author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODOLFO CARREON, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 89—2390
    Opinion filed January 27, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Frank Madea, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Terence Johnson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant Rodolfo Carreon was found guilty of two counts of murder and armed robbery. Defendant was sentenced to natural life imprisonment. Defendant now appeals both his conviction and sentence. For the reasons which follow, we affirm.

Defendant had previously been tried and convicted of these charges, but the conviction was reversed and remanded for a new trial on appeal to this court. (People v. Carreon (1987), 162 Ill. App. 3d 990, 516 N.E.2d 372.) The record of this second trial indicates the following facts. At the outset of jury selection, the trial court informed all 53 members of the venire of “certain broad fundamental principles of law applicable in all criminal cases.” The jurors were informed that: the defendant is presumed innocent until proven guilty beyond a reasonable doubt; the burden of proving defendant guilty is on the State and defendant need not prove his innocence; and jurors would be duty bound to follow further instructions on the law that they would receive after hearing all of the evidence. The venire was then sworn to tell the truth during voir dire.

During defense counsel’s examination of one of the prospective jurors, the following colloquy ensued:

“Q. [by defense counsel Ptacek:] As the judge told you, the defendant does not have to testify. He does not have to do anything.
Would you hold that against him if he does not testify?
A. [by venireperson Johnson:] I am not for sure.
Q. Do you think you would?
MR. LACY [for the State]: Judge, I am going to object.
THE COURT: The objection will be sustained.
I do not recall that I mentioned or went into that aspect. I think that presumes that jurors have actively participated in criminal trials before.
I will instruct the jury on this issue at the end of the case. I think it is unfair to ask a detailed legal question of jurors. The question is stricken.
MR. PTACEK: I would ask for a sidebar.
THE COURT: Ask another question please.”

Venireperson Johnson was then asked whether she had any problems presuming defendant innocent and whether she would hold the fact that defendant was charged with a crime against him. Venireperson Johnson answered in the negative to both questions.

Following voir dire and prior to opening arguments, defendant moved for a mistrial. Defendant argued that the trial court erred in preventing him from asking the question at issue in the colloquy quoted above, adding that the trial court did not attempt to discover during its opening remarks whether any of the venirepersons would hold a defendant’s failure to testify against him. The trial court responded that the State’s objection had been sustained as to form, not as to substance. The trial court stated that defense counsel had asked a compound question, which the court believed was confusing to the venireperson. The trial court noted its surprise that defense counsel had moved to another line of questioning when the objection was sustained. The trial court also stated that the defense request for a sidebar had been denied in order that the trial not be delayed. The motion for mistrial was denied.

Following opening statements, the parties stipulated that if Maria Llamas were called to testify, she would state that she had seen Jose Casillas and Emilio Sanchez on November 26, 1983, and that they appeared in good health. Llamas would also have testified that she had later learned they were both dead.

Ignacio Amaya, who testified through an interpreter, was the State’s first witness. Amaya testified that he resided in Durango, Mexico, but resided at 2121 N. Milwaukee Avenue in Chicago, Illinois, on November 26, 1983. At 7 o’clock that evening, Amaya was getting a haircut in defendant’s barber shop. Afterwards, defendant invited Amaya to a tavern called Saloon de Mexico. The two men went across the street to the tavern. Once inside, defendant ordered a beer for himself and Amaya, then played pool. Later, a man asked defendant to play cards with him. After receiving permission from the owner of the tavern, defendant and this other man began to play cards in a room next to the bar. An hour and a half later, defendant left the tavern, but then returned to the card room for about half an hour. Defendant then came over to Amaya, who was seated at the bar and could see into the card room, and told Amaya to wait outside by the tavern door. Amaya saw defendant walk out of the tavern with the man who had invited defendant to play cards, as well as a second man. The two men went to get into a car; defendant told Amaya that he was going to ask for a ride. Defendant went to the car, then shouted for Amaya to join them.

Amaya sat behind the driver, while defendant sat behind the front passenger. The men drove north on Milwaukee Avenue to a traffic light and turned left. Two blocks later, the car again turned left, then stopped. The driver asked defendant if he lived at this location; defendant said he lived somewhere else.

Five seconds later, Amaya heard a gunshot right by his right ear. Amaya turned to see defendant holding a gun with both hands. Amaya saw the front passenger turn around as the driver fell over to his left. Amaya then heard another shot, and turned to see defendant still holding the gun. The front passenger also slumped over to his left. At this point, the car was moving and struck a parked station wagon. Amaya then reached forward to shut off the ignition.

Both Amaya and defendant left the vehicle through the driver’s door. Amaya stood 10 to 15 feet from the car and saw defendant go through the driver’s pants pockets. Amaya and defendant returned to defendant’s barber shop, where defendant pulled out the gun and set it on the floor by the toilet tank. Defendant then attempted to wash some money which was full of blood. Defendant gave Amaya between $80 and $180 of the washed money and told him to leave. Amaya went to his apartment, which was located across the street from the shop and adjacent to the Saloon de Mexico. Defendant lived in the same building, with Amaya’s niece. Amaya stated that at the time, defendant had a mustache and beard.

On cross-examination, Amaya stated that he might be over five feet seven inches tall. He also stated that on November 26, 1983, he wore a mustache and curly hair, as he did that moment. He further stated that he was 37 or 38 years old while testifying. Amaya testified that although there was blood spattered inside of the car, no blood had gotten on his clothes. He did not call the police because he did not speak English.

Amaya stated that he was arrested, handcuffed and taken to a police station at 2 a.m. on November 28, 1983. Amaya admitted that he initially told the police that defendant was not involved in the shooting because he was afraid. Amaya later told the police that defendant had killed Casillas and Sanchez. On redirect, Amaya stated that he gave the money he received from defendant to the police.

The State then called Isidro Bravo, who on November 26, 1983, was the owner and bartender of the Saloon de Mexico. Bravo testified that on the evening at issue, he saw defendant playing cards with Porfidio Llamas in a small office in the back of the tavern. Later in the evening, defendant asked Bravo for money so that defendant could continue playing cards. Bravo told defendant he did not have any money. Defendant momentarily left the tavern; upon his return, he asked Bravo where Porfidio was because he had obtained more money. Bravo showed defendant where Porfidio was, but also told defendant he was closing the bar. Bravo did not know Porfidio Llamas by the name Jose Casillas.

Geoffrey Drigueros was the next witness for the State. Drigueros testified that on November 27, 1983, he lived at the corner of Armitage and Hoyne in Chicago, Illinois. He lived on the second floor of a two-flat with his family. In the early morning hours of November 27,

1983, Drigueros was awakened by a crash coming from outside his house. He first went into his washroom, then to the window. Drigueros saw “a station wagon and also another car almost on top of the station wagon.” He ran down to the front door and went outside, where he saw a man leaning inside the second car.

Drigueros approached the man, switching from English to Spanish to talk to the man. Drigueros was about an inch away from the man. The man did not speak to Drigueros, who then noticed that a man inside the car seemed to be bleeding from the face. Drigueros told the man outside the car he was going to call an ambulance or the police. Drigueros had been looking at this man for several minutes as these events took place. He identified the man outside the car in court as defendant. Drigueros spoke to the police, who transferred him to speak with an ambulance. He also spoke with police when they arrived at the scene minutes later. Drigueros testified that he had told the police that the man outside the car was a white Hispanic male, between 24 and 30 years old and between five feet five inches and five feet seven inches in height. In court, Drigueros estimated that defendant was about five feet tall.

On November 28, 1983, Drigueros identified defendant in a lineup. He testified that in the lineup, defendant looked different because defendant had a mustache and beard and was wearing a different shirt at the time he first saw defendant. At one point, Drigueros had the persons in the lineup stand with their backs to him to aid him in the identification.

Officer Mclnerney, who had been a Chicago police officer for the past 13 years, testified next. On November 27, 1983, during his patrol, he was assigned by radio at sometime between 2:30 and 3 a.m. to investigate an accident near the intersection of Armitage and Point. Upon arriving, Officer Mclnerney saw a two-door blue Chevrolet smashed against a station wagon. He also saw two bodies.

The first body was on the curb of the street near the driver’s side of the Chevrolet. The body was facedown and appeared to be an Hispanic with black, wavy hair, wearing a black leather jacket and beige pants. There was blood all around the head and pants. The right pants pocket was pulled out. Officer Mclnerney later learned that this was Jose Casillas.

The second body was on its left side in the passenger seat of the Chevrolet and appeared traumatized. The front seat of the car was saturated with blood, but there was no blood in the back seat. Officer Mclnerney learned that this was Emilio Sanchez.

Detective Robert Smitka, who had worked for the Chicago police department for 25 years, testified that on November 27, 1983, he and his partner, Detective Paulnitsky, were investigating the double homicide of Jose Casillas and Emilio Sanchez. The detectives spoke with Bravo and Mr. Diaz, who were co-owners of the Saloon de Mexico. After this conversation, Mr. Diaz accompanied the detectives across the street to apartment 305. The detectives knocked on the door, which was answered by defendant. Detective Smitka noticed that defendant was clean-shaven, with redness under the nose and around the chin. When asked whether he ever had a beard and mustache, defendant stated that he did until about six hours previous to their arrival, but had just felt like taking it off.

Detective Smitka then testified that defendant told the detectives that he had been at the Saloon de Mexico the night before with Amaya. Defendant told them that he had lost several hundred dollars gambling that evening. Defendant also stated that Amaya lived next door in apartment 303. The detectives advised defendant of his constitutional rights and called for a backup unit.

In response to this call, Detectives Sanford and Baker arrived on the scene. According to Detective Smitka, Amaya was located in apartment 303. Amaya was read his constitutional rights and stated that he would have no problem accompanying the police to the station. Detectives Sanford and Baker left with Amaya for Area 5 headquarters.

Detectives Smitka and Paulnitsky entered defendant’s apartment. Detective Paulnitsky saw a live .38 caliber cartridge resting on a dresser. The bullet had a hollow point, which, according to Detective Smitka, was unusual. With defendant’s permission, the police made a cursory search of defendant’s apartment. Detective Paulnitsky recovered the .38 caliber bullet. The detectives also made a cursory search of defendant’s barber shop, with defendant’s permission. Detective Paulnitsky found a revolver holster in a drawer next to the barber’s chair. Defendant then went with the detectives to Area 5 headquarters.

Detective Robert Collins, who had worked for the Chicago police department for 19 years, was working at Area 5 headquarters on November 28, 1983. At about 4 a.m. that day, Detective Collins and his partner, Detective Grant, questioned Amaya about the double homicide in question. According to Detective Collins, Amaya did not implicate defendant at that time.

About an hour later, these detectives spoke with defendant in a separate room at Area 5 headquarters. Defendant was again notified of his constitutional rights both orally and with a preprinted form. Defendant agreed to speak with the detectives at this time. This conversation took place in English, whereas Amaya had been informed of his rights in Spanish.

Defendant identified a photograph of Jose Casillas as someone with whom he had played cards and pool in the past. When asked about November 26, 1983, defendant told the detectives that he and Amaya had gone to the Saloon de Mexico for a beer and later to a bar called the Pancho Lopez. Defendant also told the detectives that he and Amaya returned to the Saloon de Mexico at about 10 p.m., at which time he played cards with Casillas in a back room while Amaya remained at the bar.

According to Detective Collins, defendant stated that he lost about $200 and two payroll checks payable to his wife, Isabel Roman. Defendant then went back to the barber shop for more money and returned to the tavern. Defendant stated that the bartender told him that it was too late to play cards, so he sat and had a beer with Amaya. He and Amaya then walked home; he told Amaya he was going to rip his pants and tell his wife that he had been robbed to explain the loss of her payroll checks.

Detective Collins further testified that defendant had stated that on the night at issue, he had been wearing a dark jacket, a blue shirt and dark pants and shoes. Defendant also told the detectives that Amaya was wearing the same clothes that Amaya wore that night because Amaya had a habit of not changing his clothes too often. Detective Collins testified that Amaya was wearing a blue jacket, a dark shirt, brownish pants and gym shoes during his questioning. Detective Collins observed no blood on Amaya’s clothes, which were not seized by the police. When asked, defendant told the detectives that he used to wear a mustache and goatee, but had shaved it off that Sunday afternoon because it began to itch. Defendant stated to the police that he only wore a beard for a week to 10 days at a time.

After questioning defendant for about an hour, Detectives Collins and Grant, along with another officer, went back to defendant’s apartment. The detectives spoke with Isabel Roman, who signed a consent to search form. When the detectives asked Roman if she could remember what defendant was wearing on the evening at issue, she produced a blue shirt and a white tee shirt. According to Detective Collins, the shirts were bloodstained. Upon returning to the station, Detective Collins asked defendant to lift his shirt. Defendant had no cuts or scratches corresponding to the bloodstained areas of the shirts.

Detective Edward Heally testified that on November 28, 1983, Amaya gave a second statement implicating defendant. At this time, Amaya was released from custody and Detective Heally contacted Drigueros about attending a lineup.

Donald Smith testified that on November 28, 1983, he was chief firearms examiner for the Chicago Police Department Crime Laboratory. On that day, Smith received fired bullet jackets removed from the victims’ bodies. An examination of these jackets led Smith to conclude that they were fired from the same gun. On December 19, 1983, Smith received a live .38 caliber cartridge. An examination of the bullet led Smith to conclude it was consistent with the jackets he had examined earlier.

Pamela Fish, who had worked for the Chicago Police Department Crime Laboratory for years, testified that on November 27 and 28, 1983, she received vials of blood identified as being taken from Casillas, Sanchez and defendant, as well as the blue shirt and white tee shirt retrieved from defendant’s apartment. After an examination of the above, Fish concluded that: the Casillas blood sample was type B; the Sanchez blood sample was type O; and defendant’s blood sample was also type O. The stains on both shirts were type B human blood. Fish testified that the bloodstains on both shirts were consistent with Casillas’ blood and could not have been defendant’s blood.

Finally, the State called Joanne Richmond, who worked for the medical examiner’s office of Cook County on November 27, 1983. She had recovered bullet fragments from the bodies of the victims and determined that both had died as a result of gunshot wounds to the head. Casillas’ wound was behind his right ear, and Sanchez’ wound was behind his left ear; both wounds had stippling that indicated firing at close range. The State rested.

Defendant offered a stipulation that if Officer James Banners were called, he would testify that he had interviewed Drigueros and wrote in his report that Drigueros saw a man leaning into the car, then heard two shots. Defendant rested.

After closing arguments, the jury found defendant guilty of two counts of murder and of armed robbery. The trial court sentenced defendant to natural life for each murder, with the sentence for armed robbery merged into the life sentence.

Defendant now appeals, contending that: (1) the trial court erred in precluding inquiry into the bias of venirepersons; (2) the State failed to prove him guilty of murder and armed robbery beyond a reasonable doubt; (3) the State denied him a fair trial by commenting on the victims’ families during its rebuttal closing argument; and (4) his sentence is unconstitutional.

Defendant’s first contention is that the trial court erred in precluding defense counsel from inquiring into the potential bias of venirepersons during voir dire. Generally, the scope and manner of voir dire rest within the discretion of the trial court. (See 134 Ill. 2d R. 234.) There are, however, exceptions to this general rule. For example, in People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062, our supreme court determined that a trial court committed reversible error in refusing to question venirepersons on their attitudes concerning: (1) returning a guilty verdict if the State did not sustain its burden of proof; (2) the presumption of innocence; (3) the fact that a defendant need not present any evidence; and (4) the fact that a defendant’s failure to testify cannot be held against him in arriving at a verdict. (Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064.) The Zehr court stated that “ ‘[e]ach of these questions goes to the heart of a particular bias or prejudice which would deprive defendant of his right to a fair and impartial jury.’ ” (Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064, quoting People v. Zehr (1982), 110 Ill. App. 3d 458, 461, 442 N.E.2d 581, 584.) While questions on these issues need not be asked exactly as submitted by a defendant, the subject matter of the questions must be covered during voir dire. Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064; see also People v. Emerson (1987), 122 Ill. 2d 411, 426-27, 522 N.E.2d 1109, 1114-15 (Zehr does not “prescribe a precise formula” and may be satisfied by general admonition coupled with subsequent discussion and questioning); People v. Brooks (1988), 173 Ill. App. 3d 153, 158, 527 N.E.2d 436, 439 (emphasizing that subject matter must be covered).

In this case, the trial court stated on the record that it did not inform the venire that a defendant’s refusal to testify cannot be held against him. The trial court’s characterization of its address to the venire is accurate on this point. Defense counsel’s contrary assertion during voir dire was inaccurate.

The State relies primarily on People v. Leamons (1984), 127 Ill. App. 3d 1056, 469 N.E.2d 1137, in support of affirmance. In Leamons, the trial court did not specifically inform the venire that a defendant’s refusal to testify could not be held against him. (See Leamons, 127 Ill. App. 3d at 1064-65, 469 N.E.2d at 1143-44.) Nevertheless, the appellate court held that the topic was adequately addressed where: (1) the entire venire had been told that defendant need not prove anything and was not required to present evidence, but might simply rely on the presumption of innocence; and (2) the venire panels were asked whether or not they disagreed with any of these general statements of law. Leamons, 127 Ill. App. 3d at 1065, 469 N.E.2d at 1144.

Leamons is distinguishable in at least two ways from this case. First, the record in this case indicates that while the trial court informed the venire that defendant was presumed innocent and need not prove his innocence, the venire was not instructed that defendant was not required to present evidence or that defendant could simply rely on the presumption of innocence. Second, in the Leamons line of cases, the venirepersons were given an opportunity to indicate that they had trouble with the general principles of law announced by the trial court. (Leamons, 127 Ill. App. 3d at 1065, 469 N.E.2d at 1144 (venire panels were asked on 12 occasions); see People v. Cole (1988), 168 Ill. App. 3d 172, 175, 522 N.E.2d 635, 637; People v. Williams (1987), 159 Ill. App. 3d 527, 531-32, 512 N.E.2d 35, 38.) In contrast, while the record indicates that venireperson Johnson was asked whether she could presume defendant to be innocent, the record does not indicate that all venirepersons were given this same opportunity. Nor does the record show that the panels were asked if they disagreed with the general principles of law announced by the trial court.

In a factual context somewhat similar to this appeal, this court discussed the aforementioned cases at length and concluded that the trial court had erred. (See People v. Starks (1988), 169 Ill. App. 3d 588, 595-99, 523 N.E.2d 983, 988-91 (and cases cited therein).) Accordingly, we conclude that the trial court erred in precluding questions regarding a venireperson’s attitude toward defendant’s fifth amendment privilege.

However, we also conclude that the Zehr error in this case may be harmless. The issue here is similar to that presented in Carter v. Kentucky (1981), 450 U.S. 288, 67 L. Ed. 2d 241, 101 S. Ct. 1112, where the Supreme Court held that the fifth amendment privilege against self-incrimination entitles a criminal defendant to a “no-adverse-inference” jury instruction if requested. The Court later declined to reach the issue of whether Carter error may be considered harmless (James v. Kentucky (1984), 466 U.S. 341, 351, 80 L. Ed. 2d 346, 355, 104 S. Ct. 1830, 1837; see also James v. Commonwealth (Ky. 1984), 679 S.W.2d 238 (holding Carter error harmless on remand)), but several Federal appellate courts have determined that Carter error may be harmless. E.g., Hunter v. Clark (7th Cir. 1991), 934 F.2d 856 (6 to 5 decision en banc); United States v. Ramirez (5th Cir. 1987), 810 F.2d 1338; Finney v. Rothgerber (6th Cir. 1985), 751 F.2d 858, cert. denied (1985), 471 U.S. 1020, 85 L. Ed. 2d 310,105 S. Ct. 2048.

As the Hunter decision notes, the Supreme Court has consistently held that a wide range of trial errors, including most constitutional errors, can be harmless. (Hunter, 934 F.2d at 860, citing Arizona v. Fulminante (1991), 499 U.S. 279, 113 L. Ed. 2d 302, 111 S. Ct. 1246; United States v. Hasting (1983), 461 U.S. 499, 508-09, 76 L. Ed. 2d 96, 106, 103 S. Ct. 1974, 1980-81.) Although the Zehr court did not state that defendant was constitutionally entitled to have the Zehr questions asked, the prophylactic rule announced in Zehr serves to protect the rights and privileges guaranteed by the fifth, sixth and fourteenth amendments.

Given this context, we now turn to consider whether the Zehr error in this appeal, assuming arguendo that it is of constitutional magnitude, is harmless. In doing so, we necessarily discuss defendant’s second contention on appeal, that he was not guilty beyond a reasonable doubt of the offenses for which he was convicted.

The standard for harmless constitutional error is whether the error was harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) Constitutional error arising under the fifth and sixth amendments may be considered harmless beyond a reasonable doubt where the evidence of defendant’s guilt is overwhelming. Milton v. Wainwright (1972), 407 U.S. 371, 33 L. Ed. 2d 1, 92 S. Ct. 2174.

In this case, Amaya testified that he was in the car with defendant when the victims were shot, heard the shots next to his right ear and saw defendant holding a gun. Amaya also testified that he saw defendant going through Casillas’ pockets and was later given bloody money by defendant. Drigueros testified that he saw defendant leaning over the driver of the blue Chevrolet after it had hit the station wagon. Drigueros stood about an inch away from defendant for several minutes at the car. He identified defendant in a lineup and again at trial.

Detective Smitka testified that the police recovered an unusual .38 caliber bullet from defendant’s apartment. Donald Smith testified that forensic examination indicated that this bullet was consistent with bullet fragments removed from the victims. Detective Collins testified that defendant’s wife gave him the shirts defendant wore on the night in question. Pamela Fish testified that an examination indicated that bloodstains on the shirt matched the blood of the victim whom Drigueros and Amaya saw defendant leaning over; the stains could not match defendant's blood type. Detective Collins testified that Amaya did not have blood on his clothes and that defendant had no scratches or cuts which would correspond to the stains on the shirt retrieved from defendant’s wife. Joanne Richmond testified that both of the gunshot wounds were near the back of each victim’s head and had stippling which indicated that they were shot at close range.

Defendant contends that the evidence is not overwhelming; indeed, defendant argues that it is insufficient to sustain his convictions. This court will disturb a criminal conviction only when the evidence is so improbable or unsatisfactory that it raises a reasonable doubt as to defendant’s guilt. (E.g., People v. Brandon (1990), 197 Ill. App. 3d 866, 874, 557 N.E.2d 1264, 1269.) The standard on appeal is whether a rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the offense beyond a reasonable doubt. People v. Jimerson (1989), 127 Ill. 2d 12, 43-44, 535 N.E.2d 889, 903.

Defendant argues that Amaya’s testimony cannot sustain a conviction because Amaya was, in effect, an accomplice. Defendant notes that Amaya admitted to being at the scene of the shooting as it happened and was found to have bloody money by the police. Defendant also notes that Amaya has relocated to Mexico. Finally defendant argues that Drigueros’ testimony was not credible because he identified defendant in a lineup “only after defendant was told to turn his back” and because he had described the man he saw to the police as five feet seven inches tall, but estimated defendant’s height as five feet at trial.

When the identification of the defendant is a central question in a case, the testimony of one witness is sufficient for conviction, so long as the witness is credible and viewed defendant under conditions permitting a positive identification. (People v. Richardson (1988), 123 Ill. 2d 322, 353, 528 N.E.2d 612, 624.) The testimony of an accomplice, regardless of whether it is corroborated, may be sufficient to sustain a conviction if the trier of fact is convinced beyond a reasonable doubt. (See, e.g., People v. Newell (1984), 103 Ill. 2d 465, 469 N.E.2d 1375.) Yet accomplice testimony is often problematic; the accomplice may have been promised leniency or harbor bias against the accused. Consequently, such testimony should be accepted with the utmost caution and be subjected to the highest scrutiny. (Newell, 103 Ill. 2d at 470, 469 N.E.2d at 1377; see People v. Krankel (1985), 131 Ill. App. 3d 887, 476 N.E.2d 777.) Nevertheless, whether accomplice testimony is sufficiently credible to support a conviction ultimately goes to the weight of the evidence; therefore, it is generally a function within the province of the trier of fact. See Newell, 103 Ill. 2d at 470, 469 N.E.2d at 1377.

In this case, the jury appears to have believed Amaya and Drigueros. The record indicates that Amaya sat directly next to defendant in the car, heard the shots right next to his ear and saw defendant holding a gun. The expert testimony indicates that the victims were shot in the backs of their heads at close range.

As for Drigueros, the record indicates he stood only an inch away from defendant for several minutes, which a reasonable jury could conclude was sufficient for a positive identification. Moreover, a reasonable jury could conclude that the height discrepancy and Drigueros’ request that the persons in the lineup turn around at one point were consistent with the testimony that defendant was bent over the driver of the blue Chevrolet as Drigueros observed him. In addition, the testimony of Amaya and Drigueros was supported by ballistics evidence and blood analysis suggesting that defendant was the shooter.

At oral argument, defendant suggested that the alleged errors could not be harmless, relying on the opinion rendered in his initial appeal. We note, however, that the failure to give an accomplice instruction in the initial appeal was deemed prejudicial, “especially in light of the fact that Amaya’s testimony was the only direct evidence implicating Carreon.” (Carreon, 162 Ill. App. 3d at 996, 516 N.E.2d at 376.) We note that the opinion in the initial appeal makes no reference to Drigueros’ trial testimony or the scientific evidence, both of which appear in the record on appeal from this second trial. On this record, we conclude that there is overwhelming evidence of defendant’s guilt of murder beyond a reasonable doubt in this case. Cf Richardson, 123 Ill. 2d at 353-54, 528 N.E.2d at 624 (no reasonable doubt where two witnesses saw defendant during and after crime and identifications were supported by ballistics evidence).

Defendant also contends that his conviction for armed robbery should be reversed because the State failed to prove that property was taken from the “presence” of the victims. Armed robbery is defined as the taking of “property from the person or presence of another by the use of force or by threatening the imminent use of force” (Ill. Rev. Stat. 1983, ch. 38, par. 18—1) while one “carries on or about his or her person, or is otherwise armed with a dangerous weapon” (Ill. Rev. Stat. 1983, ch. 38, par. 18—2). Defendant’s brief notes that the victims here were shot in the head at close range and then states that “it is clear property could not have been taken from the presence of a victim who is dead.”

Defendant cites no authority for this conclusion. Though the question of whether a dead person may be present at the scene of a subsequent robbery may be arguable in a philosophical sense, Illinois law suggests that a dead person does have presence in the legal sense in some contexts. For example, in People v. Thomas (1990), 137 Ill. 2d 500, 561 N.E.2d 57, the defendant was convicted of aggravated arson, which provides for an increased penalty for arson where the defendant knew or should have known one or more persons were “present.” (See Thomas, 137 Ill. 2d at 521, 561 N.E.2d at 65.) Defendant Thomas had stabbed a victim to death in a garage and then set the garage ablaze in hopes of concealing the murder. (Thomas, 137 Ill. 2d at 513, 561 N.E.2d at 61.) On appeal, Thomas claimed that the aggravated arson statute applied only when a living person is present. Thomas, 137 Ill. 2d at 531, 561 N.E.2d at 69.

The supreme court rejected the “contention that one cannot commit aggravated arson if the person who the State alleges the defendant knew was present was in fact dead at the time he committed the arson.” (Thomas, 137 Ill. 2d at 532, 561 N.E.2d at 70.) The supreme court reasoned that the purpose of the statute was to escalate the punishment for arson where persons were likely to be hurt or killed, concluding:

“Defendant’s guilt of aggravated arson should not depend upon the happenstance of whether the decedent expired before or after the defendant struck the match. [The victim’s] death and the arson were both part of a closely related criminal episode. Whether she died shortly before or shortly after the fire was ignited is not material to the fulfillment of the purpose of the statute.” (Thomas, 137 Ill. 2d at 532-33, 561 N.E.2d at 70.)

Similar to Thomas, the record here indicates a similar closely related episode of murder and robbery. (See also People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481 (murder deemed committed “in the course of a robbery” in closely related episode where money was taken after victims were shot).) The purposes of the robbery and armed robbery statutes are not advanced by a construction which may encourage a robber to murder his or her victims first. Thus, the State did not fail to prove that property was taken from the “person” or “presence” of the victim in this case.

Defendant’s third argument is that he was denied a fair trial because the State was allowed, over defendant’s objection, to refer to the victims’ families three times during closing arguments.

The State has persisted in commenting on the impact the death of a victim has on his or her family during closing arguments, despite the repeated admonitions of our supreme court that such comments are improper and unprofessional. (See People v. Bernette (1964), 30 Ill. 2d 359, 197 N.E.2d 436.) The inflammatory and prejudicial nature of such comments is intensified when defense objections to them are overruled by the trial court. (People v. Hope (1986), 116 Ill. 2d 265, 278, 508 N.E.2d 202, 208; People v. Faysom (1985), 131 Ill. App. 3d 517, 522, 475 N.E.2d 945, 950.) Nevertheless, such comments may be harmless error where the evidence of defendant’s guilt is overwhelming and the jury was instructed not to consider closing arguments as evidence. See Faysom, 131 Ill. App. 3d at 525, 475 N.E.2d at 952.

In this appeal, the record indicates that the evidence of defendant’s guilt was overwhelming. The record also indicates that the jury was instructed that closing arguments are not evidence and that argument not based on the evidence should not be considered in reaching its verdict. Thus, the State’s comments do not mandate a reversal of defendant’s conviction in this case.

Finally, defendant argues that his natural life sentence is unconstitutional. Defendant contends that the statute under which his sentence was imposed (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8— l(a)(l)(c)) violates the principle of separation of powers implicit in the United States Constitution (see U.S. Const., arts. I, II, III) and explicit in the Illinois Constitution of 1970 (Ill. Const. 1970, art. II, §1). Defendant also argues that the statute violates the due process and equal protection clauses of both constitutions and the prohibition of cruel and unusual punishment set forth in the eighth amendment to the United States Constitution. See U.S. Const., amends. VIII, XIV; Ill. Const. 1970, art. I, §2.

Turning first to the separation of powers argument, defendant states in his brief that he is “mindful of the Illinois Supreme Court opinion in People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059.” Taylor rejected the exact claim made by defendant here under the Illinois Constitution. (Taylor, 102 Ill. 2d at 209, 464 N.E.2d at 1064.) Moreover, defendant cites no authority and makes no argument in support of this claim under the United States Constitution; thus, it is waived.

Similarly, defendant’s eighth amendment, due process and equal protection arguments have been rejected on numerous previous occasions on both State and Federal grounds. (E.g., People v. Matthews (1990), 205 Ill. App. 3d 371, 416-17, 562 N.E.2d 1113, 1140-41 (and cases cited therein); People v. Foster (1990), 198 Ill. App. 3d 986, 1001, 556 N.E.2d 1214, 1224 (and cases cited therein).) Defendant has failed to offer any compelling reason for departing from these decisions; consequently, we decline to do so.

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

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
      In re MARRIAGE OF HERMAN LANDWEHR, Petitioner-Appellant, and FRANCES LANDWEHR, Respondent-Appellee.
    First District (1st Division)
    No. 1 — 89—3297
    Opinion filed January 27, 1992.
    Driscoll & Driscoll, of Schaumberg (Michael S. Schiffman and James P. Driscoll, of counsel), for appellant.

      Batler & Schwartz, of Buffalo Grove, and William R. Jacobs II, of Des Plaines (Jerome Marvin Kaplan, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This appeal arises from an action for dissolution of marriage. Herman (Herman) and Frances (Frances) Landwehr were married in 1968. They separated in 1982. The couple have no children. Herman filed a petition for dissolution in December 1983, and, following a trial, the matter was resolved in October 1989. The issues presented at trial were limited to the classification of property as marital or nonmarital, the valuation of assets, the distribution of property, and the dissipation of assets.

Relevant here, the trial judge determined that Herman had dissipated marital funds in expenditures for European trips, attorney fees, home furnishings, and to support Erika Korak, with whom Herman lived after separating from Frances. Frances was awarded a net amount of $16,000, following a setoff for amounts she, herself, was found to have dissipated. The trial judge also valued Herman’s 1986 Oldsmobile Cutlass at $15,980 and his 1976 Mercedes Benz at $16,000. Finally, the trial judge classified property located at 1034 Monroe Street in Evanston, Illinois, as nonmarital property belonging to Frances. Herman appeals each of the above determinations.

We affirm in part, reverse in part, and remand with directions.

Herman first argues that the evidence presented regarding dissipation did not support the trial judge’s findings. Initially, Herman accurately points out that the record does not establish a clear point in time when the marriage was irretrievably broken in order to permit measurement of dissipation. However, the record does permit some consideration of dissipation at least as of 1982, the time at which Herman stated he began living with Erika Korak. Obviously, the marriage between Herman and Frances had to have been undergoing an irretrievable breakdown at least as of that time.

Regarding specific expenditures, Herman took several trips to Germany at a cost of approximately $500 to $600 per trip. However, all of his trips, save for one, predated 1983. In fact, the most expensive of those trips, costing approximately $12,000, was taken prior to 1980.

As for attorney fees, Herman estimated that he paid $10,000, although he was not certain of that amount.

Herman also purchased furnishings for a property located at 2108 Larkdale Avenue in Glenview, Illinois. Herman was living there in 1982 after his separation. Herman stated that, within two years previous to his testimony, he purchased two Oriental rugs for $2,700 and two chairs for $535 and $320, respectively. Herman also spent $690 at a particular department store but could not remember any specific furniture items purchased.

Last, Herman’s testimony indicated he may have purchased items at boutiques for Erika Korak. However, the record does not indicate what the items were, their cost, or when they may have been purchased.

Generally, dissipation involves one spouse’s use of marital property for a selfish purpose unrelated to the marriage at a time when the marriage is undergoing an irretrievable breakdown. (In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 511 N.E.2d 676.) Determinations regarding dissipation are matters within the trial judge’s discretion and may not be disturbed absent a showing of an abuse of that discretion. In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 500 N.E.2d 612.

Regarding the amounts spent on European trips, the judgment order does specifically cite Herman’s vacation expenditures but does not indicate whether all, or only some, of those trips were included in consideration of the amounts found to have been dissipated. The record indicates that the trial judge considered the combined cost of eight trips. However, no evidence was presented establishing any such number of trips was taken after such time as it could be determined the parties’ marriage was suffering an irretrievable breakdown. Similarly, although the judgment cites expenditures for attorney fees, furnishings, and support for Erika Korak, no specific amounts for those items are given and no testimony established expenditures for those items in amounts necessary to support the total amount, after the setoff, found to have been dissipated by Herman. Thus, even without considering the issue of Frances’ alleged dissipation, we conclude that the record does not support the determination as to the amounts Herman was found to have dissipated. We therefore reverse that determination with instructions to reconsider the issue of dissipation by both parties.

Herman also contends the trial judge improperly classified property located at 1034 Monroe Street in Evanston as nonmarital property belonging to Frances because marital funds were used to purchase the property.

Frances testified that she purchased property at 1034 Monroe Street in 1969 for $35,000. For the $10,000 down payment, Frances stated, she used funds which had been received by her two children as child support payments by Frances’ former husband, gifts from Frances’ brother and uncle, proceeds of her son’s life insurance policy, and amounts in bank accounts held for the children’s benefit. The balance of the property was financed through a $13,000 mortgage and a $12,000 unsecured loan from neighboring friends. The mortgage from the bank was actually a mortgage on another property located on Monroe Street for which Frances was the sole obligor. Rental income generated by the 1034 Monroe Street property was used to repay the mortgage on the property. The mortgage was retired in 1983. Frances stated that the loan from the neighbors was repaid in 1976 or 1977.

Under section 503(a) of the Illinois Marriage and Dissolution of Marriage Act, marital property includes all property acquired by either spouse subsequent to the marriage, except where the property is acquired under the following circumstances: by gift, legacy or descent; in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy, or descent; by a judgment of legal separation; pursuant to a valid agreement of the parties; through any judgment or property obtained by judgment awarded to a spouse from the other spouse; or through property acquired before the marriage. Ill. Rev. Stat. 1983, ch. 40, par. 503(a).

We cannot conclude the circumstances under which Frances purchased the 1034 Monroe Street property are addressed by the exceptions above and, therefore, the property should have been classified as marital. Frances here argues that Herman effectively conceded award of the property to her because, in proposed findings submitted to the trial judge, Herman, while asserting that the property was marital property, indicated that the property should be awarded to Frances. However, even accepting Frances’ argument that Herman made that concession in the proposed findings, award of the property to Frances does not automatically follow. Any concession by Herman that Frances should be awarded the property was necessarily made in the contemplation that the other proposed findings suggested by Herman were accepted. Because the property was purchased after Frances and Herman were married and because not all of the funds used to purchase the property could be considered non-marital, the property must be classified as marital and the trial judge’s determination reversed. Accordingly, the ultimate award of the 1034 Monroe property must be determined on remand after consideration of the property distribution in light of the classification of the 1034 Monroe property as marital property.

Lastly, Herman challenges the trial judge’s valuation of his 1986 Oldsmobile and his 1976 Mercedes Benz.

It was Herman’s testimony that he purchased the Cutlass for $16,000 and the Mercedes Benz for $12,000. Herman concedes that he presented no evidence at trial as to the present value of either automobile. At the time of the judgment, the Oldsmobile was approximately three years old and the Mercedes-Benz was approximately 13 years old.

The only evidence in the record regarding the actual value of the automobiles is their purchase price and, therefore, we find no reason to disturb the determination of values made by the trial judge. It would be a matter of speculation to assume, without evidence, that the age of the automobiles, alone, indicates some other valuation would be more proper. In that regard, we note, the appellate court has criticized the practice of parties in dissolution proceedings to challenge the trial judge’s determination of the value of property where the parties, themselves, have failed to provide evidence upon which a purportedly more fair valuation might be made. See In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 448 N.E.2d 545.

Affirmed in part; reversed in part and remanded with directions.

BUCKLEY, P.J., and CAMPBELL, J., concur.


text:
    BERNARD A. HEEREY, Plaintiff-Appellee, v. JOSEPH BERKE et al., Defendants (Bank of Ravenswood, as Trustee, et al., Appellants).
    First District (1st Division)
    No. 1—90—2171
    Opinion filed January 27, 1992.

      Steven R. Dobrofsky, of Chicago, for appellants.
    Nathaniel I. Grey, P.C., of Chicago (Mary Kay Morrissey, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Louis Wolf and the Bank of Ravenswood (Bank) successfully moved to dismiss an action by Bernard Heerey in which Heerey challenged construction of three buildings at the southeast corner of State and Division Streets in Chicago. We affirmed that dismissal in Heerey v. Berke (1989), 179 Ill. App. 3d 927, 534 N.E.2d 1227, appeal denied (1989), 126 Ill. 2d 559, 541 N.E.2d 1106. Thereafter, Wolf and the Bank sought sanctions against Heerey for frivolous pleading pursuant to section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—611). Wolf and the Bank now appeal from the dismissal of their motion.

We affirm.

Although our opinion in Heerey v. Berke sets out, in detail, the facts which also underlie dismissal of the motion for sanctions, we briefly repeat the relevant background. Heerey is the owner of property at 1159 North State Street in Chicago. Adjacent properties at 1163, 1165, and 1167 North State Street (Berke-Wolf properties) are held in a land trust with the Bank of Ravenswood as trustee. Wolf and Benitta Berke, his niece, enjoy beneficial interests in the BerkeWolf properties. Wolf is the record owner of the parcel at 1165 North State Street. Berke is record owner of the two outer parcels. Both Heerey’s property and the Berke-Wolf properties lie within the private use zone governed by the Lake Michigan and Chicago Lakefront Protection Ordinance (Ordinance).

In August 1985, in an apparent attempt to comply with the statutory duty to notify adjacent landowners of contemplated excavation to insure lateral and subjacent support (Ill. Rev. Stat. 1987, ch. Ill½, par. 3301) (Adjacent Landowner Excavation Protection Act), Berke requested Heerey’s permission, in a letter, to enter Heerey’s property. Heerey advised Berke that the letter was inadequate for its intended purpose under the statute. In turn, Berke told Heerey that it would be Heerey’s own responsibility to protect his land.

Plans were approved and permits were obtained for the construction of the buildings between January and April 1986 and construction began along the length of the Berke-Wolf properties upon a common foundation. In August, however, at the behest of Heerey, the city’s department of inspectional services ordered construction stopped. The permit for the parcel at 1165 North State Street was revoked. Following subsequent redesign of the foundation, construction resumed.

In December, Heerey filed his action, as later amended, against Berke, Wolf, the Bank, the City of Chicago (City), and various parties involved in the construction on the Berke-Wolf properties, including Barry Newdelman, the architect. Against Wolf, Berke, the Bank, and Newdelman, Heerey sought a determination of the actual owner of the lots, an order halting the construction, restoration of the support to his property, and a permanent injunction against further construction. Additionally, Heerey alleged the City had contributed to the damage to his property by permitting the construction without enforcing the requirements in its own municipal permits, seeking injunctions to preclude issuance of permits pending compliance.

Wolf, the Bank, the City, and Newdelman filed motions to dismiss Heerey’s amended complaint and, on July 30, 1987, that complaint was dismissed with prejudice. We affirmed that dismissal.

On August 28, 1987, Wolf and the Bank filed the motion for sanctions, as later amended, at issue here. The motion was based on the filing of the complaint and motions for discovery and injunctive relief as well as for an unsuccessful attempt to change venue. The motion also asserted that Wolf and the Bank were never proper parties to the proceeding.

Heerey filed a response to the motion which the trial judge treated as a motion to dismiss the motion for sanctions. The motion for sanctions was dismissed, with prejudice, as against Wolf and the Bank. The trial judge specifically declined to decide whether sanctions might be proper regarding allegations made against Newdelman. This appeal followed.

Essentially, Wolf and the Bank contend dismissal of the motion was improper because Heerey could not claim the status of an adjacent landowner to all of the Berke-Wolf properties to thereby justify his allegations. Further, they contend Heerey’s motion to change venue, following dismissal of his initial complaint, was merely an attempt to have the matter heard by a trial judge who would view his allegations more favorably.

Section 2—611 requires, in part, that pleadings and motions be “well grounded in fact” and “warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—611.) A pleading or motion is not well grounded in fact if the allegations contained therein were false and no reasonable cause existed to believe the allegations were true when made. (Peoples Gas Light & Coke Co. v. Black Steer Provision Co. (1985), 131 Ill. App. 3d 387, 475 N.E.2d 1012.) Such papers are not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law if no support can be found for the assertions made therein. See Davis v. Chicago Housing Authority (1988), 176 Ill. App. 3d 976, 531 N.E.2d 1918. Whether sanctions should be imposed under section 2—611 is a matter lying within the trial judge’s discretion, and the determination made cannot be reversed on appeal absent a showing of an abuse of that discretion. In re Marriage of Hartian (1988), 172 Ill. App. 3d 440, 526 N.E.2d 1104, appeal denied (1988), 123 Ill. 2d 558, 535 N.E.2d 401.

We cannot conclude the trial judge abused his discretion in determining that, although ultimately unsuccessful, the means by which Heerey attempted to challenge construction on the Berke-Wolf properties did not warrant sanctions under section 2—611. Heerey’s complaint, as it relates to Wolf, holder of a beneficial interest in the Berke-Wolf properties, and the Bank, as trustee, was based, in general, on alleged violations of the Adjacent Landowner Excavation Protection Act and the Ordinance in the construction on the properties. Specifically, regarding basis for the allegations respecting the Adjacent Landowner Excavation Protection Act, we note that although Wolf was the record owner of only the middle parcel, not the parcel immediately adjacent to Heerey’s property, the Berke-Wolf properties shared a common foundation. Further, a basis would seem to have existed for proper challenge to the construction as allegedly violating the Ordinance and other municipal code provisions to the extent his property was within 1,200 feet of that construction. (See Ill. Rev. Stat. 1985, ch. 24, par. 11—13—15.) Nor do we find reason to determine Heerey’s unsuccessful petition for a change of venue should affeet the conclusion that sanctions were not warranted. The record indicates Heerey based that petition, in part, on an argument that he was prejudiced because he had not been afforded an opportunity to fully argue a motion for injunctive relief.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM BATSON et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1—89—0264,1—89—0365 cons.
    Opinion filed January 29, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Beth I. Solomon and Vicki Rogers, Assistant Public Defenders, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a jury trial, defendants William Batson and Arkee Chaney were found guilty of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18—2) and aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12— 4). Defendant Batson was also found guilty of unlawful use of a weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 24—1.) Defendant Batson was sentenced to concurrent terms of 20 years’ imprisonment for. armed robbery, five years’ imprisonment for aggravated battery, and four years’ imprisonment for unlawful use of a weapon. Defendant Chaney was sentenced to concurrent terms of natural life imprisonment for armed robbery pursuant to the Habitual Criminal Act (Ill. Rev. Stat. 1987, ch. 38, par. 33B—1), and 10 years’ imprisonment for aggravated battery.

The following issues are before this court for review: (1) whether the trial court erred when it admitted Joanne Hunter’s testimony, and permitted her testimony to be emphasized in the State’s closing argument; (2) whether the prosecutor’s remarks during opening statement and closing argument deprived defendants of a fair trial; and (3) whether the cumulative effect of the trial court’s admission of Joanne Hunter’s testimony and the prosecutor’s subsequent arguments based upon her testimony prejudiced the jury and denied defendants a fair trial. We affirm.

Defendants objected to three remarks made by the prosecutor during the State’s opening statement. First, defendants objected to the following statement:

“Good morning ladies and gentlemen. Cab Driver Slashed with Knife During Armed Robbery, that’s a headline we see in the news papers pretty often ***.***
That’s what these two individuals did on November 22, 1987.”

Next, the defense objected to the prosecutor’s statement that “Alia [sic] Batson, the defendant’s wife opened the back door while some officers went in the front door.”

Defendants also contend that they were prejudiced by the following remark:

“[Wilbert Jackson is] going to have to tell you that he earns a living driving a cab on the southside of Chicago at night.
He usually works from 7:00 p.m. to 7:00 a.m. ***. He’s going to tell you he’s 40 years old.”

Wilbert Jackson testified for the State. Jackson told the court that he was a taxicab driver who worked for the Fleet Cab Service, also known as the Boon Cab Company. Jackson testified that he worked between the hours of 7 p.m. and 7 a.m. Jackson stated that he was on duty and parked on South Michigan Avenue near 118th Street at 12:30 a.m. on November 22, 1987. Jackson testified that two men, whom he later identified in court as defendants, approached the cab stand. Jackson told the court that he then drove to the cab stand and beckoned Batson and Chaney.

Jackson testified that Batson and Chaney then entered the cab. Jackson stated that Batson sat directly behind him, while Chaney sat behind the passenger seat. Jackson maintained that Chaney told him to drive to Altgeld Gardens. Jackson told the court that he requested the $4 cab fare in advance, and that Batson and Chaney gave him the fare.

Jackson testified that when he reached Altgeld Gardens, he refused to drive defendants into the parking lot, and instead stopped the cab in the street. Jackson further testified that defendant Chaney held a butcher knife over his shoulder and instructed him to turn off the engine. Jackson testified that Chaney said, “We don’t want to hurt you, just give us the money.” Jackson maintained that Batson responded by saying, “Kill [him].” Jackson told the court that Chaney reached over the seat and attempted to turn off the ignition. Jackson testified that he then grabbed the knife, and that he and Batson struggled for the knife. As a result of this altercation, Jackson received numerous cuts on his hands. Jackson testified that Batson and Chaney then pushed him out of the cab onto the pavement causing his artificial leg to break. Jackson stated that while he was lying on the ground, Batson sat on his abdomen and Chaney kicked him in the face. Jackson became disoriented as a result of the beating, and Bat-son and Chaney left him lying on the ground. Jackson eventually got back into the cab and drove himself to Roseland Community Hospital. While driving, Jackson noticed that his keys and his wallet which contained $80 were missing.

Joanne Hunter testified for the State and corroborated Jackson’s testimony. Hunter was an employee of GEJ Security and was assigned to work as a “security officer” at Altgeld Gardens. Hunter testified that on November 23, 1987, she had a conversation with a woman who identified herself as Olleah Batson. Hunter testified as follows:

“THE STATE: Once again, you had a conversation with a female on November 23, 1987 at approximately 5:15, is that correct?
HUNTER: Correct.
Q. Did that person identify herself?
A. Yes.
Q. What name did she identify herself by?
A. As Alia [sic] Batson.
Q. Now, did you have a conversation with her after she came in?
A. Yes.
Q. How long did that conversation last?
A. No longer than 20 minutes.
Q. Who was present for that conversation?
A. My partner, Officer Eugene Irving.
Q. During that conversation did you ask the person who identified herself as Alia Batson any questions?
A. Yes.
Q. Do you recall the first question that you asked her?
A. The last thing I asked her was how did she know they had committed a robbery.
THE DEFENSE: Objection.
THE COURT: Overruled.
Q. How did she know there had been a robbery committed?
A. Right, —from by a cab driver, yes.
Q. Did you ask her any other questions?
A. Yes.
Q. What was the next question that you asked her?
A: I asked her [what time it happened].
THE DEFENSE: Judge, could I continue my objection?
THE COURT: Your objection is noted, and it is overruled.
Q. What was the next question you asked her?
A. The next question I asked her did she know the name of the cab company?
Q. When you asked her these questions, did she give answers?
A. Yes.”

Hunter further stated that on November 24, 1987, the day after she spoke to Olleah Batson, she looked through a neighborhood community telephone directory for the telephone numbers of cab companies located in the neighborhood. Hunter testified that she began to call each cab company listed in alphabetical order. Hunter told the court that she asked the people she spoke to whether one of their drivers had been robbed in Altgeld Gardens on the night of November 22, 1987. She testified that she received an affirmative answer to this question from an employee of Boon Cab Company and that the employee referred her to Wilbert Jackson.

Hunter stated that she then telephoned Jackson and asked him if he was the individual who was robbed on November 22. Hunter testified that Jackson answered her question in the affirmative. Hunter further stated that Jackson gave her the name of Detective Thomas Krippel, who was in charge of investigating the robbery. Her testimony continued:

“THE STATE: Did you tell Detective Krippel who you had talked to?
HUNTER: Yes.
Q. Who did you tell Detective Krippel that you had talked to?
A. I had talked to Wilbert Jackson, and also I had talked to Alia [sic] Batson.
Q. And during your conversation with Detective Krippel did you give him any names?
A. Yes.
Q. What names did you give Detective Krippel.
A. Billy Batson.
THE DEFENSE: Objection.
THE COURT: Overruled.
A. And Arkee Chaney.”

Hunter concluded her testimony by stating that on December 4, 1987, she telephoned Detective Krippel again and told him that she was assigned to evict the tenants in the apartment leased to Olleah Batson and that “if he wanted the guys, *** he better come out.”

Detective Krippel testified that he arrived at Altgeld Gardens 10 to 15 minutes after speaking to Hunter and entered a residence there where he found defendants and arrested them. That same day, the victim identified defendants as his assailants in a lineup.

The State also called Minnie Clark as a witness. Clark testified that Olleah Batson is defendant Batson’s wife and defendant Chaney’s sister.

During closing arguments, defendants objected to four comments made by the prosecutor. First, defendants objected to the following remark:

“Just like Joanne Hunter you now know who robbed at knife-point that cab driver back in November of 1987.”

The prosecutor expanded upon this statement in his rebuttal argument:

“Mr. Bertucci talked about Joanne Hunter, the heroine of this case. She is kind of like the Jessica Fletcher on that t.v. show, ‘Murder She Wrote,’ someone who is relentless, someone who wants to get to the bottom of the matter, someone who wants to find out the truth, and putting somebody in the hands of the police, someone who is guilty of armed robbery.
She starts out having a conversation with his wife who is Defendant Chaney’s sister. And what do you think she told Joanne Hunter on that date— * * *
What do you think — what information do you think she gave Joanne Hunter about that armed robbery? Do you think she was able to give Joanne Hunter the identity of the two individuals?”

Next, defendants objected to the manner in which the prosecutor defined reasonable doubt for the jury:

“Now, in terms of the burdens in this case, the burden of proof and burden beyond a reasonable doubt, that the state, that Mr. Bertucci and I have on behalf of the Cook County State’s Attorney gladly accept. The burden of proof beyond a reasonable doubt is present in every case. ***
Every criminal case that is in the system that is the law. And it applies only to the elements; it doesn’t apply to how many times Wilbert Jackson was hit. It doesn’t apply to the fact that there was no weapon recovered. It doesn’t apply to the fact that no proceeds were recovered. What it applies to is did they, did these two individuals, rob Wilbert Jackson at knife point; did they beat him. Those are the elements that you will be required to find, and as I said elements of proof beyond a reasonable doubt ***.”

Defendants also objected to the following statement:

“What they try to do to get the attention of everyone away from these two defendants— ***
—they tried to put Wilbert Jackson on trial. He had an embarrassing moment on trial. He was caught with a weapon. It is kind of unfortunate that he didn’t have a weapon that day to protect himself from these two individuals. What do they talk about, the quality of the evidence, the quality of the victim, the opportunity he had to observe.”

Finally, defendants objected to the following comment:

“It is unfortunate that people in the City of Chicago are scared to go to work and work night hours. That’s because of individuals like these defendants. * * *
You as jurors sitting in this case have the power to send a message to the community that we do not tolerate such violent criminal behavior. You have the power to tell these two defendants sitting right here that they can’t get away robbing cab drivers at night.”

After closing arguments, defendant Chaney was found guilty of armed robbery and aggravated battery and sentenced to concurrent terms of natural life imprisonment for armed robbery, and 10 years’ imprisonment for aggravated battery. Defendant Batson was found guilty of armed robbery, aggravated battery, and unlawful use of a weapon. Defendant Batson was sentenced to concurrent terms of 20 years’ imprisonment for armed robbery, five years’ incarceration for aggravated battery, and four years’ imprisonment for unlawful use of a weapon.

Defendants first contend that they were denied due process of law because inadmissible hearsay testimony from Hunter was admitted during the trial and emphasized in the State’s closing argument. The State maintains that Hunter’s testimony did not constitute hearsay, because her statements addressed her own conduct and because her testimony was elicited to demonstrate her investigatory procedure and was not offered for the truth of the matter asserted. In the alternative, if we find for defendants on this issue, the State argues that the court’s admission of Hunter’s testimony constituted harmless error.

Hearsay is an out-of-court statement made for the truth of the matter asserted. (People v. Hunter (1984), 124 Ill. App. 3d 516, 528, 464 N.E.2d 659, 671.) With limited exceptions, hearsay is inadmissible because the party against whom the statements are offered cannot cross-examine the declarant. (Hunter, 124 Ill. App. 3d at 529, 464 N.E.2d at 671.) A witness may testify that he had a conversation with an individual, and that he subsequently acted thereon, so long as the witness does not reveal the substance of the conversation. Such testimony is not hearsay because it is based upon the witness’ personal knowledge and it is admissible for the limited purpose of explaining the witness’ investigatory procedure. (People v. White (1985), 134 Ill. App. 3d 262, 282, 479 N.E.2d 1121, 1134; Hunter, 124 Ill. App. 3d at 529, 464 N.E.2d at 671; People v. Daliege (1976), 40 Ill. App. 3d 706, 709, 352 N.E.2d 247, 250.) Testimony of this nature is admissible even when the trier of fact may infer therefrom that the information the witness obtained motivated his subsequent conduct. People v. White (1989), 192 Ill. App. 3d 55, 60-61, 548 N.E.2d 421, 425; Hunter, 124 Ill. App. 3d at 529, 464 N.E.2d at 671.

Therefore, we find that Hunter’s testimony concerning her conversations with Olleah Batson and Detective Krippel did not constitute hearsay. Hunter’s testimony concerned an investigatory procedure and was based upon her own personal knowledge. Hunter testified as to what questions she asked Olleah Batson, and she told the trial court that Olleah Batson responded to her questions. Hunter did not testify as to the substance of Olleah Batson’s replies. Furthermore, when Hunter testified concerning her conversation with Detective Krippel, she merely stated that she gave Detective Krippel the names “Billy Batson” and “Arkee Chaney.” Hunter never testified that she told Krippel that Olleah Batson gave her defendants’ names.

We also find that the trial court erred when it admitted comments made by the prosecutor during closing argument concerning Hunter’s conversation with Olleah Batson. The trial court’s admission of these remarks, however, constituted harmless error.

Defendants, in reliance upon People v. White (1989), 192 Ill. App. 3d 55, 548 N.E.2d 421, maintain that during closing argument, the prosecutor disclosed the substance of the conversation between Hunter and Olleah Batson and that he expanded the limited purpose for which Hunter’s testimony was admitted.

As a general rule, a prosecutor has wide latitude during closing argument, and his comments may not be labelled improper if they are based upon facts in the record or reasonable inferences drawn therefrom. (People v. Moya (1988), 175 Ill. App. 3d 22, 24, 529 N.E.2d 657, 659.) In White, however, we found that the prosecutor’s statement during closing argument in which he emphasized the fact that the police obtained the defendant’s name from an alleged accomplice was improper. (White, 192 Ill. App. 3d at 61, 548 N.E.2d at 425.) The White court reasoned that the prosecutor was “taking improper advantage of the admissibility of testimony by a police officer to explain his investigatory procedure, only to use that testimony, once it is admitted, *** impermissibly *** in closing argument.” (White, 192 Ill. App. 3d at 61, 548 N.E.2d at 426.) The court held that the remarks were improper and prejudicial to defendant, but that the jury’s verdict would not have been different in light of the overwhelming evidence of the defendant’s guilt. White, 192 Ill. App. 3d at 61-62, 548 N.E.2d at 426.

In the instant case, the prosecutor stated during the State’s closing argument that Hunter obtained defendants’ names from Olleah Batson. Upon applying White to the instant case, we find that the prosecutor’s comments were improper. Defendants, however, were not denied a fair trial in light of the overwhelming evidence of their guilt. For the aforementioned reasons, we hold that defendants were not denied due process of law.

Next, defendants contend that the prosecutor’s remarks during opening statement and closing argument deprived them of a fair trial. The State maintains that the prosecutor’s statements were either based upon the evidence, or were invited responses to defense counsel’s arguments. In the alternative, if we should find for defendants on this issue, the People maintain that any error was harmless due to the overwhelming evidence against defendants.

Defendants first argue that they were denied a fair trial because the prosecutor made three prejudicial remarks dining his opening statement. Defendants first contend that the prosecutor’s remark during opening statement referring to a fictitious newspaper headline, Cab Driver Slashed with Knife During Armed Robbery, was inflammatory and was not based upon the evidence. We find that defendants waived their right to review of this issue on appeal because they failed to raise this issue in either of their post-trial motions. In People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, our supreme court held 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 in original.) Accordingly, this issue may not be considered on review.

Second, defendants contend that they were prejudiced when the prosecutor described information about the victim’s occupation, work hours and age. We noted above that a prosecutor has wide latitude during closing argument, and that his comments are not improper if the remarks are based upon the facts in the record or reasonable inferences drawn therefrom. (See People v. Moya (1988), 175 Ill. App. 3d 22, 24, 529 N.E.2d 657, 659.) In the present case, the prosecutor’s description of the victim was proper because it was supported by the victim’s testimony. Jackson testified as follows:

“THE STATE: How old are you Mr. Jackson?
JACKSON: I am 40.
Q. Do you live in Chicago?
A. Yes.
Q. Are you employed?
A. Yes.
Q. What is your occupation?
A. I am a cab driver.
Q. How long have you been a cab driver, Mr. Jackson?
A. For about ten years.
Q. How many days a week do you work?
A. I work seven days a week.
Q. What are your hours?
A. From 7:00 in the evening until 7:00 in the morning.”

We find that the prosecutor’s comment did not prejudice the jury because the remark was directly supported by testimony at trial.

Defendants’ final contention concerning the prosecutor’s opening statement focuses on the prosecutor’s remark that “Alia [sic] Batson, the defendant’s wife, opened the back door while some officers went in the front door.” We find that defendants have waived appellate review of this argument because the alleged error was not objected to at trial, or raised in either of defendants’ post-trial motions. See People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d at 1129-30.

Defendants’ second argument concerning prosecutorial remarks focuses on three comments made during the State’s closing argument. The first comment made during the State’s closing argument which defendants object to is the prosecutor’s statement defining reasonable doubt. The remark which defendants object to in the present case is analogous to the comment made by the prosecutor in People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357. In Harris, the prosecutor made the following statement during closing argument:

“[The reasonable doubt test is the] ‘same standard that’s been used in this court room, in all the court rooms in this country, throughout the county, throughout the State, throughout the country, through our entire history. It’s nothing new. There is nothing different about that standard of proof. That standard of proof does not require perfection.’ ” (Harris, 129 Ill. 2d at 161, 544 N.E.2d at 373.)

The Harris court held that the prosecutor’s statements were proper and did not reduce the State’s burden of proof. (Harris, 129 Ill. 2d at 161, 544 N.E.2d at 373.) In the present case, the prosecutor’s remark did not reduce the State’s burden of proof and falls within the scope of the ruling in Harris. Accordingly, we find that the prosecutor’s statement was proper.

Defendants next contend that the prosecutor, in rebuttal, attacked the integrity of defense counsel when he commented on the victim’s prior illegal possession of a weapon, and the fact that he was not carrying a weapon when he was assaulted by defendants. We find that this statement was proper because defense counsel invited the State’s response in rebuttal. In his closing argument, defense counsel stated:

“I put to each and every one of you, you would not have used a name different from your own, or given a date of birth different from your own, and failed to appear in court pursuant to a lawful order, and never have gone back, and have a warrant out for your arrest.”

The prosecutor’s response in rebuttal was invited by defense counsel’s attack upon the victim’s credibility. “Where defense counsel provokes a response, defendant cannot complain that the State’s reply denied him a fair trial.” (People v. Lyles (1985), 106 Ill. 2d 373, 390, 478 N.E.2d 291, 297.) Accordingly, we find that the prosecutor’s comment was proper.

Finally, defendants contend that the prosecutor improperly appealed to the emotions of the jurors when he stated that people in the City of Chicago were afraid to travel to and from work because of individuals like defendants, and when he encouraged the jury to “send a message to the community” that violent crime will not be tolerated. The prosecutorial argument in the instant case is similar to the prosecutor’s comment during the State’s closing argument in People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357. In Harris the defendant claimed that the following comment was so prejudicial as to deprive defendant of a fair trial:

“ ‘Everybody hears about crime. Nobody does anything about it. You have a unique opportunity to actually do something about crime on your streets.’ *** ‘You are the only ones that sit between this man, this ticking bomb, and that door.’ ” (Harris, 129 Ill. 2d at 159, 544 N.E.2d at 372.)

Our supreme court held that the aforementioned remark was “apparently intended to persuade the jurors to convict because by convicting they would prevent both crime in general, and further crime by this defendant. As such, [the remarks] were proper. It is entirely proper for the prosecutor to dwell upon the evil results of crime and to urge the fearless administration of the law.” [Harris, 129 Ill. 2d at 159, 544 N.E.2d at 372.) As in Harris, the prosecutor in the instant case told the jurors that they had the opportunity to take action against violent crime. Therefore, the prosecutor's remark in the present case was proper. For the aforementioned reasons, we hold that defendants received a fair trial.

Finally, defendants contend that the cumulative effect of the trial court’s admission of Hunter’s testimony and the prosecutor’s subsequent arguments based upon her testimony prejudiced the jury and denied them a fair trial. The State, in reliance upon People v. Albanese (1984), 102 Ill. 2d 54, 83, 464 N.E.2d 206, 220, maintains that defendants’ claim for cumulative error must be rejected because they cannot demonstrate that the trial court committed any error.

In instances where individual errors committed by a trial court do not merit reversal alone, the cumulative effect of said errors may deprive the defendant of a fair trial. (People v. Johnson (1991), 215 Ill. App. 3d 713, 734-35, 575 N.E.2d 1247, 1260-61.) In such cases, due process and fundamental fairness require that the defendant’s convictions be reversed and his cause remanded for a new trial. Johnson, 215 Ill. App. 3d at 734-35, 575 N.E.2d at 1260-61.

In the present case, the trial court’s sole error was harmless in light of the overwhelming evidence of defendants’ guilt. Accordingly, we find that the cumulative effect of the errors at trial did not deprive defendant of a fair trial or due process of law.

For the aforementioned reasons, we affirm the judgment of the circuit court.

Affirmed.

GREIMAN, P.J., and CERDA, J„ concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOBBIE CARR, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 89—1192
    Opinion filed January 29, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Kim L. Sorrells and Donald S. Honchell, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Peter J. Faraci, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant Bobbie Carr was convicted of forgery (Ill. Rev. Stat. 1985, ch. 38, par. 17—3) in a jury trial and sentenced to 10 years’ imprisonment. On appeal, defendant contends that (1) the case should be remanded for an evidentiary hearing because the trial court denied her the opportunity to present a prima facie showing of purposeful discrimination by the prosecutor in jury selection pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712; (2) the prosecutor improperly exercised peremptory challenges against venirepersons solely on the basis of race in violation of the equal protection clause of the fourteenth amendment; (3) the trial court improperly allowed the jury to hear testimony and references regarding her involvement in other unrelated crimes; and (4) the State failed to prove beyond a reasonable doubt that defendant had the requisite intent to defraud and guilty knowledge necessary to sustain a conviction for forgery. We affirm.

At approximately 1 p.m. on September 10, 1987, defendant entered the Midlothian State Bank located at 14300 Cicero Avenue, Crestwood, Illinois. Defendant identified herself as Dawn Kane and presented an endorsed check in the amount of $900 made payable to Dawn Kane drawn on the fictitious account of Oneltrium Building Company from the drawee bank Amalgamated Trust and Savings Bank (Amalgamated). The teller, Diane Udoni, was acquainted with a bank customer named Dawn Kane and immediately became suspicious. Udoni asked defendant for identification, and defendant presented a fabricated photo employment identification card which contained the name Dawn Kane, but was embossed with defendant’s picture. Udoni checked to see if the bank had another customer named Dawn Kane. No other such account existed. Udoni informed her immediate supervisor, Laura McElligott, that she did not believe that defendant was Dawn Kane. McElligott contacted Amalgamated to see if the check drawn on the account was legitimate. Amalgamated informed her that the account had been closed in May 1976. Udoni turned on a hidden camera installed at the teller’s window, which took as many as 15 photographs of defendant. Two of the photos of defendant were introduced into evidence.

Perceiving that there were problems with cashing the check, defendant walked away from the teller’s window and exited the bank, leaving the check and the photo identification card at the teller's window. Both Udoni and McElligott followed defendant out of the building. Defendant began to run. Both employees gave chase, but were unable to catch defendant.

Udoni and McElligott identified defendant from an array of photographs assembled by local police, the Illinois State Police, the United States postal service and the FBI, and an arrest warrant was issued for her arrest. Udoni and McElligott subsequently identified defendant in a lineup as the person who presented the forged check to the Midlothian State Bank. A jury convicted defendant of forgery (Ill. Rev. Stat. 1985, ch. 38, par. 17—3), and the trial court sentenced defendant to 10 years’ imprisonment. This appeal followed.

Defendant first argues that the case should be remanded for an evidentiary hearing because the trial court denied her the opportunity to present a prima facie showing of purposeful discrimination by the prosecutor in jury selection pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Defendant argues that because the trial court was mistaken about the requirements of Batson, the record is insufficient for this court to evaluate the Batson issue. In the present case, the record demonstrates that defendant was allowed to make a complete submission to the trial court to establish a prima facie showing of purposeful discrimination. We, therefore, conclude that the record is sufficient to evaluate whether defendant made a prima facie showing of purposeful discrimination.

Defendant next argues that the prosecutor improperly exercised peremptory challenges against venirepersons solely on the basis of race in violation of the equal protection clause of the fourteenth amendment. We disagree.

In order to prevail on a claim of unconstitutional discrimination in the exercise of peremptory challenges, a defendant must establish a prima facie showing of purposeful discrimination. (Batson v. Kentucky (1986), 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723; People v. Jackson (1991), 145 Ill. 2d 43, 99, 582 N.E.2d 125, 151.) Once a defendant makes a prima facie showing of discrimination, the burden shifts to the State to come forward with a clear and reasonably specific explanation of its legitimate reasons for exercising the challenges on black jurors related to the particular case to be tried. Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1724; People v. Harris (1989), 129 Ill. 2d 123, 174, 544 N.E.2d 357, 379.

A prima facie showing of purposeful discrimination is established if the defendant can prove by a preponderance of the evidence that (1) the prosecutor exercised peremptory challenges to remove venirepersons of a cognizable racial group; and (2) the facts and any other “relevant circumstances” raise an inference that the prosecutor peremptorily challenged venirepersons on account of their race. (People v. Edwards (1991), 144 Ill. 2d 108, 151-53, 579 N.E.2d 336, 353-54 (applying the standards set forth in Batson and recently modified in Powers v. Ohio (1991), 499 U.S. 400, 113 L. Ed. 2d 411, Ill S. Ct. 1364 (which held that a defendant and the excluded juror are no longer required to be members of the same cognizable racial group in order to establish a prima facie showing of purposeful discrimination)).) Examples of “relevant circumstances” include (1) a pattern of strikes against black veniremembers; (2) a disproportionate use of strikes against such members; (3) whether the excluded jurors were a heterogeneous group sharing race as their only common characteristic; (4) the level of black representation in the venire as compared to the jury; (5) the prosecutorial questions and statements during voir dire and while exercising challenges; and (6) the races of defendant and victim or of defendant and witnesses. People v. Garrett (1990), 139 Ill. 2d 189. 203. 564 N.E.2d 784. 791.

None of these recognized relevant circumstances are evident in the record before us to raise even an inference that the prosecutor peremptorily challenged veniremembers on account of their race. The record does not indicate that the prosecutor exercised a disproportionate number of peremptory challenges to exclude blacks from the petit jury or that there was a pattern of strikes against black venirepersons. The State exercised four peremptory challenges in the present case, two of which were exercised against black veniremembers. Defense counsel stated that it understood the reason that the State exercised the first of its four peremptory challenges against black veniremember Samuel Smith, a recovering alcoholic who had twice been convicted of possession of a concealed weapon and had served time in the Illinois Department of Corrections, based on his answers to the trial court’s questioning during voir dire. Thus, the prosecutor used only one of the other three peremptory challenges it exercised to remove a black person from the venire.

Defendant can point to nothing in the record which suggests even the possibility of racial motivation in the prosecutor’s exercise of its peremptory challenges. The fact that a prosecutor exercises a peremptory challenge against a black veniremember does not, without more, demonstrate that the prosecutor engaged in purposeful discrimination in the selection of a jury. (See People v. Evans (1988), 125 Ill. 2d 50, 64, 530 N.E.2d 1360, 1365.) We, therefore, conclude that defendant failed to establish a prima facie showing of purposeful discrimination in the prosecutor’s selection of the petit jury. Accordingly, it was unnecessary for the State to offer a race-neutral explanation for the exercise of its peremptory challenges.

Defendant next argues that the trial court improperly allowed the jury to hear testimony and references regarding her involvement in other unrelated crimes. We disagree.

Defendant first contends that the prosecutor made impermissible references during his opening and closing statements about defendant’s alleged involvement in a scheme to defraud banks which prejudiced the jury and affected its verdict. During his opening statement, the prosecutor stated:

“And I believe that you will hear a great deal of evidence which will point, which will indicate, this defendant, Bobbie Carr, presented a check without authority, with intent to defraud the State Bank of Midlothian on the date of September 10, 1987. Now this was—I also submit to you, ladies and gentlemen, that the evidence in this case will show you that this case was a scam. This was a scheme that Bobbie Carr was involved in in order to make money at the expense of the State Bank of Midlothian.” (Emphasis added.)

These comments were essentially repeated during the prosecutor’s closing statement. Defendant argues that the prosecutor improperly implied to the jury that defendant was part of a large plan to defraud banks, but failed to produce evidence at trial demonstrating defendant’s involvement in this alleged scheme. This contention is without merit.

Black’s Law Dictionary defines “scheme” as a plan reasonably calculated to deceive persons of ordinary prudence and comprehension. (Black’s Law Dictionary 1206 (5th ed. 1979).) The State produced evidence at trial that defendant presented a check containing a forged endorsement and a fabricated work identification card to the Midlothian State Bank, that the check was created from a stolen check-writing machine and drawn on an account which had been closed for over 11 years. Additionally, the record reveals that when defendant perceived that there was a problem with cashing the check, she left the check and work identification card at the teller’s window and fled. Clearly, a reasonable inference can be drawn from the evidence presented at trial that defendant was engaged in a plan reasonably calculated to deceive persons of ordinary prudence and comprehension. Accordingly, we conclude that the prosecutor’s references to a “scheme” to make money at the expense of Midlothian State Bank were substantiated by the evidence.

Defendant next contends that Officer Kevin McAuliffe’s testimony at trial regarding similar checks being cashed in the same manner in the Chicago vicinity improperly referred to defendant’s involvement in other unrelated crimes. This contention is also without merit.

At trial, Officer McAuliffe testified that he met with officers from various Federal and State investigative agencies and departments in reference to problems with similar checks being cashed in the same manner in the Chicago vicinity. We conclude that Officer McAuliffe’s statement does not refer to defendant’s involvement or participation in any other crimes, but rather merely indicates the procedure by which the police department undertook the investigation of this crime and the circumstances leading to the identification and apprehension of defendant. Officer McAuliffe neither implied nor inferred that defendant had anything to do with the other fraudulent checks being cashed in the Chicago vicinity, or that defendant was involved in a massive crime wave that required the joint efforts of Federal, State and local law enforcement agencies. Officer McAuliffe stated only that he met with detectives from other law enforcement departments and agencies during his investigation of this crime. Accordingly, Officer McAuliffe’s testimony at trial regarding similar checks being cashed in the same manner did not improperly refer to defendant’s involvement in other unrelated crimes.

Defendant next contends that Officer McAuliffe improperly suggested at trial that defendant had a criminal background. Defendant argues that Officer McAuliffe’s testimony regarding the receipt of defendant’s photograph from the United States postal service improperly implied to the jury that defendant had a criminal history. This contention is also without merit.

It is well established that when identification is a material issue at trial, testimony regarding the use of mug shots in an investigation may be introduced to show how a defendant was initially linked to the commission of the offense. (People v. Arman (1989), 131 Ill. 2d 115, 123, 545 N.E.2d 658, 662.) In the present case, defense counsel stated in his opening argument to the jury: “This is a matter of what is known as mistaken identification.” Accordingly, because identification is a material issue in the present case, we conclude that Officer McAuliffe’s testimony that he received defendant’s mug shot from the United States postal service was used for the purpose of explaining defendant’s initial linkage to the crime, not to imply to the jury that defendant committed other unrelated criminal acts. See People v. Warmack (1980), 83 Ill. 2d 112,128, 413 N.E.2d 1254,1262.

Defendant’s final argument is that the State failed to prove beyond a reasonable doubt that defendant had the requisite intent to defraud and guilty knowledge necessary to sustain a conviction for forgery. We disagree.

In order to obtain a conviction for forgery, the State must prove beyond a reasonable doubt that a person, with intent to defraud, knowingly makes, alters, issues, delivers, or possesses with intent to deliver, a document apparently capable of defrauding another in such a manner that it purports to have been made by another. (Ill. Rev. Stat. 1985, ch. 38, par. 17—3; People v. Turner (1989), 179 Ill. App. 3d 510, 515-16, 534 N.E.2d 179, 183.) Intent to defraud may be inferred from the facts and circumstances surrounding the transaction, and if the forged document is delivered, then this intent will be presumed. People v. Lighthall (1988), 175 Ill. App. 3d 700, 706, 530 N.E.2d 81, 84-85; People v. Varellas (1985), 138 Ill. App. 3d 820, 826, 486 N.E.2d 388, 393.

In the present case, defendant’s intent to knowingly deliver a forged document can be inferred from the facts and circumstances surrounding the transaction. Defendant presented a check containing the forged endorsement of Dawn Kane and a fabricated work identification card to the Midlothian State Bank, created from a stolen check-writing machine and drawn on an account which had been closed for over 11 years. Moreover, when it appeared that there was a problem with cashing the check, defendant left the check and work identification card at the teller’s window and fled. We, therefore, conclude from the facts and circumstances surrounding the transaction that the State proved beyond a reasonable doubt that defendant had the requisite intent to defraud and guilty knowledge necessary to sustain a conviction for forgery.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

GREIMAN, P.J., and CERDA, J., concur.