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1-99-2023 & 1-99-2685 (cons.)                                                                                                                       First District
Nov. 13, 2001

PRESIDING JUSTICE COHEN delivered the opinion of the court:

On February 25, 1999, after a jury trial, defendants RobertoAbadia and Octabio Arias were convicted of first degree murder(720 ILCS 5/9-1(A)(1) (West 2000)), attempted first degree murder(720 ILCS 5/8-4 (West 2000)), aggravated battery with a firearm(720 ILCS 5/12-4.2A(1) (West 2000)) and armed violence (720 ILCS5/33A-2/I/12-4(A) West 2000)). Defendants were each sentenced toconsecutive prison terms of 90 years for first degree murder andten years for attempted first degree murder. Defendants' appealswere consolidated. Arias argues that: (1) there was insufficientevidence to support his convictions; (2) a new trial is requiredbecause inadvertently the jury was not sworn until the second dayof trial; (3) a new trial is required because of prosecutorialmisconduct during rebuttal argument; and (4) the 90-year sentenceshould be reduced because it is excessive and unconstitutionalunder Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147L. Ed. 2d 435 (2000). Abadia was granted leave of court to adoptthe four arguments raised by Arias on appeal. In addition,Abadia argues ineffective assistance of counsel predicated on hisattorney's failure to present a defense at Abadia's trial. Wehold that the evidence was sufficient to convict the defendantsand that the short time the jury was unsworn did not prejudicethe defendants. However, we find the prosecutor's comments inrebuttal were improper and resulted in substantial prejudice tothe defendants. As we cannot confidently state that the trialwas fundamentally fair, we reverse the defendants' convictionsand remand the case for a new trial. We need not address theremaining issues raised on appeal.

BACKGROUND

The evidence adduced at trial reveals that at 4 a.m. on June20, 1995, defendants traveled in a white Ford Taurus to anisolated dirt road in an industrial area. The area is adjacentto a freight train railroad crossing at 122nd Street in the Cityof Chicago. Mr. Robert Terry, a locomotive engineer, was seatedin the cab of a train stopped approximately 75 feet north of the122nd street crossing. As Terry was preparing to move the train,he saw the white Ford Taurus containing a driver and passengersdrive over the tracks twice before turning south onto the dirtroad adjacent to the tracks. The locomotive's lights were set to"dim," illuminating the area a quarter of a mile ahead of theengine car. Terry lost sight of the Taurus on a dirt roadbecause the road was lower than the tracks and surrounded by six-foot tall marsh reeds. Within a few minutes, Terry heard bothlarge and small caliber gunshots. The police would later findLuis Arce's body, surrounded by used bullet shell casings, at theedge of the dirt road near the tall reeds. When his body wasdiscovered, there were two bullet holes in the back of Arce'shead and seven other bullet wounds to his body.

Terry heard yelling from the same area from which the firstsets of gunshots had emanated. He then heard more gunshots whichsounded as if the shooter was drawing near. A few seconds later,Terry saw a young Hispanic man sprint diagonally northeast fromthe access road across the tracks to the eastern side of thetrain. Terry then saw the defendants running after the young manwhile firing their handguns. As the defendants crossed 122ndstreet and the adjacent set of train tracks, Terry turned all ofhis locomotive lights to the "bright" setting, illuminating thearea up to one and three quarters of a mile ahead of the enginecar. Startled by the bright lights, the defendants stopped,looked up at the locomotive and then ran back to the whiteTaurus, which had backed out of the dirt road and followed thedefendants to the paved railroad crossing.

Terry observed the driver as defendants scurried into thecar. Defendants drove toward Torrence Avenue on 122nd street. Terry called for help on his radio and spoke to railroad policeofficer Mark Postma. Terry told Officer Postma of the gunshots,described the vehicle, indicated its direction of travel anddescribed the passengers. While Officer Postma was responding tothe radio call for help, a young man, who Terry "figured it [sic]was the guy that had been shot at," approached Terry's locomotivefrom the northwestern side of the train after the Taurusdeparted. Terry thought the young man would have had to "crawlunder" his train to approach the cab from the northwest becausethe train extended a mile and a half behind Terry's engine car. The young man, later identified as Gabrielle Gonzales, told Terrythat he was hurt and that he needed an ambulance. Terry toldGonzales to sit down because Gonzales' intestines were protrudingfrom his body and he was bleeding. Terry observed Gonzalesturning white as if "he was going into shock." Both an ambulanceand Chicago police officers arrived at the scene within 15 to 20minutes.

Officer Postma drove his unmarked police car to theintersection of Torrence and 130th street where he saw the whiteFord Taurus described by Terry. The white Taurus was the onlyother car on the road at the intersection. Officer Postmaobserved the three passengers and followed the car onto the DanRyan expressway. At the same time, he contacted the IllinoisState Police. Detective Neil Maas of the Chicago police alsoresponded to Officer Postma's radio communication. With theassistance of Officer Postma and Illinois State Trooper TimDrozd, Detective Mass executed a traffic stop of the car on theexpressway near 86th street. Detective Maas then transported thedefendants and the driver of the Taurus to the Area 2 policestation. When arrested, the defendants were wearing the sameclothing described by Terry at the scene of the crime. Terryidentified the defendants later that same day from a line-up.

The defendants were convicted of first degree murder (720ILCS 5/9-1(A)(1) (West 2000)), attempted first degree murder (720ILCS 5/8-4 (West 2000)), aggravated battery with a firearm (720ILCS 5/12-4.2A(1) (West 2000)) and armed violence (720 ILCS5/33A-2/I/12-4(A) (West 2000)). Defendants were each sentencedto consecutive prison terms of 90 years for first degree murderand ten years for attempted first degree murder. This appealfollowed.

ANALYSIS

I. Sufficiency of the Evidence

"When reviewing the sufficiency of the evidence in acriminal case, the proper standard of review is whether, afterviewing the evidence in the light most favorable to the State,any rational trier of fact could have found the essentialelements of the crime beyond a reasonable doubt." People v.Lamborn, 185 Ill. 2d 585, 590, 708 N.E.2d 350, 353-4 (1999). Thefunction of this court is not to retry the defendant. People v.Digirolamo, 179 Ill. 2d 24, 43, 688 N.E.2d 116, 125 (1997). "Circumstantial evidence is sufficient to sustain a conviction ifit satisfies proof beyond a reasonable doubt of the elements ofthe crime charged." People v. Campbell, 146 Ill. 2d 363, 379, 586 N.E.2d 1261, 1268 (1992). "Determinations of the credibilityof witnesses, the weight to be given their testimony, and thereasonable inferences to be drawn from the evidence are theresponsibility of the trier of fact." People v. Emerson, 189Ill. 2d 436, 475, 727 N.E.2d 302, 324 (2000) citing People v.Nitz, 143 Ill. 2d 82, 95, 572 N.E.2d 895, 900-01 (1991). Thetrier of fact may consider inferences which flow naturally fromevidence presented in court; however, the trier of fact is notrequired to "search out all possible explanations consistent withinnocence and raise them to a level of reasonable doubt." Campbell, 146 Ill. 2d at 379, 586 N.E.2d at 1268.

Defendants argue that Terry is unreliable as an eyewitnessbecause he saw individuals matching the defendants appearance foronly a few seconds from 75 feet away and he testified to eventsinconsistent with the physical evidence at the crime scene. Thedefendants argue that the locomotive's lights were on the "dim"setting and it is improbable under the circumstances for Terry tohave observed sufficient details to make a reliableidentification of the defendants. However, the record reflectsthat Terry turned his locomotive's lights to the "bright" settingafter he had observed the defendants run approximately 50 feetfrom the entrance of the dirt road to the railroad crossing infront of the locomotive. The defendants stopped running andlooked up at the cab where Terry was sitting after Terry hadalready activated the bright lights. The record shows Terry gavean accurate description of the defendants to the police officersshortly after he witnessed the events. Determinations ofcredibility by the trier of fact are accorded great deference bya reviewing court and we will not disturb this determination. People v. Wittenmyer, 151 Ill. 2d 175, 191, 601 N.E.2d 735, 743(1992).

Defendants attempt to fortify their unreliability argumentby stating that Terry's testimony is inconsistent with thephysical evidence. Specifically, defendants argue that Terrytestified the defendants were firing their pistols at Gonzalesand that Gonzales returned fire with his pistol while he ran awayfrom the defendants. Defendants argue that because the policefailed to recover any weapons or shell casings from the areabetween the entrance to the dirt road and the locomotive and alsofailed to recover any weapons or casings from the white Taurus,Terry's testimony is unreliable.

The absence of bullet shell casings, except for thosesurrounding Luis Arce's body, as well as the absence of anyweapons does not indicate that Terry's testimony is unreliable. The record contains testimony that Terry observed Abadia with a"chrome-plated revolver" and Arias with a "blue steel or blackpistol." Neither weapon was recovered by the police. The recordcontains no indication whether defendant Arias used a revolver, a semi-automatic or an automatic weapon. Police officer PatrickMoran, who works as an evidence technician with the Crime SceneProcessing Section of the Chicago Police Crime Lab, testifiedthat shell casings are mechanically ejected from automatic andsemi-automatic type weapons after each bullet is fired and thatshell casings from a revolver must be manually removed. Withoutevidence as to whether automatic or semi-automatic weapons wereused to shoot Gonzales, the defendants have no evidence tosupport the conclusion that shell casings should be found nearthe railroad crossing. Similarly, the failure of police torecover any weapons or shell casings from the white Taurus doesnot vitiate the reliability of Terry's eyewitness testimony. Asthe record contains no evidence that the guns were ever firedinside the car, there is nothing to support an inference thatshell casings or weapons would be found inside the car.

Although the defense attempted to impeach Terry with apolice report stating that Terry saw Gonzales turn towards thedefendants with an outreached arm as if he had a weapon, therecord reveals that Terry clarified his testimony by stating attrial that he did not see a gun in Gonzales' hand. Whiledefendants persist in arguing on appeal that Gonzales had aweapon, whether Gonzales possessed a weapon is a credibilitydetermination, which we will not disturb here. Emerson, 189 Ill.2d at 475, 727 N.E.2d at 324.

We find Terry's testimony at trial was consistent with thefacts in the record. Defendants cannot point to any evidence inthe record to support their argument that Terry's testimony isinconsistent with the physical evidence. Defendants fail to showTerry's testimony is unreliable. Thus, after viewing theevidence in the light most favorable to the State, we areconvinced that a rational trier of fact could have found theelements of the crimes beyond a reasonable doubt. Lamborn, 185Ill. 2d at 590, 708 N.E.2d at 353-4.

II. Unsworn Jury

Defendants argue that while the court did timely instructmembers of the jury on the trial process and their duties, thecourt inadvertently allowed the jury to hear a full day oftestimony before the court administered the juror's oath to thejurors. Defendants seek a new trial based on this one day delay.

Defendants raise this issue for the first time in thisappeal. "Issues not raised at trial and not presented in awritten post-trial motion are ordinarily deemed waived onreview." People v. Hicks, 181 Ill. 2d 541, 544, 693 N.E.2d 373,375 (1998). However, the issue raised by defendants is unusualand "the goals of obtaining a just result and maintaining a soundbody of precedent may sometimes override considerations ofwaiver." Hicks, 181 Ill. 2d at 544, 693 N.E.2d at 375. Theprinciple of waiver "limits the parties' ability to raise anargument, not this court's right to entertain an argument." People v. Heard, 187 Ill. 2d 36, 60, 718 N.E.2d 58, 72 (1999). We choose to address the merits of the claim as we view thisissue as one of first impression in Illinois and find analysisappropriate.

Defendants argue that the juror's oath is critical to theadministration of justice.⁽¹⁾ One cannot disagree that the juror'soath is a solemn vow to serve the rule of law which governs thesocial contract of our society. The juror's oath is essentiallya promise to lay aside one's "impression or opinion and render averdict based on the evidence presented in court." People v.Williams, 40 Ill. 2d 522, 531-32, 240 N.E.2d 645, 651 (1968). The issue here is whether the failure to administer the juror'soath until the conclusion of the first day of testimony vitiatesthe entire proceeding and entitles defendants to a new trial.

The record reveals that defense counsel objected neither tothe failure of the court to administer the juror's oath on thefirst day of trial nor to the belated administration of the oathon the second day of trial. Defendants do little more before usthan to identify this procedural irregularity and hope for afavorable ruling. They offer no argument and give this court nosuggestion as to how they were prejudiced by the delayed swearingof the jury. This court cannot engage in speculation; thus, weturn to the record of proceedings for guidance.

Jurors are generally instructed and sworn to hear all theevidence without forming opinions as to guilt or innocence untilthe end of the trial. In the present case, the judge instructedthe jury prior to hearing evidence:

"Ladies and Gentlemen, I am going to talk with youfor five minutes or so, and then we will excuse you fortoday, and we will pick up again tomorrow.

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The hardest thing about being a juror is that youcan't discuss the case with anyone, so I am ordering younot to discuss the case. That is in fairness to bothsides. What you need to do is wait with an open minduntil you hear all the evidence in the case, and thenwait until I read to you what the law is and instruct youas to the law you are to apply to the case, and then,when you go back to the jury room, then and only then isit proper to begin to discuss the case, so do not discussthe case among each other, with each other when you arewaiting in the morning or lunch, and don't discuss it athome with anyone else. When you go home, somebody willsay, "Were you picked," and you will say, "Yeah, I don'tbelieve it." They will say, "What kind of case is it,"and you will say, "I can't tell you." I don't want you totell them what kind of case it is, and I don't want themto say anything about what they have saw or read. I wantyou to decide the case based on the evidence you willhear in this courtroom.

By the same token, for the same reason, I amordering you not to watch the TV news tonight or listento News Radio 78 or news radio programs or watch any TV,crime dramas, police dramas, or courtroom dramas. Idon't expect that this case will be discussed, but Idon't want any other external things to enter into yourconsciousness when you are focusing on this case. Again,I want you to decide the case on the evidence in thecase, and that is the reason for the order regardingthat.

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Ladies and Gentlemen, with that, if you would goback to the jury room, she will show you the jury room inthe hallway. *** At the close of the case, I willinstruct you that those of you who took notes may useyour notes during deliberations. Those of you who do nottake notes should not give undue weight to therecollection of a juror who did take notes just becausethey took notes. Your recollection of the evidence, eventhought you didn't take notes, may be just as good orreliable as a juror who did take notes.

So, with that, Folks, we will see you tomorrow at10:15 A.M. Thank you."

The extensive nature of the Judge's pre-trial instructionsto the jury and the fact that the jury in this case was swornbefore they began deliberations obviate our concern that theproceeding was tainted. All the concepts required by our systemof justice to be communicated to a juror were effectivelyimparted in these pre-trial instructions. In this case, it isclear from the record that the pre-trial instructions preservedthe integrity of the proceeding until the juror's oath wasadministered. While swearing the jury is preferably done priorto opening statements (as all pre-trial instructions may not beas thorough as those given in the instant case), the one daydelay in giving the oath did not deprive these defendants of afair trial. We find no prejudice here and conclude that thedelayed swearing of the jury was harmless.

We have found multiple cases from other jurisdictions inwhich courts have reached similar conclusions. In United Statesv. Hopkins, 458 F.2d 1353, 1354 (5th Cir. 1972), the court heldthat failing to administer the juror's oath until after the closeof the government's case but before deliberation was harmlesserror where no prejudice was shown and no objection was made. InState of Wisconsin v. Block, 170 Wis. 2d 676, 681, 489 N.W.2d715, 717 (1992), the court held that absent a showing ofprejudice, reversal was not warranted because the jury was notsworn until six witnesses had testified for the State. In Hollisv. People of the State of Colorado, 630 P. 2d 68, 70 (1981), thecourt held that absent an objection or a showing of prejudicefrom defendant, it was harmless error to swear the jury untilafter the first State's witness had testified. In People of theState of New York v. Morales, 570 N.Y.S. 2d 831, 833 (1991), thecourt held that because the jurors were sworn prior todeliberations and the defendant had failed to show any prejudice,the delay was harmless. In State of Vermont v. Roberge, 115 Vt.121, 582 N.E.2d 142, 143 (1990), the court held that absent anobjection or a showing of prejudice, there is no reversible errorwhere a jury is sworn before deliberations in a criminal case. Further, we believe that it is incumbent upon the defense toraise an objection to an unsworn jury at trial or risk waivingthe issue on appeal. See Hicks, 181 Ill. 2d at 544, 693 N.E.2d at375.

III. Prosecutorial Misconduct

Prosecutors are afforded wide latitude in closing argumentand may argue reasonable inferences from the facts in evidence. People v. Williams, 192 Ill. 2d 548, 573, 736 N.E.2d 1001, 1015(2000). This court will not reverse a trial court'sdetermination concerning the propriety of a prosecutor's closingremarks absent an abuse of discretion. People v. Hudson, 157Ill. 2d 410, 441, 626 N.E.2d 161, 178 (1993). Even if found tobe improper, such remarks "generally do not constitute reversibleerror unless they result in substantial prejudice to theaccused." People v. Morgan, 112 Ill. 2d 111, 132, 492 N.E.2d1303, 1311 (1986).

Courts have consistently held that prosecutorial remarksinvited by defense counsel will not constitute reversible errorabsent a showing of substantial prejudice. People v. Mendez, 318Ill. App. 3d 1145, 1152, 745 N.E.2d 93, 100 (2001). We also notethat even prejudicial statements by the prosecutor may be curedby the court's proper instructions of law. People v. Simms, 192Ill. 2d 348, 396, 736 N.E.2d 1092, 1124 (2000). "[T]he act ofpromptly sustaining the objection and instructing the jury todisregard such argument has usually been viewed as sufficient tocure any prejudice." People v. Gonzalez, 142 Ill. 2d 481, 493,568 N.E.2d 864, 869 (1991). However, "the prejudicial effect ofan improper argument cannot always be erased from the minds ofthe jurors by an admonishment from the court." People v.Baptist, 76 Ill. 2d 19, 30, 389 N.E.2d 1200, 1205-06 (1979).

While a prosecutor may comment on the persuasiveness of thedefense theory of the case as well as any supporting evidence andreasonable inferences drawn therefrom, "it is blatantly improperto suggest that the defense is fabricated, as such accusationsserve no purpose other than to prejudice the jury." People v.Aguirre, 291 Ill. App. 3d 1028, 1035, 684 N.E.2d 1372, 1377(1997). While a prosecutor may comment on defense "counsel'sfailure to produce evidence promised in opening statement so longas the comments do not reflect upon defendant's failure totestify" (People v. Huddleston, 176 Ill. App. 3d 18, 30, 530N.E.2d 1015, 1023 (1988)), "[a]ccusations of deception andtrickery by defense counsel serve no purpose except to prejudicethe jury." People v. Thompson, 313 Ill. App. 3d 510, 514, 730N.E.2d 118, 122, (2000). "[C]omments disparaging the integrityof defense counsel and implying that the defense presented wasfabricated at the discretion of counsel have consistently beencondemned. [Citations.]" People v. Starks, 116 Ill. App. 3d 384,394, 451 N.E.2d 1298, 1305 (1983).

Our supreme court has held that it is improper for aprosecutor to accuse a defendant's attorney of "lying and ***attempting to create a reasonable doubt by 'confusion,indecision, and misrepresentation.'" People v. Weathers, 62 Ill.2d 114, 120, 338 N.E.2d 880, 883 (1975). More recently, oursupreme court stated that "'[u]nless based on some evidence,statements made in closing arguments by the prosecution whichsuggest that defense counsel fabricated a defense theory,attempted to free his client through trickery or deception, orsuborned perjury are improper. [Citations.]'" (Emphasis inoriginal.) People v. Kirchner, 194 Ill. 2d 502, 549, 743 N.E.2d94, 119 (2000), quoting People v. Jackson, 182 Ill. 2d 30, 81,695 N.E.2d 391, 416 (1998). "Moreover, '[w]here a prosecutor'sstatements in summation are not relevant to the defendant's guiltor innocence and can only serve to inflame the jury, thestatements constitute error.' [Citations.]" People v. Kidd, 147Ill. 2d 510, 542, 591 N.E.2d 431, 446 (1992).

The burden of proof in a criminal trial "includes both theburden of producing evidence and the burden of persuading thetrier of fact." People v. Ziltz, 98 Ill. 2d 38, 43, 455 N.E.2d70, 72 (1983). As the burden of proving defendants' guilt beyonda reasonable doubt always rests on the prosecution, defendantsare not obliged to offer any proof of innocence. People v.Armstead, 322 Ill. App. 3d. 1, 15, 748 N.E.2d 691, 703 (2001),citing People v. Weinstein, 35 Ill. 2d 467, 470, 220 N.E.2d 432,434 (1966) and People v. Swift, 319 Ill. 359, 365-66, 150 N.E.236, 266 (1925); People v. Millighan, Ill. App. 3d 967, 971, 638N.E.2d 1150, 1154 (1994); People v. Berry, 264 Ill. App. 3d 773,780, 642 N.E.2d 1307, 1314 (1994); see also People v. Coulson, 13Ill. 2d 290, 296, 149 N.E.2d 96, 99 (1958) (holding that aconviction "must rest on the strength of the People's case andnot the weakness of the defendant's case."). While defendantsare not required to present any evidence of innocence, defendantsmay, however, posit alternative theories to explain the evidencepresented by the prosecution.

In the instant case, after the prosecution concluded itscase in chief, defense counsel opted not to present a defensecase. Closing arguments commenced with the prosecution'scustomary recitation of the evidence presented at trial andreasonable inferences drawn from the evidence.

During closing arguments, the defense presented twohypotheses intended to engender reasonable doubt in the minds ofthe jurors. The first hypothesis suggested that the driver ofthe Taurus saw something on the dirt road and that this promptedhim to drive back to the road entrance. Defense counsel stated:

"No one can say for sure that there was -- beyond areasonable doubt, I should say, that there wasn't anothercar down there where the body [Luis Acre's body] wasfound."

This hypothesis was further developed by counsel stating:

"[w]hether they saw a person down there, whetherthey saw headlights, another car down there, the Statehasn't proven it. Certainly you know and you've heardthat there's another way in and out. The road continueson and keeps going through the marsh or whatever is backthere."

The other hypothesis posited by defense counsel suggested thatbecause Gabrielle Gonzales was badly wounded and approached Terryfrom the west side of the train, Gonzalez could not have been theman seen running across the tracks from defendants to the eastside of the train. Counsel argued that the man seen sprintingwas some other individual who then disappeared into the marsheast of the train.

In the State's rebuttal, the prosecutor, Mr. Fabio Valentinilambasted defense counsel utilizing what the State characterizedas continuous examples of defense attorney misconduct. Defendants characterize the prosecutor's comments in his rebuttalas accusations of "defense fabrication," "witness mistreatment"and "witness intimidation." Defendants point out the thirty-plusobjections the defense was forced to make during rebuttal alone.

The State counters that the prosecutor's comments wereproperly based on the evidence, that the trial court did notabuse its discretion when it overruled objections to allegationsof witness mistreatment and that the alleged witness intimidationwas not reversible error.

We first note that the State misstates the law by claimingthat Arias waived all questions of prosecutorial misconductbecause his counsel failed to object at trial. While this courtnotes that the waiver argument is a work horse of the State'sAttorney's office and often is dispositive, waiver cannot beubiquitously applied when the record does not support such afinding. In order to preserve an issue for appeal, a defendantmust make a contemporaneous objection at trial and raise theissue in a post-trial motion. People v. Nieves, 193 Ill. 2d 513,524, 739 N.E.2d 1277, 1282 (2000). "However, this rule is notabsolute. A reviewing court may consider errors which affectsubstantial rights (73 Ill. 2d R. 615(a)), or which *** aresufficiently prejudicial to deny defendant a fair trial." Peoplev. Whitlow, 89 Ill. 2d 322, 342, 433 N.E.2d 629, 638 (1982).

The record reveals that the only issue to which defendantArias' counsel did not object was the alleged witnessintimidation; however, Abadia did preserve the issue on appeal. As we must consider the prejudicial impact of the comment as toAbadia, we cannot escape the fact that defendants were triedjointly and "legal responsibility" instructions were given to thejury.

We consider the present case analogous to Whitlow where "thedefendants were tried jointly on both conspiracy and substantivecharges, and an 'accountability' instruction was given to thejury." Whitlow, 89 Ill. 2d at 342, 433 N.E.2d at 638. Oursupreme court stated that because "the State's theory involvedthe responsibility of each defendant for the acts of hiscodefendants *** improper remarks directed at one defendant werelikely to be considered by the jury as evidence against all ofthem." Whitlow, 89 Ill. 2d at 342, 433 N.E.2d at 638. Just asthe supreme court considered the cumulative impact of allprejudicial comments on all defendants in Whitlow (89 Ill. 2d at342, 433 N.E.2d at 638), we will consider the witnessintimidation comment in weighing the cumulative prejudicialeffect of the other rebuttal comments on both Abadia and Arias. Having disposed of the waiver issue, we turn to thedefendants' contention of prosecutorial misconduct. Defendantsclaim the prosecutor made accusations of fabricating defenses andwitness mistreatment during rebuttal argument.

The prosecutor stated: "The problem is it takes four years for a case likethis to go to trial. * * * During the four years, fromJune 20, 1995 and apparently this morning, it gets fouryears for two teams of defense lawyers to come up withand concoct the various theories and ideas of what mighthave happened and what they wished the evidence wouldshow *** And the night before closing arguments,apparently they sit around and fantasize and concoct awhole bunch of theories [sic] impossibilities of whatcould have happened and what may have happened and whatprobably happened."

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"You should ask yourself why lawyers for thesedefendants would stand here and make up stories."

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"Why in three days they would present distractionsand continue to present distractions and distort thingsand misstatements and confuse things and change theoryduring the course of the trial."

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"As I was saying, you have to ask yourself why thedefense in this case keeps changing."

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"Robert Terry is a hard working guy who didn'tdeserve the abuse he endured. The abuse he endured onthe stand when he was mocked and mistreated and thingswere misstated to him and things were suggested to himwhen he had said that he said he didn't say."

* * *

"And at one point Mr. Meczyk said he questioned himabout something he said on direct examination and he saidsir, I took notes, I took notes and he was going tocross-examine him and suggest that he was sayingsomething different, but he couldn't prove it up."

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"You know, we happily accepted the burden in thiscase as we do in every case. But when things aremisstated, when things are misstated to you, you shouldask yourself why."

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"Why are you being told things that are completelynot true"

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"And despite what people want to tell you, despitetheir misstatements, despite all the baloney, youremember Robert Terry's testimony."

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"What trial are they talking about? Not this one."

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"Why do they keep changing?"

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"Why are they misstating the evidence and makingthings up as they go along?"

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"Don't let them confuse you."

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"Not only that, doesn't that deny common sense? Isn't that ridiculous? Isn't that a desperate argumentmade by desperate defendants who are clearly, clearly ina desperate situation now?"

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"[I]t defies common sense and it's an insult to yourintelligence."

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"That is a complete misstatement of the evidence."

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"Don't let them confuse you by misstating theevidence."

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"[I]t's another method to try and get you to thinkabout something other than the evidence in this case."

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"And it is about seeing justice done, and justicedoesn't mean you execute someone and scare off all thewitnesses and you get away with it."

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"They mocked him when they testified about hismilitary experience. They misstated things he said, theymisquoted him, they made fun of him."

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"But you can understand why they don't like RobertTerry."

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"You can understand why they want you to believethings he said that he didn't say. You can understandwhy they will misquote him and they will mock him"

We must turn to the record to examine the prosecutor'scomments in the context of the entire arguments of both thedefense and the prosecution. People v. Morgan, 142 Ill. 2d 410,453, 568 N.E.2d 755, 770 (1991). As the defense chose not topresent a case, the record contains only the prosecution's casein chief. Consequently, the record does not contain evidencewhich could support the hypotheses that the defense argued inclosing. The record also contains no evidence which wouldclearly contradict the defense hypotheses. Lacking such evidencein the record, we cannot ascertain the truth or falsity of thedefendants' closing arguments from the record. We are thereforecertain that if we cannot detect any evidence of defensefabrication, the prosecution had no evidence that the defense wasconcocted. Unless predicated on evidence that defense counselbehaved unethically, the accusations that defense counselattempted to create a reasonable doubt by confusion,misrepresentation, deception, and fabrication were irrelevant tothe defendants' guilt or innocence, improper and highlyprejudicial. Weathers, 62 Ill. 2d at 120, 338 N.E.2d at 883;Kidd, 147 Ill. 2d at 542, 591 N.E.2d at 446; People v. Fluker,318 Ill. App. 3d 193, 202, 742 N.E.2d 799, 806 (2000).

After a careful review of the record, we cannot characterizethe prosecutor's rebuttal argument either as based on theevidence or as invited comment by the defense. Mendez, 318 Ill.App. 3d at 1152, 745 N.E.2d at 100; Kirchner, 194 Ill. 2d at 549,743 N.E.2d at 119. Furthermore, we do not believe the court'sinstructions of law could cure the substantial prejudice causedby the prosecutor's comments. Simms, 192 Ill. 2d at 396, 736N.E.2d at 1124. "Where there are numerous instances of improperprosecutorial remarks, a reviewing court may consider theircumulative impact rather than assessing them in isolation." People v. Brown, 113 Ill. App. 3d 625, 630, 447 N.E.2d 1011, 1015(1983), citing Whitlow, 89 Ill. 2d at 341, 433 N.E.2d at 638. The prosecution's rebuttal strayed so often from proper lines ofargument that its cumulative effect was to deprive the defendantsof a fair trial by drawing the jury's attention away from theissues in the case. Fluker, 318 Ill. App. 3d at 202, 742 N.E.2dat 806; see People v. Blue, 189 Ill. 2d 99, 141, 724 N.E.2d 920,941 (2000)(holding that reversal was warranted when "the trialcourt allowed the guilty verdict to rest on considerations otherthan the evidence alone.") The prosecutor's comments attackingboth defense counsel, served no purpose but to prejudice thetrier of fact against the defense and thus constitute reversibleerror.

Defendants also argue that the prosecutor prejudiced thejury against defendants during closing argument by accusingdefense counsel of mistreating the State's star eyewitness. Specifically, the prosecution stated that the train engineer,Robert Terry, was "abused," "mocked and mistreated" and that"things were misstated to him and things were suggested to himwhen he had said that he said he didn't say." We acknowledgedefense counsel's intellectual agility in deciphering theprosecution's complex sentence and making a timely objection. However, we ourselves must once again turn to the record inresolving this issue.

Examining the record in light of the prosecutor's comment,we can ascertain only two instances in which the defense couldhave "suggested" a response to Terry. During cross-examination,defense counsel asked Terry whether he had told two policeofficers he had seen a car drive south on Yates Avenue 15 minutesbefore he heard gunshots and saw a man running towards his train,as reflected in a police report. Terry testified that he did nottell the police 15 minutes had lapsed between seeing the car andhearing the gunshots. The police report was not entered intoevidence. Questioning Terry on the time line of events was alegitimate area of inquiry and certainly not "abuse." The onlyother such instance was when defense counsel cross-examined Terryabout whether he saw Gonzales turn to fire a gun at thedefendants while running. Terry stated on both cross-examinationand redirect that he told police that he thought the man runningaway from defendants had fired a gun at defendants. Terry thenclarified his testimony by stating that he neither saw a gun inGonzales' hands nor saw a muzzle flash.

Given the record, we fail to understand how the defense"abused" the witness in asking questions about potentialinconsistencies in the witness' testimony. We conclude that theprosecutor mischaracterized the cross-examination of the State's eyewitness in his rebuttal. The State's mischaracterization wasnot relevant to the guilt or innocence of defendants and couldonly serve to inflame the jury. People v. Smith, 141 Ill. 2d 40,60, 565 N.E.2d 900, 908 (1990). As such, the prosecutor's false allegation of witness "abuse" constitutes further error. Kidd,147 Ill. 2d at 542, 591 N.E.2d at 446;

The final instance of misconduct occurred when theprosecutor stated "justice doesn't mean you execute someone andscare off all the witnesses and you get away with it." Defensecounsel's objection was sustained and the jury was instructed todisregard the remark. "Prosecutorial comments which suggest thatwitnesses were afraid to testify because defendant had threatenedor intimidated them, when not based upon any evidence in therecord *** are highly prejudicial and inflammatory." People v.Mullen, 141 Ill. 2d 394, 405, 566 N.E.2d 222, 228 (1990). Searching the record, we have failed to identify any evidencewhich would support the prosecution's accusation of witnessintimidation and further find the harm to defendants could not becured by the trial court's sustainment of the objection andsubsequent curative instruction. People v. Brown, 113 Ill. App.3d 625, 629, 447 N.E.2d 1011, 1014 (1983). This outrageousaccusation of witness intimidation yet serves to more throughly convince us that the prosecution's rebuttal commentaryconstituted a pattern of conduct designed to inflame and arousethe prejudice of the jury. Brown, 113 Ill. App. 3d at 447 N.E.2dat 1014. Such conduct by the prosecution constitutes reversibleerror. Mullen, 141 Ill. 2d at 405, 566 N.E.2d at 228; Kidd, 147Ill. 2d at 542, 591 N.E.2d at 466.

As our finding of prosecutorial misconduct requires us toreverse the defendants' convictions, we need not address theremaining two issues on appeal.

CONCLUSION

We hold that although there was sufficient evidence toconvict the defendants and the unsworn jury had no prejudicialeffect, the prosecutor's comments during rebuttal argument causedsuch substantial prejudice to defendants that our confidence inthe verdict has eroded to the point where we cannot confidentlystate that the trial was fundamentally fair. We thereforereverse defendants convictions and remand the case to the circuitcourt for a new trial.

Reversed and remanded for new trial.

TULLY, J., concurs. COUSINS, J., specially concurs.

Justice Cousins, specially concurring:

Because I agree that comments made by the prosecutor duringrebuttal argument caused substantial prejudice to the defendants,I concur specially in the decision to reverse and remand for anew trial. However, the opening statement that was made by thedefense counsel for Abadia in this case is a "bombshell". Thedefense counsel made the following opening statement:

"At the very outset I want to tell you thatthe charge against Roberto Abadia is a falsecharge, it's an absolutely false charge.

Members of the jury, it's true that RobertoAbadia has those legal advantages, the burden ofproof and the presumption of innocence. But inthis case Mr. Abadia doesn't want it.

Mr. Abadia is going to prove to you, we will competently prove to you, that he did not commit any murder.

Members of the jury, I 'm going to bring into this courtroom-Let me back up. Let me tell you this:

I'm going to make full disclosure to youabout Roberto Abadia and I'm going to tell you at the very outset, at the very beginning of this trial that Mr. Abadia is not an angel and that he's not a choir boy. I want to tell you that from the beginning.

Mr. a Babb (sic) I can't was, in fact,involved with illegal substances, withcontrolled substances. Yes, he was a drugdealer and yes, members of the jury, I'mgoing to prove to you that he owed peoplemoney and so did the dead person in thiscase, the decedent, Mr. Arce. And but forthe grace of God Roberto Abadia was almost avictim himself. And there is anothereyewitness to this case, members of the jury,besides the engineer of that Norfolk andWestern locomotive facing south down thosetracks, and there is another eyewitness inthis case, and you are going to hear fromthat eyewitness as to what really happeneddown that embankment that ran parallel downto those railroad tracks. And you're goingto hear that Mr. Abadia himself was going tobe a victim of an execution. And you'regoing to hear what actually occurred thatnight and what happened to him. You're going to hear things in this casethat the prosecution has in their file andwon't disclose, but we will disclose those toyou and we'll bring the light of day intothis courtroom and not hide anything fromyou. You are going to hear evidence, and whenyou -- evidence that will exonerate, if youwill, that at the end you will come to theconclusion that Roberto Abadia is not amurderer.

Counsel mentioned to you the gunshot residue. Yes, and he also mentioned to you blood on Mr. Abadia. I can tell you that there was indeed blood on Mr. Abadia. And you'll find out the reason soon enough why there was blood on Mr. Abadia.

Members of the jury, when this case isover you will come to the conclusion that Mr.Abadia is not a murderer and this is a falsecharge. And our evidence, that is Mr. Abadia's evidence, will come in."

During the closing argument, counsel for defendant Abadiaargued:

"There is an instruction that the Judgeis going to give to you this morning.

I suppose that saves me because two days ago I came to this courtroom and I promised every one of you folks sincerely that I was going to present the case.

I'm not asking his Honor, Judge Moran to exonerate me or save me or what this instruction the law, the law of the State of Illinois to save me.

If you're mad at me, please don't take it out on Roberto Abadia, tell me afterwards, 'you lied to me.' I didn't lie to you. I sincerely thought I had to present a case."

In my view, this is a case where the arguments by both thestate and defense are improper. Unfortunately, when such occurs,justice is thwarted.

1. The record does not contain the oath administered to themembers of the jury because the oath was conducted off therecord.