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SIXTH DIVISION

OCTOBER 30, 1998

Nos. 1-97-2421 and 1-97-2534 (Consolidated)

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Following simultaneous trials before separate juries in the circuit court of Cook County,defendants Lawon Davenport and Imari Clemons were found guilty of first degree murder. Davenport was sentenced to 28 years in prison; Clemons received a 59 year sentence. Bothdefendants appeal their convictions. Clemons also appeals his sentence.

The record indicates that the following facts were adduced at both trials. Antwan Palton testifiedthat at approximately 5 p.m. on October 6, 1994, he and his brother Columbus were cominghome from high school when they exited a bus at the corner of 51st and Peoria Streets inChicago. As Antwan and Columbus walked to their home on West 50th Street, Antwan noticed aman at the corner of 50th and Peoria who was dressed in black, with a black cap bearing thewords "I'm Real" cocked to the right. Antwan stated that cocking a hat to the right signifiedmembership in the Gangster Disciples street gang. Antwan identified this man in court asClemons.

Antwan testified that Clemons approached him and Columbus. When Clemons wasapproximately 10 feet away from the Paltons, Columbus said, "GD." Clemons pulled a gun fromhis waistband. When Clemons was approximately 2 feet away from the Paltons, Clemonsresponded, "I ain't a GD. Never could I be a GD."

Antwan testified that Clemons then shot Columbus, who fell backwards. Antwan and Clemonsstood and looked at each other for a few seconds. Clemons ran from the scene. Antwan ranhome to tell his parents that Columbus had been killed. Antwan's parents called the police. Antwan spoke to uniformed police officers that day and to detectives the next day.

Jerome Weathers and Lamont Wesley both testified that they were on West 50th Place onOctober 6, 1994, and saw the Paltons and Clemons walking down the street seconds before theshooting. Both also testified that wearing a hat cocked to the right signified membership in theGangster Disciples. Weathers was a member of the Gangster Disciples, but Clemons was astranger to him at the time. Wesley is a cousin of Weathers. Neither Weathers nor Wesleytestified to seeing the shooting. Both Weathers and Wesley identified Clemons in court.

Weathers was convicted in February 1996 of delivery of a controlled substance and sentenced to18 months of probation. However, at the time of his testimony, Weathers was in custody onanother charge of delivery of a controlled substance and violation of probation. Wesley had beenconvicted in May 1992 of possession of a controlled substance and received probation. Wesleyviolated his probation in October 1993, when he was picked up on a charge of possession of acontrolled substance with intent to deliver, and was sentenced to 3 years in the IllinoisDepartment of Corrections. In January 1996, Wesley was convicted of delivery of a controlledsubstance and again received probation. At the time of his testimony, Wesley was in custody onanother drug charge. Both Weathers and Wesley testified that the State made no promises inreturn for their testimony.

Chicago Police Officer John Kotarac testified that on October 6, 1996, he received an assignmentcall at approximately 5 p.m. of a man shot at 5023 South Peoria. Officer Kotarac arrived at thescene 2 or 3 minutes later and observed a body laying in the middle of the street. Officer Kotaracnoticed a gunshot wound to the left side of the head above the ear.

Officer Kotarac secured the area and interviewed people at the scene, including Antwan andWeathers. Officer Kotarac them broadcast a description of the shooter. According to OfficerKotarac, Columbus was taken to St. Bernard's Hospital by ambulance. Officer Kotarac later wentto the hospital and learned that Columbus had been pronounced dead on arrival.

Chicago Police Officer Albert Pribek, an evidence technician assigned to the shooting, testifiedthat he recovered a spent .380 caliber Winchester cartridge from the scene. Forensic pathologistDr. Barry Lifshultz, who performed the autopsy on Columbus, recovered a bullet from ColumbusPalton's skull and determined that death was caused by a close range gunshot wound to the head. It was stipulated that if firearms expert James Vantilburg were to testify, he would state that thebullet recovered from the skull was .380 caliber.

Chicago Police Detective James Ward testified that he was assigned to the shooting and arrivedat the scene after the body had been taken away. Detective Ward interviewed people on thestreet. Detective Ward then began to look for two suspects. The first suspect was known asTyrone Matthews or "Doughboy." The second suspect was known as Eric. Detective Ward alsohad a physical description of Eric.

On October 7, 1994, Detective Ward spoke with Antwan. Detective Ward submitted a stop orderwith respect to Tyrone Matthews to the Chicago Police Department, which would notifyDetective Ward if Tyrone Matthews was arrested or fingerprinted in some other matter. OnOctober 8 and 12, 1994, Detective Ward generated supplemental reports regarding the twosuspects. Detective Ward also had been informed that the suspects could be members of theBlackstone Nation street gang.

On November 13, 1995, Detective Ward was notified Tyrone Matthews, also known as LawonDavenport, Tywone Davenport or Doughboy, was at the Area 1 police station. Out of thepresence of the Clemons jury, Detective Ward testified that he interviewed Davenport afterinforming him of his Miranda rights at approximately 4:30 p.m. According to Detective Ward,Davenport stated that he was a member of the Black P-Stone Nation street gang and had been athome prior to the shooting. Davenport stated that someone named Myron invited him to go for awalk. When Davenport and Myron reached the corner of 51st and Morgan, Myron showedDavenport an automatic pistol, stated that he was going to shoot a "GD" and needed Davenport towatch his back. Davenport told Detective Ward that he stood lookout while Myron walked up50th Place toward Peoria. Davenport heard a gunshot come from the area of 50th Place andPeoria, then saw Myron running toward him. Davenport and Myron ran together for a distance,then split up. Davenport ran home.

Chicago Police Detective Cliff Gehrke testified that he had also interviewed Davenport onNovember 13, 1995. Davenport initially stated that he was only a witness to the shooting, butlater gave an account similar to that related by Detective Ward.

Detective Ward and Assistant State's Attorney (ASA) Chiao Lee testified regarding a similarwritten statement Davenport gave after 10 p.m. on November 13, 1995. However, the writtenstatement added that Davenport was a "soldier" in the Black P-Stone Nation, which is above thelevel of "shorties," but below that of "generals" in the gang hierarchy. Davenport also added thatMyron is a member of the Black P-Stone Nation, but Davenport did not know his last name oraddress.

The written statement described Myron as dressed in black, wearing a hat with "I'm Real" printedon the front. Davenport stated that the hat was cocked to the right, falsely signifying membershipin the Gangster Disciples, which is a rival of the Black P-Stone Nation. The two gangs were atwar during the summer of 1994. Thus, Myron "would get a lot of glory" for shooting a "GD" andDavenport would get some glory for helping Myron. Conversely, if Davenport failed to helpMyron, he would be "violated," or beaten. Davenport's statement further added that after theshooting, Myron was running toward Davenport, carrying the pistol, which was smoking.

Detective Gehrke testified before both juries that on December 20, 1995, he brought Clemonsinto the Area 1 police station. Detective Gehrke assembled Clemons and four other individualsfor a line-up. Antwan and Weathers viewed the line-up separately; both identified Clemons.

Chicago Police Detective Joseph Stehlik testified that in April 1997, he was told by ASA BobBerlin that Wesley may have witnessed the shooting. On April 15, 1997, Detective JosephStehlik went to the Cook County Jail to take Wesley out of custody to view a line-up. DetectiveStehlik testified that when Wesley got out of the "bullpen" where prisoners were held, he saidthat the man he had seen on the day of the shooting was in the bullpen. Wesley described theman. Detective Stehlik looked into the bullpen, where Clemons matched Wesley's description.

Wesley also testified to seeing Clemons in the Cook County Jail. Wesley added that he hadasked Clemons why he was in jail and that Clemons had told him. Wesley also testified thatClemons had tattoos showing he was a member of the Blackstones.

Over the objections of both defendants, Chicago Police Officer John Bloore testified as a gangspecialist. Officer Bloore testified that street gangs in Chicago fell into one of two groups, theFolks and the People. The Folks use a six-pointed star as a symbol, which originated with DavidBarksdale, the first leader of the Black Gangster Disciples. The People use a five-pointed star asa symbol, which originated with Jeff Fort, the first leader of the Black P-Stone Nation.

Officer Bloore testified that Folks cock their hats to the right; the Black P-Stones cock their hatsto the left. The colors of the Black P-Stones are black and red. The Black P-Stones favorPhiladelphia Phillies baseball caps because they are red with a "P" logo that can stand for thePeople.

Officer Bloore testified that 51st Street was the northern boundary between the territories of theBlack P-Stones and the Gangster Disciples, who were at war in October 1994. Officer Blooredescribed "false flagging" as a tactic where a gang member enters rival territory posing as amember of the rival gang to draw a rival gang member into the open for an ambush. Cocking ahat in the manner of a rival gang is a method of false flagging.

Officer Bloore explained that the hierarchy of a street gang usually began with a chief, followedby generals, soldiers and shorties. Officer Bloore stated that gang members may work their wayup through the gang structure. Killing a rival gang member might result in an increase in rank orother reward from the gang, such as being given a "drug spot" so that the member becomes partof the oversight of the gang's drug operations, rather than a person selling drugs. Conversely, a"violation" is a form of punishment, such as a severe beating, meted out by the gang to disciplinemembers for violating gang rules.

Officer Bloore further testified regarding tattoos worn by members of the Black P-Stones, such asthe initials "B.P.S.," or a pyramid with an eye in the center surrounded by clouds. Over Clemons'objection, Officer Bloore identified tattoos on Clemons' right arm and chest while Clemons stoodin the well of the courtroom, including: a five-pointed star and the initials "B.P.S." on Clemons'right arm, a pyramid with an aura on Clemons' chest; a stone on Clemons' left arm; the initials"B.S." on one hand; and the phrase "Stone life" on Clemons' stomach. Officer Bloore opined thatall of these tattoos were associated with the Black P-Stones. Officer Bloore also identified ateardrop tattoo frequently used by gang members on Clemons' face. On cross-examination,Officer Bloore testified that he did not know whether Clemons had these tattoos on the date ofthe shooting. Officer Bloore never linked Clemons with a nickname.

The State rested its case against both defendants. Davenport rested his case without presentingevidence.

Clemons called Ronald Pluta, an investigator assigned to ASA Bob Berlin, who testified that heinterviewed Wesley on April 4, 1997. Wesley talked about the shooting, but did not mention thatthe shooter had a teardrop tattoo on his left cheek.

Ronald Robinson, who was 11 years old in October 1994, testified that he witnessed the shootingfrom a distance of 99 to 102 feet. Robinson stated that Antwan had stopped to tie his shoeimmediately prior to the shooting. Robinson described the shooter as an African-American malewearing black clothes and a black skull cap. Robinson did not see the shooter's face.

After the shooting, Robinson spoke to the police. Robinson did not remember whether he toldthe police that Antwan had stopped to tie his shoes. The police called Robinson in 1995 to viewa line-up, but Robinson's mother would not let him go to the police station. An investigator cameto Robinson's house, where Robinson was shown a photograph of 5 people sitting in a room. Robinson identified someone other than Clemons as the shooter.

Following closing arguments, jury instructions, and jury deliberations, defendants were foundguilty of first degree murder. The trial court denied both defendants' motion for a new trial. Subsequently, Davenport was sentenced to 28 years in the Illinois Department of Corrections. Clemons received a 59 year sentence. Both defendants now appeal.

I

Initially, both defendants argue that the trial court denied them a fair trial by allowing OfficerBloore to testify regarding the history, structure and workings of the two major street gangs. Thedetermination of this issue involves a three-part analysis: (1) whether Officer Bloore's testimonyqualifies as expert opinion; (2) if so, is it relevant; and (3) does the prejudicial effect of thatopinion outweigh its probative value. People v. Jackson, 145 Ill. App. 3d 626, 633, 495 N.E.2d1207, 1214 (1986). Each of these inquiries will be addressed in turn.

In this case, Clemons does not dispute that Officer Bloore's testimony qualifies as expert. Davenport's brief states that "no issue is taken on appeal with Bloore's skill training, or experience," but contends that none of the testimony went beyond the knowledge of a layperson. However, the trial court could reasonably conclude that a layperson does not have the sameopportunity to observe and learn about the detailed hierarchy and activities of street gangs as didOfficer Bloore. See, e.g., Jackson, 145 Ill. App. 3d at 634, 495 N.E.2d at 1214.

Defendants argue that Officer Bloore's testimony was irrelevant and was elicited only to inflamethe jury. Although a deep and widespread public prejudice may exist against street gangs,gang-related evidence will not necessarily be excluded if it is relevant and admissible. People v.Gonzalez, 142 Ill. 2d 481, 489, 568 N.E.2d 864, 867 (1991); People v. Smith, 141 Ill. 2d 40, 58,565 N.E.2d 900, 907 (1990); see People v. Hairston, 46 Ill. 2d 348, 372, 263 N.E.2d 840, 855(1970). Relevant evidence is that which has any tendency to make the existence of a fact ofconsequence to the determination of the action more or less probable than it would be without theevidence. Gonzalez, 142 Ill. 2d at 487-88, 568 N.E.2d at 867.

Gang-related evidence is admissible to show common purpose or design, or to provide a motivefor an otherwise inexplicable act. Smith, 141 Ill. 2d at 58, 565 N.E.2d at 907; Hairston, 46 Ill. 2dat 372, 263 N.E.2d at 854. Gang-related evidence is also relevant to identification, or tocorroborate a defendant's confession. Gonzalez, 142 Ill. 2d at 488, 568 N.E.2d at 867; People v.Murray, 254 Ill. App. 3d 538, 554, 626 N.E.2d 1140, 1151 (1993); People v. Suarez, 238 Ill.App. 3d 110, 122, 606 N.E.2d 1237, 1244 (1991). However, such evidence must relate to thecrime charged. Smith, 141 Ill. 2d at 58, 565 N.E.2d at 907.

Defendants rely heavily on People v. Mason, 274 Ill. App. 3d 715, 653 N.E.2d 1371 (1995). InMason, the defendant and the victim were both Gangster Disciples. The State introduced gangspecialist testimony to support its theory of motive, which was that defendant was ordered to killthe victim by a superior member of the gang, who was concerned that the victim would becomean informer for the State.

This court concluded that gang crime specialist testimony similar to Officer Bloore's wasirrelevant, inflammatory, and excessive. While the structure of the Gangster Disciples wasrelevant to the State's theory of motive, testimony regarding gang rivalries, tattoos and drug saleswas not relevant. Mason, 274 Ill. App. 3d at 722, 653 N.E.2d at 1375-76. This court also founderror in the State's use of photographs of the defendant showing gang-related tattoos, holding thatthe State unduly emphasized them by arguing that they showed defendant was proud of his gangmembership, instead of arguing that the tattoos showed defendant was a member of the gang,which would have been proper. Mason, 274 Ill. App. 3d at 723, 653 N.E.2d at 1376. This courtconcluded that defendant was denied a fair trial.

In this case, Clemons concedes that some of Officer Bloore's testimony was relevant to show themotive for the shooting, such as: the rivalry between the two gangs; the boundary between thegangs in the area of the shooting; the tactic of "false flagging;" and that a gang might reward amember who killed a member of a rival gang. Clemons argues that the remainder of OfficerBloore's testimony was irrelevant, inflammatory and excessive. For example, Clemons objects tothe testimony regarding the background, history and hierarchy of the two gangs. Clemons alsoobjects to Officer Bloore's reference to the drug operations of these gangs. Davenport makes thesame arguments.

The testimony regarding gang hierarchy is relevant and admissible to explain an otherwiseinexplicable act and to establish a motive for the shooting, i.e. -- advancement within the ranks. The testimony regarding the background, history and criminal activity of the two gangs is farmore troublesome, as it is peripheral to the offense at issue. However, in People v. Lucas, 151Ill. 2d 461, 603 N.E.2d 460 (1992), Harry Martin, a former member of the Black GangsterDisciples (BGD), testified "about the inception and development of the BGD from the 1960suntil the present. He also identified different types of criminal activity the BGD was involved in***." Lucas, 151 Ill. 2d at 488, 603 N.E.2d at 472. Our supreme court affirmed the trial court'sdecision to admit the testimony over objections that it was irrelevant, peripheral and excessive,stating that defendant must show a "clear abuse of discretion resulting in manifest prejudice tothe defendant." Lucas, 151 Ill. 2d at 489, 603 N.E.2d at 473 (emphases added).

Trial courts should exercise great care in exercising their discretion to admit gang-relatedtestimony. See Lucas, 151 Ill. 2d at 487-89, 603 N.E.2d at 472-73. The record in this caseshows that the trial court considered the arguments at length and, while initially skeptical aboutthe probative value of some of the testimony, was ultimately persuaded that it was relevant andadmissible. As this court must follow precedent, we follow Lucas, but the prosecutorial tacticsemployed in this case "push the envelope." We urge the State to act with greater caution andrestraint in the future.

Clemons objects to testimony regarding the colors and attire of the Blackstones. However,Clemons concedes that Officer Bloore's testimony was relevant to show the tactic and methods of"false flagging." Thus, there is no abuse of discretion here.

Clemons objects to the display of his tattoos and Officer Bloore's testimony regarding them, butsuch testimony is relevant to the issue of whether Clemons was a gang member. See Mason, 274Ill. App. 3d at 723, 653 N.E.2d at 1376. Clemons relies on People v. Cruz, 164 Ill. App. 3d 802,518 N.E.2d 320 (1987), which held it was error to allow the showing of a film depicting gangviolence made in September or October 1981 to impeach a witness on the issue of gangmembership, where the charged shooting occurred in January 1982. In Cruz, the defendantadmitted that prior membership in a street gang and his prior membership was not an issue attrial. Cruz, 164 Ill. App. 3d at 813, 518 N.E.2d at 327. In this case, Clemons did not admit gangmembership. The tattoos did not address unrelated acts of gang violence and were not used forimpeachment. Thus, there was no abuse of discretion in admitting the testimony againstClemons. Lucas, 151 Ill. 2d at 489, 603 N.E.2d at 473.

Clemons objects to Officer Bloore's testimony regarding "violation," the punishment a gang mayinflict on its members for disobeying gang rules. This testimony was relevant as to Davenport, toshow motive and corroborate his written statement, but it was not relevant to the guilt ofClemons. However, an error does not automatically require reversal, but is harmless where thecourt is satisfied beyond a reasonable doubt that the error did not contribute to the defendant'sconviction. People v. Colon, 162 Ill. 2d 23, 31-32, 642 N.E.2d 118, 121-22 (1994). As in Colon,other gang-related testimony was properly admitted and other witnesses identified the defendantas the shooter. Indeed, in this case, unlike Colon, the eyewitness was not a gang member. Although the State's introduction of this evidence was improper and its introduction of gang-related evidence peripheral to the offense charged is obnoxious, the evidence against Clemonswas overwhelming. The testimony about "violations" did not contribute to his conviction anddoes not warrant reversal.

Davenport argues that Officer Bloore's testimony was unnecessary and inflammatory because itonly repeated statements he made to the police. This argument fails, given that Davenports trialstrategy was to attack his prior statement. Even assuming, arguendo, that the gang evidence wascumulative, it did not affect Davenport's conviction, given his admissions and the balance of theevidence presented against him. People v. Nichols, 235 Ill. App. 3d 499, 507, 601 N.E.2d 1217,1224 (1992).

Davenport argues that the tattoo evidence was irrelevant to his case because he conceded that hewas a gang member. However, Davenport was convicted on the theory that he was a lookout foranother gang member. Thus, the State could show that the person identified as the shooter was agang member. See Gonzalez, 142 Ill. 2d at 488, 568 N.E.2d at 867; People v. Knox, 241 Ill. App.3d 205, 211-12, 608 N.E.2d 659, 663 (1993).

Davenport also argues that the use of dual juries denied him a fair trial because the tattooevidence related only to Clemons and thus confused the Davenport jury. See People v. Brown,253 Ill. App. 3d 165, 179, 624 N.E.2d 1378, 1389 (1993). However, as the tattoo evidence wasrelevant to show identification and motive, this argument is not persuasive.

In sum, given the facts and circumstances shown in each record on appeal, the admission ofgang-related testimony was not reversible error. However, the State should not conclude that ourdecision today approves of the way in which these cases were prosecuted or establishes aprecedent for less compelling cases.

II

Davenport argues that he was denied a fair trial because he could not cross-examine Clemonsregarding his tattoos. Davenport relies on Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d476, 88 S. Ct. 1620 (1968), and Cruz v. New York, 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct.1714 (1987), both of which held that the use of a nontestifying codefendant's statement at a jointtrial violated the defendant's sixth amendment right to confront and cross-examine the witnessesagainst him.

It should be noted that "[t]he situation here is different from Bruton and Cruz in that here, thedefendants were tried by two different juries." Brown, 253 Ill. App. 3d at 181, 624 N.E.2d at1390; see also People v. Johnson, 149 Ill. 2d 118, 132-34, 594 N.E.2d 253, 261-62(1992)(rejecting application of Bruton in multiple jury case). Moreover, Davenport misstates therecord in arguing in his brief that "Clemons' body took the stand against Davenport as aprosecution witness ***." Rather, the record reflects that Clemons' body was used as an exhibitor demonstrative evidence. There is no Illinois case addressing the display of a person other thanthe defendant or the victim, but other states that have considered the argument Davenport makeshere have rejected it. People v. Morgan, 191 Cal. App. 3d 29, 38-39, 236 Cal. Rptr. 186, 191-92(1987); State v. Kaiama, 81 Hawaii 15, 911 P. 2d 735 (1996). These courts concluded, as did thetrial court here, that such evidence is not testimony and thus outside the right to confront andcross-examine witnesses.

Although the record does not clearly indicate whether Clemons was forced to entirely remove hisshirt for exhibition of his tattoos, the record here goes beyond the mere removal of a jacket todisplay tattoos, as was the case in People v. Speirs, 231 Ill. App. 3d 807, 596 N.E.2d 1257(1992). The State certainly had less inflammatory means of presenting the tattoos to the jury,such as by photographs. E.g., People v. Jones, 161 Ill. App. 3d 688, 515 N.E.2d 166 (1987). TheState conceded this much during oral argument in this appeal. Although we disapprove of theState's method of presenting this evidence, we conclude that the trial court did not clearly abuseits discretion in allowing Davenport's jury to see Clemons' tattoos.

III

Clemons argues that the trial court erred in failing to inquire into the effectiveness of his trialcounsel during the post-trial hearing. A trial court should appoint new counsel to represent adefendant who files a pro se motion asserting ineffectiveness of counsel. People v. Krankel, 102Ill. 2d 181, 464 N.E.2d 1045 (1984). As Clemons did not raise his allegation before the trialcourt, he relies on People v. Williams, 224 Ill. App. 3d 517, 524, 586 N.E.2d 770, 774 (1992),which held that where there is a clear basis for an allegation of ineffective counsel, thedefendant's failure to raise the allegation below did not waive the Krankel problem; the case wasremanded with directions to conduct a preliminary investigation. The trial court was directed thatif the charges lacked substance or pertained only to trial tactics, no new counsel need be appointed; however, if trial counsel may have neglected defendant's case, the trial court was to appointnew counsel to argue ineffective assistance of counsel. Williams, 224 Ill. App. 3d at 524, 586N.E.2d at 774.

In this case, as in Williams, trial counsel failed to call witnesses to support an alibi defense. However, the transcript of proceedings shows that counsel clearly communicated to the trial courtthat he did not think that the prospective witnesses could recall the proper times and eventssufficiently to be good witnesses. A trial counsel's decision regarding whether to presentwitnesses and what defense to assert constitute matters of trial strategy. People v. Ramey, 152 Ill.2d 41, 54, 604 N.E.2d 275, 281 (1992). Thus, the charge of ineffective assistance of counsellacks substance and pertains only to trial tactics. Thus, the trial court did not err in failing toexamine the effectiveness of trial counsel.

IV

Finally, Clemons contends that the trial court abused its discretion in sentencing him to 59 yearsin prison without considering mitigating factors, such as that Clemons: was 18 years old at thetime of the shooting; had no history of violent offenses; had a limited education, but planned tofurther his education; and had rehabilitative potential. A sentencing judge may not refuse toconsider relevant evidence in mitigation. E.g., People v. Maxwell, 148 Ill. 2d 116, 147, 592N.E.2d 960, 975 (1992). However, the trial court is not required to articulate its consideration ofmitigating factors. People v. Boclair, 225 Ill. App. 3d 331, 335-36, 587 N.E.2d 1221, 1224(1992). Where mitigating evidence is before the court, it is presumed that the judge consideredit, absent some indication, other than the sentence imposed, to the contrary. E.g., People v.Willis, 210 Ill. App. 3d 379, 389, 569 N.E.2d 113, 119 (1991).

In this case, Clemons points to the trial court's comment that "[t]here is nothing to mitigate theDefendant's conduct. Nothing whatsoever." Similar comments have been held insufficient toshow that the trial court failed to consider mitigating factors, where the whole of the recordshows that such evidence was presented to and considered by the court. E.g., Maxwell, 148 Ill.2d at 147-48, 592 N.E.2d at 975; People v. Stewart, 101 Ill. 2d 470, 494-95, 463 N.E.2d 677, 689(1984). In this case, the trial court heard argument on the aggravating and mitigating evidence,heard Clemons' statement and reviewed the pre-sentence investigation report. The judgedescribed the shooting as "brutal," added that he was "really shocked, even as a veteran trialjudge" by the case, but agreed with the State that an extended term sentence was not warranted,though the case was "close" on that point. The trial court noted Clemons' age at the time of theshooting, but concluded that he was a "senseless, remorseless unfeeling predator" and that therewas no hope for him. The trial judge was aware that Clemons was convicted of delivery of acontrolled substance prior to the shooting, and convicted of possession of a controlled substancetwice after the shooting. Given this record, the trial court's comment does not show that themitigating evidence was ignored.

For all of the aforementioned reasons, the judgment of the circuit court of Cook County isaffirmed.

Affirmed.

BUCKLEY, J., and ZWICK, J., concur.