author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ADRIAN HENNON, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—3339
    Opinion filed March 16, 1992.
    Rehearing denied May 29, 1992.

      Northwestern University Legal Clinic, of Chicago (Thomas F. Geraghty, Robert P. Burns, and Kelly Deere, of counsel), for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Carol L. Gaines, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Following a jury trial, defendant Adrian Hennon was convicted, based on accountability, for first degree murder, attempted murder, and armed violence (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1, 8 — 4, 33A — 2, 5 — 1), in the shooting of two individuals. The trial judge sentenced defendant to concurrent prison terms of 40 years for murder and 20 years each for attempted murder and armed violence.

We affirm.

Defendant’s convictions arose from events of September 9, 1988, when gunshots, fired from a passing automobile, killed Abdullah Asad and wounded Jason Murray, who were then standing in a park at 87th and Jeffery Streets, near Chicago Vocational High School, in Chicago. Defendant was identified as the owner and driver of the automobile, a Chevrolet Nova.

Other facts related to the contentions raised by defendant on appeal are summarized in the context of the consideration of those matters below.

I

Defendant contends that he was not proved guilty beyond a reasonable doubt because the evidence did not establish that he was the driver of the Nova or show that he possessed the requisite intent to support his convictions on the basis of accountability (see Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c)). Defendant points to his own testimony that he was merely a passenger in the front seat of the Nova and was unaware of the existence of a gun in the car or the shooter’s intent. He also relies on the admission of a statement given to police by Richard Terrell in which Terrell stated that he, not defendant, had been the driver of the Nova.

At trial, four witnesses identified defendant as the driver of the Nova at the time the gunshots were fired.

Elward Verrett testified that, minutes before the shooting, he saw Jason Murray exchange words with occupants of a passing jeep. Apparently, the jeep had nearly struck Murray as he walked to the park where Verrett and others were present. The jeep’s occupants threatened to return. When the jeep did shortly return, it was followed by the Nova. The vehicles stopped and the occupants, six or seven individuals, displayed a particular street gang hand signal as they approached Verrett and the others. Defendant and Terrence Mack were among the group. An argument ensued and,' at some point, Verrett heard Mack say, “Shoot him. Shoot him.” Nevertheless, defendant, Mack, and the individuals with them returned to their vehicles and left.

The Nova returned shortly thereafter with defendant driving and Mack in the front passenger seat. As the Nova approached, Verrett stated, it slowed to 10 to 15 miles per hour. Mack reached out of the Nova’s window with a pistol in his hand and started shooting. Eight shots were fired.

Esau Asad, the older brother of Abdullah Asad, corroborated Verrett’s testimony. Darren Harris also saw defendant driving the Nova while Mack fired gunshots from the front passenger seat.

Although Devon Miller also testified to the same facts at trial, he admitted he had initially told defense investigators that the gunshots had been fired from the Nova’s back seat and that he could not remember whether defendant was the driver.

Robert King, who testified on defendant’s behalf, also heard the gunshots but did not see where they were being fired from. King did state he saw the Nova immediately after the shots were fired and saw that defendant was the driver.

It was defendant’s testimony that Richard Terrell had driven the Nova at the time of the shooting. Defendant stated he and Terrell had met earlier that day and that Terrell had asked defendant for a ride to a motel to meet Terrence Mack. Terrell asked, and defendant agreed, to let Terrell drive to the motel. Mack eventually joined them. Later, while on the way to a gas station, and with Terrell still driving, they encountered Mark Watts, Terrence Jobe, and Haroon Binwalee in the jeep. They asked defendant, Mack, and Terrell to follow them to Chicago Vocational High School. There, Watts, Jobe, Binwalee, and Mack exited the vehicles. Terrell and defendant, who was in the front passenger seat, stayed in the Nova. When the four individuals returned, Mack got into the jeep, and Jobe got into the back seat of the Nova.

After getting gas, Jobe asked to be driven to get something to eat. Defendant stated that as Terrell drove east past a crowd, Jobe started shooting. Defendant was unaware Jobe had a gun. Shortly thereafter, they saw the jeep again. Jobe got out of the Nova and got into the jeep.

Defendant stated he then told Terrell that he wanted to drive. Mack joined them. After being seen by the police, however, Terrell and Mack got out of the car.

Soon after, defendant was arrested.

Defendant’s testimony that he was not driving the Nova at the time the shots were fired was corroborated by the testimony of Mark Watts and the statement Terrell had made to police, which was read to the jury.

Defendant argues that the identification of him as the driver when the gunshots were fired was flawed because only a limited opportunity existed to view the Nova as it passed the park. Defendant also points out that, although he had been identified out of a police lineup, none of those who then identified him specifically stated he had been the driver. Defendant also draws attention to Watt’s testimony and Terrell’s admission establishing that Terrell, not defendant, drove the Nova at that time.

Defendant’s arguments rest, ultimately, on the credibility accorded the various witnesses’ testimony, the weight assigned that testimony, and the inferences drawn by the jury as the trier of fact. We may not properly consider those determinations here. (See People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E.2d 402, cert. denied (1985), 474 U.S. 908, 88 L. Ed. 2d 241, 106 S. Ct. 276; People v. Bradford (1985), 106 Ill. 2d 492, 478 N.E.2d 1341.) The standard we must apply is whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) In that regard, an individual is legally accountable for the conduct of another when he solicits, aids, abets or agrees or attempts to aid another in the planning or commission of an offense with the intent to promote or to facilitate its commission. Ill. Rev. Stat. 1987, ch. 38, par. 5 — 1; People v. Taylor (1991), 219 Ill. App. 3d 47, 579 N.E.2d 383.

Here, testimony established that defendant was with the group of individuals who displayed gang hand signs during the altercation in the park after Murray exchanged words with the occupants of the jeep. At that time, Verrett heard Mack direct someone to shoot. Witnesses identified defendant as the driver of the Nova when the Nova subsequently returned before the shooting incident. Specifically regarding defendant’s facilitation of the shooting, there was testimony that defendant actually slowed the Nova as it passed immediately before the gunshots were fired. That testimony, viewed in a light most favorable to the State, sufficiently establishes the elements of accountability to sustain defendant’s convictions. See People v. Rodriguez (1980), 89 Ill. App. 3d 941, 412 N.E.2d 655.

II

Defendant complains the State deprived him of a fair trial by making numerous improper remarks during closing and rebuttal arguments to the jury. Defendant contends the State misstated the law of accountability, indicating a lesser requisite burden of proof. Defendant points to references to accountability as a crime recognizing “teamwork” and “power[ ] in numbers.” Defendant refers to the State’s attempt to illustrate the offense of accountability within the context of an armed robbery undertaken by two individuals where one “never gets out of the car.” Defendant also complains the State improperly implied that the use of defendant’s car, alone, would be sufficient to find defendant guilty.

The above contentions do not provide cause to disturb defendant’s conviction. Even accepting that the statements concerning accountability might constitute misstatements of the law, defendant’s arguments are of little consequence here because the trial judge admonished the jury that he would instruct them on the law and properly did so. (People v. Lawler (1991), 142 Ill. 2d 548, 568 N.E.2d 895.) Further, because the gunshots were fired from defendant’s car, the statement concerning the use of defendant’s car as being instrumental in Asad’s death was essentially correct. See People v. Willis (1983), 119 Ill. App. 3d 34, 456 N.E.2d 165.

Defendant also argues the State improperly remarked that “passengers in these drive-by murders get convicted all the time.”

Regarding this particular comment, we note that defendant’s counsel’s objection was sustained. Immediately thereafter, the State clarified the statement to indicate merely that a passenger could be found to be as accountable as the driver. Given that the above comment was made during rebuttal argument and the prompt rephrasing of the comment, we cannot conclude defendant was prejudiced. See People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301.

We find no merit in addressing other comments complained of by defendant as improperly inflaming juror passions or implying a fabricated defense because, after reviewing each of those comments in light of the evidence presented, the comments simply provide no reason to disturb defendant’s convictions. See Bryant, 94 Ill. 2d 514, 447 N.E.2d 301.

III

Defendant next argues the State denied him a fair trial because he was persistently questioned on cross-examination regarding matters to which objections had been sustained. Defendant complains the State sought to establish in the jury’s mind that defendant’s counsel was obstructing the judicial process. Specifically, the examination involved defendant’s knowledge of gang activity, his relationship with Mack, talk inside the Nova, and questions implying defendant attempted to flee from the police.

Although the State may not properly repeat questions to which objections have been sustained in order to portray the defense effort as an attempt to keep damaging evidence from the jury’s consideration (see, e.g., People v. Weinger (1981), 101 Ill. App. 3d 857, 428 N.E.2d 924), we cannot say the State’s questioning here rose to that level or otherwise prejudiced defendant. In each case, the line of questioning had some basis in the evidence. For example, the evidence indicated the incident had some basis in gang activity. Gang hand signs were exhibited during the initial altercation in the park before the shooting.

IV

Defendant complains that the trial judge refused to instruct the jury on the offense of involuntary manslaughter, arguing that the evidence at trial showed that the shooter acted without the requisite intent or knowledge to support a murder conviction. Other than Terrell’s statement, defendant argues, the State presented no evidence as to conversations inside the Nova to support the requisite intent to commit murder. Further, defendant asserts, Terrell’s statement established only that Mack told Terrell to head the car toward the park because Mack “wanted to straighten [the individuals in the park] out” and that he wanted “to pop over at them and scare them.” Those facts, defendant argues, indicate Mack possessed only a reckless state of mind and, because he was charged with accountability, defendant contends he was entitled to the instruction.

Generally, an involuntary manslaughter instruction is not warranted where a defendant voluntarily and willfully commits an act which has a natural tendency to cause death or great bodily harm. (People v. Whitt (1986), 140 Ill. App. 3d 42, 487 N.E.2d 1246; People v. Cannon (1971), 49 Ill. 2d 162, 273 N.E.2d 829.) Here, evidence established that Mack intentionally shot in the direction of the victims whilé sitting in the passenger seat of defendant’s automobile as defendant slowed travel. In view of that evidence, it was not improper for the trial judge to refuse to instruct the jury-regarding involuntary manslaughter. See People v. Cannon (1971), 49 Ill. 2d 162, 273 N.E.2d 829.

V

During deliberations, the jury submitted a note to the trial judge asking whether the defendant was required to know what crime was to be committed in order to be held legally accountable. The trial judge responded by directing the jury that it “should read and discuss the instructions in order to resolve the inquiry.”

Defendant now complains that the trial judge erred by not specifically, and affirmatively, answering the jury’s inquiry.

A trial judge may properly exercise his discretion and decline to answer the jury’s inquiry where the given jury instructions are readily understandable and sufficiently explain the relevant law. People v. Wade (1988), 167 Ill. App. 3d 921, 522 N.E.2d 285.

The trial judge instructed the jury in the following manner regarding accountability:

“A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.”

That instruction contained a clear explanation of the law of accountability. More importantly, the trial judge’s particular response to the jury’s inquiry was informative because it indicated the answer to that specific question could be found in the instruction itself. The instruction directs that defendant’s accountability depended upon the shooter’s conduct if, before or during the the shooting, defendant had the intent to promote or facilitate the commission of that offense. The trial judge simply had no reason to further explain the instructions.

VI

Prior to trial, defendant successfully moved to sever his trial from that of codefendant Terrell. However, the trial judge denied defendant’s request, pursuant to the same motion, to conduct defendant’s trial prior to Terrell’s trial. Defendant had intended to have Terrell testify in person that he, not defendant, was the driver of the Nova, consistent with the statement Terrell had made to police. The trial judge ordered that the trials proceed in the order in which the defendants were named in the indictment. At defendant’s trial, Terrell declined to testify, asserting his fifth amendment right against self-incrimination.

Defendant now complains he was prejudiced because his trial was held before Terrell’s. Further, defendant contends the trial judge improperly refused to explain Terrell’s unavailability and invocation of the fifth amendment right to the jury by way of an instruction.

Any argument that defendant was prejudiced because his trial preceded that of Terrell is, at best, speculative. There is no basis in the record to suggest that Terrell would have testified in defendant’s trial if it had been held first. Even so, whether his testimony would have been consistent with the statement he gave to police is a matter of speculation. It is conceivable that, given Terrell’s conviction in that trial, he might have elected to decline to testify in defendant’s trial, preserving his fifth amendment right in the likelihood of winning retrial in a subsequent appeal. In any case, we note that, notwithstanding the speculative nature of defendant’s argument, Terrell’s statement was published, and considered, by the jury. Thus, we cannot conclude the trial judge’s decision to order the trials as he did prejudiced defendant.

Further, although an instruction such as defendant sought to have the trial judge give is proper (People v. Cvetich (1979), 73 Ill. App. 3d 580, 391 N.E.2d 110), it is not mandatory. Most importantly, the absence of an instruction here did not deprive defendant of any constitutional right. Terrell’s statement spoke for itself. In fact, by refusing to give an explanation for Terrell’s failure to testify, there was no risk that the jury’s decision could have been based upon speculation as to what Terrell’s testimony would have been had he not invoked his fifth amendment right.

VII

Prior to trial, defendant moved to suppress evidence relating to the identification of him from a lineup conducted the day of his arrest. During a hearing on the motion, the trial judge sustained numerous objections to questions asked by defendant’s counsel, pertaining, generally, to the procedure used by police prior to and during the lineup as well as police contact with those who were to view the lineup.

Defendant contends the trial judge unduly restricted the scope of his counsel’s examination during hearing on defendant’s motion to suppress identification, thereby precluding defendant from establishing circumstances indicating suggestiveness.

We do not agree. Defendant’s counsel was permitted to make the necessary inquiries of the individuals who observed the lineup. Specifically, the trial judge permitted counsel to ask Devon Miller whether he saw the individuals he later identified in the lineup while he was in the Fourth District police station prior to observing the lineup at the Area Two police station. The trial judge also permitted counsel to ask if Miller had spoken to police officers before the lineup, had observed any photographs, or had been told anything by police concerning who would be in the lineup. Miller answered all of those questions in the negative. Counsel was permitted to ask Elward Verrett, Jr., Anthony Gibson, and Esau Asad the same questions. Each also answered those questions in the negative.

Counsel was further permitted to ask Chicago police detective William Higgins whether, while at the police station, those viewing the lineup had seen the individuals who were later identified. He was permitted to ask Chicago police detective James P. Butler what he, Butler, told the witnesses who later viewed the lineup. The answers given by the detectives did not indicate any suggestiveness in the lineup procedure.

IX

Defendant argues his sentence was improper because he had no prior history of delinquent acts or criminal offenses. Defendant also points to the testimony of witnesses on his behalf who established he had a peaceful nature, and, according to defendant, the lack of evidence showing he was the shooter. Defendant also notes Terrell received only a 22-year prison sentence after pleading guilty to the same offenses.

The record indicates that the trial judge was aware of and considered each of the circumstances now argued by defendant as justification for a decreased sentence. In addition, the 40-year sentence was within the range of punishment prescribed by statute (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1). Finally, we find no merit in defendant’s argument regarding the disparity between his and Terrell’s sentences. First, Terrell’s sentence followed a guilty plea, not a trial. Even if that fact is ignored, defendant bore a burden to produce a record from which a rational comparison of sentences can be made. (People v. Kline (1982), 92 Ill. 2d 490, 442 N.E.2d 154.) Here, the record contains no basis to determine what factors were used in imposing sentence on Terrell such as could provide a basis to examine any perceived disparity in the sentences imposed.

Affirmed.

BUCKLEY, P.J., and MANNING, J., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD McBEE, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—1231
    Opinion filed February 21, 1992.
    Rehearing denied June 9, 1992.

      William P. Murphy, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Gael M. O’Brien, Special Assistant State’s Attorney, and Renee Goldfarb and John P. O’Grady, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Gerald McBee, was convicted of possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1987, ch. SGVe, par. 1401(a)(2).) Prior to his trial in the circuit court of Cook County, defendant filed a motion to produce the State’s confidential informant and a motion to suppress evidence and quash arrest. The trial court denied the motion to produce without prejudice. At the subsequent hearing on the motion to suppress evidence and quash arrest, defendant renewed his motion to produce the informant. After hearing evidence, the trial court denied both motions. The parties proceeded with a stipulated bench trial at which defendant was found guilty and sentenced to six years’ imprisonment. On appeal, defendant contends that the trial court improperly denied his motions to produce the informant and to suppress the evidence.

Defendant did not testify at the hearing or at the stipulated trial. His affidavit and supplemental affidavit, attached to his motion to produce the informant, are summarized as follows: At about 6 p.m. on May 2, 1988, he and codefendant Gaylord Feketia were at an airport bar when an unknown man approached them and offered defendant some cocaine, which the man placed on the bar. Defendant refused the man’s offer. The man then asked if defendant had any cocaine to sell; defendant responded that he did not. The informant then “did a line” of cocaine at the bar, pushed a packet into defendant’s hand, saying, “This is really good,” got up and left. Defendant went to the gate area where he waited to board a Detroit-bound plane. After hearing arguments, the trial court denied defendant’s motion to produce the informant.

At the hearing on the motion to suppress evidence and quash arrest, Officer Joseph Rugoli testified that he had been a police officer for 18 years and had made over 100 narcotics arrests. At the time of defendant’s arrest, Rugoli worked in the police department’s drug enforcement unit at O’Hare Airport.

Rugoli described defendant’s arrest and the events preceding it as follows: on May 2, 1988, at about 5:50 p.m., Rugoli, dressed in plain clothes, spoke to a confidential informant whom Rugoli had known for three years and used in several narcotics investigations. The informant told Rugoli that he had met two men in the airport lounge and that he was returning to the lounge to buy some drugs from them. When Rugoli entered the bar, he saw defendant, codefendant and the informant standing at a table. Rugoli leaned against the bar near the front door, about five to seven feet away from the men. The men faced Rugoli, giving him an unobstructed view. Rugoli heard defendant offer to sell the informant one-half gram of cocaine. Rugoli heard the informant ask how much defendant would be able to sell, to which defendant responded, “[H]ow much you want[?] I got as much as you need.” Rugoli saw defendant pull a clear, ball-shaped plastic bag from his waistband and hand it to codefendant, who showed it to the informant. Rugoli believed that the bag contained cocaine. The informant stated that he did not have enough money to buy the cocaine. Co-defendant returned the plastic bag to defendant, who put it back in his waistband. Defendant and codefendant left the lounge and walked toward the gate area.

Rugoli further testified that he and Officers McGarry and Mulvihill followed defendant and codefendant to the gate, identified themselves as police officers and asked them to put their bags down. Defendant and codefendant each put down one bag. Rugoli then pulled the plastic bag out of defendant’s pants and told him that he was under arrest. While McGarry was patting defendant down, defendant threw up his arms and ran away down the concourse. McGarry and Mulvihill chased defendant and apprehended him. The officers handcuffed him and returned to the place where Rugoli waited with codefendant. The officers searched the two carry-on bags and found six more clear plastic bags of white powder. (The parties stipulated at trial that the seven bags, one from defendant’s waistband and six from the luggage, contained 54.28 grams of cocaine.) In January 1990, after hearing the evidence, the court denied defendant’s renewed motion to produce the informant and his motion to suppress evidence and quash arrest.

Initially, we reject defendant’s claim on appeal that the trial court improperly denied his motion to produce the informant. Supreme Court Rule 412(j)(ii) provides:

“Disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.” (134 Ill. 2d R. 412(j)(ii).)

It is well settled that strong public policy reasons favoring nondisclosure of an informant must be balanced against a defendant’s need for disclosure in order to prepare his defense (People v. Crose (1990), 194 Ill. App. 3d 97, 550 N.E.2d 1102), or where disclosure is essential for a fair determination of a cause. (Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623.) However, if the issue is one of probable cause, and guilt or innocence is not at stake, the nondisclosure of an informer’s identity is not error. (McCray v. Illinois (1967), 386 U.S. 300, 311, 18 L. Ed. 2d 62, 70, 87 S. Ct. 1056, 1062.) Whatever the circumstances, defendant must show a need for disclosure. People v. Stoica (1987), 163 Ill. App. 3d 660, 516 N.E.2d 909.

Upon review of the record, we conclude that the trial court properly denied defendant’s motion to produce the informant because the informant’s identity was an issue of probable cause, not of defendant’s guilt or innocence. Indeed, defendant’s affidavit alleged that he needed the informant’s identity to “aid the defense on the issue of probable cause” and referred to the encounter between him and the informant as “staged to fabricate probable cause.” At argument on the motion, defense counsel argued that disclosure was required because the informant created probable cause. Under McCray, because the issue raised was one of probable cause, we cannot say that the trial court improperly refused to require disclosure.

The trial court, in denying defendant’s motion, expressly relied upon People v. Lewis (1974), 57 Ill. 2d 232, 311 N.E.2d 685, and People v. Wolfe (1966), 73 Ill. App. 2d 274, 219 N.E.2d 634. In Lewis, our supreme court, in holding that defendants were entitled to the names and addresses of informers, specifically distinguished a motion made during pretrial proceedings from one made at a trial on the merits. In Wolfe, this court held that an “informer who participates in a crime” must be disclosed “at a pretrial hearing on a motion to suppress, if other evidence did not establish probable cause, and failure to allow such disclosure is error.” (Emphasis added.) Wolfe, 73 Ill. App. 2d at 280, 219 N.E.2d at 637.

We agree with the trial court that under Lewis and Wolfe disclosure of the informant’s identity here was not required. Defendant’s motion to produce the informant, which was filed five months after his arrest, and almost 16 months before trial, was clearly a pretrial motion. Further, even though the trial judge based his ruling on the distinction between pretrial and trial proceedings, defendant did not at trial make a motion to produce or renew his prior motion to produce. Nor does the record support defendant’s claim that there was an “understanding” that his pretrial motion sought production of the informant at trial as well. We also reject defendant’s argument that his pretrial request for and denial of the informant’s identity necessarily preserve the question for trial.

Moreover, under Wolfe the State did not need the informant’s testimony to establish probable cause. Although defendant maintains that the informant established probable cause, the arrest report does not refer to the informant or his conversation with defendant. The arrest report indicates that Rugoli observed defendant take “a clear plastic envelope containing crushed white powder, known to [reporting officer] as being cocaine, from the front of his pants and then replace it again.” Because this evidence sufficiently established probable cause, disclosure of the informant at the pretrial stage was not required.

Nor is this result inconsistent with Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, and People v. Zymantas (1989), 191 Ill. App. 3d 55, 547 N.E.2d 536, as defendant argues. In Franks, defendant’s home was searched pursuant to a warrant after two officers submitted a sworn affidavit stating that they had contacted two of defendant’s co-workers who gave them identifying information about defendant. Prior to trial, defendant moved to suppress evidence seized from his home, challenging the veracity of the officers’ affidavit, and requested an evidentiary hearing to call as witnesses the officers and his co-workers. Defendant claimed that the officers did not contact his co-workers, that the information the coworkers gave to another officer differed from that recorded in the affidavit, and that the false statements in the officers’ affidavit were made in “bad faith.” The trial court denied defendant a hearing and denied his motion to suppress. The supreme court reversed and held as follows:

“[W]here the defendant makes a substantial preliminary showing that [an affiant police officer knowingly and intentionally, or with reckless disregard for the truth, made a false statement] in the warrant affidavit, and if [such] statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” (Emphasis added.) (Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct. at 2676.)

The court noted that defendant’s allegation that the officers did not speak to the co-workers directly challenged the integrity of the officers’ sworn affidavit. The court stated:

“Because it is the magistrate who must determine independently whether there is probable cause [citations], it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment.” (Franks, 438 U.S. at 165, 57 L. Ed. 2d at 678, 98 S. Ct. at 2681.)

The Franks court expressly declined to decide whether disclosure of an informant’s identity is ever required, noting that under McCray v. Illinois, due process does not require disclosure of an informant’s identity when there is ample evidence at the probable cause hearing to show that the informant was reliable and credible. The McCray Court held that if a judge under all the circumstances doubts a police officer’s credibility, he may require that the informant be identified and produced.

In People v. Zymantas, defendant was convicted of syndicated gambling after a bench trial. On appeal, he argued that the trial court erred in denying his request for an evidentiary hearing to challenge the veracity of the police officer’s complaint for search warrant. This court found that defendant’s affidavit, which challenged the veracity of the officer’s statement upon which probable cause and the issuance of a search warrant were based, required the court to grant an evidentiary hearing under Franks. (People v. Zymantas (1986), 147 Ill. App. 3d 420, 497 N.E.2d 1248.) On remand, defendant requested the identity of the informant named in the officer’s affidavit and the discovery of persons who provided information to the officer linking defendant with an unpublished telephone number. The officer’s affidavit alleged that the informant told him that he had placed bets with a man via a particular phone number. According to the affidavit, the officer dialed the telephone number, handed the telephone to the informant and observed the informant place several bets. The officer stated that he called the telephone company and learned that the telephone number was registered to defendant. Defendant’s motion to quash the warrant and produce the informant and the accompanying affidavit asserted that no confidential informant existed. Defendant also stated that the telephone number indicated in the officer’s affidavit was not registered to him, and provided telephone bills to corroborate this fact. On remand, the trial court denied defendant’s requests for the informant’s identity and for discovery of telephone company employees and related information, allowing defendant only to examine the police officer. On the second appeal, this court held that disclosure of the informant’s identity was required, relying primarily on Roviaro v. United States and noted that without any corroborating evidence, “this was a matter of perjury by either [the officer] or defendant.” Zymantas, 191 Ill. App. 3d at 64, 547 N.E.2d at 541.

Because the purpose of Franks is to deter and protect against “perjurious warrant applications” (People v. Lucente (1987), 116 Ill. 2d 133, 150, 506 N.E.2d 1269, 1276), in our view, Franks and Zymantas do not apply when an officer’s credibility in a warrant statement is not at issue, as here. Even assuming that these cases apply to a warrantless arrest, we cannot conclude that they require a different result. The evidence in Zymantas constituting a “substantial preliminary showing” that the officer testified falsely was ample. There, defendant’s motion to produce alleged that the officer made nine “false statements knowingly and intentionally, or with reckless disregard for the truth.” Moreover, defendant alleged that no confidential informant existed. Defendant’s sworn denials stated that he did not take wagers or receive telephone calls on the days indicated and was employed away from home on those days. By contrast, defendant here did not allege in his motion or affidavits that Rugoli made false statements, either knowingly, intentionally or with reckless disregard for the truth. Further, unlike Zymantas, defendant here acknowledged the informer’s existence, but claimed a different version of the events leading up to arrest. Defendant’s challenge is based solely upon his uncorroborated affidavit of denial. Unlike Zymantas, where a probable cause determination was made ex parte without cross-examination, defense counsel here had the opportunity at the hearing to challenge the truthfulness and reliability of Rugoli’s testimony. After hearing this evidence, the trial court here apparently found that Rugoli’s testimony was credible and had a reliable basis. We, therefore, reject defendant’s claim that nondisclosure of the informant here is inconsistent with Franks and Zymantas.

Applying the proper standard applicable to warrantless arrest cases, we cannot say that the trial court’s ruling on the motion to produce was erroneous. Illinois law permits a warrantless arrest when a police officer has reason to believe that a person is committing or has committed an offense. (People v. Gall (1988), 171 Ill. App. 3d 250, 524 N.E.2d 1210.) A defendant seeking to challenge a warrantless arrest on a motion to suppress has the burden of proving that the search and seizure were unlawful. (People v. Hoskins (1984), 101 Ill. 2d 209, 461 N.E.2d 941.) It is the responsibility of the trial judge to determine the credibility of witnesses at a suppression hearing, and its decision will not be reversed unless it is against the manifest weight of the evidence. People v. Bae (1988), 176 Ill. App. 3d 1065, 531 N.E.2d 931.

At the hearing on the motion to produce, the trial judge denied defendant’s motion “at this time *** without prejudice to bring it up again after evidence is adduced at the [hearing on the suppression] motion.” At the subsequent suppression hearing, defendant renewed his motion to produce the informant which the court denied after hearing the evidence. Officer Rugoli testified that he heard defendant offer to sell cocaine to informant, then observed defendant remove a clear plastic bag from his waistband, pass it through codefendant to the informant, then return it to his waistband. Rugoli believed that the bag contained cocaine. Defendant offered no other evidence. The trial judge heard Rugoli’s testimony and, as we have stated, apparently found him to be credible. We believe the trial judge could properly determine from the evidence presented that probable cause existed that defendant possessed a controlled substance and that the informant’s testimony was not necessary.

Defendant also claims that the informant was a “transactional witness” whose disclosure was thereby mandated. None of the numerous cases cited by defendant, however, requires this result. Defendant was charged with possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(a)(2).) To support a conviction for this offense, the State must establish that defendant knew narcotics were in his immediate control or possession, and that the amount of narcotics exceeded that which might be viewed as merely possessed for personal use. (People v. Witherspoon (1991), 216 Ill. App. 3d 323, 576 N.E.2d 1030; People v. Pintos (1988), 172 Ill. App. 3d 1096, 527 N.E.2d 312.) Whether defendant had the intent to deliver a controlled substance may be inferred from the facts and circumstances of the incident. (People v. LeCour (1988), 172 Ill. App. 3d 878, 527 N.E.2d 125.) The State in the present case indicated at the hearing that it did not intend to call the informant at trial, and in fact did not need his testimony to establish any elements of the crime. (Cf. People v. Coleman (1984), 124 Ill. App. 3d 597, 464 N.E.2d 827.) Upon arrest pursuant to probable cause, the police discovered a clear packet of cocaine in the waistband of defendant’s pants and six additional bags of cocaine in the luggage, totalling 54.28 grams. Such amount certainly exceeded that used for personal consumption. Based upon the nature of the crime charged, we cannot say that the informant’s testimony could be exculpatory. Moreover, because the crime charged did not require a sale or delivery, the informant did not “witness” or participate in the crime. Even if the informant participated in the crime, pretrial disclosure is not necessary unless other evidence does not establish probable cause under Wolfe, as discussed above. For these additional reasons, the informant’s disclosure was not necessary.

We next consider defendant’s argument that the nondisclosure of the informant precluded him from adequately preparing his entrapment defense and, thus, denied him a fair trial. We note initially that although the State’s discovery motion requested notice of any affirmative defenses that defendant intended to raise, nothing in the record indicates that defendant ever raised entrapment as an issue. Even assuming, however, that defendant properly raised this issue, we reject his argument. In order to determine whether the informant was a material witness for an entrapment defense, it is necessary to understand the nature of that defense and its application here. Under Illinois law, entrapment occurs when the State implants the disposition to commit an offense in an innocent person’s mind. (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 12.) The lack of a defendant’s criminal disposition to commit the crime is the principal element of the entrapment defense. (People v. Katsigiannis (1988), 171 Ill. App. 3d 1090, 526 N.E.2d 508; People v. Boalbey (1986), 143 Ill. App. 3d 362, 493 N.E.2d 369.) Even viewing all of the evidence in a light most favorable to defendant, his claim that he was entrapped is meritless. The parties stipulated that the police found 54.28 grams of cocaine on his person and in the luggage. Even if the trial court believed that the informant gave defendant the packet of cocaine later recovered from the waistband of defendant’s pants, the luggage contained six additional bags of cocaine. As such, we cannot conclude that defendant was not predisposed to commit the crime charged, possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1987, ch. 561/2, par. 1401(aX2)), and his entrapment claim fails as a matter of law. Because the informant’s testimony could not have established defendant’s innocence, we cannot say that defendant’s constitutional rights were violated. Cf. People v. Sanchez (1987), 163 Ill. App. 3d 186, 516 N.E.2d 556.

Defendant also contends that the warrantless search of the luggage violated his fourth amendment rights. The trial court found that the search was permissible on two grounds: that defendant abandoned the luggage and therefore had no legitimate expectation of privacy in it entitling him to fourth amendment protection, and that the search was incident to a lawful arrest. Initially, we note that we will not overturn a trial court’s determination on a motion to suppress unless it is manifestly erroneous. (People v. Murray (1990), 137 Ill. 2d 382, 560 N.E.2d 309; People v. Starks (1989), 190 Ill. App. 3d 503, 546 N.E.2d 71.) A warrantless search of property that has been “abandoned” does not violate the fourth amendment. (Abel v. United States (1960), 362 U.S. 217, 4 L. Ed. 2d 668, 80 S. Ct. 683; People v. Hoskins, 101 Ill. 2d 209, 461 N.E.2d 941.) A defendant’s action relative to his property which shows no expectation of privacy in that property constitutes abandonment which justifies a seizure of the property even without probable cause. People v. Clodfelder (1988), 176 Ill. App. 3d 339, 530 N.E.2d 1173.

We find People v. Hoskins, relied upon by the trial court, instructive on this issue. In Hoskins, our supreme court approved a warrantless search under somewhat similar facts. In that case, when the police told defendant that she was under arrest for prostitution, defendant ran from the officers and either dropped or threw her purse. After apprehending defendant, police searched her purse and found an envelope containing cocaine. The supreme court found the search proper under the theory of abandonment and as a search incident to arrest, and reversed the trial court’s suppression order. Similarly, in People v. Jones (1967), 38 Ill. 2d 427, 231 N.E.2d 580, our supreme court found that defendant abandoned his car and its contents by running from it “to avoid capture.” Jones, 38 Ill. 2d at 432, 231 N.E.2d at 583.

Under Hoskins and Jones, we cannot conclude that the trial court’s determination that defendant abandoned the carry-on luggage was manifestly erroneous. We recognize that defendant did not abandon the luggage and forego his expectation of privacy merely by placing the bags down as ordered by the police. However, by his subsequent actions, defendant indicated that he intended to flee and avoid police capture, and that he did not intend to return for the luggage in which the police found the cocaine. Moreover, it is unlikely that one intending to maintain a privacy right in luggage would run from it, leaving it in a public place such as an airport gate. As such, we believe that defendant did not expect to preserve privacy in his carry-on bags. That is all that is necessary to constitute abandonment. (People v. Clodfelder, 176 Ill. App. 3d 339, 530 N.E.2d 1173.) Nor do we believe, as defendant claims, that he relinquished control over the bags to the police when he placed them on the floor and, thus, could not have “abandoned” them. The evidence does not suggest that the police moved the bags out of defendant’s reach or isolated them in any other way. Although police had arrested defendant, he was not handcuffed. As in Hoskins, defendant intended to flee and escape police, not to return for the bags. Moreover, we do not believe that defendant’s abandonment of the bags was "involuntary” because he fled to avoid police capture. (See United States v. De Parias (11th Cir. 1986), 805 F.2d 1447; United States v. Jones (10th Cir. 1983), 707 F.2d 1169; United States v. Garcia (7th Cir. 1979), 605 F.2d 349; People v. Sims (1987), 166 Ill. App. 3d 289, 519 N.E.2d 921.) Once the bags were abandoned, the officers did not need a search warrant to search the bags. Given these circumstances, we find no error in the trial court’s denial of defendant’s motion. Because we so conclude, we need not address whether the search was incident to defendant’s arrest.

For the foregoing reasons, the orders of the circuit court of Cook County denying the motion to produce the informant and the motion to quash arrest and suppress evidence are affirmed.

Judgment affirmed.

EGAN, P.J., and RAKOWSKI, J., concur.


author: JUSTICE JOHNSON

text:
    CONSTANCE BAUER, Plaintiff-Appellant, v. ELIZABETH HUBBARD et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—90—0774
    Opinion filed February 13, 1992.
    Rehearing denied May 28, 1992.

      Maurice M. Dore and John N. Dore, both of Dore & Rothschild, of Chicago, for appellant.
    Karla Wright, Ltd., of Chicago (Karla Wright, of counsel), for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Constance Bauer, brought an action against defendants, Elizabeth Hubbard and Elizabeth Hubbard, Ltd., her former attorney, personally and in her corporate identity (hereinafter, collectively, Hubbard). Plaintiff sought recovery for legal malpractice. The circuit court of Cook County granted Hubbard’s motion for summary judgment. Plaintiff’s appeal is taken from the grant of the motion for summary judgment.

Plaintiff was a secretary in the Chicago Title & Trust Company’s (the Company’s) Chicago office from 1948 to 1983. She became secretary to the general counsel and remained in that position until the general counsel’s retirement in early 1983. Plaintiff remained on staff as a general clerical worker but was never reassigned to a secretarial position. Plaintiff claims that timing this period, the Company committed various unlawful acts of age discrimination against her. Plaintiff found herself unable to cope with her work environment and took a leave of absence from which she never returned. During this leave of absence, she contacted Hubbard.

Hubbard entered into a written contract with plaintiff on or about November 6, 1983. It was concluded on August 27, 1984. The agreement was to represent plaintiff in an age discrimination claim against her former employer, the Company. The relevant provisions are as follows:

“4. I understand that my case may be of a highly conjectural nature and that ELIZABETH HUBBARD has made no guarantees or representations concerning the outcome of this case.
5. Any appeal shall be negotiated separately from this agreement.”

When the parties entered into the contract, Hubbard stated that she knew plaintiff may be unable to prove a prima facie case. The fact that the phrase “highly conjectural” was included in the contract implied to plaintiff that Hubbard knew the issues of liability and damages were “highly conjectural” prior to filing the Federal age discrimination suit. At the time the case was filed, Hubbard knew that plaintiff had to establish a prima facie case or she could not recover under the Federal statute. According to plaintiff, Hubbard was of the opinion that damages were not an element of a prima facie case of age discrimination.

Hubbard filed plaintiff’s complaint in the Federal court in Chicago. She contends that the basic premise of plaintiff’s action against the Company was that it demoted, constructively discharged, or failed to promote plaintiff because of her age. The Company denied the charges but at the end of discovery it offered $7,500 in settlement. Plaintiff’s refusal of the offer was against the advice of Hubbard. The result was summary judgment being granted to the Company on the ground that plaintiff had no evidence to support a prima facie case of discrimination. The United States district judge ruled that plaintiff’s job performance did not meet the Company’s expectations and that the Company did not take detrimental employment action against plaintiff. Plaintiff again refused Hubbard’s suggestion to attempt a settlement.

Hubbard agreed to represent plaintiff in her appeal. On January 14, 1986, the parties entered into a separate written contract concerning an appeal of the order of the United States district court. The order granted the Company a summary judgment in the case of Constance Bauer v. Chicago Title and Trust (U.S. Dist. Ct.), No. 84 — C—9219. An agreement was written to that effect which required plaintiff to pay $4,000 in legal fees plus expenses. The Federal judge was overruled on the issue of job performance. The United States Court of Appeals for the Seventh Circuit found plaintiff’s performance acceptable. However, the entry of summary judgment was affirmed on the ground that plaintiff had not shown detrimental employment action by the Company. Plaintiff’s pro se petition for rehearing was denied.

At the time the Federal suit was filed, plaintiff had been an at-will employee, subject to the personnel policy of her employer. Further, plaintiff’s boss had retired and had not been replaced. Plaintiff was reassigned with no change in her pay or job grade. When plaintiff filed the lawsuit against her employer, she knew that her continued leave of absence would result in her dismissal, given the policy at the Company. In keeping with its policy, the Company terminated plaintiff. Plaintiff claims that Hubbard was aware of the aforementioned facts when the Federal suit was filed.

After losing her case, plaintiff filed a legal malpractice action against Hubbard on January 6, 1988. In the circuit court of Cook County, two of the three original counts were dismissed. On July 1, 1988, plaintiff filed an amended count I (breach of contract) which Hubbard answered on September 14, 1988. A motion for summary judgment was filed by Hubbard on January 3, 1989, which was supported by an affidavit. The affidavit responded to plaintiff’s claim that Hubbard’s malpractice resulted in the award of summary judgment. Judge Lassers denied plaintiff’s motion to strike the affidavit of Hubbard.

A response was filed by plaintiff on September 18,1989. It was supported by the affidavit of plaintiff’s expert, attorney John W. Gerstner. In his opinion, Hubbard charged plaintiff an unreasonable fee. The trial court granted the motion for summary judgment on February 16, 1990. It did not rule on the motion to strike the affidavit of plaintiff’s expert or as to the existence of disputed facts, but, rather, that the plaintiff’s case was not pleaded properly. Plaintiff’s complaint as pleaded contains a breach of contract count and a negligence count, and a contention that Hubbard breached her fiduciary duty.

On appeal, plaintiff contends that the trial court erred in granting summary judgment in favor of Hubbard by (1) ignoring the basis of recovery for Hubbard’s acts of legal malpractice; (2) shifting the burden of proof during the hearing on the motion from the defendants-appellees to the plaintiff-appellant; (3) finding that there were no issues of fact that needed to be resolved by a trial on the merits.

We affirm.

The standard for reversal of the judgment of a trial court is deferential. This court will not reverse a ruling of the trial court unless it is manifestly against the evidence in the record. Such a ruling will only be considered against the manifest weight of the evidence when there should have been an opposite conclusion or the trial court’s findings appear to be unreasonable, arbitrary or not based on the evidence. (Freese v. Buoy (1991), 217 Ill. App. 3d 234, 244.) We find that the trial court’s order granting Hubbard’s motion for summary judgment was not against the manifest weight of the evidence. Therefore, we affirm.

Plaintiff contends that she had a distinct basis of recovery due to Hubbard charging excessive fees and violating her fiduciary duty. Plaintiff’s claim of being charged an excessive fee is supported by the affidavit of her expert, attorney John W. Gerstner. He supports his opinion with the Rules of Professional Conduct:

“Whether a fee is excessive is determined after consideration of the factors enumerated in Rule 2 — 106(b):
‘(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood that the acceptance of the particular employment would preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.’ ” In re Doyle (1991), 144 Ill. 2d 451, 463-64, quoting 87 Ill. 2d Rules 2-106(b)(1) through (b)(8), in effect until August 1, 1990, when they were superseded by Rule 1.5 of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 1.5).

Given the number of factors to consider, it takes one with a great degree of familiarity with a case to make an informed opinion as to whether or not an excessive fee was charged. The conclusory nature of the affidavit of plaintiff’s expert suggests that he did not thoroughly consider all of the above factors in forming his opinion. The relevant portion of his affidavit is as follows:

“8. It is my opinion that Elizabeth L. Hubbard deviated from the applicable standards of professional responsibility, and consequently the applicable standard of care for an attorney, because she billed and collected from Constance C. Bauer over $12,000.00 on a highly conjectural claim and she did not itemize the purpose or amount of the expenditures. The bases [sic] of this opinion is that without knowing the purposes or amounts of expenditures I am left with a definite and firm conviction that billing and collecting over $12,000.00 for a highly conjectural claim in which not a good result was obtained is not reasonable.”

Plaintiff also claims that Hubbard violated her fiduciary duty to plaintiff. A fiduciary relationship exists either as a matter of law or where the facts clearly indicate a dominant-subservient relationship between the parties. (Singer v. Brookman (1991), 217 Ill. App. 3d 870, 878.) The fiduciary duty obligates the attorney to perform his services with the highest degree of honesty, fidelity, and good faith. Further, it holds the attorney responsible for damages resulting from the breach of this duty. (Schmidt v. Landfield (1959), 23 Ill. App. 2d 55, 59-60, aff'd (1960), 20 Ill. 2d 89.) The trial court found that Hubbard’s fees were not excessive nor was there a breach of Hubbard’s fiduciary duty. We hold that the trial court’s findings were not against the manifest weight of the evidence.

Next, plaintiff contends that the trial court wrongly treated Hubbard’s motion for summary judgment as requesting dismissal without an opportunity to replead. There was no opportunity because there was no question that plaintiff’s complaints were well pleaded. “Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Schnering v. Midlothian Park District (1991), 219 Ill. App. 3d 664, 666, citing Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).

However, a plaintiff cannot defend against a motion for summary judgment by presenting evidence on issues which are not pleaded in his complaint. (Walsh v. Walsh (1939), 372 Ill. 254, 255-56; see also Carlisle v. Harp (1990), 200 Ill. App. 3d 908.) The trial court found that this is what occurred in the case at bar. The trial court alluded to the futility of this type of defense in a colloquy with counsel for plaintiff. The relevant portion is as follows:

“THE COURT: Counsel [for plaintiff], that’s not the case you pleaded. I’m sorry Mr. Dore, but that is not the case you pleaded.
The case that you pleaded was the opposite. You pleaded that Ms. Bauer had a good case that could have been won and it was lost because of the malpractice of Ms. Hubbard. And then when Ms. Hubbard comes along and says by affidavit her position was so on and so forth, that I did all of the things I was supposed to do, and in particular I spoke to those people that the plaintiff says I should have spoken to, and I did this and I did that, then the plaintiff comes in and says, well — you say now ‘the case was hopeless and you never should have taken it in the first instance.’
Now maybe there is and maybe there is not a cause of action that you have here. But that is not the cause of action you pleaded in your complaint or your amended complaint.
I am going to grant the motion.”

The trial court granted Hubbard’s motion for summary judgment despite plaintiff’s additional allegations that Hubbard should have known that plaintiff’s case was without merit. These additional allegations were unsupported by the evidence and therefore did not provide a basis for a denial of Hubbard’s motion. “[Unsupported allegations in a complaint do not raise a question of fact where affidavits and depositions in support of a motion for summary judgment contain evidentiary facts to the contrary.” (Pearson v. Partee (1991), 218 Ill. App. 3d 178, 183.) Given these unsupported allegations, we find that the trial court’s decision to grant Hubbard’s motion for summary judgment was not against the manifest weight of the evidence.

As stated in Hubbard’s affidavit, a prima facie case of age discrimination under the Age Discrimination in Employment Act has four elements:

“a. Plaintiff was in the protected age bracket (40 to 70);
b. Plaintiff’s job performance met her employer’s reasonable expectations;
c. Detrimental employment action (e.g., actual or constructive discharge, demotion or failure to promote) was taken despite plaintiff’s performance; and
d. The defendant employer sought a replacement for plaintiff.”

See also Johnson v. University of Wisconsin-Milwaukee (7th Cir. 1986), 783 F.2d 59, 63.

Plaintiff specifically argues that Hubbard stated that it was not necessary to prove such a replacement as a part of the case. The record contains the following colloquy among plaintiff’s counsel, Hubbard’s counsel and Hubbard:

“Q. [PLAINTIFF’S COUNSEL:] And it is your position as I understand it, Miss Hubbard, that because Miss Werkemeister effectively followed Mr. Gaines [sic] into his new promotion as his secretary and that constituted a replacement of Miss Bauer. Is that what you’re saying?
MS. WRIGHT [DEFENDANTS’ COUNSEL]: Asked and answer [sic] a million times.
A. THE WITNESS [DEFENDANT]: No.”

The record does not indicate plaintiff’s contention that Hubbard stated that proof of replacement was an unnecessary part of the case. Plaintiff cites several other instances where Hubbard’s alleged actions or statements were conflicting or caused plaintiff legal detriment. These allegations are not supported by what is contained in the record. The trial court did not find that any of these arguments presented material issues of fact requiring a trial on the merits. We hold that the finding of the trial court was not against the manifest weight of the evidence.

For the foregoing reasons, we affirm the trial court’s order granting Hubbard’s motion for summary judgment.

Affirmed.

LINN and McMORROW, JJ., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD REEVES, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—0394
    Opinion filed April 20, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Rita A. Fry and Lynne Hubanks Miller, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Catherine A. Hufford, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant, Richard Reeves, was found guilty of the murder of Mario Fierro and sentenced to a prison term of 25 years. On appeal, defendant contends that: (1) the Illinois homicide act violates the United States Constitution; (2) the State failed to prove him guilty beyond a reasonable doubt; (3) the trial court erred in refusing to tender to the jury an instruction on involuntary manslaughter; (4) the State’s cross-examination and closing argument substantially prejudiced him and deprived him of his constitutional right to a fair trial; (5) the State’s questioning of him regarding his post-arrest silence was improper; (6) the State misstated the evidence during closing argument; and (7) the trial court failed to consider all relevant mitigating factors in sentencing him to a prison term of 25 years. For the following reasons, the judgment of the trial court is affirmed.

The record sets forth the following facts relevant to this appeal. On November 13, 1988, police found the body of Mario Fierro lying outside of the Fickle Finger Tavern, 2202 Chicago Road, Chicago Heights, Illinois. At trial, Janice Wiley testified on behalf of the State that on November 13, she was bartending at the Fickle Finger Tavern. Fierro was also there, and Betty Howell, the off-duty tavern manager, took a beer can away from him. Defendant then escorted Fierro out of the tavern. Wiley stated that prior to that, Fierro was not causing any disturbance within the bar and that he made no physical contact with Howell. Fierro was neither loud nor boisterous to Wiley or to defendant. Wiley did not see any confrontation between defendant and Fierro before they went out of the front door.

On November 26, defendant came into the Fickle Finger and asked Wiley to call the police. She stated that he had heard the police were looking for him and he wanted to turn himself in to them. Wiley called the police and they came and arrested defendant. On cross-examination Wiley stated that she knew defendant lived next door to the tavern and had heard that occasionally he would be called upon to help remove unruly patrons. She, however, had never called defendant.

Betty Howell testified that on November 13, she arrived at the Fickle Finger at 8:30 p.m. Frank Guiliani entered and sat with her. She saw defendant in the tavern, whom she knew by the nickname “Crush.” Howell had known defendant for about 30 years.

Howell saw Fierro standing in the middle of the bar and she thought he had had enough to drink because he was having difficulty walking. She told Wiley not to serve Fierro any more to drink and reached to take a beer can out of his hands.

At this point, defendant came over from the side of the bar to where she and Fierro were standing. Defendant did not say anything, he just pushed Fierro out of the door. Howell told defendant that she could handle the situation.

Howell saw defendant and Fierro exit the tavern, but did not see Fierro do anything to defendant. Defendant came back about 10 minutes later. Later that night, Howell learned that Fierro was dead.

On cross-examination, Howell stated that the owner of the tavern, Sam Paddy, had told the bartenders that if there is a disturbance, they should call the police, not defendant. She admitted that defendant was not employed by the Fickle Finger.

Frank Guiliani testified that on November 13 he went to the Fickle Finger at approximately 8:30 p.m. with Ray Cioe. About 25 minutes after he arrived, Guiliani saw defendant, whom he knew as “Crusher,” enter the tavern. Guiliani had known defendant for three or four years.

At that time, there were about 20 to 25 people in the bar area. After about 30 to 40 minutes, Guiliani looked toward the door of the tavern and saw defendant and Fierro go out. They were holding each other by the arms and were facing each other. He thought he saw one of them swing a punch, but it could have been that they were grabbing ahold of one another. Fierro had his back to the door and went out first, as they twisted out of the door. Guiliani had not heard any conversation between defendant and Fierro prior to the two of them going out of the door, nor had he seen Howell approach Fierro.

Guiliani opened the door and saw defendant and Fierro in the street. Fierro was on his knees and defendant was standing in front of him. They were both in the southbound lane of traffic closest to the tavern. Guiliani then saw that Fierro was facedown in the street. Defendant kicked Fierro in and around the head approximately three times.

Guiliani walked into the street and asked defendant to stop. He grabbed defendant by his left arm and told him that the guy had had enough and to let him off the street. Defendant then stopped. Guiliani turned around and walked back into the bar. He saw defendant, John Cordes and Kenny Tritt help Fierro off the street. Approximately 30 seconds elapsed between the time he went outside and returned to his seat at the bar.

When Guiliani left the tavern with Ray Cioe approximately 20 minutes later, he found Fierro lying facedown on the sidewalk in front of his car which was parked on 23rd Street. Guiliani checked Fierro’s neck for a pulse, but found none. He noticed that Fierro’s hands were turning blue, but did not move the body. He told Cioe to call an ambulance.

On November 17, Guiliani identified defendant from police photos and made a statement to police. On November 28, he identified defendant from a lineup. On cross-examination, Guiliani admitted that he was intoxicated on November 13. He admitted that at that time, he told police he did not know what had happened because he did not want to say anything.

On redirect examination, Guiliani stated that he never saw Fierro strike defendant or do anything to harm him. He testified that his ability to observe was not impaired by his intoxicated condition.

Revita Payne testified that she lives at One East 23rd Street, in the ground-level apartment, across the street from the Fickle Finger Tavern. On November 13, at approximately 10 p.m., she heard loud male voices coming from across the street and went to the window. She heard one man yell, “Stay the fuck out of here. Don’t come back.” She saw three men carrying Fierro and a fourth man standing with the group. Defendant carried Fierro’s shoulders.

The men walked east on the sidewalk in front of the tavern, directly toward her window. She could see them clearly because of the street light at the north end of her building about 25 to 50 feet away. When the men approached the northbound lane of traffic, they dropped Fierro on the street. After a few seconds, the men walked across the street carrying Fierro back toward the tavern and placed Fierro on the sidewalk. Then the men went back into the tavern. Payne called the police and told them that a man was lying in the street and needed assistance, but she gave them the wrong address.

Payne then went back to the window and saw two men exit the tavern and approach the body on the sidewalk. One man was the defendant. They picked up Fierro and moved him to the southeast comer of the tavern. Then the two men went back to the entrance of the bar and looked in the direction of the body. They then reapproached Fierro and moved him by kicking and pushing him westward. Defendant was kicking Fierro. Then they returned to the tavern.

Payne called the police again and gave them the correct address. She then returned to the window. After about a minute, defendant and another man came out of the bar and carried Fierro toward 23rd Street. At 23rd Street, they carried Fierro around the comer, out of her view. The men went back into the tavern and, within five minutes, the police arrived. On November 17, Payne identified defendant from police photos, and on November 28, she identified defendant from a lineup.

Lachom Madison, a Cook County sheriff’s police evidence technician, testified that he arrived at the scene at approximately 11:50 p.m., after police arrived, and found Fierro lying on his back, next to a small pool of blood. A sheet covered his body. Madison learned that police had turned over the body. Madison saw blood exuding from Fierro’s nose, a laceration on the bridge of his nose, and an abrasion on his chin. The body was warm to the touch.

Dr. Robert H. Kirschner, deputy chief Cook County medical examiner, testified that on November 15, he performed an autopsy on Fierro. Kirschner noted that Fierro was an Hispanic male approximately 47 years old, 6 feet tall, 168 pounds. Kirschner found numerous abrasions on Fierro’s face and wrists and an injury indicating blunt trauma to the right side of his head. He found several hemorrhages inside of Fierro’s head and a fracture of thyroid cartilage indicative of manual strangulation. Lab tests revealed that Fierro was intoxicated and had been using cocaine.

Kirschner determined Fierro’s cause of death to be blunt trauma to the head in association with manual strangulation. Kirschner stated that Fierro suffered from a traumatic subarachnoid hemorrhage, which is a lethal injury. He stated that manual strangulation could be caused by being either kicked in the neck, put into a choke hold, or knocked down.

On cross-examination, Kirschner stated that a subarachnoid hemorrhage is typically a whiplash kind of injury consistent with having one’s head knocked back very rapidly or having one’s head jerked around suddenly to the side, and is not a likely result of falling to the ground. He stated that this injury would not necessarily be aggravated by alcohol and cocaine, because it is inoperable and always fatal.

Defendant testified on his own behalf. On November 13, defendant went to the Fickle Finger at approximately 7:30 p.m. Betty Howell, Frank Guiliani, and Ray Cioe came in about 45 minutes later. Guiliani was drunk and he slurred his words. Howell approached Fierro, stated that he had had too much to drink, and took his beer away from him. Defendant then approached Fierro, said “it’s time to leave,” and pointed Fierro to the door.

Fierro started walking toward the door. Defendant followed Fierro, then reached around and opened the door for him. Fierro stepped down to the sidewalk, turned and flipped a cigarette in defendant’s face. Fierro swung at defendant and hit him, and defendant retaliated. The two men fought, rolled around on the ground, and then fell into the middle of the street. The fight lasted less than a minute. Defendant stated that “he didn’t hit me as many times, probably,” but that Fierro hit him in the face and in the arms and throat, and kicked at him in the groin area. Defendant stated that he fought to protect himself because Fierro attacked him. Defendant admitted that Fierro weighed less than he did. When the fight was over, Fierro lay face up on the ground. Defendant stated that he did not kick Fierro after the fight, but that during the fight he may have kicked him in the throat. Defendant stated that he did not intend to hurt or kill Fierro. When Fierro was lying in the street, defendant saw no indication that he was seriously hurt and likely to die.

After the fight, defendant, Cordes and T.J. Connelly picked up Fierro and moved him to the sidewalk. Then they all returned to the tavern. Defendant was inside for about 15 minutes when he heard someone say that they were calling the police. Then Connelly came in and stated that he had moved Fierro down into the dark spot of the building. Defendant went back outside and moved Fierro again, placing him under the street light on the northwest comer of the street.

On Monday, November 14, defendant spoke with Janice Wiley. On the following day, he left by bus for Galveston, Texas, to borrow bond money from friends. On November 23, while still in Texas, he called the Chicago Heights police and told them that he had punched and kicked Fierro, and that Fierro had died accidentally. He returned to the Fickle Finger on Saturday, November 26. Wiley called the police, and defendant was taken into custody.

On cross-examination defendant stated that he did not see anyone else strike, kick or punch Fierro and admitted that he had done those things. Defendant admitted that no one in the tavern had asked for his assistance that night, and that he never saw Fierro strike Wiley or Howell or hurt anybody in the tavern. He denied that he repeatedly kicked Fierro in the face. He denied dropping Fierro in the street. He did not call the police on the following day, after he learned that Fierro had died, to report the incident as an accident. Defendant never told police he had acted in self-defense. He admitted that punching and kicking someone in the head could cause great bodily harm and stated that he was trying to hurt Fierro because Fierro was trying to hurt him. Defendant admitted that Fierro posed no threat to him while he was on the ground.

Jay Parsons testified on defendant’s behalf as to his reputation. On cross-examination Parsons admitted that his statement that defendant had a good reputation in the community was based on his own opinion and not upon his conversations with others in the community.

At the jury instruction conference, defense counsel submitted instructions as to involuntary manslaughter. In rejecting the instruction, the trial court held that involuntary manslaughter was a lesser included offense of first or second degree murder.

The jury found the defendant guilty of first degree murder. Judgment was entered on the verdict, and following a hearing, the trial court sentenced defendant to a prison term of 25 years, to be followed by four years of mandatory supervision. Defendant’s timely appeal followed.

Initially, defendant contends that the Illinois homicide statute (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1, 9 — 2) violates due process guaranteed by the constitution, because it improperly shifts the burden of proof to defendant to prove mitigating factors in order to avoid a conviction of first degree murder. Defendant’s contention is without merit, as this court has repeatedly rejected this argument. People v. Collier (1992), 228 Ill. App. 3d 159, 161; People v. Smallwood (1991), 224 Ill. App. 3d 393, 409; People v. Davis (1991), 221 Ill. App. 3d 1023, 1027; People v. Willis (1991), 217 Ill. App. 3d 909, 577 N.E.2d 1215; People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335.

Next, defendant contends that the State failed to prove beyond a reasonable doubt that he caused the death of Mario Fierro. Defendant argues that the testimony of State witnesses failed to show that Fierro’s fatal injury was caused by the defendant’s actions. Defendant argues that witness testimony is inconsistent regarding the time the events occurred and the cause of death.

The trier of fact has the responsibility of weighing the credibility of the witnesses and resolving conflicts and inconsistencies in their testimony. (People v. Green (1988), 179 Ill. App. 3d 1, 11, 535 N.E.2d 413.) On review, mere conflicting evidence does not constitute sufficient grounds for reversal, and a reviewing court will not disturb a verdict of guilty unless the evidence is so unsatisfactory as to justify a reasonable doubt as to defendant’s guilt. (People v. Young (1989), 128 Ill. 2d 1, 51, 538 N.E.2d 461.) Once a defendant has been found guilty of the crime charged, the fact finder’s role as weigher of evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

Dr. Kirschner testified that Fierro’s death was caused by blunt trauma in association with manual strangulation. Defendant argues that this testimony supports the conclusion that defendant could not have caused Fierro’s death because no witness saw defendant strangle Fierro. Defendant’s argument is without merit because Kirschner testified that manual strangulation could be caused by being kicked in the neck, put into a choke hold or knocked down. The record shows that defendant kicked Fierro. Defendant admitted that he kicked Fierro, and Guiliani testified that defendant kicked Fierro three times in the head and neck area.

Defendant further argues that witness testimony reveals an inconsistency in the time the events occurred, supporting the conclusion that defendant’s actions could not have been the cause of Fierro’s death.

The record indicates that Guiliani arrived at the Fickle Finger at approximately 8:30 p.m. and that defendant arrived approximately 20 to 25 minutes later. Thirty to forty minutes later, Guiliani saw defendant and Fierro standing by the door, facing each other, and holding each other by the arms. He then saw the two of them “twist” out of the door. When Guiliani left the tavern approximately 20 minutes later, he found Fierro lying near his car. The police arrived immediately thereafter.

Revita Payne testified that she first heard loud voices at approximately 10 p.m., and that the police arrived five minutes after she saw the men move Fierro around the corner out of her line of sight. Lachom Madison testified that he arrived at the scene at 11:50 p.m., after police had already been there. He found Fierro’s body covered with a sheet lying face up and learned that police had turned over the body. Madison stated that Fierro’s body was warm to the touch, but did not state how long the body had been there or the approximate time of death. Dr. Kirschner stated that Fierro’s injury was lethal, not “immediate,” as defendant argues. The minor inconsistencies in witness testimony regarding the exact time of the incident do not render the evidence so unreasonable, improbable or unsatisfactory as to justify this court’s reversal of the jury’s determination of guilt beyond a reasonable doubt.

In addition, defendant contends that the State failed to prove he acted without legal justification in fighting with Fierro. Defendant testified that Fierro flipped a cigarette in his face, swung at him and hit him. Defendant admitted to swinging at and kicking Fierro, but contends his actions were in self-defense. Defendant also admitted that he weighed much more than Fierro and that he had not seen Fierro threaten or attempt to hurt anybody in the tavern. Defendant further asserts that the evidence disclosed that he had a good reputation in the community. Defendant contends that because no witness could refute his testimony, he was not impeached as to the issue of self-defense. However, defendant offers no support for his contention.

Self-defense is an affirmative defense, and unless the State’s evidence raises the issue involving the alleged defense, the defendant bears the burden of presenting evidence sufficient to raise the issue. People v. Everette (1990), 141 Ill. 2d 147, 157, 565 N.E.2d 1295; Ill. Rev. Stat. 1987, ch. 38, pars. 3 — 2, 7 — 14.

The State’s evidence does not raise the issue of self-defense. The record indicates that Guiliani’s testimony contradicts defendant’s testimony. Kirschner stated that Fierro had numerous abrasions on his face and wrists and that his fatal injuries were consistent with being punched, kicked, or knocked down. Parsons did not know defendant’s reputation in the community, but testified based on his own personal opinion of defendant. Defendant has not presented evidence sufficient to raise the issue of self-defense. Therefore, defendant has not shown that the State failed to meet its burden of proof that defendant acted without legal justification.

Defendant further contends that he did not have the requisite mental state for a conviction on first degree murder. Defendant testified that he did not intend to hurt or kill Fierro, and he did not think Fierro was seriously hurt or would die. Defendant contends that he moved Fierro to a lighted area so he could be found and helped.

The requisite mental state may be inferred from the defendant’s conduct and circumstances surrounding his commission of the crime. (People v. Terrell (1989), 132 Ill. 2d 178, 204, 547 N.E.2d 145.) To prove the crime of murder, it is not necessary to show that the defendant has a specific intent to kill or do great bodily harm or that he knows with certainty that his acts will achieve those results. Rather, the necessary mental state may be inferred from evidence that the defendant voluntarily and willfully committed an act, the natural tendency of which was to destroy another’s life. (People v. Bartall (1983), 98 Ill. 2d 294, 307, 456 N.E.2d 59.) Disparity in size and the strength between the defendant and the victim, and the nature and extent of the victim’s injuries, are relevant circumstances in ascertaining whether the defendant possessed the necessary mental state. People v. Brackett (1987), 117 Ill. 2d 170, 179-80, 510 N.E.2d 877.

Dr. Kirschner stated that Fierro died as a result of blunt trauma to the head resulting in a subarachnoid hemorrhage, and a fracture of the neck, indicative of manual strangulation. Dr. Kirschner further stated that such injuries could have been administered by fists or kicks.

The record further shows that defendant, at 250 pounds, was significantly larger than Fierro, who weighed 168. Defendant admitted that Fierro did not pose a threat to him while he was lying on the ground. Defendant also admitted that he was trying to hurt Fierro because Fierro was trying to hurt him and that he may have kicked Fierro in the throat. Thus, the evidence supports a finding of guilty beyond a reasonable doubt.

Defendant next contends that the trial court erred in refusing to instruct the jury on the lesser offense of involuntary manslaughter. Defendant argues that from the evidence, the jury could have believed Fierro’s death to have been accidental resulting from reckless acts, and that the jury should have been instructed accordingly. In response, the State argues that there is no credible evidence demonstrating that defendant’s acts were reckless or that Fierro’s death was accidental.

On review, a court will not substitute its judgment for that of the trial court unless the trial court’s determination is so unsatisfactory as to justify a reasonable doubt as to the defendant’s guilt. (People v. Young (1989), 128 Ill. 2d 1, 51, 538 N.E.2d 461.) Murder and the lesser included offense of involuntary manslaughter are distinguished only in terms of the mental state required. Murder requires the intent to kill or do great bodily harm or knowledge that the acts create a strong probability of such result, while involuntary manslaughter requires only reckless conduct which causes death. (People v. Austin (1990), 207 Ill. App. 3d 896, 899, 566 N.E.2d 492.) Credible evidence in the record which would reduce murder to manslaughter entitles an accused to a manslaughter instruction. An involuntary manslaughter instruction, however, should not be given if there is no evidence which would reduce the crime to manslaughter. (People v. Ward (1984), 101 Ill. 2d 443, 451, 463 N.E.2d 696.) The instruction is unnecessary when the nature of the defendant’s conduct is of such a character as to defeat any assertion of reckless or inadvertent conduct. (People v. Trotter (1988), 178 Ill. App. 3d 292, 298, 533 N.E.2d 89.) Death may be the natural consequence of blows with bare fists where there is great disparity in size and strength between the two parties. People v. Brackett (1987), 117 Ill. 2d 170, 180, 510 N.E.2d 877, 882.

Defendant’s reliance on People v. Taylor (1991), 212 Ill. App. 3d 351, 570 N.E.2d 1180, is unpersuasive as the facts are distinguishable. There, the court reversed defendant’s conviction, holding that the evidence showed that the victim died as a result of falling and hitting the concrete, not as a result of defendant’s blow. Taylor, 212 Ill. App. 3d at 357.

In the present case, the medical evidence shows that Fierro died as a result of blunt trauma to the head and manual strangulation, resulting from kicking in the head and neck area or a choke hold around the neck. The jury could infer from the disparity in the sizes of defendant and Fierro that the two would not be evenly matched in a fight. Further, the intent to kill or do great bodily harm may be inferred because of the severity of the injuries Fierro received. Based on the evidence presented at trial, the trial court properly denied an instruction on involuntary manslaughter.

Next, defendant contends that various questions asked by the prosecutor on cross-examination were improper and denied him a fair trial. Defendant objects to the following question:

“PROSECUTOR: And in fact, sir, please tell the ladies and gentlemen of the jury one person who can substantiate him hitting you.”

Defense counsel’s objection to the question was sustained.

The State responds that the prosecutor was merely questioning the credibility of defendant’s case, illustrating that defendant’s defense was inconsistent with the testimony and evidence presented. The State argues that the prosecutor’s comments specifically responded to statements made by defense counsel during opening statement:

“You will also hear evidence from the testimony of State’s witness [sic] that Mario also swung at Richard Reeves and punched him.”

The latitude to be allowed on cross-examination is within the sound discretion of the trial court, and a reviewing court should not interfere unless there has been a clear abuse of discretion resulting in manifest prejudice to the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 269, 478 N.E.2d 267.) In general, any permissible kind of impeaching matter may be developed on cross-examination, since one of the purposes of cross-examination is to test the credibility of the witnesses. (Collins, 106 Ill. 2d at 269.) In the present case, any impropriety was cured when the court sustained defendant’s objection. People v. Eichelberger (1989), 189 Ill. App. 3d 1020, 546 N.E.2d 274.

Defendant also objects to subsequent cross-examination regarding whether anyone saw Fierro hit defendant. Defendant’s failure to object at trial waives this issue for purposes of review. People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.

Defendant further contends that he was prejudiced by various comments made by the prosecutor during closing argument. The State responds that the comments were proper, as they were invited by the defense counsel’s closing argument, and were legitimate inferences based on the evidence presented at trial.

A prosecutor is given great latitude in closing argument, and the propriety of his comments is within the trial court’s discretion. (People v. Morrison (1985), 137 Ill. App. 3d 171, 184, 484 N.E.2d 329.) It is well settled that the prosecution has the right to comment on the evidence that has been adduced at trial and make all legitimate inferences therefrom. (People v. Wheatley (1989), 183 Ill. App. 3d 590, 601, 539 N.E.2d 276.) Improper prosecutorial remarks generally do not warrant reversal unless they are so prejudicial as to constitute such a material factor in defendant’s conviction that the jury likely would have reached a contrary verdict had the remarks not been made. (People v. Townsend (1985), 136 Ill. App. 3d 385, 394, 483 N.E.2d 340.) Comments by the prosecution in rebuttal argument that are invited by defense counsel’s closing argument are proper. (People v. Perez (1983), 113 Ill. App. 3d 143, 149, 446 N.E.2d 1229.) Moreover, a defendant is not denied a fair trial where the jury is admonished that the opening and closing statements are not evidence. People v. Thomas (1990), 137 Ill. 2d 500, 530, 561 N.E.2d 57.

In the present case, defense counsel stated in opening that the State’s witnesses would testify that Fierro punched defendant. The record shows that defendant failed to elicit this evidence at trial. In his closing argument, defense counsel alluded to witnesses who saw Fierro punch defendant. The prosecutor properly responded to these remarks during rebuttal. The record also reveals that the trial court admonished the jury that closing arguments are not evidence and that the burden of proof remained on the State. Accordingly, even if the comments were improper, they would not have changed the outcome of the trial, and are, therefore, harmless error.

Defendant further contends that the prosecutor’s cross-examination regarding his failure to report the incident to the police on November 13 was improper, in that the prosecutor commented on defendant’s post-arrest silence. Defendant objects to the following questioning:

“PROSECUTOR: And you stated that you learned within one day that the person you got in a fight with had died, right?
DEFENDANT: Yes, sir.
PROSECUTOR: Did you pick up the phone, call the police and state, hey, it was an accident?
DEFENDANT: No, I did not.
PROSECUTOR: Did you call up, pick up the phone, call the police and say, I know something about it?
DEFENDANT: No, I did not.
PROSECUTOR: You got on a bus and you left town, right?
DEFENDANT: Yes.
PROSECUTOR: And I believe you stated you left town to get bail money; is that right?
DEFENDANT: Yes.
PROSECUTOR: And you never told the police that, hey, it was self-defense, right?
DEFENDANT: I never told them anything.”

The prosecution may pursue a line of inquiry which defendant has invited and he may not complain of testimony on cross-examination elicited by defense counsel. (People v. Pegram (1987), 152 Ill. App. 3d 656, 662, 504 N.E.2d 958.) On direct examination, defendant testified that he left town without reporting the incident. Defendant’s testimony above revealed that he did not say anything to the police on November 14, the day after the incident. Defendant was arrested on November 26. The above questioning was proper because it pertained to defendant’s prearrest statements, or lack thereof, not post-arrest statements.

Defendant also contends that the prosecutor misstated the evidence during closing argument. Defendant argues that the prosecutor’s comments, that “He said what he did caused that death” and “he admitted, during his testimony, that his intent was to cause great bodily harm,” misstated defendant’s testimony. The State responds that defendant’s contention is waived for failure to object at trial under People v. Enoch. Even if defendant’s contention is not waived, we find no error.

Generally, assumptions and statements of fact not based on evidence in the case may not be argued to the jury and may be deemed prejudicial to the accused. Nonetheless, arguments based on facts appearing in proof or on legitimate inferences from those facts are proper. (People v. Burgos (1989), 184 Ill. App. 3d 474, 480, 540 N.E.2d 456.) The character and the scope of arguments to the jury are left to the discretion of the trial court, and its ruling should be upheld unless the court clearly has abused its discretion. Burgos, 184 Ill. App. 3d at 481.

The record supports the fact that the State’s comments are proper inferences from the evidence. Defendant’s intent to do great bodily harm was elicited during his cross-examination when he stated that he was trying to hurt Fierro because Fierro was trying to hurt him. Defendant further testified that he did not see anyone else strike, punch or kick Fierro and that as far as he knew, he was the only one who struck Fierro. Although defendant denied any intention to kill or hurt Fierro, he admitted on cross-examination that kicking and punching a person in that manner would hurt him.

Finally, defendant contends that the trial court failed to consider all relevant mitigating factors in determining his sentence. The trial court is the proper forum in which a sentence is to be determined, and the trial judge’s decision regarding sentencing is given great weight and deference. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 884; People v. LaPointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344.) It is well established that the imposition of a sentence is a matter of judicial discretion and that, absent an abuse of that discretion, the sentence as determined by the trial court should stand. (Perruquet, 68 Ill. 2d at 153.) Defendant has failed to show that the trial court erred in sentencing him to a prison term of 25 years.

For the above reasons, the judgment of the trial court is affirmed.

Affirmed.

O’CONNOR and MANNING, JJ., concur.