author: JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES GUNARTT, Defendant-Appellant.
    First District (1st Division)
    No. 1-88-3565
    Opinion filed August 19, 1991.

      Ryan, Miller & Trafelet, P.C., of Chicago (Irving Miller and Mary Ellen Dienes, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Gunta Z. Hadac, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court;

Defendant Charles Gunartt was charged with aggravated criminal sexual assault, criminal sexual assault and aggravated criminal sexual abuse.

After a bench trial, defendant was found guilty, all counts were merged and the trial court entered judgment against defendant on the aggravated criminal sexual assault charge. Defendant was sentenced to eight years’ imprisonment. Defendant appeals his conviction, alleging that (1) the trial court erred in denying his motion for a new trial, (2) he was denied effective assistance of counsel, and (3) prejudicial error was committed by the prosecution which denied him a fair trial.

On July 9, 1987, Dorothy Russell, a/k/a Dorothy Cook, and her two children, L.C. and C.C., went to defendant’s home located at 1926 North Lawndale in Chicago. L.C., defendant’s and Russell’s 10-year-old daughter, was wearing, among other clothing, a dress and stockings. Defendant is the father of L.C. but is not C.C.’s father. L.C. testified that she had not seen her father in “a long time.” This testimony was corroborated by defendant, who claimed he had not seen Russell or L.C. for four years, although he did speak with Russell on the telephone occasionally.

Russell and the children entered the apartment and both children began to watch television in the front room. The apartment consists of 3V2 rooms, a front room, a kitchen, a bedroom off the kitchen and a bathroom. There is disputed testimony as to whether Russell and her children went across the street to a liquor store and made a purchase. Nonetheless, there is overwhelming testimony that Russell had alcohol on her breath and that she was acting in a drunken and disorderly manner on that date.

L.C. testified that defendant was standing in the rear of the apartment when he asked her if she wanted a pop. L.C. responded yes, and defendant told her that she would have to come to the kitchen and get the pop herself. C.C. then asked whether he could also have a pop. Defendant told C.C. that he could not. When L.C. got to the kitchen, defendant told her to go to the bedroom and L.C. obeyed. L.C. testified that defendant locked the door. L.C. stated that defendant tore her stockings and told her to pull down her underwear. L.C. did as she was told. Defendant then pulled down his pants and underwear. L.C. testified that defendant “put his private part inside” her vagina for about one minute. L.C. cried and told defendant to get off her. L.C. next noticed her brother standing at the bedroom door.

L.C. went out of the bedroom to her mother, who was in the front room. Russell asked defendant, “What did you do to my baby?” Russell told L.C. to call the police, but defendant would not let her use the telephone. Defendant went to the kitchen, obtained a knife and stabbed Russell in the foot. Then defendant’s girl friend came into the apartment and struck Russell. Russell and the children left the apartment. Russell and her children went to the Jehovah’s Witnesses across the street and called the police. Russell, however, saw a police car and went out into the street and waved it down. Russell and her children were taken to Mount Sinai Hospital. L.C. stayed there for several days.

C.C.’s testimony substantially corroborates L.C.’s story. C.C. testified that he went to the kitchen to get some water and heard his sister crying. C.C. went to the bedroom door, which he testified was ajar, and opened it. C.C. saw L.C. standing by the door with her stockings around her ankles and noticed that they were torn.

Police officer Ohse testified that at approximately 8 p.m. on July 9, 1987, Russell flagged down him and his partner. Ohse testified that Russell had been “struck a few times and was bleeding in some places.” Russell claimed to have had a fight with defendant. Ohse smelled alcohol on Russell’s breath. Ohse took Russell and her children to Mount Sinai Hospital, where Russell and L.C. received treatment. Russell was argumentative with hospital personnel.

Dr. Anthony H. Dekker testified that he is a specialist in child and adolescent behavior and maltreatment in the Pediatric Ecology Unit at Mount Sinai Hospital. Dr. Dekker testified as a treating physician and as an expert. Dr. Dekker testified:

“I asked the child if she knew why she was in the hospital and she admitted that she did know why. And I asked during the history — I was going through her past medical history and got up to the genital examination, I asked if anyone had ever touched her there and she admitted quote, he put his thing in me there, and she was pointing to her vaginal area. She stated that the person was her father and that it led me to believe that there had been penal [sic] vaginal penetration by history.”

Dr. Dekker performed a complete head-to-toe examination of L.C. The examination revealed that she had multiple scars on her body consistent with scratches and loop cord beatings which indicated she was hit hard enough to make the skin break. The scars were at least a month old. The scars were consistent with the findings that the child was physically abused.

Dr. Dekker’s genital examination revealed that L.C. had marked bruising around the hymenal opening. The covering of the hymen started to ooze blood as soon as Dr. Dekker touched it. He observed hymenal tears in three places around the hymenal opening and a bloody discharge. The hymenal opening was also “considerably large.” Dr. Dekker testified that the findings of the examination were “consistent with traumatic penetration of either a penis or large finger causing tears in the hymenal opening.” He further testified that the hymen was also “swollen and rounded which was consistent with some recent trauma that would have tom the hymen and broken a lot of that fine paper-thin edge that the hymen normally have [sic] prior to intercourse.” Dr. Dekker testified that such injuries would take 5 to 10 minutes to hours to develop, and swelling could last for days. His opinion was that L.C.’s genital injuries occurred within the last four days. Dr. Dekker’s ultimate diagnosis was acute sexual assault. Dr. Dekker also testified that Russell was uncooperative and that he smelled alcohol on her breath.

Defense counsel called Bobbie Ann West as a witness. West is defendant’s girl friend and has known him for about four years. West testified that shortly after 4 p.m., she saw Russell and her children enter defendant’s apartment. West noticed a hole in L.C.’s stockings before L.C. entered the apartment. Ten minutes after their arrival, West and defendant testified that Russell and the children went across the street to a store selling liquor and small items and returned to defendant’s apartment carrying a bag. West testified that she entered the apartment five minutes later and heard defendant asking Russell to leave. West saw Russell take a tenth of Crown Royal out of the bag and start drinking it. West did not hear any accusations that defendant had molested anyone. West and defendant both testified that defendant called the police twice. West admitted slapping Russell, and defendant’s testimony corroborated this. After that incident, Russell and her children left. One hour elapsed from the time Russell and her children initially arrived until they left.

Defendant testified that he was not expecting Russell and her children. After returning from the store, Russell sat at the bar in defendant’s apartment and drank. Defendant did not offer either child a pop and never left the front room while Russell and her children were present. Russell and her children were in the apartment for about 15 minutes before defendant asked her to leave. Shortly after Russell and the children left the apartment, defendant went to the store across the street to buy cigarettes. When he came out of the store, defendant noticed Russell speaking with police. When defendant approached the police, he was arrested. Defendant denied having intercourse with L.C., and denied ever striking or stabbing Russell.

After closing arguments, the trial court found defendant guilty of aggravated criminal sexual assault. Defendant was sentenced to eight years’ imprisonment.

On September 26, 1988, defense trial counsel filed a two-page motion for a new trial alleging discovery of new evidence that L.C. had lied about the sexual abuse at Russell’s insistence. On October 14, 1988, Irv Miller substituted as defendant’s counsel. On November 3, 1988, Miller was given leave to file an extensive amended motion for a new trial.

The amended motion renewed the allegation that new evidence favorable to defendant had come to light. Additionally, the amended motion alleges that defendant was denied his right to a fair trial due to ineffectiveness of his trial counsel based on the fact that trial counsel failed to subpoena relevant documents including Department of Children and Family Services (DCFS) records, juvenile court records, Illinois Bell telephone records, Chicago police department 911 tapes or records of defendant’s prior arrests.

Defendant’s new counsel obtained some of the above documents and records. The police radio dispatch records indicate that at 6:37 p.m. on July 9, 1987, an individual giving the name “Gunartt” called 911 from a telephone with the number 542-5890 to report a disturbance and ask for police assistance. Illinois Bell records show that the above telephone number is defendant’s.

DCFS records indicate that C.C. gave a statement to them regarding the July 9 incident. C.C.’s DCFS statement omits key testimony which he gave at trial. Another DCFS report states that L.C. screamed and Russell found her putting on her clothes. This report could impeach L.C.’s testimony. Yet, another DCFS report indicates that Russell told an interviewer that she was in the apartment drinking beer and watching television but heard nothing. A police report allegedly containing notes of an interview with Russell states that Russell claims that defendant lured L.C. into his bedroom with the promise of money, that Russell heard a scream, went to investigate and found L.C. with her clothes in disarray and her stockings pulled down.

Defendant’s criminal record shows that he had three prior arrests and that Russell was the complaining witness on all of them. The three arrests were never prosecuted.

The amended motion also contains affidavits of witnesses. Linda Fitch, who lived on the second floor of defendant’s building, executed an affidavit which states that she saw Russell and the children arrive on July 9, 1987. Fitch claims to have seen Russell go to the store across the street and return. Further, Fitch swore that she heard arguing going on in defendant’s apartment and saw West arrive. Fitch also heard defendant threaten to call the police.

Alice Grant, West’s sister, claims she went to defendant’s apartment on July 9, 1987, and observed West requesting that Russell and her children leave. Grant witnessed West slap Russell and, thereafter, saw Russell and her children leave.

George Page lived upstairs of the defendant. Page saw a woman and two children arrive at defendant’s apartment on July 9, 1987. Page also saw the woman and children go across the street to the liquor store and return to defendant’s apartment. Page heard defendant ask the woman to leave, the woman refuse to do so and defendant threaten to call the police. Page saw West enter the apartment. When the woman (Russell) left, Page heard her say that she was “going to give him so much trouble that he would wish he never had seen her.”

At the post-trial hearing, Willie Williams testified that he was defendant’s cousin. When he arrived at defendant’s apartment on July 9, 1987, West was present and Russell was cursing at the defendant. Russell refused to leave, and shortly thereafter, Williams left.

Walter Bibbs, Russell’s father, testified that L.C. told him that defendant did not touch her and that she had lied about the rape. Abby Bibbs, Russell’s daughter, also testified that she had a conversation with L.C. in June 1988, regarding the alleged assault. During that conversation, L.C. told her that defendant had not done anything to her and that she had lied because Russell had told her to do so. Abby testified that in December 1988, she spoke with Russell after she had come from court. Russell was “kind of high” and crying. Abby testified that Russell told her: “Oh, I wish I had not lied on [defendant] because I did not know it was going to go this far.” Abby testified that Russell was afraid to stop the lie because she thought that she would go to jail.

Betty Franklin, Russell’s aunt, testified that on November 10, 1988, an investigator came to her home. C.C. told the investigator that defendant had not raped his sister. C.C. claimed it was a lie they had to tell because they were scared. L.C. also spoke with the investigator. L.C. said that defendant had not raped her. L.C. stated that Russell told her to go into the bathroom and tear her panties and claim that defendant had attacked her.

At the post-trial hearing L.C. denied speaking with Abby, Franklin or Walter Bibbs about the case. L.C. denied that she said defendant never raped her or that Russell had told her what to say to the police or in court.

Russell took the stand and denied having a conversation with Abby the day defendant was convicted. Russell denied telling Abby that she had lied about defendant. Russell testified that she did not get along with Abby. Russell further claimed that she did not tell L.C. to go into defendant’s bathroom and tear her panties and then claim defendant had attacked her. Russell stated that Walter Bibbs told her that he had been promised $1,000 to get L.C. and Russell to “drop the charges.” Walter Bibbs offered Russell half of the money if she would comply. Additionally, Russell said that Walter Bibbs threatened to have her children taken away from her if she testified.

C.C. testified that while he was at Franklin’s home in November 1988, he was told that a detective wanted to see him. C.C. admitted to saying that defendant had not raped L.C., but that he said this because he was afraid that he would be taken from his mother. C.C. testified that Russell never told him to lie about defendant.

After argument by counsel, the trial court held:

“Based upon that corroboration [Dr. Dekker’s medical testimony], coupled with the testimony of [L.C.], who testified at trial, subjected herself to cross examination and also did so today, and the testimony of [C.C.], her brother, as to what occurred in the apartment that day, I believe her testimony. And I believe it more so when it is viewed in the light of the testimony of the doctor, who indicated that there was trauma, recent trauma to her vagina.”

Defendant argues that the trial court erred in denying his motion for a new trial because he was not proved guilty beyond a reasonable doubt and the additional testimony offered at the post-trial hearing conclusively established that fact. The standard this court must apply is whether after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 53; People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344.) Once a defendant has been found guilty of the crime charged, the fact finder’s role as weigher of the 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 State. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267; People v. Daniels (1987), 164 Ill. App. 3d 1055, 518 N.E.2d 669.) A reviewing court should not reverse a conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of guilt. Young, 128 Ill. 2d at 51, 538 N.E.2d at 472.

Where a defendant has been convicted of aggravated criminal sexual abuse, and he denies the charges, the conviction will be upheld where there is some corroboration of the testimony of the complaining witness by some other evidence, fact or circumstance in the case or the testimony of the complaining witness is otherwise clear and convincing. (Daniels, 164 Ill. App. 3d at 1073, 518 N.E.2d at 682; People v. Findlay (1988), 177 Ill. App. 3d 903, 913, 532 N.E.2d 1035, 1042.) Defendant argues that there were discrepancies in L.C.’s and C.C.’s testimony which presented sufficient doubt. The law, however, is clear that testimony of the complaining witness need not be uncontradicted or unim-peached or crystal clear and perfect in order to be deemed “clear and convincing.” (Daniels, 164 Ill. App. 3d at 1073, 518 N.E.2d at 682.) If the discrepancies do not detract from the reasonableness of the complainant’s story as a whole, it may be found clear and convincing. (Findlay, 177 Ill. App. 3d at 911, 532 N.E.2d at 1041.) None of the discrepancies between L.C.’s and C.C.’s testimonies are major and, therefore, do not detract from the reasonableness of L.C.’s testimony. L.C.’s testimony is clear and convincing in and of itself. Additionally, the trial court found that L.C. was a credible witness whose testimony was not only corroborated by C.C.’s testimony, but more importantly by the medical findings of Dr. Dekker. The trial court properly denied defendant’s motion for a new trial because L.C.’s testimony was clear and convincing and was further corroborated. See Daniels, 164 Ill. App. 3d at 1072, 518 N.E.2d at 682.

Defendant asserts that he was denied a fair trial where the prosecution failed to properly comply with discovery, where a hearsay statement was improperly admitted at trial and where the prosecutor improperly commented upon the evidence presented at the post-trial hearing.

Defendant argues that the State failed to provide defense trial counsel with copies of DCFS reports. This issue has been waived for review purposes because defendant failed to raise the issue at trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The law in Illinois is clear that “[b]oth a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (Emphasis omitted.) Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130; Ill. Rev. Stat. 1983, ch. 38, par. 116-1.

Defendant argues that he was prejudiced because the State failed to notify defense trial counsel that it planned to introduce L.C.’s statements to Dr. Dekker and the emergency room physician as evidence at trial. Defendant contends that those statements should have rightly been excluded by the hearsay rule. Again, defendant’s failure to object to the disputed statements at trial waives the issue for appeal. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130; Ill. Rev. Stat. 1983, ch. 38, par. 116-1.) Although we find that defendant waived his right to have this issued reviewed, we feel compelled to discuss it substantively.

There must be an affirmative showing on record that the court actually used improper evidence to rebut the presumption that the trial court considered only competent evidence. (People v. Shaw (1981), 98 Ill. App. 3d 682, 424 N.E.2d 834.) There is a presumption that the trial court relied only on proper evidence in reaching a determination on the merits at a bench trial. (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649.) The record indicates that the trial court relied upon L.C.’s testimony of the circumstances of the alleged attack, C.C.’s corroborating testimony and upon Dr. Dekker’s medical finding that L.C. had experienced recent trauma to her vaginal area. Not only has defendant waived his right of review to the introduction of the complained-of statements, but defendant has also failed to cite any evidence which would overcome the presumption that the trial court relied on proper evidence in reaching its decision.

Defendant contends that he was prejudiced by the State’s remarks at closing argument during the post-trial hearing. The State has the right to comment on the evidence and reasonable inferences which can be drawn therefrom even if detrimental to the defendant. (People v. Faysom (1985), 131 Ill. App. 3d 517, 475 N.E.2d 945.) The State has wide latitude during closing argument, and the trial court’s determination regarding the propriety of the argument will not be overturned on appeal absent a clear abuse of discretion. (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Barnes (1983), 117 Ill. App. 3d 965, 453 N.E.2d 1371.) If based upon the evidence or reasonable inferences drawn therefrom, the State may properly comment on the credibility of the witnesses. People v. Ford (1983), 113 Ill. App. 3d 659, 447 N.E.2d 564; People v. Alexander (1984), 127 Ill. App. 3d 1007, 470 N.E.2d 1071.

Defendant objected to the following comments made by the State:

“I think, what happened since the time of trial, the defendant’s family had influenced a number of witnesses to come forward. And I think, your Honor had the opportunity to see the credibility of Walter Bibbs, and heard the testimony of Mrs. Russell, today. That Mr. Bibbs was trying — was offered money and was trying to pay to get other people to change their testimony. I think, a lot happened since the trial. There is a lot of arm twisting and threats and money offered.”

This comment was made during closing arguments after the trial court heard all the additional evidence presented at the hearing on defendant’s motion for a new trial. During that hearing, Russell testified that Walter Bibbs offered money to her if she “dropped the charges” against defendant and threatened to have her children taken away from her if she testified. We find that the State was merely commenting and drawing reasonable inferences upon the evidence that the trial court heard regarding Walter Bibbs and that, therefore, the State’s comments did not prejudice defendant.

Defendant maintains that a number of errors committed by defense trial counsel prohibited him from receiving effective assistance of counsel. The Illinois Supreme Court held that effective assistance of counsel refers to competent, not perfect, representation and that, in the absence of a showing that the outcome of the new trial likely would be different, the Constitution does not require a new trial for every defendant whose counsel errs at trial. (People v. Stewart (1984), 104 Ill. 2d 463, 491-92, 473 N.E.2d 1227, 1240; People v. Greer (1980), 79 Ill. 2d 103, 121, 402 N.E.2d 203, 212.) Ineffectiveness of counsel is shown where (1) the attorney’s representation fell below an objective standard of reasonableness and the shortcomings of counsel were so severe as to deprive defendant of a fair trial, and (2) there is a reasonable probability that, but for the attorney’s unprofessional errors, the results of the proceedings would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 694, 104 S. Ct. 2052, 2064.) This two-prong test was adopted by the Illinois Supreme Court in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. Defendant bears the burden of proving that counsel’s performance was deficient. (Albanese, 104 Ill. 2d at 525-27, 473 N.E.2d at 1256.) When reviewing trial counsel’s performance, we indulge a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 699, 104 S. Ct. at 2065.

Defendant’s trial counsel filed his appearance on July 13, 1987. From that date until trial counsel filed a two-page motion for new trial, he filed no written motions on behalf of defendant. The record is silent as to any pretrial discovery, oral or written, undertaken by trial counsel on behalf of defendant. The morning defendant’s bench trial began, the State voluntarily tendered medical summaries to defense trial counsel, who acknowledged that he previously did not have copies. Despite being tendered this new relevant discovery for the first time, defense trial counsel proceeded immediately to trial without requesting a continuance or even a brief recess to examine and evaluate the tendered documents.

Further, had defense trial counsel obtained the medical summaries prior to trial or requested the time to review those records when the State turned them over to him, counsel would have realized that L.C. had been physically abused at least one month before she came into contact with defendant. That information would have led a reasonable attorney to question whether there were any reports of child abuse with the police department or with DCFS. Had defense trial counsel obtained the DCFS reports, he would have discovered that L.C.’s, C.C.’s and Russell’s statements regarding the alleged attack differ from the testimony they gave at trial and at the post-trial hearing and that Russell had been investigated for child abuse. Moreover, a reasonable attorney with this knowledge would have subpoenaed Russell to testify at trial. The result of counsel’s ineffectiveness was that the trial court did not hear any testimony regarding Russell’s long-time difficulties with DCFS for abusing her children.

Defense trial counsel also failed to question L.C. and C.C. in a timely fashion regarding their competency to testify. Even though defense trial counsel made no attempt to question the children during the initial voir dire to establish their competency to testify, defense counsel attempted to question L.C. about her brother’s age relative to her age on the basis that it went “to the capability of this witness.” The trial court sustained an objection to this question because the children’s competency to testify had previously been established.

Failure to adequately investigate and develop an available defense has been found to be ineffective assistance of counsel. (People v. Wright (1986), 111 Ill. 2d 18, 488 N.E.2d 973.) Failure to present available witnesses to corroborate a defense has also been found to constitute ineffective assistance of counsel. People v. Solomon (1987), 158 Ill. App. 3d 432. 511 N.E.2d 875.

Defense counsel failed to obtain available evidence to corroborate defendant’s story. Even though defendant claimed to have telephoned the police on the date of the alleged incident, there is no indication that defense trial counsel did even the slightest investigatory work regarding this claim. Defense trial counsel failed to obtain and introduce into evidence police emergency 911 tapes and records that indicate that an individual using the name “Gunartt” telephoned to report a disturbance on the night in question. Now, unfortunately, the 911 tape recording has been destroyed and all that remains is a card which the operator filled out during the call. In fact, defense trial counsel stipulated at trial that the defendant never told the arresting police officer that he had tried to contact the police. Defense trial counsel failed to interview people who were outside the defendant’s home on the night in question who allegedly heard defendant asking Russell to leave. Defense counsel also failed to subpoena defendant’s criminal record which indicates that Russell was the complainant in each of the three prior arrests and that the State refused to prosecute each one of those arrests. Defense trial counsel also never introduced evidence that defendant had been employed for 19 years by the same company.

Defendant has shown that defense trial counsel’s representation fell below an objective standard of reasonableness in a manner which deprived defendant of a fair trial. Defense trial counsel’s shortcomings include failure to (1) investigate the case, (2) issue subpoenas for key records such as the DCFS records, the police 911 tapes, telephone records and defendant’s criminal record, (3) request pretrial discovery, (4) request a continuance or at least a short recess to review medical documents the State turned over the morning of trial, (5) make any effort to exclude harmful evidence at trial, (6) timely challenge the competency of L.C. and C.C., and (7) to subpoena Russell to testify at trial. We find that there is a reasonable probability that but for defense trial counsel’s unprofessional errors, the results of the trial would have been different.

For the reasons set forth above, we find that defendant was denied effective assistance of counsel, and therefore, reverse and remand this matter for a new trial.

Reversed and remanded.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MERVYN WRIGHT, Defendant-Appellant.
    First District (1st Division)
    No. 1-89-1533
    Opinion filed August 19, 1991.

      Randolph N. Stone, Public Defender, of Chicago (R.H.R. Silvertrust, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Marilyn F. Schlesinger, Special Assistant State’s Attorney, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant, Mervyn Wright, was charged, tried by a jury and found guilty of first degree murder and attempted residential burglary. Defendant was sentenced to 80 years’ imprisonment. Defendant appeals his conviction on the basis that (1) the trial court improperly denied his motion to suppress evidence of his prior burglary conviction, (2) he was deprived of his constitutional right to present a defense because the trial court prevented him from introducing evidence of the decedent’s marital status, (3) he was improperly denied a Batson hearing after he made a prima facie showing of racial discrimination in the State’s use of peremptory challenges during jury selection, (4) Illinois’ first degree murder statute is unconstitutional, (5) the trial court improperly admitted morgue pictures of decedent, and (6) he was deprived of his right to a fair trial by prosecutorial misconduct and the trial judge’s bias.

Defendant was charged with attempted residential burglary and first degree murder for the September 1987 attempted break-in of a room at the Roberts Motel at 66th and Martin Luther King Drive and the shooting death of Gregory Edwards, an off-duty police officer. Prior to trial, several motions in limine were made by the defendant and the State.

Defendant moved to exclude defendant’s prior burglary convictions from evidence. The trial court denied this motion stating that this evidence “goes to defendant’s credibility.” Next, defense moved to prevent the State from revealing that the decedent was an off-duty Chicago police officer. The defense argued that the evidence would be prejudicial because the jury would perceive the defendant as a “cop killer” instead of realizing the case was a burglary/murder case. The State responded that the jury would hear evidence regarding and see photographs showing the decedent’s gun, holster and handcuffs located inside the motel room. The trial court denied defense’s motion, explaining that if the jury was not informed that decedent was an off-duty police officer, it might assume he was a “dope dealer.”

The State made a motion in limine to preclude defendant from raising the decedent’s marital status. Defendant objected to the motion, arguing that decedent’s marital status was relevant to show decedent’s state of mind at the time of the shooting and in order that inferences may be drawn by the jury that decedent may have shot at defendant first and why defendant believed he had to protect himself. The trial court overruled defendant’s objection and granted the State’s motion. The trial court, however, informed the defendant that it would allow him to tell the jury that the victim registered under an assumed name.

In May 1989, a jury was selected. The trial court, in its introductory comments, advised the venire members that the victim was an off-duty police officer and inquired whether that fact would influence anyone’s objectivity in serving on the jury. One person responded affirmatively and was dismissed. Defendant made no record of the racial composition of the venire, but did make a motion for a Batson hearing after the jury was sworn. The only evidence defendant presented to the court was that the State had challenged six individuals, five of whom were black females and one who was an Indian female. Defendant stated that he thought a prima facie showing had been made. The State argued that there were five blacks chosen for the jury. The trial court denied the motion.

During opening statements the State noted that decedent was an off-duty police officer and that due to his profession, he possessed a gun and further that the decedent understood that the defendant’s attempt to break into the room was an effort to burglarize the room. In defendant’s opening statement, he also commented that decedent was an off-duty police officer and was in a motel room with a lady friend and registered under an assumed name. Additionally, defendant stated that top echelon members of the Chicago police department were potential witnesses.

After opening statements, the State called Angelia Williams to testify. Williams testified that she was present in the decedent’s motel room the night he was shot. Williams testified that she was a “Miss” who was residing with her mother in September 1987. Williams stated that she met decedent in 1984 and continued a casual relationship with him until July 1987 when they began seeing one another on a more serious level. The Wednesday before decedent was killed, Williams and decedent were together and agreed to consummate their relationship the following Monday, September 28, 1987. Williams testified that she was aware that decedent was a Chicago police officer. On September 28, 1987, decedent picked her up while still in his uniform. They proceeded to the Roberts Motel, where decedent registered while Williams waited in the car. The couple went to room 114 and engaged in sexual intercourse. Decedent fell asleep afterwards until Williams woke him when she saw someone outside their room and then heard someone trying the door knob of the room.

Williams testified that decedent put on his pants and she went into the bathroom. From the bathroom, Williams heard the decedent ask if there was a problem with the door. Williams heard no response. Decedent ordered the person to get away from the door. Thereafter, Williams heard a loud noise as if the door of the motel room was being broken. This noise was followed by a gunshot and then a series of gunshots. Once the room was quiet again, Williams called out to the decedent but received no answer. Williams came out of the bathroom and saw decedent lying motionless just inside the open doorway with blood coming from his head. Williams shook the decedent, but he did not respond.

Decedent’s gun was lying near his body. Fearing someone might walk into the open room, Williams threw it across the room. After attempting to get a call through to the motel’s front desk, Williams ran to the office to seek help. Williams waited in the office for the police to arrive.

Dr. Barry Lifschultz, as staff forensic pathologist at Cook County medical examiner’s office, testified that on September 29, 1987, he performed an autopsy on the decedent. Dr. Lifschultz found five injuries to the decedent. One gunshot wound entered the left side of decedent’s head which had traveled through the brain and lodged in the skull. There was evidence of contact discharge to the decedent’s skin and bone. Contact discharge occurs when the tip of a gun has been pressed directly against the target and the trigger is pulled. The second injury was an abrasion to the left side of the decedent’s head which was consistent with being hit in the head by a door. The third wound was a gunshot wound which passed through the right shoulder muscle and exited out the right upper back. There was powder stippling which indicates a close-range firing of about 6 to 12 feet. The fourth injury was a bullet that entered the decedent’s lung and was recovered from the left chest cavity. There was also powder stippling surrounding the external wound. The fifth injury was a gunshot wound to the left hip. The bullet was found in the abdominal cavity.

Joseph Stroter, a security guard for Great Lakes Security Company, was providing security to the Parkway Garden housing project on September 29, 1987. At approximately 12:45 a.m., Stroter saw defendant and another black man trying to flag down a car. Stroter testified that he heard the defendant scream, “Man, just stop any car. I’m shot man.” Stroter saw the defendant and the other man enter an ambulance repair garage at the intersection. Stroter also noticed squad cars with flashing lights at the Roberts Motel. Stroter went to the motel, where he recognized Officer Por-tis.

Officer Portis told Stroter that she received a “911” message of a man shot at the Roberts Motel. Stroter directed the police to the garage, telling them he thought he knew who had committed the shooting. On the way to the garage, Stroter pointed out a man walking north on Martin Luther King Drive as the man who was with defendant earlier. The police stopped and detained the man. Stroter then went to the garage and found defendant telling several workers to take him to the hospital. Stroter offered to help defendant and asked what had happened. Defendant told Stroter that “some bitch just went off” and shot him. Stroter turned defendant over to the police.

Officer Portis told defendant that she and her partner were Chicago police officers. Portis asked defendant what happened. Defendant acknowledged he had been shot, but that he did not know who shot him or where the shooting took place. Portis asked defendant whether he had been at the Roberts Motel. Defendant replied that he had not been there.

Detective Utter went to the hospital to question defendant. Utter gave defendant his Miranda warnings and asked him how he had been shot. Defendant’s exact words were, “I don’t know nothing, I ain’t seen nothing and I ain’t heard nothing.” Utter left the hospital and returned later with Switowicz and Szudarski and questioned defendant regarding his wound and his whereabouts during the shooting of decedent. Defendant stated that his injury was linked to a person named “Little Bo,” whom he had met earlier on the street. Defendant claimed that Little Bo told him he was going to bring a prostitute to the motel and invited him to the room. Defendant said he went to room 114 of the Roberts Motel and had sex with a woman while Little Bo was in the room. Defendant claims he left the room while Little Bo had sex with the prostitute. Defendant stated that he saw the prostitute leave the motel. Thereafter, defendant went back to room 114 and knocked, whereupon Little Bo opened the door and shot him. In response, defendant claims he pulled out his gun. Defendant asserts that he and Little Bo grappled as both fired at each other. Then defendant said he ran off. A court reporter was not present at the time defendant conveyed this information.

Detectives Szudarski, Swistowicz and Utter and Assistant State’s Attorney DeGrazia interviewed Irving Brown, who was the man seen with defendant. Brown directed the above men to the alley in the rear of the Tailorite Cleaners located at 6501 South Martin Luther King Drive. Upon arrival, Brown lifted a clump of bushes and pointed to the gun lying there. This gun was identified as the gun from which the bullets found in decedent’s body was fired.

Shortly after 2 p.m., Utter, Switowicz, Szudarski and DeGrazia returned to defendant’s hospital room. Defendant was advised of his rights again. Defendant was told that the murder weapon had been recovered. Defendant agreed to make- a court-reported statement. In the court-reported statement, defendant said that he went to the Roberts Motel to burglarize a room. Defendant stated he was going to buy drugs from Brown. Defendant claimed that as he walked through the motel parking lot he had a verbal confrontation with a man from one of the rooms. Defendant claims when he walked back, the man stood in the doorway calling him names. The door was partially opened, and the defendant called names back at the man. Defendant then pushed the door and broke into the room. Defendant claims the man shot him, whereupon defendant grabbed the man’s neck and shot back an unknown number of times, then ran.

At the close of the case, defendant objected to all the photographs of the victim. The trial court overruled the objections, noting that the pictures illustrated the close range of firing. The jury found defendant guilty of residential burglary and first degree murder. Defendant filed a motion for a new trial without oral argument. The court denied the motion.

Defendant asserts that the trial court improperly prevented defense counsel from introducing evidence regarding decedent’s marital status and the fact that he was having an extramarital affair. Defendant claims this error was harmful and deprived him of his constitutional right to present a defense especially in light of the fact that the trial court allowed the State to introduce evidence that decedent was an off-duty police officer.

A defendant has the right to present a defense, present witnesses to establish a defense and to present his version of the facts to the trier of facts. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.) A trial court, however, may reject offered evidence on the grounds of irrelevancy if such evidence has little probative value due to its remoteness, uncertainty or its possibly unfair prejudicial nature. (People v. Boyd (1980), 81 Ill. App. 3d 259, 263, 401 N.E.2d 304, 308.) Evidence is relevant if it tends to make the question of guilt more or less probable. (People v. Rodgers (1972), 53 Ill. 2d 207, 214-15, 290 N.E.2d 251, 255.) The admission of evidence is within the sound discretion of the trial court. (Bosel v. Marriott Corp. (1978), 65 Ill. App. 3d 649, 654, 382 N.E.2d 587, 591.) The trial court’s ruling should not be reversed absent a clear showing of abuse of discretion resulting in manifest prejudice to the defendant. People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702; People v. Franklin (1976), 42 Ill. App. 3d 408, 420, 355 N.E.2d 634, 644.

The trial court did not abuse its discretion in granting the State’s motion in limine to preclude defendant from introducing evidence of the decedent’s marital status. Defendant argues that decedent’s marital status is relevant to his affirmative defense of self-defense because it illustrates decedent’s state of mind or his motive to shoot at defendant first. Defendant argued at trial that decedent “may have been concerned about who may have been on the outside. Someone investigating him, somebody contacted by his wife or his wife’s family, and I think we should be allowed to get into evidence the fact that [decedent] was married *** [decedent and Williams] were feeling some sort of paranoia.” Evidence of decedent’s marital status has little probative value due to the remoteness and uncertainty of the scenario which defendant paints as its basis for claiming its relevancy.

In spite of the trial court’s ruling, the jury heard evidence from which it could infer or deduce that the decedent and Williams were having an extramarital affair at the motel. The jury heard the stipulation that decedent was registered under an assumed name at the motel. A police officer testified that he had spoken to decedent’s wife at her home which implied that Williams was not decedent’s wife. Moreover, Williams indicated that she was not married to the decedent and that the purpose of their rendezvous was to “get intimate” with each other. The jury heard enough evidence to come to the conclusion that decedent was having an illicit affair. Thus, regardless of the trial court’s decision to exclude evidence of decedent’s marital status, the jury was informed and defendant was not manifestly prejudiced. Therefore, the trial court did not abuse its discretion in excluding evidence of decedent’s marital status.

Turning now to defendant’s argument that the trial court improperly permitted the State to introduce evidence that decedent was an off-duty police officer. Defendant’s theory of the case was that he was seeking money with which to purchase illicit drugs and shot decedent in self-defense. It was important that the jury understood that decedent was knowledgeable about burglaries and, therefore, went to the door of the motel room armed. Additionally, knowledge of decedent’s occupation was relevant to understanding why decedent possessed a gun, holster and handcuffs. At the onset of the case, the trial court informed the venire members that decedent was a police officer and inquired whether such information would hinder their objectivity.

The case at bar is analogous to People v. Thomas (1985), 139 Ill. App. 3d 163, 486 N.E.2d 1362. In Thomas, the court found that the victim’s occupation was relevant in connection with evidence expected to be introduced at trial and that since the extent of defendant’s participation in the murder was at issue, the victim’s occupation had probative value. (Thomas, 139 Ill. App. 3d at 183-84, 486 N.E.2d at 1376.) The Thomas court held that the defendant was not denied a fair trial by the admission of victim’s occupation as a police officer. (Thomas, 139 Ill. App. 3d at 184, 486 N.E.2d at 1376.) Similarly, the evidence that decedent was an off-duty police officer is relevant in connection with the evidence that showed decedent possessed a gun and that a holster and handcuffs were found in the motel room. Defendant was not denied his right to a fair trial by the admission into evidence that decedent was an off-duty police officer.

Defendant argues that his motion to preclude the evidence of his prior burglary convictions was improperly denied. The common law record indicates that defendant was convicted of attempted burglary in October and November 1985 and in March 1986 for which he was sentenced to three years’ imprisonment. Defendant was released in April 1987. Five months later he was arrested for the crimes in the case at bar. The trial judge denied defendant’s motion, stating that the evidence “goes to credibility” and that the court “must weigh the prejudicial value as to the probative value.” Defendant never testified. The record is devoid of any of defendant’s reasons as to why he decided not to testify. The prior convictions were not admitted as evidence to the jury.

In People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, the Illinois Supreme Court adopted Rule 609 of the Federal Rules of Evidence. This rule allows a conviction which is not more than 10 years old into evidence for impeachment purposes. The crime must be punishable by death or imprisonment in excess of one year or must involve dishonesty or false statement regardless of the punishment. (Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698.) The trial court must, however, determine that the probative value of the evidence of the crime is not outweighed by the danger of prejudice. (Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 699.) The trial court may consider such factors as the nature of the crime, the nearness or remoteness of the prior crime, the similarity to the one charged and the subsequent career of the defendant. (Montgomery, 47 Ill. 2d at 518, 268 N.E.2d at 699.) In the case at bar, the initial prerequisites of Montgomery have been met, i.e., the prior burglary convictions were punishable by imprisonment in excess of one year (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1) and the convictions and releases occurred within the 10 years preceding the crimes in the case at bar.

Defendant argues that the trial court did not enunciate the underlying reasons for its determination and that it did not engage in the balancing required by Montgomery. The trial court did state that it needed to balance the prejudicial effect of the evidence against its probativeness before it denied defendant’s motion to exclude his prior convictions. Moreover, it is not necessary that the reasons for the trial court’s ruling appear in the record. (People v. Hall (1983), 117 Ill. App. 3d 788, 798, 453 N.E.2d 1327, 1336.) Furthermore, application of the facts in the record to the guidelines set forth in Montgomery supports the trial court’s decision.

First, the nature of defendant’s prior burglary convictions evinces a “disrespect for societal order and thus adversely affects [the defendant’s] veracity.” (See People v. Medreno (1981), 99 Ill. App. 3d 449, 452, 425 N.E.2d 588, 591.) Second, defendant was recently released from prison when he committed the crimes involved in the case at bar. It is well established that recency between release and arrest reflects negatively on defendant’s likelihood of being rehabilitated and, thus, impacts on his credibility. (Medreno, 99 Ill. App. 3d at 453, 425 N.E.2d at 591; Hall, 117 Ill. App. 3d at 799, 453 N.E.2d at 1336.) Third, even though defendant’s prior convictions are similar, it does not mean they cannot be introduced. Hall, 117 Ill. App. 3d at 799, 453 N.E.2d at 1337.

Defendant’s argument that the trial court’s ruling in favor of allowing his prior convictions to be introduced into evidence had a “chilling effect on his decision to testify” does not render the trial court’s determination erroneous. (Hall, 117 Ill. App. 3d at 800, 453 N.E.2d at 1337.) There is no evidence in the record that defendant’s reason for refraining from testifying was to avoid being impeached by his previous convictions. The trial court did not abuse its discretion in balancing the relevant factors and denying defendant’s motion to exclude his prior burglary convictions. See Hall, 117 Ill. App. 3d at 800, 453 N.E.2d at 1337.

Defendant contends that he established a prima facie showing of purposeful discrimination on the basis of the State’s pattern of strikes against blacks and minority females. Defendant is black. The record shows that after venire members were voir dired, their 14 jury cards were tendered to the State. The State excused six females, one whom the record indicates is a native of India. Aside from this one female, the record is devoid of any indication of the races of the other five venire members which the State excluded, except for defendant’s representation to the court that they were black. Defendant also excused six venire members whose races are unknown. The day after the jury was sworn, defendant made its motion for a Batson hearing, stating, “I noticed in my review of the people that were challenged yesterday five were black. Of the six challenges that were used by the State five peremptory challenges were used to exclude black females and one, the sixth one, an Indian female and I think a prime [sic] facie showing has been made.” The State responded that about five blacks were sworn as jurors. The trial court denied the motion stating that it was not timely.

The standard for review in Batson hearing appeals in Illinois is whether the trial court’s decision is against the manifest weight of the evidence, considering any relevant circumstances. (People v. Brisbon (1989), 129 Ill. 2d 200, 231, 544 N.E.2d 297, 311.) It is well-established law in Illinois that challenges to the composition of a jury must be brought before the jury is sworn. (People v. Harris (1989), 129 Ill. 2d 123, 170, 544 N.E.2d 357, 378; People v. Evans (1988), 125 Ill. 2d 50, 61-62, 530 N.E.2d 1360, 1364.) A defendant’s failure to object to the State’s peremptory challenges until after the jury has been sworn constitutes a waiver of his right to present a Batson claim. (People v. Henderson (1990), 142 Ill. 2d 258, 283, 568 N.E.2d 1234, 1246.) In the case at bar, the trial court commented that the motion was not made in a timely fashion and denied defendant’s Batson claim. The State has also argued that defendant’s motion lacked the timeliness required under Illinois law.

Furthermore, a defendant may not challenge a State’s peremptory challenge as being racially motivated unless there is evidence in the record that establishes the race(s) of the excluded jurors). (Harris, 129 Ill. 2d at 171, 544 N.E.2d at 378; Evans, 125 Ill. 2d at 62, 530 N.E.2d at 1364.) Since there is no independent evidence in the record to establish the race(s) of the jurors who the State challenged, defendant’s objections to the State’s challenges are waived. (See Evans, 125 Ill. 2d at 62, 530 N.E.2d at 1364.) Defendant waived his right to a Batson claim by failing to assert such claim in a timely manner and by failing to create a record of the venire members’ races. The trial court’s ruling was not against the manifest weight of the evidence and it properly denied defendant’s motion for a Batson hearing.

Defendant was charged with first degree murder under the new Illinois murder statute. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1.) Defendant’s pretrial motion arguing the above statute is unconstitutional was denied. Defendant was convicted of first degree murder. Defendant asserts that the statute is unconstitutional because it violates the principles of due process, equal protection and separation of powers.

DUB PROCESS

The due process clause of the United States Constitution requires the prosecution to prove every element of a crime beyond a reasonable doubt. (In re Winship (1970), 397 U.S. 358, 363, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1072.) Defendant argues that the Illinois murder statute violates the due process clause by exonerating the State of its constitutional burden of proving all elements of first degree murder by requiring a defendant to prove a mitigating mental state. The United States Supreme Court held that the State cannot shift to the defendant the burden of proving an element of the crime charged. (Mullaney v. Wilbur (1975), 421 U.S. 684, 702, 44 L. Ed. 2d 508, 521, 95 S. Ct. 1881, 1891.) Mullaney involved Maine statutes which recognized two forms of homicide, namely, murder and manslaughter. Each of the crimes shared two common elements; each crime had to be unlawful and each had to be intentional. If the State proved each of those elements beyond a reasonable doubt, then the jury could compare the differences between the two crimes. Malice aforethought was an essential element of murder to be conclusively implied unless the defendant proved by a preponderance of the evidence that he acted in the heat of passion on sudden provocation. If the defendant made an adequate showing of heat of passion on sudden provocation, the jury could only convict defendant of manslaughter. Thus, the Court held that the statute affirmatively shifted the burden of proof to the defendant and required him to prove the critical fact in dispute. Mullaney, 421 U.S. at 701, 44 L. Ed. 2d at 520, 95 S. Ct. at 1890.

The United States Supreme Court did, however, uphold a New York statute which required a defendant charged with second degree murder to prove by a preponderance of the evidence an affirmative defense of emotional disturbance in order to reduce the crime to manslaughter. (Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319.) The mitigating factors which reduce the crime from murder to what was previously called manslaughter are not elements of the offense, but rather affirmative defenses a defendant can raise if he chooses but which have no bearing on the ultimate burden of proof. People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141.

When a defendant is charged with first degree murder and seeks to present evidence to reduce his conviction, the Illinois statute functions as an affirmative defense against the first degree murder elements. A defendant can request that the jury be given the option of finding him guilty of second degree murder instead of first degree murder. Under such circumstances, the jury must be instructed that it cannot consider whether the defendant met his burden of proving mitigating factors by a preponderance of the evidence, unless the jury first determines that the State has proven each element of first degree murder beyond a reasonable doubt. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2.) It is within the State’s constitutional power to place the burden of proving affirmative defenses on a defendant. (People v. Smith (1978), 71 Ill. 2d 95, 374 N.E.2d 472.) Therefore, the Illinois murder statute in question does not violate defendant’s due process rights and, therefore, is not unconstitutional.

EQUAL PROTECTION

Defendant asserts that the new Illinois murder statute violates the equal protection clause of the United States and Illinois Constitutions by unjustifiably shifting the burden of proof to defendants who are charged with first degree murder when those accused of other crimes do not experience such a shift. Invidious discrimination against a class of individuals is prohibited by the equal protection clauses. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.

A person or class of persons is denied equal protection by a State statute when the statute arbitrarily discriminates against that person or class of persons by withholding some benefit or privilege which the State gives to all others. (In re Powell (1988), 126 Ill. 2d 15, 533 N.E.2d 831; Bilyk v. Chicago Transit Authority (1988), 125 Ill. 2d 230, 531 N.E.2d 1.) When being subjected to the traditional equal protection tests, statutes carry a presumption of rationality, and it is the defendant’s burden to demonstrate the impermissible nature of the classification created. (People v. Kaeding (1983), 98 Ill. 2d 237, 456 N.E.2d 11.) This case does not involve a statute directed at a suspect class nor does the statute in question threaten a fundamental constitutional right. (People v. Clark (1991), 207 Ill. App. 3d 439, 448, 565 N.E.2d 1373, 1378.) The State has a compelling interest in the fair, reliable and efficient regulation of criminal activity. Clark, 207 Ill. App. 3d at 447, 565 N.E.2d at 1378.

There is no presumption of guilt in the first degree murder statute which must be rebutted by defendant. (Clark, 207 Ill. App. 3d at 448, 565 N.E.2d at 1379.) The State must prove all the elements of first degree murder. After the State has accomplished this, a defendant has the opportunity to prove mitigating circumstances by a preponderance of the evidence. Defendant mistakenly asserts that a defendant can only be found guilty of second degree murder if he both alleges and proves it himself. This is not so; the State can charge a defendant with second degree murder. (People v. Burks (1989), 189 Ill. App. 3d 782, 545 N.E.2d 782.) Defendant has failed to show that Illinois’ new murder statute violates equal protection and, therefore, is not unconstitutional on this basis.

SEPARATION OF POWERS

Defendant argues that the Illinois murder statute prohibits the State from charging defendants with second degree murder, thus removing the State’s discretion in charging defendants under the statutes, and therefore, violating the separation of powers clause. In Burks, the court held that Illinois prosecutors have the right to charge defendant -with the crime of second degree murder. (Burks, 189 Ill. App. 3d at 785, 545 N.E.2d at 784.) By charging a defendant with second degree murder, the State is alleging that it can prove the elements of first degree murder, but is conceding the presence of mitigating circumstances, (Burks, 189 Ill. App. 3d at 785, 545 N.E.2d at 784; Clark, 207 Ill. App. 3d 439, 565 N.E.2d 1379.) We find that the Illinois first degree murder statute does not violate the separation of powers clause and is not unconstitutional.

Defendant contends that the trial court improperly admitted photographs of decedent’s body. Photographs, even gruesome ones, are properly admitted where they are relevant to establish any fact at issue, even when defendant does not refute the victim’s identity or his cause of death. People v. Williams (1985), 137 Ill. App. 3d 736, 484 N.E.2d 1191.

In Williams, photographs were held to be properly admitted where they corroborated testimony as to the cause of death, number and location of wounds and the manner in which they were inflicted. (Williams, 137 Ill. App. 3d at 745, 484 N.E.2d at 1198.) In the case at bar, the photographs illustrated the cause of death, number of bullet wounds, location of those wounds and that they were inflicted at a close range. This evidence is essential to prove that defendant’s actions were intentional and not simply self-defense or committed during mutual combat.

Defendant relies on People v. Garlick (1977), 46 Ill. App. 3d 216, 360 N.E.2d 1121, to assert that the trial court improperly admitted the disputed photographs. In Garlick, the defendant admitted to killing the victim and was asserting an insanity defense. Thus, the only purpose served by publishing the photographs to the jury in the Garlick case was to inflame and prejudice the jury. Here, defendant claimed he shot decedent in self-defense. The photographs served the purpose of illustrating that defendant’s gun was pressed against decedent’s head when he pulled the trigger, thus negating the probability that defendant shot decedent in self-defense. Therefore, we hold that the trial court did not err in allowing the disputed photographs to be admitted into evidence.

Defendant raises two claims of prosecutorial misconduct in closing arguments and accuses the trial judge of unfair bias against him. A prosecutor is granted wide latitude in making closing arguments, and the trial court’s determination as to the prejudicial effect will generally be followed absent a clear abuse of discretion. (People v. Bracy (1986), 152 Ill. App. 3d 566, 575-76, 504 N.E.2d 764, 770.) Arguments based on facts or reasonable inferences drawn from the facts are proper even when they reflect unfavorably on the accused. Bracy, 152 Ill. App. 3d at 576, 504 N.E.2d at 770-71.

Defendant first contends that the State conveyed the idea that defendant was lying when he pled not guilty. The record discloses that the State’s comments were part of a lengthy dissertation of the evidence upon which the State based his assertion that defendant was lying. A prosecutor may state his opinion that a defendant is lying if it is based on the evidence. (People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.) The State reviewed for the jury evidence that defendant claimed he intended to burglarize a room to obtain money for drugs but was now claiming that he was not committing a forcible entry. Additionally, there was evidence that defendant did break into the motel room. The State then illustrated how unbelievable defendant’s position was by commenting, “[n]ow keep in mind right now [defendant] is saying, I am the victim here *** I’m the guy who was attacked by some mad man.”

The State also argued that defendant had lied by obstructing justice in hiding evidence, namely the murder weapon, and by pleading not guilty by virtue of his self-defense theory. The State, thus, was not stating an opinion unsupported by evidence. Additionally, the trial court stated, “Every defendant’s [sic] entitled to a fair trial, counsel. Come on.” Furthermore, the trial court instructed the jury that closing arguments are not evidence and that any argument or statement made by an attorney which is not based on the evidence should be disregarded. (Illinois Pattern Jury Instructions, Criminal, No. 1.03 (2d ed. 1981).) This type of instruction can cure potential prejudice where improper statements have been made. (Bracy, 152 Ill. App. 3d at 576, 504 N.E.2d at 771.) The evidence in the case at bar is so overwhelming that the verdict would not have been different had the State not made the disputed comments; therefore, the State’s arguments did not deny defendant of his constitutional right to a fair trial. Bracy, 152 Ill. App. 3d at 577, 504 N.E.2d at 771.

Defendant also argues that the State’s comments on defense counsel’s cross-examination of Williams were prejudicial. The following are the State’s comments in pertinent part:

“And Angela Williams, do you think it was easy for her to come in this court and get on that witness stand and tell you all about her relationship with [decedent] and tell you what they were doing there that night and why they went there and what she had to experience? You think it was easy for her to get up there and withstand [defense counsel’s] cross-examination, [defense counsel’s] little insinuations, [defense counsel’s] cheap shots that she was doing something?”

Defendant objected to the above comment. The trial court responded that it was “fair comment.” Remarks which suggest that defense counsel is trying to divert the jury’s attention from the facts or fabricate a defense theory are unfair and prejudicial unless based upon the evidence. People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41; People v. Thomas (1983), 116 Ill. App. 3d 216, 452 N.E.2d 77.

The above remarks were based on the evidence. When defense counsel cross-examined Williams, he questioned her in a manner which would remind the jury that she and decedent had gone to the motel to consummate their relationship. For example, defense counsel asked, “Did [decedent] put on his shorts and his pants?” and “Do you know where [decedent] lives?” and “[D]id you ever go to [decedent’s] apartment or home?” These questions had little if any relevance. These questions appear to have been designed to remind the jury of the nature of decedent’s and Williams’ rendezvous at the motel.

In defense counsel’s closing argument, the following argument and objections took place:

“DEFENSE ATTORNEY: Here’s a woman who has known the victim for three years. And [the State] asked her yes, we’re at 58th and King Drive — I’m sorry 58th and Lake Shore Drive. Our relationship is close and we want to get closer. So we’re discussing about getting intimate on Wednesday. So they decided to become intimate on the following Monday. He picks her up at 8:30. He’s registered at the hotel under a different name shortly after nine. And they’re in room 114. Got something to hide, he suggests.
ASSISTANT STATE’S ATTORNEY: Objection, Judge.
DEFENSE ATTORNEY: They chose this elegant surroundings of the Roberts Motel to get intimate. And what is her reaction at midnight and she sees this figure outside? Here after all they’re only there so that the relationship can get closer. That’s all they’re there for, if you’re to believe her story.
ASSISTANT STATE’S ATTORNEY: Objection, Judge. She and the victim are not on trial.
THE COURT: [The State] will have the opportunity to respond. Come on.”

A defendant cannot ordinarily claim error where the State’s remarks are made in reply to or may be said to have been invited by defense counsel’s argument. (People v. Dixon (1982), 91 Ill. 2d 346, 350-51, 438 N.E.2d 180, 183; People v. Vriner (1978), 74 Ill. 2d 329, 344, 385 N.E.2d 671.) Defendant also failed to show how any of these comments adversely affected his trial or that the outcome would have been different had the State not made the disputed comments. We find that not only were the State’s comments based on evidence that the defense counsel did, in fact, cross-examine Williams in a manner only to remind the jury of the nature of her relationship with defendant, but that the State’s comments, in the context in which they were made, were proper rebuttal invited by defense counsel’s argument.

Defendant claims that the trial judge was hostile to him and his counsel. Defendant, however, failed to cite any authority to support his claim. The Illinois Supreme Court has held that “every reasonable presumption must be indulged in that the trial judge has performed his duty and properly exercised the discretion vested in him.” (People v. Smothers (1973), 55 Ill. 2d 172, 176, 302 N.E.2d 324, 327.) The trial court is in a better position than a reviewing court to determine the prejudicial effect of evidence or argument. (Smothers, 55 Ill. 2d at 176, 302 N.E.2d at 327.) The trial court’s decision, therefore, will be upheld absent an abuse of discretion. (Smothers, 55 Ill. 2d at 176, 302 N.E.2d at 327.) Defendant raises the same issues which have been discussed above as evidence that the trial judge was hostile to him and defense counsel. We hold that the trial judge ruled properly on those issues, that defendant failed to show any acts of misconduct by the trial judge and that defendant was not denied a fair trial.

For the foregoing reasons, the trial court’s decisions and defendant’s conviction are affirmed.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


text:
    BOARD OF TRUSTEES OF THE NILES POLICE PENSION FUND, Plaintiff-Appellee, v. THE DEPARTMENT OF INSURANCE et al., Defendants-Appellants.
    First District (1st Division)
    No. 1-90-1418
    Opinion filed August 19, 1991.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Richard J. Troy, of Chicago, for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This action on administrative review arises from an order of the circuit court of Cook County reversing a final administrative determination of the Director of the Illinois Department of Insurance (Director) which found a nine-member Board of Trustees of the Niles Police Pension Fund (Pension Board) to be constituted in violation of section 3 — 128 of the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. lOSVa, par. 3 — 128). The Director ordered the Pension Board to reduce its number of members to five in compliance with section 3 — 128 of the Pension Code. The Pension Board filed a timely complaint for administrative review. The trial court reversed the Director’s order.

In December 1974, the Pension Board passed a resolution recommending that the Board of Trustees of the village of Niles (Village Trustees) increase the composition of the Pension Board from five to nine members. On January 28, 1975, the village acceded to the Pension Board’s request and enacted ordinance No. 1975 — 2. That ordinance amended section 25 — 41 of the Village of Niles Code of Ordinances to provide for a nine-member Pension Board, with five members appointed by the mayor and four members elected by the active members of the police department.

Article 3 of the Illinois Pension Code governs police pension funds in municipalities with populations of 5,000 or more but less than 500,000. (Ill. Rev. Stat. 1985, ch. IO8V2, pars. 3 — 101, 3 — 103.) Section 3 — 128 provides in pertinent part that

“[a] board of 5 members shall constitute a board of trustees to administer the pension fund * * *.
Two members of the board shall be appointed by the mayor or president of the board of trustees of the municipality involved. The 3rd and 4th members of the board shall be elected from the active participants of the pension fund by such active participants. The 5th member shall be elected by and from the beneficiaries.” Ill. Rev. Stat. 1985, ch. 1081/2, par. 3 — 128.

In June 1975, the General Assembly passed a bill which added section 3 — 150 to the Pension Code. Currently, section 3 — 150 provides:

“A home rule unit, as defined in Article VII of the 1970 Illinois Constitution or any amendment thereto, shall have no power to change, alter, or amend in any way the provisions of this Article. A home rule unit which is a municipality, as defined in Section 3 — 103, shall not provide for, singly or as part of any plan or program, by any means whatsoever, any type of retirement or annuity benefit to a police officer other than through establishment of a fund as provided in this Article.” Ill. Rev. Stat. 1985, ch. IO8V2, par. 3 — 150.

In April 1988, the Public Employee Pension Fund Division (Division) of the Department of Insurance concluded an audit of the Pension Board covering a six-year period that ended on April 30, 1987. The Division is responsible for ascertaining whether the full effect is being given to the statutory provisions governing the operation of such funds or systems. (50 Ill. Adm. Code §6301.30(a) (1985).) The auditor found nine violations, including the fact that the Pension Board had nine members in contravention of section 3 — 128 of the Pension Code. On September 9, 1988, the Division forwarded the auditor’s report to the secretary of the Pension Board along with a letter directing the Pension Board to respond to each item in the report and to state how the Pension Board would remedy the violations.

On October 6, 1988, the treasurer of the Pension Board responded to the report. The treasurer informed the Division that the Pension Board had taken steps to comply with all of the violations except that concerning its composition. The treasurer responded that “[although the current Board of Trustees is not constituted in accordance with Section 3 — 128 of the code, the Board is comprised of an effective and diverse group of individuals who have conducted the affairs of the Police Pension Fund in an equitable, efficient and competent manner.”

On December 5, 1988, the Director issued a compliance order to the Pension Board, directing it to take immediate steps to comply with section 3 — 128 of the Pension Code within 15 days to avoid a hearing. The Pension Board’s attorney responded on January 20, 1989, that the Pension Board did not have to comply with section 3— 128 because the village ordinance providing for a nine-member board was enacted prior to the home rule preemption provision contained in section 3 — 150, thus contending that the nine-member board was “grandfathered in.” On June 1, 1989, the Director issued a notice of hearing and appointed a hearing officer to the case. The attorney for the Department of Insurance submitted a prehearing memorandum of law on June 21, 1989. The hearing was held on June 22, 1989.

Jerry Sheehan, a Village of Niles police officer and secretary of the Pension Board, testified that he was aware that the Pension Board had passed a resolution requesting a nine-member Board and that such number did not comport with State law. Sheehan testified that one of the duties of a trustee is to follow State statutes. Sheehan never discussed the conflict between the village ordinance and State law with the members of the Pension Board and, further, never sought a Pension Board resolution requesting the village to amend its ordinance to conform to State law. Sheehan assumed the State had given tacit approval to the Board. Sheehan did not have any conversations with employees of the Department of Insurance or with the Director.

Dwight 0. Anderson, the Deputy Director for the Department of Insurance, testified that he first learned of the Pension Board’s failure to comply with section 3 — 128 during a 1977 audit of the Pension Board. Anderson testified that the Director never informed the Pension Board that it could operate with nine members. Anderson testified that he had discussed the composition of the Pension Board with the Village Trustees. Anderson testified that the Village Trustees had acknowledged that the Pension Board did not comply with section 3— 128, but gave no indication of an intent to bring the Pension Board into compliance. Anderson also testified that he perceived no benefit to a nine-member board as opposed to a five-member board.

At the close of the evidence, the Pension Board submitted a brief in support of a finding in its favor. The Pension Board argued that it lacked the authority to reconstitute the Pension Board and that, in any event, it did not have to comply with section 3 — 128.

On August 31, 1989, the hearing officer issued his findings of fact, conclusions of law and recommendations. The hearing officer took official notice of the fact that the Village of Niles is a municipality as defined in section 3 — 103 of the Pension Code. The hearing officer concluded that the Pension Board is subject to the requirements of Article 3 of that code. He further concluded that section 3 — 150 of the Pension Code preempts the village ordinance and that the Pension Board must be reduced from nine to five members in compliance with section 3 — 128. The hearing officer recommended that a compliance order be directed to the Pension Board and that a fine be assessed for failure to comply, and he entered costs against the Pension Board.

On September 14, 1989, the Director issued an order adopting the findings, conclusions and recommendations of the hearing officer. The Director ordered the Pension Board to reduce its number to five as required by section 3 — 128 within 35 days. Additionally, the Director entered a monetary penalty against the Pension Board and ordered it to pay costs.

On October 20, 1989, the Pension Board filed a timely complaint for administrative review. At the close of arguments on April 18, 1990, the court reversed the Director’s determination. The court found that the Director had improperly proceeded against the Pension Board rather than against the officials of the village. The court stated that its reversal was “without prejudice to the filing of a mandamus action against the Village Board which is the proper party, not the Trustees of the Fund.” On May 15, 1990, the Illinois Department of Insurance and its Director timely filed this appeal.

The Pension Board asserts that it is not required to have a five-member board as set forth in section 3 — 128. The Pension Board maintains that because the village adopted ordinance No. 1975 — 2, which provides for a nine-member board, prior to the effective date of section 3 — 150 of the Pension Code, which denies home rule units with populations of 5,000 or more but less than 500,000 the authority to depart in any way from the requirements of Article 3 of the Pension Code, the village ordinance was “grandfathered in.”

Under Article VII, section 6(a), of the Illinois Constitution of 1970, a home rule unit of government “may exercise any power and perform any function pertaining to its government and affairs.” (Ill. Const. 1970, art. VII, §6(a).) “Home rule units may exercise and perform concurrently with the State any power or fimction of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive.” Ill. Const. 1970, art. VII, §6(i).

In June 1975, the General Assembly passed House Bill 674, which added section 3 — 150 to the Pension Code, which limits the powers of home rule units of local government as they pertain to the police pension fund. (Pub. Act 79 — 988, §1, eff. Sept. 17, 1975.) This provision expressly denies home rule units with populations of 5,000 or more but less than 500,000 the authority to establish or maintain pension funds that do not conform to the requirements of Article 3 of the Pension Code. (Ill. Rev. Stat. 1989, ch. IO8V2, par. 3 — 150.) Since the Speaker of the House and the Parliamentarian determined that the bill was a denial of power to all home rule units, not just home rule units that are “municipalities” as defined in Article 3 of the Pension Code, it required a supermajority for passage. (79th Ill. Gen. Assem., House Proceedings, June 18, 1975, at 17, 18; June 25, 1975, at 21 (comments of Speaker Redmond).) Both houses adopted the measure by a three-fifths majority. (Journal of the House of Representatives of the 79th General Assembly of the State of Illinois, June 25, 1975, at 6339-40 (H.B. 674) (112 yeas, 28 nays, 6 present/ 177 members); Journal of the Senate of the 79th General Assembly of the State of Illinois, June 16, 1975, at 2586-87 (H.B. 674) (54 yeas, 0 nays, 2 present/ 59 members).) Senator Shapiro specifically cited the nine-member composition of the Board of Trustees of the Niles Police Pension Fund as an example of the need for section 3 — 150.

Relying on Board of Trustees of the Village of Rosemont v. Mathias (1982), 109 Ill. App. 3d 894, 441 N.E.2d 362, the Pension Board contends that requiring it to comply with section 3 — 128 improperly gives section 3 — 150 retroactive effect. In Mathias, the Director of the Department of Insurance did not contend that the General Assembly preempted the Pension Board’s home rule powers before October 1, 1975, or that section 4 — 142 should be retroactively applied. (Mathias, 109 Ill. App. 3d at 897, 441 N.E.2d at 364.) Ultimately, the Mathias court remanded the cause to the trial court so that it could address whether Rosemont had a fire department or any firefighters within the meaning of the statutory definitions. (Mathias, 109 Ill. App. 3d at 900, 441 N.E.2d at 367.) Therefore, Mathias is not helpful in deciding this case.

The Pension Board also relies on Sanders v. City of Springfield (1985), 130 Ill. App. 3d 490, 474 N.E.2d 438, for the contention that the number five for the pension board membership has “no particular magic.” The disputed ordinance in Sanders did not affect any provision of the Pension Code because the Code is silent as to whether participation is mandatory or voluntary. (Sanders, 130 Ill. App. 3d at 494, 474 N.E.2d at 441.) In Sanders, the disputed ordinance merely conditioned employment as a Springfield police officer on membership and participation in the pension fund and, therefore, did not affect the administration of the fund, but rather, affected the hiring and discharging provisions of the Civil Service Act. (Sanders, 130 Ill. App. 3d at 494-95, 474 N.E.2d at 441.) Contrarily, having a nine-member board and a different procedure for appointing and electing the Pension Board does affect the administration of the Pension Board.

In Prudential Insurance Co. of America v. City of Chicago (1977), 66 Ill. 2d 437, 362 N.E.2d 1021, the court held that an October 1974 statute which prohibited home rule units from assessing fees and taxes against insurance companies preempted a previously enacted home rule ordinance of the City of Chicago, which imposed an employer’s expense tax on every employer of 15 or more full-time employees. (Prudential Insurance Co., 66 Ill. 2d at 441, 362 N.E.2d at 1022.) The Pension Board contends that Prudential Insurance Co. is distinguishable because there was a blanket prohibition of municipal action except as it pertained to “any type of retirement or annuity benefit.” Likewise, in the case at bar, the General Assembly limited any home rule unit from providing for any type of retirement or annuity benefit to a police officer other than through establishment of a fund as provided in Article 3. (Ill. Rev. Stat. 1989, ch. IO8V2, par. 3— 150.) Thus, Prudential Insurance Co. is analogous to the case at bar.

It is undisputed that the Village of Niles is a “municipality” within the meaning of the section 3 — 103 of the Pension Code and that it has “police officers” within the meaning of section 3 — 106. Since pension benefits may not be provided “other than through establishment of a fund as provided in *** Article [3],” we find that the Director correctly determined that the Pension Board is required to be constituted in conformity with section 3 — 128 of the Pension Code.

The Pension Board was created by the corporate authorities of the Village of Niles pursuant to the then applicable State law. It is clear that the Pension Board has no authority, either by statute or by ordinance, to change its own composition. The powers of the Pension Board are set forth in the Pension Code (Ill. Rev. Stat. 1987, ch. IO8V2, par. 3 — 131 et seq.). Within that statute there is no grant of authority to the Board to reconstitute itself nor is there authority to reject the nominees of the Village Trustees. It is well-settled law in Illinois that units of government have only those powers necessarily implied from the express grant of power. (Marquette Properties, Inc. v. City of Wood Dale (1987), 159 Ill. App. 3d 307, 512 N.E.2d 371; Appeal Board of the Department of Environmental Control v. United States Steel Corp. (1971), 48 Ill. 2d 575, 272 N.E.2d 46.) Thus, the Pension Board has no authority to reconstitute itself or to determine which two of the Village Trustees’ nominees it should accept and which others to reject.

This action began as an administrative review action. We are limited to reviewing the record before the administrative agency. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110.) The Administrative Procedure Act defines a party as “each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party.” (Ill. Rev. Stat. 1989, ch. 127, par. 1003.06.) At no time were the Village Trustees made a party to the proceedings at the administrative level. Further, the Illinois Department of Insurance never argued that the order of its Director was binding on the Village Trustees. If the Department had made such an argument, the Village Trustees would have had the right to intervene in the proceedings. (Caterpillar Tractor Co. v. Lenckos (1979), 77 Ill. App. 3d 90, 395 N.E.2d 1167.) The order of the Director is not addressed to the Village Trustees, but only to the Pension Board. The order directs the Pension Board to do something it is not authorized to do, namely, reconstitute itself. Additionally, the fine cited by the Director for noncompliance with the statute was imposed against the Pension Fund, not the Village of Niles corporate fund. We hold that the Pension Board was not the proper party from which to seek relief in this case.

Therefore, the decision of the circuit court of Cook County to reverse the Director’s order is affirmed.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.