author: PRESIDING JUSTICE McCORMICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODNEY LEE, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—2307
    Opinion filed March 16, 1993.
    Rehearing denied May 6, 1993.

      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 (Renee Goldfarb and Michael Latz, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court:

Defendant, Rodney Lee, was charged with first-degree murder for the death of the victim, Frederick Brown. After a jury trial, defendant was convicted of second-degree murder and sentenced to six years’ imprisonment. Defendant appeals from his conviction and sentence.

On appeal, defendant argues that (1) the State did not prove him guilty beyond a reasonable doubt of second-degree murder; (2) the trial court erred in allowing Vernon Carter’s signed statement to go to the jury, while refusing to allow the jury to examine a transcript of his trial testimony; and (3) the trial court, in sentencing defendant, improperly considered in aggravation the fact that defendant’s acts caused serious harm when the infliction of harm is inherent in the offense.

We affirm defendant’s conviction because of the reasons stated below.

The victim occasionally stayed with his mother, Ernestine Smith. On the morning of September 18, 1988, between 1:30 a.m. and 2 a.m., Smith and her daughter, Melba Brown, returned to Smith’s second-floor apartment at 7013 South Sangamon. They discovered that the front door was locked. When the victim let them in, he told them that he had locked the door because someone was trying to kill him. Smith noticed that the victim had knives in his hand. She took the knives from the victim and placed them in her bedroom. Melba Brown called the police and stated that the victim said that someone was trying to kill him. She asked for help, but the police refused to come to the house.

Smith was on her way to the bathroom when she heard a knock at the door. The victim said “do not open the door,” but Smith asked who it was. When Carter answered, “Vernon and Lewis,” Smith told the victim to let them in. Smith proceeded to the bathroom. Melba Brown called the police and told them that there was going to be a shooting. While talking to the police on the telephone, Brown heard gunshots. Melba Brown dropped the phone and hid in a closet. Melba Brown stayed in the closet for a couple of minutes. Melba Brown went into the kitchen and observed the victim lying on the floor bleeding. The victim died later that day from the gunshot wounds.

At trial, Dr. Kirshner, a medical examiner, testified that the victim was shot three times, once in the back, once on the forearm and once in the thigh. The victim had a blood-alcohol level of .185 at the time of his death. The word “killer” was tattooed on the victim’s chest.

James Brown, one of the victim’s brothers, testified that the victim stabbed him in a fight five days before the shooting. He stated that he was outside the building at 7013 South Sangamon with Carter, Reggie Donaldson and defendant on the night that the victim was killed. Allegedly they heard an argument coming from the house and James Brown and Donaldson tried to enter through the front door. This door was locked. Carter and defendant walked to the back door. James Brown heard three shots. James Brown stated that defendant ran down the stairs past him as he went up the stairs. When James Brown got upstairs, he saw the victim lying on his back on the kitchen floor. Carter said, “He didn’t have to shoot him, he didn’t have to shoot him.”

The State introduced into evidence a tape recording of Melba Brown’s second call to the police. James Brown identified defendant’s and Carter’s voices on the tape. He identified defendant as saying, “come on, man, come on.” Carter said, “Fuck you, man, you did not have to shoot him.”

The State introduced a transcript of the statement Carter made to the police on the night of the shooting. This statement was admitted pursuant to section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.1) and was, thus, substantive evidence. In the statement Carter said that he heard arguing going on in the victim’s apartment, so he and defendant went up to the third floor to check out what was happening. Carter knocked on the door, and the victim asked who it was. Carter identified himself and the victim opened the door. The victim grabbed Carter and pushed him over the bannister. The victim then grabbed defendant by the neck and they fought. Carter said that the victim was not armed and had nothing in his hand. The victim and defendant ended up in the kitchen, where the victim stumbled, and defendant pulled out a gun and shot him. Defendant ran with the gun.

At trial, Carter testified that defendant did not accompany him, and he did not think that anyone followed him up the stairs. He did not see who fired the gun, and he did not tell the police that defendant shot the victim. After hearing a shot, Carter pulled himself back up over the bannister. He heard someone run down the stairs, but he did not see who it was. When Carter went into the kitchen and saw the victim lying on the floor, he screamed, “why the fuck did you shoot him, why the fuck did you shoot him[?]” He testified that he was talking to defendant, but that defendant was gone.

The jury deliberated for five hours without reaching a verdict. At that time, defense counsel moved for a mistrial. The court denied the motion. The jury was sequestered for the evening and deliberations resumed the next day. The court granted the jury’s request to see Carter’s signed statement. The jury later requested to see Carter’s statement again and a transcript of his trial testimony. Defense counsel objected to this and again moved for mistrial. The court denied the motion for mistrial and the jury’s request for Carter’s statement and trial testimony.

Defendant initially argues that he was not proved guilty beyond a reasonable doubt because there is no credible evidence that he shot the victim. Defendant argues that Carter’s trial testimony was more believable than his out-of-court statement. In his written statement, Carter said that he saw defendant shoot the victim, but at trial he testified that he did not see who shot the victim.

The testimony of a single eyewitness is sufficient to sustain a conviction if the witness is credible and his testimony is positive. (People v. Patterson (1972), 52 Ill. 2d 421, 288 N.E.2d 403.) The assessment of the credibility of a witness is for the jury (People v. Williams (1982), 93 Ill. 2d 309, 315, 444 N.E.2d 136), and a reviewing court will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313). In the instant case, the jury heard the contents of Carter’s written statement and listened to his testimony at trial and found that the statement was more credible.

Substantial evidence corroborated Carter’s statement and supports defendant’s conviction. (Cf. People v. Wise (1990), 205 Ill. App. 3d 1097, 563 N.E.2d 1057.) The State’s witnesses identified defendant’s voice on the 911 tape, James Brown testified that after he heard shots, he saw defendant running down the back stairway of the apartment building, and Carter testified that he shouted out that defendant did not have to shoot the victim. Under the facts of this case, we cannot say that the evidence is so improbable as to raise a reasonable doubt of defendant’s guilt.

Defendant further contends that he was not proved guilty beyond a reasonable doubt of second-degree murder because the State failed to prove that he did not act in self-defense. The State contends that defendant waives this argument because he failed to specifically raise it in his written motion for a new trial. Generally, failure to raise an issue at trial and in a written motion for a new trial results in a waiver of that issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) When a party has failed to comply with the statutory requirement for filing a post-trial motion, our supreme court has narrowed the limits of review to constitutional issues, arguments on the sufficiency of the evidence and plain error. Defendant’s argument is reviewable in that it concerns the sufficiency of the evidence.

The relevant question on review, when faced with a challenge to the sufficiency of the proof, “is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis omitted.) (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453.) A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses and will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. Manion, 67 Ill. 2d at 578.

“The use of force in the defense of a person is legally justified where each of the following elements is present:

‘(1) that force is threatened against a person; (2) that the person threatened is not the aggressor; (3) that the danger of harm is imminent; (4) that the force threatened is unlawful; (5) that the person threatened must actually believe: (a) that a danger exists, (b) that the use of force is necessary to avert the danger, (c) that the kind and amount of force which he uses is necessary; and (6) that the above beliefs are reasonable.’ ” (People v. Kyles (1980), 91 Ill. App. 3d 1019, 1021, 415 N.E.2d 499, quoting People v. Williams (1965), 56 Ill. App. 2d 159, 165, 205 N.E.2d 749.)

The use of deadly force is limited to those situations where (a) the threatened force will cause death or great bodily harm, or (b) the force threatened is a forcible felony. (Williams, 56 Ill. App. 2d at 166.) The State has the burden of proving beyond a reasonable doubt that defendant’s act was not in self-defense. The State has carried its burden of proof if the trier of fact determines that the State has negated any of the above elements beyond a reasonable doubt. People v. Zolidis (1983), 115 Ill. App. 3d 669, 675, 450 N.E.2d 1299.

The State presented evidence that defendant went to the victim’s apartment and found the victim unarmed. The victim struggled with defendant, and defendant pulled out a gun and shot the victim three times, once in the back. Since defendant intruded upon the victim, who feared for his life, a reasonable jury could have found that defendant was the aggressor. The jury could also have found that the unarmed victim did not threaten to use force which would cause great bodily harm, or that defendant did not reasonably continue to fear death or great bodily harm after the victim was struck by the first bullet. The use of deadly force is not justified where the victim, even though initially the aggressor, has been disarmed or disabled. (People v. Limas (1977), 45 Ill. App. 3d 643, 652, 359 N.E.2d 1194.) We cannot say that the evidence proving that defendant’s acts were not in self-defense is so improbable as to leave reasonable doubt of defendant’s guilt, when the evidence is viewed in the light most favorable to the prosecution.

Defendant’s next contention is that the trial court abused its discretion in allowing Carter’s written statement to go back to the jury and not allowing the jury to see a transcript of Carter’s trial testimony. The State maintains that defendant waives this issue on appeal because (1) he failed to object when the trial court refused to send a transcript of Carter’s testimony to the jury; and (2) he failed to specifically raise this same issue in a post-trial motion. As has been previously discussed, failure to raise an issue at trial and in a written motion for a new trial results in a waiver of that issue on appeal. Enoch, 122 Ill. 2d at 186.

At trial, defendant did not object to the trial court’s failure to send Carter’s transcript back to the jury, nor did he raise the issue in his post-trial motion. Therefore, defendant’s argument on the trial court’s failure to send the transcript back is waived. Defendant did not waive the argument in the written statement because he did object at trial, and he raised the issue in his post-trial motion.

Defendant contends that sending Carter’s written statement to the jury overemphasized the statement and encouraged the jury to reject his self-defense argument. Whether evidentiary items should be taken to the jury room rests with the discretion of the trial court. A trial court’s decision will not be reversed unless there was an abuse of discretion to the prejudice of the defendant. People v. Williams (1983), 97 Ill. 2d 252, 292, 454 N.E.2d 220, citing People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203; People v. Magby (1967), 37 Ill. 2d 197, 226 N.E.2d 33.

Defendant cites to People v. Carr (1977), 53 Ill. App. 3d 492, 368 N.E.2d 128, where it was found that the trial court committed reversible error by allowing certain statements to go back to the jury. The statements objected to in Carr were prior inconsistent statements which had not been admitted into evidence and were sent back to the jury without instructions that the statements were not to be used as substantive evidence. The instant case is distinguishable because the statement herein was properly admitted as substantive evidence. In view of the contradictions between Carter’s statement and his trial testimony, it is understandable that a jury would find it valuable to review the same.

The jury was instructed to weigh all of the evidence. The conclusion advanced by defendant that the contents of the statement were overemphasized is unsupported by fact or reason. We cannot conclude under the facts and circumstance of this case that defendant had a right to have the jury’s request to review Carter’s statement denied. Clearly, the trial court did not abuse its discretion.

Defendant’s final contention is that in sentencing him, the trial court improperly considered in aggravation the fact that his act caused serious harm. He argues that it was error because for second-degree murder the infliction of harm is inherent in the crime. Defendant relies on People v. Salvidar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138, and People v. Smith (1990), 195 Ill. App. 3d 878, 552 N.E.2d 1061, in support of his argument. In Salvidar, the defendant therein used a similar argument, but the court held that the degree of harm caused to the victim may be considered as an aggravating factor in determining the exact length of a sentence, even in cases where serious bodily harm is implicit in the offense for which a defendant is convicted. (Salvidar, 113 Ill. 2d at 269.) However, the court therein did find that the trial court focused on the death of the victim in sentencing that defendant. In Smith, the defendant’s sentence was vacated and remanded for resentencing. The court determined that the trial court considered the victim’s death to be a major aggravating factor and was not concerned with the manner in which the death occurred.

Contrary to Salvidar and Smith, the trial court in the instant case did not focus on the victim’s death in sentencing defendant. The trial court considered the following factors: (1) that defendant’s act caused serious harm; (2) that defendant initiated contact by going to the victim’s home; (3) that defendant had a gun when he went to the victim’s home; (4) that defendant shot the victim three times; (5) that defendant did not have a criminal history; and (6) the presentence investigation report. Defendant’s sentence was properly imposed. (See Salvidar, 113 Ill. 2d at 268-69.) The sentence was within the statutory range for second-degree murder. On this record, we cannot say that the trial court improperly augmented the sentence based on the fact that the victim died.

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

Affirmed.

SCARIANO and DiVITO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT MOORE, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—1306
    Opinion filed March 19, 1993.

      Mark W. Solock and Patrick G. Reardon, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Fabio Valentini, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Robert Moore, was convicted by a jury of the first degree murder of Edward McClain, and he was sentenced to 30 years’ imprisonment. He maintains that trial errors occurred which require that he be granted a new trial; he does not dispute the sufficiency of the evidence.

Tyrone McClain (Tyrone) had been living at the apartment located at 1761 East 73rd Street in Chicago for approximately one week before the death of his brother Edward. Tyrone was staying with Edward and Edward’s girl friend, Sheila West, to whom the apartment was rented.

The apartment had two entrances. The back door consisted of one rear wooden door, as well as burglar bars and an outer screen door. The burglar bars and the screen door were always kept locked.

Tyrone testified that he met the defendant three times, the last time the day Edward was shot, March 23, 1989. Edward introduced the defendant to Tyrone as “Rob.” Tyrone knew the defendant only as “Rob” and did not learn his last name. On the morning of March 23, 1989, Sheila West left the apartment along with her sister, Angel West, at approximately 11 a.m.

Around 1 p.m., Tyrone was looking out the living room window and saw the defendant pull up in his Blazer vehicle. The defendant parked the car on the street and later knocked on the front door; Edward let him in. Edward accused the defendant of not returning a pistol that belonged to Edward. The defendant said that he had given the pistol to Sheila West. When Edward questioned him further, the defendant repeated that he had given the pistol to Sheila.

Edward was sitting on the couch and again asked the defendant for his pistol. An exchange then took place between the defendant and Edward which we will discuss later when addressing the defendant’s claims of trial error. After that exchange the defendant left.

At approximately 2:20 p.m., while Edward and Tyrone were eating and watching television, a knock came at the back door. Edward went to the door and said, “Who is it?” A man, whose voice Tyrone identified as that of the defendant, said, “Rob.” Edward asked him what he wanted because, Edward said, the defendant had just left out the front door. After Edward opened the door, Tyrone heard three loud shots one after another. After Tyrone heard the shots, he remained sitting in the living room and then walked toward the kitchen, where he saw his brother lying on the floor. The rear wooden door was wide open, but the burglar bar and screen door were still closed.

When Tyrone asked Edward who had shot him, Edward replied, “Rob.” Since there was no phone in the apartment, Tyrone ran outside to get help and found a police car down the block. When the police officer arrived, Tyrone told her that “Rob” had shot Edward.

At the time of trial Tyrone was serving a prison sentence for armed robbery; he had been convicted in December 1989. In October 1984 he had been sentenced to four years’ imprisonment for burglary. In January 1983 he had been sentenced to 18 months’ imprisonment for possession of a stolen motor vehicle. In 1980 he had been sentenced to two years’ imprisonment for theft.

Pólice officer Inovskis testified that at approximately 2:20 p.m. she arrived at the scene of the shooting. She asked Tyrone if Tyrone knew who the offender was, and Tyrone said it was “Rob.”

Dr. Nancy Jones, an assistant medical examiner, testified that the victim had four shotgun wounds: a grazed wound on the anterior of the left thigh; a close-range wound on the back of the right upper arm from which wadding was recovered; a wound on the side of the right buttock; and multiple individual pellet wounds covering an area on the left back and buttock that extended for about 22 inches from the shoulder to the buttock. All the wounds were on the back side of the deceased. In Jones’ opinion the gun was fired from a distance of less than a foot to two feet. Her toxicological analysis of the victim’s blood revealed .29 micrograms of benzylecaline, the first breakdown product of cocaine. Benzylecaline can be recovered up to four hours or longer after the cocaine has been ingested.

Sheila West testified that she had lived at the apartment at 1761 East 63rd Place for approximately five years. In January 1989 the defendant sold Edward an ounce of cocaine for $40. Because Edward did not have the money, he gave the defendant a pistol for security. Later in the month, Edward paid the defendant, but the defendant never returned the pistol.

On the morning of March 23, Sheila and her sister Angel left the apartment. Between 2 p.m. and 2:30 p.m. Sheila returned home and found that Edward had been shot. She had a conversation with Angel during the following evening; Angel told her that she had seen the defendant get into the Blazer. Sheila knew the defendant only as “Rob.” She did not tell the police what Angel had told her because she did not know it was important.

Laranda “Angel” West was a sophomore in high school at the time of trial. She testified that she met the defendant through her friend named Annette, the defendant’s former girl friend. Angel had seen the defendant 50 or 60 times in the previous year. On the morning of March 23 Angel had been living with her sister at the apartment for a week.

At approximately 11 a.m., Angel and Sheila left the apartment to visit a friend and to make a telephone call. After two hours at the friend’s house, Angel left to visit her friend Annette, who lived in the same courtyard building that Sheila lived in. When there was no response at Annette’s apartment, Angel went down the walkway to visit Gwen’s apartment, another friend in the building.

As she approached Gwen’s apartment, Angel heard four shots. After hearing the shots, Angel “ran to the alley and looked down.” She saw the defendant getting into a Blazer; he was carrying a shotgun. On the following day she told her sister that she had seen Rob getting into the Blazer carrying a shotgun.

On cross-examination, Angel recalled an interview at the State’s Attorney’s office on February 26, 1990; the defendant’s attorney, two prosecutors and Detective Kelly were present. Angel denied telling the defendant’s attorney that she did not hear gunshots on the day of the killing. She first said that she did not report that she had seen the defendant carrying a shotgun until February 26, 1990. She did not tell Gwen anything about her observations even though Gwen asked her if she had heard the shots.

The defense was an alibi. Willie Jones, who lived next door to the defendant, testified that he saw the defendant in the backyard of 5409 Shields from approximately 1 p.m. until 4:30 p.m. Carmen Sta-tum testified that she had been checking on the defendant “every ten minutes or every hour” before 4 p.m. Mary Moore, the defendant’s sister, testified that the defendant spent the afternoon washing cars in the backyard and that at approximately 4 p.m. she went for a drive in the defendant’s Blazer.

The defendant testified that he had worked for Watkins Motor Line for approximately three weeks before he was arrested. He was a high school graduate and had also graduated from the Washburn Trade School as an auto mechanic. He first met Edward in January 1989. He sold Edward cocaine and was holding Edward’s gun as collateral.

The defendant was living at 77th and Stewart between January and March 1989, although he frequently visited his parents’ home at 5409 Shields. The only time he ever saw Tyrone was on the day of the shooting. The defendant went to the apartment in order to help Edward move. He went to the apartment in his black Bronco; he did not own a Blazer.

When he arrived at the apartment on March 23, he entered through the front door. He knocked on the door and was asked who was there. He replied, “Robert.” Edward also knew him by the name “Guy.” Edward asked him about the gun. He did not yell at Edward; he was not angry at Edward. He did not help Edward move that day because Edward was unhappy with him about the gun. He told Edward that he had given the gun to Sheila. He left the apartment through the front door and went to his mother’s house. He never returned to Edward’s apartment that day. He did not shoot Edward. He got to his mother’s house at approximately 1:15 p.m. or 1:30 p.m. and proceeded to wash two cars for the rest of the afternoon.

On cross-examination he testified that Edward paid him back the $40 for the cocaine. The gun had been stolen from the defendant’s car. He felt bad about the fact that the gun had been stolen. He lied to Edward when he told him that he had given the gun to Sheila.

The defendant’s attorney, Barry Sheppard, was permitted to testify on behalf of the defendant. He testified that on February 26, 1990, he questioned Angel West in the presence of two assistant State’s Attorneys. He “asked [Angel West] if on March 23, 1989, before she saw Robert Moore get into a car, she heard gunshot noises.” He testified that Angel told him that she did not hear gunshot noises.

On cross-examination he testified that he did not bring a court reporter despite the trial judge’s suggestion that he do so. He looked for a court reporter but could not find one available. He wrote out what Angel West told him. He did not show what he had written to Angel. He did not ask Angel to sign any statement that he had written down.

In rebuttal the State established that the defendant had been terminated from Watkins Motor Line after three days because he did not show up for work.

Assistant State’s Attorney Julie Rosner, who was present at the interview of Angel West by Barry Sheppard, testified that when Sheppard asked Angel if she had heard gunshots, Angel replied that she had heard gunshots. Rosner did not take notes of the conversation between Sheppard and Angel.

Detective John Segers testified that he had a conversation with the defendant on the day after the shooting. The defendant told him that he and Edward had had an argument. He also told Segers that he had left Edward’s apartment between 2 and 3 p.m.

By stipulation it was established that on September 26, 1988, the defendant had been convicted of misdemeanor theft and sentenced to one year’s probation.

The defendant’s principal claims of error center on testimony of Tyrone that, in the dispute over Edward’s gun, Edward told the defendant that he could receive the death penalty for the killing of a man on Jeffrey Avenue. The defendant maintains that prejudice occurred during the State’s opening statement in which the prosecutor referred to the evidence, during the testimony of Tyrone, during the cross-examination of the defendant and during the State’s closing argument in which the prosecutor again referred to the evidence. The State contends that the defendant waived argument on this point by failing to object to the opening statement or the examination of Tyrone.

The problem with the State’s contention that the defendant waived any right to claim error in the introduction of evidence of the deceased’s statement about another killing lies in the defendant’s alternative claim that his attorney rendered ineffective assistance by failing to make appropriate objections. We agree with the State that the defendant waived the claim of error, but we deem it appropriate to address the issue.

During the opening statement the prosecutor told the jury that the evidence would show that Edward told the defendant that he could get the death penalty for killing a person on Jeffrey Avenue. No objection was made to that statement.

During the direct examination of Tyrone the following occurred:

“Q. Okay. And what did he say after he wanted his pistol back then?

A. Robert Moore said, T ain’t got it. Sheila came and got the pistol.’ Then my brother said, ‘Yeah. Well, I’ll fix you dirty mother fuckers fucking with me.’

* * *

A. And then Rob said, T told you, man, I gave the pistol to her.’ My brother said, ‘That’s all right. You know you can get the death penalty for killing that mother fucker on Jeffrey.’ ”

Although the defendant’s attorney did not object to that statement, the trial judge immediately issued his first limiting instruction to the jury:

“The jury may consider this alleged statement by Edward McClain only as it may affect Robert Moore’s state of mind and not for the truth of the matter asserted in the statement. That is, whether there was a shooting on Jeffrey and who may have done it is not a matter of proof and is not at issue. The defendant has never been arrested or charged with any shooting on Jeffrey.”

After the judge’s statement, Tyrone continued:

“So then my brother started talking to him [the defendant] again. Then he mentioned about the same thing again. And Rob started looking the other way, like, you know, he didn’t even hear the statement. And then he [the defendant] got up and left.”

On cross-examination the defendant’s attorney asked Tyrone if the defendant acted as though he had not heard Edward’s threat. Tyrone responded that the defendant acted as though he did not hear when Edward told him that he “could get the death penalty for killing the ladyf’s] husband on Jeffrey.”

On redirect examination, Tyrone said that the defendant and Edward were arguing about the pistol. Tyrone also said that the defendant and Edward were not friendly when discussing the other shooting on Jeffrey. At this time, the judge issued his second limiting instruction:

“Again, jurors, with the caution that this remark, or this statement about some shooting on Jeffrey is not meant to prove anything as to whether there was a shooting; who did the shooting. The defendant, again I remind you, has never been arrested or charged for any such shooting on Jeffrey, if a shooting existed. And that testimony regarding a shooting on Jeffrey is just to be considered by you, if you choose, as it might reflect the defendant, Mr. Moore’sf,] state of mind and for no other reason.”

The defendant testified that he and Edward discussed the gun, but the defendant did not yell at Edward; he was not angry with him. During cross-examination, the following occurred:

“Q. Did Edward — are you saying Edward never said to you that you could get the death penalty for killing that mother fucker on Jeffrey Street?

A. No.

Q. Never said anything about that. He never mentioned Jeffrey Street?

A. No.

Q. Or the death penalty?

A. No.

Q. Or killing anybody else?

[DEFENSE ATTORNEY]: Objection.”

The judge ruled that “anybody else” would be stricken. The judge then gave his third limiting instruction:

“Some admonitions and qualifications as I gave the jurors earlier will stand. Any reference to some killing on Jeffrey Street can only be considered by the jury as they may choose in terms of the defendant Moore’s state of mind.
They cannot consider any statement with respect to some killing on Jeffrey for the truth of the matter asserted in the statement. And, once again the defendant, Mr. Moore, has never been arrested or charged for any possible killing on Jeffrey.”

Both the defendant and the State now argue over the applicability of the exception to the general rule barring evidence of other crimes, which provides that other crimes are admissible to establish motive. We do not believe that the rule governing admission of other crimes is precisely applicable, because the evidence does not establish that the defendant did, in fact, commit another crime. Indeed, the rule governing admission of other crimes requires that it must be established that a crime actually took place and that the defendant committed the crime or participated in its commission. (People v. Miller (1977), 55 Ill. App. 3d 421, 370 N.E.2d 1155.) While proof beyond a reasonable doubt of the defendant’s participation is not required (People v. Scott (1973), 13 Ill. App. 3d 620, 301 N.E.2d 118), the proof must be more than such that creates mere suspicion. See People v. Nearn (1988), 178 Ill. App. 3d 480, 533 N.E.2d 509.

There is no evidence that another killing took place, let alone any evidence that the defendant participated in it. Nonetheless, we have determined that the evidence was admissible. Proof of motive is always admissible even though not required. (People v. Smith (1990), 141 Ill. 2d 40, 565 N.E.2d 900.) And proof of motive may take many forms — for example, evidence showing hate, revenge, greed, fear, even love — and is not restricted to proof of other crimes.

In this case the evidence was admitted to create the inference that Edward was claiming knowledge of facts which might incriminate the defendant; that Edward was threatening to disclose those facts unless his gun was returned to him; and that the defendant killed Edward to silence him. That the State did not show the defendant actually killed someone else may control the weight of the evidence, but not its admissibility. The trial judge correctly noted that the evidence was not admitted to show the truth of Edward’s accusation but rather to show that the accusation might have affected the defendant’s state of mind. (Cf. People v. Albanese (1984), 102 Ill. 2d 54, 464 N.E.2d 206.) As the judge cautioned, the fact finders were free to decide, first of all, whether Edward actually made such an accusation and, second, what weight was to be given to it.

We conclude, therefore, that no error occurred during the State’s opening statement, when Tyrone testified to the threat by the defendant, when the defendant was cross-examined about the threat and when the State argued that the threat was the motive for the killing. Since the evidence was properly admitted, the defendant’s attorney was not ineffective for failing to object to it. (People v. Lewis (1981), 88 Ill. 2d 129, 430 N.E.2d 1346.) Before we leave this point we express strong approval of the course of action taken by the trial judge in giving cautionary instructions in the absence of any objection by the defendant’s attorney. As the supreme court has noted, a judge is more than a presiding officer or an umpire. He is responsible for the justice of the judgment he enters. (Wozniak v. Segal (1974), 56 Ill. 2d 457, 308 N.E.2d 611.) A trial judge should interject himself into proceedings with caution, but there are instances where justice requires that the judge do so. This case presented such an instance.

During the cross-examination of Angel West, the defendant’s attorney brought out that the defendant had attempted to have sex with her but that she had rebuffed him. The defendant now maintains that that cross-examination by his attorney represented reversible ineffective assistance of counsel.

The bench mark for judging a claim of ineffective assistance of counsel is whether defense counsel’s conduct “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington (1984), 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2064.) To succeed on such a claim, moreover, a defendant must overcome the strong presumption that the challenged actions might be considered sound trial strategy. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.) We judge that the defendant has not overcome the strong presumption that the defendant’s cross-examination of Angel West was trial strategy.

Angel West was an important witness against the defendant. If the defendant’s attorney could show that she was motivated to testify against him because he had been unduly aggressive in an attempt to have sexual relations with her, the strain on her credibility in the eyes of the jury would be more than a fair exchange for any unfavorable impression the jury might have of the defendant that the evidence might have created. It should be emphasized that the evidence did not establish an attempt to rape Angel. In the defendant’s attorney’s closing argument he emphasized that Angel West might have been motivated to testify against the defendant because of the incident in which he attempted to have sexual relations with her. Apparently he did not so convince the jury, but the mere fact that a tactic was unsuccessful does not establish incompetence. (People v. Potthast (1991), 219 Ill. App. 3d 714, 579 N.E.2d 1027.) The cross-examination of Angel West did not constitute ineffective assistance of counsel.

Before the trial began, the defendant’s attorney spoke to the judge about interviewing Angel West. The judge suggested that the defendant’s attorney bring a court reporter in the event there would be a dispute about what she told the defendant’s attorney and someone would have to testify for the defense. The defendant’s attorney interviewed Angel without a court reporter. He later told the judge that there was no court reporter available at that time. He interviewed her in the presence of two assistant State’s Attorneys and a detective. After Angel testified, the defendant’s attorney told the judge that he was prepared to testify that he had asked Angel at the interview whether she had heard gunshots and that she had said, “No, I did not.” The judge permitted the defendant’s attorney to testify. The attorney then testified and impeached Angel.

While an attorney is not incompetent to be a witness, the right of an attorney to be a witness in a case in which he is representing a party is allowed only when the court, in its discretion, deems it necessary. Andrea Dumon, Inc. v. Pittway Corp. (1982), 110 Ill. App. 3d 481, 442 N.E.2d 574.

The defendant’s claim of error is not that the attorney did testify, but rather that the defendant’s attorney did not withdraw before giving testimony. Rule 5 — 102(a) of the Illinois Code of Professional Responsibility (107 Ill. 2d R. 5 — 102(a)) provides that an attorney may testify without withdrawing from the case when withdrawal would “work a substantial hardship on the client.” Implicit in the defendant’s argument is the assumption that the judge would have granted the defendant’s attorney’s motion to withdraw. This is an assumption of very doubtful validity. As a practical matter, withdrawal by the defendant’s attorney in the midst of trial and substitution by another attorney fully prepared to represent the defendant would be most improbable. We have serious doubts that the trial judge would have permitted the defendant’s attorney to withdraw; and a denial of a motion to withdraw would have been justified. For these reasons, we conclude that the defendant’s attorney’s failure to withdraw, or to seek leave to withdraw, did not constitute ineffective assistance of counsel.

The defendant’s last assignment of error concerns the State’s closing argument. In addition to the State’s reference to Edward’s statement concerning the killing on Jeffrey Avenue, which we have already discussed, the defendant maintains that the prosecutor attempted to define the term “reasonable doubt”; the prosecutor commented on Angel West’s life experience which, the defendant maintains, was not based on the evidence; and the prosecutor made a passing reference to Ted Bundy. (We take judicial notice that Ted Bundy was accused of the murders of several young women. He was convicted of killing some of them and was executed.)

We do not agree that the prosecutor’s remarks amounted to an attempt to define “reasonable doubt,” and we do not agree that the prosecutor’s reference to Angel West’s life experience was not based on reasonable inferences from the evidence. We judge that the prosecutor’s reference to Ted Bundy was, in part at least, made in response to an argument by the defendant’s attorney. In the defendant’s attorney’s closing argument he said this:

“And you look [the defendant] in the eyes. He is a nice looking, young man. And he is honest, and he has got a sweet smile. And he has got a nice mother and a good family. And that is the type of people who are worthy of reasonable doubt.”

The prosecutor answered that argument thus:

“He is sitting there and he says smile and he smiles. A lot of murderers are very charming people. So is Ted Bundy. That’s how he got all those girls to come to him and kill them.

* * *

A lot of killing, nice faces and pleasing personalities. What a person looks like has nothing to do with it. Don’t think about that. Think about the evidence.”

In our judgment the prosecutor’s response was a proper response to the defendant’s argument. At least we cannot say that it is clear that the reference to Ted Bundy was improper. The prosecutor made i^o attempt to compare the multiple killings Bundy had committed with the assassination of Edward; and no one can dispute the truth of what the prosecutor said. The reference to Bundy was, of course, a hard blow, but we cannot say that it was an unfair one.

In addition, we do not believe that the jury’s verdict would have been any different if the remark about Ted Bundy had not been made. No possible reason why Tyrone and Angel West would falsely implicate the defendant has been suggested. Tyrone’s testimony was corroborated to a significant degree by the defendant himself. He admitted to a disagreement with Edward about the gun; and he admitted to lying to Edward about what had happened to the gun.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA, P.J., and RAKOWSKI, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE BROWN, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—3260
    Opinion filed March 19, 1993.

      Michael J. Pelletier and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Susan Schierl, and Matthew L. Moodhe, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Eddie Brown, was convicted after a bench trial of first degree murder, attempted armed robbery, armed violence and unlawful use of a firearm by a felon and sentenced to concurrent terms of 42 years for first degree murder, 15 years for attempted armed robbery and 5 years for unlawful use of a firearm by a felon. He maintains that trial errors entitle him to a new trial. He does not dispute the sufficiency of the evidence.

On June 28, 1988, at approximately 6:20 p.m., Cornelius Simmons was fatally shot in his barbershop located at 839 East 47th Street in Chicago. At the time of the shooting several people were nearby. The police questioned those people, including Arnell Givens, Irma Crump and Eula Tate; the police also held at least two lineups and several photograph identification sessions. The defendant’s photograph was identified by Eula Tate as one of the persons involved in the shooting. The defendant was arrested and subsequently indicted. After a hearing, the trial judge denied the defendant’s motion to suppress identification testimony.

At trial the deceased’s daughter, Demetrius Baskin, testified that she visited her father in his barbershop approximately three times in 1988. Before the shooting, she had not seen her father in the barbershop for approximately three months. Her father kept coins and paper money in the pockets of his smock while he worked because he sometimes gave this money to his grandchildren. When customers paid her father, he put the money into the cash register, not into his pockets.

Officer Robert Edwards testified that he went to the barbershop shortly after Simmons was shot. The description of the two offenders he put in his report came from Lashawn Hunter, who actually did not see the offenders. The report described one man as taller than the other. The shorter offender, later identified as the defendant, was described as standing 5 feet 7 inches tall, weighing 120 to 130 pounds, having brown hair and eyes and a dark complexion, and wearing a baseball cap and dark blue jacket. The taller offender, later identified as Michael Phillips, was described as having a light complexion.

Irma Crump testified that she was near the barbershop at the time of the shooting visiting a friend, Arnell Givens, who lived a short distance from the barbershop. Crump was standing on the balcony of Givens’ apartment, which is on the third floor. She could “see 47th Street very plain between Drexel and Cottage Grove.” She saw Givens drive her car around the building and eventually park in front of the apartment on 47th Street. When Givens came to the apartment, they both went to the balcony. Crump saw two men “just kind of hanging around downstairs” on the same side of 47th Street on which her car was parked. She described these men as follows: one had dark skin, was about 5 feet 6 inches or 5 feet 7 inches tall, and wore jogging pants, a navy or black jacket, and a cap; the other was tall and light-skinned, and wore a jogging suit and a cap.

Crump saw the shorter man go into the barbershop side of the building; she was not sure what store he entered. About a minute and a half later the shorter man came running out of the building, crossed Drexel Avenue with his hand in his jacket, and started to take off his jacket. At this time, the taller man, who was outside the building, “stood there like he was confused, and then *** took off across Drexel.” She never saw the shorter man’s face, perhaps because of his cap visor or the height of the balcony. She was unable to make a photograph identification and never viewed a lineup.

Arnell Givens testified that she drove into an alley leading to the parking lot behind the building in which she lived. She saw two men standing in front of the building. She described one man as “tall and fair complected” and the other as “dark complected, a gentleman, short.” She identified the defendant in court as the shorter man.

Givens explained that she became nervous when she saw the men in front of the building because of “the vibes that [she] picked up, and the way they were — the way that they were just standing there.” She parked her car on 47th Street facing east. Before leaving the car, she sat and watched the men for a few moments. While she was watching, the men were to the side of her. She explained that she waited before leaving the car because she “didn’t like the way [the defendant] looked.” He “just had a real devastating look on his face.” She did not know “whether he wanted to rob [her], or what he was going to do.” She walked past the men on her way into her apartment building entrance. Once inside, she turned and leaned out the door to see them, and the taller man walked close beside her and said, “Hi,” while waving his hand. This startled her, and she slammed the door and went up to her apartment.

She went onto the balcony with her children and Irma Crump. She felt compelled to look out from the balcony because she thought the men might be trying to steal Crump’s “really nice” car. When Givens returned to the balcony, she saw the taller man standing on the corner, but she did not see the defendant. She next saw the defendant run out of the barbershop entrance, into traffic on 47th Street and onto Drexel Boulevard going north. At this time, the taller man turned around, saw the defendant running and began running himself.

On August 23, 1988, Givens went to the police station to view a lineup. She recognized the defendant and the taller man, Michael Phillips, in the lineup but told the detectives she could not identify anyone. The following direct examination occurred:

“[STATE’S ATTORNEY]: Why didn’t you tell the detectives that, that you recognized them?

A. I was frightened.

Q. Frightened of whom?

A. I was scared.

Q. Who were you scared of?

A. Of just — what can I say, scared, scared.”

Detective David Kutz called her and asked if she had been intimidated or contacted by anyone. She told him she had not been intimidated. She returned to the station that day and told Kutz that she had recognized someone but that she was nervous. Kutz asked her to look at a group of approximately six to eight photographs. She identified the defendant from these photos at the station and in court.

On cross-examination, Givens said she remembered the defense attorney and an investigator visiting her outside her apartment approximately two months before trial. She denied that she told the defendant’s attorney that she was unsure of her identification. She explained that her only hesitation was based on the fact that two years had passed since the crime and that she told the defendant’s attorney she would “definitely know the person when [she saw] him.”

Eula Tate testified that she was working at the D & J Cleaners on the 800 block of East 47th Street. The cleaners is located on the first floor of the same building as the barbershop owned by Simmons. She saw two “boys” pass by the cleaners and cross 47th Street. She explained that she “could see out the window real good” and that she saw the two boys’ faces. She saw “something brown” in the belt or near the waist of the shorter of the two. She saw the boys for “as long as they were standing there.”

At approximately 5:40 p.m., she decided to close the cleaners for the day because she was frightened. She explained that three weeks earlier her store was “robbed” and that she was afraid when the two boys stood across the street and stared toward her. She turned off the regular lights, turned on the night lights, locked the gates, and left the cleaners. On August 26, 1988, Detectives Kutz and Romic came to her house and showed her photographs. She identified the defendant from the photographs, and she identified him in court.

Mark Funches testified that he was employed as a sales representative for Alarm Security. At the time he testified he had a pending criminal case for possession of a stolen motor vehicle. He formerly was a member of the Black Gangster Disciples gang. He knew the defendant through the Disciples gang; the defendant was also a Disciples member. At the time of the shooting, he had known the defendant for approximately six months, and had known Phillips for approximately two years.

Funches entered a Harold’s Chicken Shack on 47th Street at about 3:30 p.m. on June 30 and saw the defendant and Phillips there. He walked over to the booth where they were sitting and heard the defendant and Phillips discussing “a sting they had committed.” A “sting” is a robbery. Phillips told him they committed the robbery of the barbershop on 47th Street and Cottage Grove. The defendant told Funches that he had obtained the gun, entered the barbershop, “robbed the man’s pockets,” and left the barbershop. The defendant told him that Phillips was the “lookout man” and that only the defendant himself entered the barbershop. When Funches asked them who shot Simmons, “[t]hey just looked at each other and started laughing.” The next evening Funches saw the defendant and Phillips at the same Chicken Shack and Phillips showed him a .32 caliber automatic gun. Phillips then asked Funches if he wanted to be “a part of the sting.”

On cross-examination, Funches admitted that he did not tell the police about the Chicken Shack conversations until approximately two months after they occurred. He could not remember exactly when he told the police about the conversations with the defendant and Phillips, but on redirect examination he testified that he told the police about those conversations on August 23, 1988. He did not go voluntarily to the police station to give the police that information. He was first at the police station for one of his own criminal cases because “that’s where the court [at 51st and Wentworth] was.” It was at that time that he told the police about the Chicken Shack conversations. The second time he went to the station was after the police picked him up and brought him to identify the defendant. He identified the defendant at that time.

Funches admitted that he was arrested twice between the dates of the conversations with the defendant and Phillips and the date he told the police about those conversations. One of the arrests was for the possession of a stolen motor vehicle, the charge that was pending at the time he testified. Funches also testified that he went to the police station at another time because he “was arrested for a warrant.” (The testimony on this point is unclear, but the warrant may have been for a drug case that the State later dismissed.) Funches testified that the police did not make any promises to him in exchange for information about the Simmons killing.

Detective Robert McGuire testified that he observed Simmons’ body. Three buttons were “apparently ripped right from the smock” Simmons was wearing. McGuire recovered $3 and change from Simmons’ right front trouser pocket and from his back pocket a wallet containing identification only. There was no money in the smock pockets, but the cash register was closed and contained money.

By stipulation, it was established that Simmons was killed by two gunshot wounds to the abdomen and that the two bullets that killed Simmons came from the same .32 caliber gun.

The defendant first maintains that the judge improperly restricted his right to cross-examine Funches. During cross-examination of Funches the following occurred:

“Q. You had a drug case dropped?

A. Right. But the drug — let me explain it. The drug—

THE COURT: Ask another question.

Q. In fact you missed court and a bond forfeiture warrant was entered?

STATE’S ATTORNEY: Objection.

THE COURT: Sustained. Sustained as to some interim bond forfeiture. Sustained as to that question.”

As previously noted, Funches testified on direct examination that he was a member of the Disciples Gang in 1988. During cross-examination the following occurred:

“Q. Mark, earlier you said you were a member of the Disciples Gang back in 1988, is that right?

A. Yes.

Q. What kind of activities did you do for the gang back then?

STATE’S ATTORNEY: Objection.

THE COURT: Sustained.”

The defendant now contends that both rulings were reversible error. We disagree. A trial court has wide discretion to restrict the scope of cross-examination but must first allow sufficient cross-examination to satisfy the confrontation required under the sixth amendment as a matter of right. (People v. Edwards (1991), 218 Ill. App. 3d 184, 577 N.E.2d 1250.) To determine if the cross-examination allowed satisfied the constitutional requirement, a court “should look not to what a defendant had been prohibited from doing, but to what he had been allowed to do.” (Edwards, 218 Ill. App. 3d at 194.) The focus in reviewing a claim of denial of the right of confrontation therefore should be on the sufficiency of the information available to the trier of fact when it made its credibility determination. (People v. Shinkle (1987), 160 Ill. App. 3d 1043, 513 N.E.2d 1072, rev’d on other grounds (1989), 128 Ill. 2d 480, 539 N.E.2d 1238.) In addition, a reviewing court should interfere with the trial court’s decision involving the latitude of cross-examination only when the trial court clearly abused its discretion and manifest prejudice to the defendant resulted. Edwards, 218 Ill. App. 3d at 193; see also People v. Phillips (1989), 186 Ill. App. 3d 668, 542 N.E.2d 814.

The defendant was able to establish that Funches was a gang member at the time of the shooting. His testimony that the defendant and Phillips told him about a robbery in which they had participated, as well as his testimony that Phillips had asked him to participate in a robbery, leaves only the inference that he was more than a passive member of the gang. The defendant also established that Funches had a criminal charge pending against him at the time he testified and that he had had a drug charge dismissed by the State before he testified. The defense was able to show that Funches was familiar with guns and that he did miss a court date. Consequently, we believe that the ruling denying him the right to show that a bond forfeiture occurred was of no consequence. In short, the defendant was able to establish that Funches was less than an ideal citizen and that he had an interest in testifying for the State.

The judge’s ruling on a question about Funches’ “activities” with the Disciples was not error. The term “activities” was vague and indefinite. The defendant’s attorney made no attempt to show specifically what improper “activities” he wanted to show.

During cross-examination of Funches, the defendant’s attorney attempted to impeach Funches with his grand jury testimony. On redirect examination Funches testified that the defendant tried to prevent Phillips from telling Funches about Simmons’ murder. After the judge overruled the defendant’s objection, Funches explained that Brown asked Phillips why he was revealing this information, and Phillips said, “Folks isn’t going to say nothing.” Funches explained that “folks” are fellow gang members. The prosecutor then asked Funches about an attack made on him by Disciples gang members the day after he told the police about the Chicken Shack conversation. Initially, the judge allowed the testimony, over defense objection, to refute “the inference at this point based on the cross-examination that he told the police about this to help himself.”

Funches said that on August 24, 1998, he was approached by a Disciple’s member who asked, “[W]hy do you trick on folks?” Funches tried to walk away but at least seventeen Disciples beat him up in an alley. He went to the hospital because of the beating. Directly after this testimony, the following occurred:

“THE COURT: To make sure I am clear. This happened before you told the police about the conversation?

FUNCHES: This happened the day after, the day after I talked with the police.

THE COURT: Now, I don’t understand the relevance.

STATE’S ATTORNEY: Judge, on cross-examination it was brought up he had some ulterior motive, like a pending case.

PUBLIC DEFENDER: He did.

STATE’S ATTORNEY: That’s the motive. He talked to the police about this, about this incident, that is the Harold’s Chicken conversation with Phillips and Brown before this alley beating.

FUNCHES: Excuse me—

STATE’S ATTORNEY: But this does occur before the grand jury which on cross-examination counsel was trying to bring out there was some ulterior motive for his grand jury testimony.

THE COURT: I’ll let it stand. It doesn’t have the same direction or impact or weight that it would have had if it happened before he talked to the police.”

The defendant now contends that the evidence that Funches had been beaten by others was prejudicial error. We agree that the evidence was improper. The evidence would have been proper if the State could have established that the defendant had encouraged or instigated the beating. Such evidence would be admissible as an expression of the defendant’s consciousness of guilt.

The State has now abandoned the reason for the admissibility of the evidence advanced in the trial court: The defendant had “opened the door” by attempting to impeach Funches with his grand jury testimony. Now the State tells us that because the defendant attempted to show that Funches was not credible because of favorable treatment, the State “merely attempted to rehabilitate Mr. Funches by showing that the gang attack motivated him to testify truthfully regarding his knowledge of the victim’s murder.” The logic of the State’s explanation is murky. We guess that the State is saying that Funches testified against the defendant because he was angry after the beating, not because of any favorable treatment he might receive in his own pending criminal case. In any event, regardless of the position of the State taken in the trial court and this court, it is clear to us, when we consider the State’s closing argument, which will be discussed later, that the State was trying to create the inference that the beating had in fact taken place at the instigation of the defendant. The State now concedes that there was no evidence supporting that inference.

We do not believe, however, that the evidence constituted reversible error. It is also clear from the judge’s remarks that he attached little, if any, significance to the evidence. He apparently believed that the evidence was admissible to show that the beating had angered the witness to the point that he decided to tell the police for the first time of his conversations with the defendant and Phillips. After the judge learned that the beating took place after Funches had talked to the police, he expressed his view doubting the relevance of the evidence. Moreover, we do not see how the evidence affected the judge’s ultimate finding. Consequently, the evidence was not reversible error.

The defendant also alleges that error occurred during the closing argument of the State’s Attorney. The following occurred:

“Arnell Givens should be believed, your Honor, even though she didn’t make a positive identification of the first lineup. Use your common sense. Arnell Givens has to live there at 830 East 47th Street ***. She lived there.

***

Yes, Judge, when she told us she was too scared to make the identification she was too scared. This is somebody to be scared of.

We know this is true after Mark Funches gets involved in this case and he gets jumped by Eddie Brown’s cohorts and they do a number on him because you are not supposed to trick on one of your folks.

PUBLIC DEFENDER: Objection.

THE COURT: This is rebuttal.”

This argument was also improper. As we have already noted, there was no connection established between the defendant and the beating administered to Funches; and the argument was an attempt to show that there was a connection. Moreover, the beating took place after Givens had already told the police that she did not recognize anybody. (See People v. Mullen (1990), 141 Ill. 2d 394, 566 N.E.2d 222.) Again, however, we find that no reversible error occurred. This was a bench trial, and the trial judge is presumed to disregard incompetent matters presented to him. (People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612.) It is inconceivable to us that an experienced trial judge would be inflamed by the State’s closing argument to the point that his sound judgment was overcome. There is no likelihood that the result would have been different if the argument had not been made. See People v. Gonzalez (1991), 142 Ill. 2d 481, 568 N.E.2d 864.

For these reasons, we conclude that no reversible error occurred and that the judgment of the circuit court should be affirmed.

Judgment affirmed.

McNAMARA, P.J., and RAKOWSKI, J., concur.