claims for consequential damages.

Seko’s messenger picked up the package at 2 p.m. Nothing on the envelope stated it was deliverable before 5 p.m. or noted any urgency to deliver it by that time. There was a notation, however, on the dispatch notice that the package was to be delivered by 5 p.m. Seko did not give Phillips a copy of the bill of lading at the time of the pickup.

Seko’s messenger delivered the package to its destination at 5:05 p.m. Since the door was locked, the messenger called Phillips, who gave permission to slip the bid in Balluff & Balluff’s mail slot, which the messenger did at 5:15 p.m.

Balluff & Balluff refused to accept the bid package because it was received late. A few days later, Seko sent the bill of lading to Phillips. On the bill of lading’s reverse side were the liability release rates that are contained in Seko’s tariff.

Phillips sued Seko for a breach of contract, claiming consequential damages for lost profits allegedly suffered as a result of the late delivery. Seko filed a motion for summary judgment, contending that its tariff on file with the Illinois Commerce Commission limited its liability to $100. After reading the briefs and hearing arguments, the trial court granted the motion, stating that Phillips was bound by the limitations in Seko’s tariff.

On appeal, Phillips asserts that there is a genuine issue of fact sufficiently material to require reversal of the trial court’s order granting summary judgment in favor of Seko. In reviewing the summary judgment order, this court must consider all the facts in the record in the light most favorable to Phillips, which is the nonmoving party. (Maurice Transport Co. v. Amoco Oil Co. (1986), 144 Ill. App. 3d 156, 160.) A reviewing court will find summary judgment to have been properly granted when the issue is determinable solely as a matter of law. Maurice Transport Co., 144 Ill. App. 3d at 160.

Phillips’ first argument is that Seko’s tariff liability limitation of $100 does not apply to Phillips’ claim for consequential damages because one .tariff provision precludes any consequential damages while another limits its liability to $100 for physical damage or loss unless a higher amount is declared. Phillips argues that the trial court’s erroneous ruling, that the most Phillips could recover was $100, leads to the creation of an ambiguity in the tariff. If there is an ambiguity, Phillips contends that it should be resolved in favor of the shipper. National Starch & Chemical Corp.,v. McNamara Motor Express, Inc. (1963), 40 Ill. App. 2d 484, 486.

Seko replies that its tariff’s $100 limit applies to consequential damages. Seko notes that the reverse side of the bill of lading and its tariff effective as of July 10, 1986, both state:

“DECLARATION OF "VALUE. The shipper or consignor hereby declares that, unless otherwise specifically indicated, the value of no total shipment or no single piece, package, parcel, or articles in this delivery, including the contents thereof, exceeds $100.00 upon which declaration the charge for delivery is based. Any claim in excess of the said $100.00 is hereby released and discharged. When the declared value exceeds the maximum value of $100.00 per shipment, additional insurance charges for such greater valuation will be assessed at the rate of $0.50 per $100.00 or fraction thereof.” (Emphasis added.)

Seko contends that this language means that any claim, including a claim for consequential damages, is released and discharged for the amount stated. We agree.

Interpreting the Illinois statutory scheme, Seko asserts that it would be contrary to public policy to permit collection of consequential damages not allowed in a carrier’s tariff. Subjecting a carrier to the risk of incurring huge damages for minor delays in deliveries would impair an established carrier’s desire to continue to do business in Illinois or bankrupt the company. Therefore, the only reasonable basis for subjecting a carrier to damages is the tariff limitation. In that way, a carrier knows and can plan to meet the burden of paying for goods lost or damaged in transit and the customer can elect whether to use the carrier subject to reimbursement for accidental loss, damage, misdelivery, or late delivery.

Seko contends that the liability limitation preempts all other means of recovery, thus properly and validly permitting Seko to limit its liability to Phillips. We agree.

The Illinois legislature has given the Illinois Commerce Commission (Commission) the duty to supervise and regulate the carriage of property by motor vehicle within Illinois. (Ill. Rev. Stat. 1987, ch. 95½, par. 18c — 4101.) As a carrier, Seko must file a tariff with the Commission reflecting its rate schedule and any other information the Commission requires. Ill. Rev. Stat. 1987, ch. 95½, par. 18c — 3201.

The purpose of the tariff is to promote uniformity and to avoid rate discrimination among shippers. (Indiana Harbor Belt R.R. Co. v. Budd Co. (1982), 110 Ill. App. 3d 76, 79.) It is a public document setting forth the services of a carrier being offered, the rates and charges with respect to services, and governing rules and the regulations and practices relating to those services. Maurice Transport Co., 144 Ill. App. 3d at 162.

The contract between the carrier and shipper is the bill of lading plus the published tariff. (National Starch & Chemical Corp., 40 Ill. App. 2d at 486.) If there are conflicts between the bill of lading and the published tariff, the tariff controls (National Starch & Chemical Corp., 40 Ill. App. 2d at 486), having the force and effect of a statute. Illinois Central R.R. Co. v. Sankey Brothers, Inc. (1978), 67 Ill. App. 3d 435, 439.

The Commission tariffs are published and all parties have equal access to the tariff rates. (Illinois Central R.R. Co., 67 Ill. App. 3d at 439.) The law conclusively presumes that shippers are aware of the lawful tariff rates (Indiana Harbor Belt R.R. Co. v. Budd Co., 110 Ill. App. 3d at 78), and the carrier may not lawfully deviate from the conditions of its filed tariffs. (Koontz v. South Suburban Safeway Lines, Inc. (1948), 332 Ill. App. 14, 16.) To permit a carrier to do so would open the door to discrimination. Koontz, 332 Ill. App. at 16.

Seko’s tariff provides that claims for consequential damages are limited to $100. In addition to its declaration of value, the tariff contains a box titled “Consequential Damages,” which states:

“We will not be responsible or liable for any loss or damage resulting from delay, non-delivery or damage to a package except as noted herein. This includes loss of sales income, interest profits, attorneys fees and other costs, but is not limited to these items. Such damages are called ‘consequential damages.’ ”

Because the bill of lading used in this case did not include the consequential damages section, there is a conflict between the bill of lading and the tariff. When such a conflict exists, the tariff controls. (National Starch & Chemical Corp., 40 Ill. App. 2d at 486.) Reading the tariff as a whole, we determine that Phillips’ claim for consequential damages is limited to $100.

In the alternative, Phillips argues that the bill of lading involved in this case is an “order” bill of lading, which requires a written agreement by the shipper for any limitation of liability. Phillips concludes that the tariff’s provision is void because the bill of lading does not refer to Seko’s tariff and Phillips never agreed in writing to any limitation. Although Phillips cites no Illinois cases, it cites cases based on similar Federal statutory limitations. None of those cases discuss order bills of lading, Phillips’ argument fails because the bill of lading involved in this case is not an order bill of lading. It is a “straight” bill of lading, which consigns the goods to a specific person. Ill. Rev. Stat. 1987, ch. 951/2, par. 18c — 4802.

A bill of lading in which it is stated that the goods are consigned to the order of any person named in such bill is an order bill of lading. It is negotiable unless it is stated otherwise on its face. Ill. Rev. Stat. 1987, ch. 95½, par. 18c-4803.

Next, Phillips asserts that even if Seko’s tariff provision limiting its liability applied to its consequential damages claim, it is inapplicable pursuant to section 18c — 4804 of the Illinois Commercial Transportation Law (Ill. Rev. Stat. 1987, ch. 951/2, par. 18c — 4804), which requires that the limitation of liability be in writing. Phillips contends that the bill of lading shows that Phillips never declared in writing the value of the goods to be shipped; that there was no other evidence presented that Phillips agreed in writing to any released value; and Nikki Milano’s affidavit states that Phillips was never told of the need to declare a value of the goods shipped. Furthermore, Phillips claims that Seko completed the bill of lading out of the presence of anyone in Phillips’ office, and Phillips never saw it until after the bid was delivered late. We disagree with this argument.

Seko’s tariff, which is on file with the Illinois Commerce Commission, limits its liability pursuant to section 18c — 4804. That statute requires that there be a written declaration of rates, not that the shipper sign the written declaration of release rates. Since Seko’s tariff and bill of lading included the declaration of value in writing, that was sufficient to satisfy the statutory requirements.

Finally, Phillips asserts that it has a common law remedy in contracts. If such a claim were proven, Phillips states, its damages would be the amount of profits it could prove it reasonably lost as a result of Seko’s negligence. In addition, Phillips asserts that there is no common law contract right to limit its claim for consequential damages because Seko failed to inform Phillips of the tariff or the liability limitation, failed to inform Phillips of the need to declare a higher value of the package, failed to include it in the bill of lading, and Phillips never agreed to be bound by the provision. Since there was no meeting of the minds regarding the limitation against consequential damages, Phillips concludes, the trial court erred in ruling that Phillips’ damages were limited. This argument has no merit.

The Illinois legislature declared that the statutory scheme regulating Illinois carriers is comprehensive. (Ill. Rev. Stat. 1987, ch. 951/2, par. 18c — 1102.) It is Illinois public policy

“to actively supervise and regulate commercial transportation of *** property *** in such manner as to *** develop and preserve a commercial transportation system properly supportive of the broad economic development goals of the State of Illinois.” Ill. Rev. Stat. 1987, ch. 951/2, par. 18c — 1103.

Read in conjunction with section 18c — 1202(3), which provides that the Commission has the power to regulate the rates and practices of the carriers, those sections frame a comprehensive regulatory scheme that preempts any common law respecting rates or liability

Based on the foregoing, the circuit court’s summary judgment order in favor of defendant is affirmed.

Affirmed.

GREIMAN, P.J., and TULLY, J., concur.