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                                                                                                               SECOND DIVISION
                                                                                                               October 31, 2000

No. 1-99-1345

Following a jury trial, defendant Xavier Edgecombe wasconvicted of armed robbery and sentenced to a six-year prisonterm. On appeal, defendant contends that he was denied a fairtrial because the State engaged in improper argument and thetrial court improperly admitted hearsay evidence of flight. Wereverse and remand for a new trial.

Briefly stated, the State's evidence established that DeShonThompson was the victim of an armed robbery at approximately 1a.m. on January 15, 1998, near the intersection of Thorn andHickory Streets in Chicago Heights. Three individuals, includingdefendant, grabbed the victim, pointed a gun at him, and demanded drugs and money. Defendant and another individual held thevictim's arms while the third individual pointed the gun at thevictim. After taking $60 from the victim, the three men got intoa car and drove off. The victim then reported the incident topolice and described the robbers and their vehicle. OfficerJulian testified that while interviewing the victim, he receiveda radio call that police had stopped a vehicle matching the cardescribed by the victim. The car contained three people whofled; one of the three people, however, was apprehended. Minuteslater, the victim identified the person who was apprehended asthe one who held his left arm and went into his pocket. Thevictim also identified the car as the one used in the robbery. The victim subsequently identified defendant's picture from aphoto array and identified defendant in a lineup as the personwho held his right arm during the robbery. Defendant wasconvicted under an accountability theory. Prior to trial,defendant made an oral motion in limine, seeking to preclude theState from mentioning that the car in which defendant fled wasstolen. The court said that the State could introduce statementsthat defendant made concerning the car, but the State indicatedthat it would not use that evidence at trial.

Prior to closing arguments, defendant made two additionaloral motions in limine, which were both denied. In his firstmotion, defendant sought to limit the State from arguing anythingregarding an unsuccessful search for defendant. The court deniedthat motion, but stated that if there was a defense objection, itwould issue a cautionary instruction that statements made bylawyers that are not based on the evidence should be disregarded. Defendant's second motion in limine sought to preclude the Statefrom arguing that defendant's leaving in the car was a flight andthat flight was an indication of guilt. The court denied thatmotion, pointing out that the objection amounted to a differenceof interpretation as to why defendant was in the car with theother offenders.

After the jury began to deliberate, defendant orallyrequested a mistrial based on his belief that the State violatedthe motion in limine regarding the car, and that the Stateimproperly shifted that burden of proof to defendant. The courtdenied the motion, finding that the motion in limine was notviolated and that the burden of proof was not shifted.

Defendant contends that multiple instances of prosecutorialmisconduct during closing arguments denied him a fair trial. Heargues that the State's opening and rebuttal arguments repeatedlyreferred to his failure to testify, attempted to shift the burdenof proof to the defense, suggested that the defense was hidingthings from the jury, and violated the court's order on a motionin limine regarding the "getaway" car being stolen. Althoughdefendant mentioned each classification of improper remarks inhis post-trial motion for new trial, he did not specificallyobject to all of the comments. We will classify the comments intwo groups: those to which there was an objection and those towhich there was no objection.

Comments on defendant's failure to testify
and the shift of the burden of proof

Defendant first argues that the State repeatedly commentedon his failure to testify and attempted to shift the burden ofproof. Defendant points to six specific instances in the State'sarguments that contain the complained-of comments.

I

Defense counsel objected to the following comments made bythe prosecutor during opening and rebuttal arguments. These wereproperly preserved for review.

During the State's opening argument, the following statementwas made:

"[ASSISTANT STATE'S ATTORNEY]: Ladies andgentlemen, the evidence is clear, and theevidence is uncontradicted of DeShonThompson. There's no one that got up therethat said anything different. There's no onethat got up there and said that the defendantwas just standing there - -

[DEFENSE COUNSEL]: Judge, objection. Counselis improperly shifting of the burden. Movefor mistrial.

THE COURT: That's denied. Disregard the laststatement."

During the State's rebuttal argument, the following commentwas made:

"*** The only question they tell you is thathis guy just was there. Is there anyevidence that you heard that his guy was justthere? Nobody told you that.

[DEFENSE COUNSEL]: Objection your Honor. Detective Leuser testified to that.

THE COURT: Overruled. Argument."

Also during rebuttal argument, the following comments weremade:

"[ASSISTANT STATE'S ATTORNEY]: *** Now,ladies and gentlemen, I'm not going to playany games with you, but I want to focus onsomething that happened during this trial. You heard defense counsel ask DeShon a numberof things what he did, what he did. Did heever ask him (Indicating) what he did? Neverasked that question, did he? Then he flippedit over in the negative, and he said my guydidn't have a gun, did he? My guy didn'ttake your money out of his [sic] pants, didhe? But did he ever ask the real question -

[DEFENSE COUNSEL]: Objection, your Honor,counsel is shifting the burden.

THE COURT: Argument."

II

Defendant also complains of three other comments made duringthe State's opening and rebuttal arguments to which there was noobjection at trial, and would normally be waived for review. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). However, plain errors that affect substantial rights may beconsidered for review even though defendant has not properlypreserved the issue. 134 Ill. 2d R. 615(a). The plain errorrule applies when the evidence is closely balanced or when theerror is of such magnitude that it deprives the defendant of afair trial. People v. Moore, 171 Ill. 2d 74, 99, 662 N.E.2d 1215(1996). Here, we find that the evidence is closely balancedbecause the case hinges on the testimony of the victim, and wewill examine the waived remarks in conjunction with those remarksthat were properly preserved for review.

The complained-of comments to which there was no objectionwere made during the State's opening argument.

The following remarks were made:

"[ASSISTANT STATE'S ATTORNEY]: *** There hasbeen no evidence whatsoever from that witnessstand that says $60 wasn't taken from them. No one said $60 wasn't taken from them, andthat is the only evidence that is before you,what you heard from the witness stand, notconjecture or anything else.

* * *

*** Well, that's the gun. He doesn't have tohave it out. It could be anywhere on hisperson. It could be in his pocket. He justhave [sic] it on him. Here he took it out,so there was more than just being on hisperson, and there's nothing that said therewas no gun. So you have it, all threeelements have been met.

* * *

The only testimony of DeShon Thompson, that'sall you have before you. Based on that,ladies and gentlemen, you must come back witha finding of guilty beyond a reasonabledoubt. Thank you."

Generally, prosecutors are allowed wide latitude in closingargument and may comment upon the evidence and all legitimateinferences therefrom, even if they are unfavorable to defendant. People v. Jackson, 293 Ill. App. 3d 1009, 1016, 689 N.E.2d 191(1997). The court has discretion to determine the propercharacter, scope and prejudicial effect of closing arguments. People v. Kliner, 185 Ill. 2d 81, 151, 705 N.E.2d 850 (1998). Improper remarks are reversible error only when they result insubstantial prejudice to the defendant, given the content andcontext of the language, its relationship to the evidence, andits effect on the defendant's right to a fair and impartialtrial. Kliner, 185 Ill. 2d at 151-52.

Because an accused has the constitutional right not totestify, a prosecutor cannot make either a direct or indirectcomment on the exercise of that right. Griffin v. California,380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965); People v.Arman, 131 Ill. 2d 115, 126, 545 N.E.2d 658 (1989).

In deciding whether an improper comment has been made on adefendant's exercise of his right not to testify, the courtshould consider whether the reference was intended or calculatedto direct the attention of the jury to "the defendant's neglectto avail himself of the right to testify." Arman, 131 Ill. 2d at126. In making that determination, a reviewing court mustexamine the challenged comments in the context of the entirerecord. Arman, 131 Ill. 2d at 126.

Although the State may comment that the evidence isuncontradicted, even when the defendant is the only person whocould have provided contrary proof, there is a line beyond whichthe State may not go. People v. Keene, 169 Ill. 2d 1, 21. 660N.E.2d 901 (1995). Specifically, the Keene court pointed outthat "[t]he State may not point the finger of blame directly atthe defendant for his failure to testify when it is within hispower to enlighten the jury. [Citations.] Such 'prosecutorialdesign' crosses the 'danger line' marking the outer boundary ofproper commentary." Keene, 169 Ill. 2d at 21. Furtherexplaining the court said, "the State is free to point out whatevidence was uncontradicted so long as it expresses no thoughtabout who specifically - - meaning the defendant - - could havedone the contradicting." (Emphasis added.) Keene, 169 Ill. 2dat 21. From our review of the record we find that most of thecomplained-of comments in this case crossed the line. We notethat the victim was the only witness who testified to thesequence of events leading to his armed robbery, as defendantexercised his right not to testify. The State, however, as wewill detail, repeatedly argued by inference that the victim wasthe only person who provided testimony about the armed robbery. Moreover, the prosecution did not simply say that the evidencewas uncontradicted, but focused upon the fact that "no one"contradicted certain aspects of the State's evidence. Thesenumerous references to the defendant's failure to testify includethe following: "there has been no evidence whatsoever from thatwitness stand that says $60 wasn't taken ***. No one says $60wasn't taken from them ***," "there's no one that got up therethat said anything different ***," "there's no one that got upthere and said the defendant was just standing there ***," and"is there any evidence that you heard that this guy was justthere? Nobody told you that." These remarks, in our opinion,constituted several impermissible comments upon the defendant'sfailure to testify or to present any evidence.

Although the State argues on appeal that all of the commentswere proper when viewed in the context of the entire record andthat the comments were merely references to the strength anduncontradicted nature of the State's evidence, we do not agree. The State also contends that the comments were not designed todirect the jury's attention to defendant's failure to testify butinstead were designed to counter defense counsel's unsupportedtheory that defendant was present but did not participate in thearmed robbery. Again, we disagree. The prosecutors in bothportions of closing argument stated that no one said thedefendant was just there. Because no one other than the victimtestified in this case about the offense, we can only concludethat remarks such as "no one *** said *** defendant was juststanding there," "nobody told you that," and "no one *** saidanything different," were designed to focus the jury's attentionupon the defendant's failure to testify.

Additionally, we find that certain comments made by theprosecutor during rebuttal argument improperly shifted the burdenof proof. The comments we refer to are the following:

"[ASSISTANT STATE'S ATTORNEY]: *** Now,ladies and gentlemen, I'm not going to playany games with you, but I want to focus onsomething that happened during this trial. You heard defense counsel ask DeShon a numberof things what he did, what he did. Did heever ask him (Indicating) what he did? Neverasked that question, did he? Then he flippedit over in the negative, and he said my guydidn't have a gun, did he? My guy didn'ttake your money out of his [sic] pants, didhe? But did he ever ask the real question."

Although these remarks could have been interpreted asanother indirect comment on the defendant's failure to testifybecause of the prosecutor's ill chosen words ("Did he ever askhim, (Indicating) what he did?), we believe that in this instancethe prosecutor was suggesting defense counsel never asked thevictim what the defendant actually did; defense counsel focusedupon what the defendant did not do and what the other twooffenders did that night. Our review of the cross-examination ofDeShon Thompson shows that defense counsel pointed out, amongother things, that defendant did not have the gun, that defendantdid not go into the victim's pocket, that he did not hold thevictim's left arm, that he did not actually take money from thevictim, and that it was one of the other offenders who threatenedto shoot the victim.

After reviewing the prosecutor's comments in the context ofthe entire record, we conclude that these particular remarks,although not designed to direct the attention of the jury to thedefendant's failure to testify, were designed to direct theattention of the jury to questions defense counsel should haveasked, which improperly shifted the burden of proof. We alsonote that the defense objection to these particular remarks wasoverruled by the trial judge. Generally, a trial judge's promptaction in sustaining an objection will be sufficient to cure theerror of an improper comment. Arman, 131 Ill. 2d at 127. Thiserror, however, was not cured by the trial court's ruling. Wealso point out that the trial judge overruled other objections toimproper comments made during closing argument. In rebuttal, forexample, the prosecutor said: "*** they tell you *** his guy justwas there. Is there any evidence that you heard that his guy wasjust there? Nobody told you that." The defense objection tothese comments was overruled. Additionally, during the openingportion of closing argument the prosecutor said: "Ladies andgentlemen, the evidence is clear, and the evidence isuncontradicted ***. There's no one that got up there that saidanything different. There's no one that got up there and saidthe defendant was just standing there - - "

After this comment was made, defense counsel's motion for amistrial was denied and the trial judge said, "Disregard the laststatement." We don't find the court cured the error of theseremarks because the jury was told to disregard only "the laststatement."

Having found that there were several comments directed atthe defendant's failure to testify and that some commentsimproperly shifted the burden of proof, we must still determinewhether they warrant the reversal of defendant's conviction. Comments made by a prosecutor on the defendant's failure totestify, although of constitutional dimension, do notautomatically entitle defendant to a new trial. Arman, 131 Ill.2d at 127. The defendant's conviction may be affirmed if thereviewing court concludes, after examining the entire record,that the error was harmless beyond a reasonable doubt. Arman,131 Ill. 2d at 127. Similarly, comments by the prosecution whichimproperly shift the burden of proof, People v. Adams, 281 Ill.App. 3d 339, 345-46, 666 N.E.2d 769 (1996); People v. Yonker, 256Ill. App. 3d 795, 628 N.E.2d 1124 (1993), will only result in areversal on appeal where the improper remarks resulted insubstantial prejudice to the defendant's right to a fair trial. Adams, 281 Ill. App. 3d at 346.

In this case we cannot say that the errors were harmlessbeyond a reasonable doubt or that they did not result insubstantial prejudice to the defendant. We again point out thatthe evidence of guilt was not overwhelming, and the caseessentially rested upon the credibility of one witness, DeShonThompson. See People v. Hayes, 183 Ill. App. 3d 752, 757-58, 539N.E.2d 355 (1989) (reversal based upon improper comments made byprosecutor mandated because the evidence was not overwhelming andrested entirely upon the victim's credibility). In this casethere was no physical evidence recovered from the accused. Nostatements or admissions were introduced at trial and there wassome testimony from one of the detectives concerning allegedlycontradictory statements made by DeShon Thompson. Furthermore,the defendant was convicted based upon a theory of accountabilitywhere defendant's participation was holding the victim's armwhile one of the other offenders took the victim's money. Thus,we conclude that the repeated references to the fact that no onecontradicted portions of the State's evidence substantiallyprejudiced the defendant's right to a fair trial.

In People v. Wollenberg, 37 Ill. 2d 480, 229 N.E.2d 490(1967), defendant's conviction was reversed based upon anisolated reference to the defendant's failure to testify. InWollenberg, the prosecutor recited the names of each of thewitnesses who testified at defendant's trial and then said, "Noone else testified. Let's get that straight." In rejecting theState's argument that this was merely a comment on the strengthand uncontradicted nature of the prosecution's case, the courtpointed out that the evidence was by no means uncontradictedbecause several witnesses testified for the defense. The courtthen held that the remark "no one else testified" was designed tocall attention to the defendant's failure to testify, was anindirect comment on the defendant's exercise of his right not totestify and as such warranted reversal.

The State attempts to distinguish Wollenberg on the groundsthat the evidence was contradicted in that case because severaldefense witnesses testified whereas here the defense presented nowitnesses and thus the evidence was uncontradicted. We areunpersuaded by this argument. We don't believe Wollenberg standsfor the proposition that where the defense does not callwitnesses, the State may then comment that no one else testified. Moreover, the instant record does not disclose an isolatedreference to the fact that no one else testified. In this casethere were several references to the effect that "no onetestified ***." The remarks pervaded not only the opening butalso the rebuttal portion of the State's closing arguments. Because numerous references indirectly referred to defendant'sfailure to testify and because the State improperly shifted theburden of proof, prejudicial error occurred and we reverse andremand for a new trial. Yonker, 256 Ill. App. 3d at 800.

Although we are reversing and remanding for a new trialbased on the remarks concerning defendant's failure to testify,and the comments which improperly shifted the burden of proof, wewill address defendant's other claims of error because they mightarise on retrial. See People v. Terry, 312 Ill. App. 3d 984,994, 728 N.E.2d 669 (2000).

Comments that suggested the defense was
hiding things from the jury  

Defendant next challenges remarks that he claims suggestedthat the defense was hiding things from the jury. The challengedremarks occurred during the State's rebuttal argument and werenot objected to by defense counsel. However, we will examinethem under plain error. See Moore, 171 Ill. 2d at 99.

Defense counsel's closing argument had focused on thedevelopment of defendant's "mere presence" defense, the victim'sallegedly contradictory statements, and had also included adiscussion of one officer's testimony from a codefendant'spreliminary hearing, during which the victim's contradictorystatements were highlighted. During rebuttal, the followingcomplained-of remarks were made by the State:

"[ASSISTANT STATE'S ATTORNEY]: Thank you,Judge, ladies and gentlemen, I'm not going totell you anything about snowballs because Idon't want you to buy a snow job. Transcriptthat counsel just read from had nothing to dowith his client.

* * *

You heard exactly what [defendant] didand the fact, that when this PreliminaryHearing took place, [defendant] wasn't evenin custody.

Now, ladies and gentlemen, the trialshould be a truth-seeking process. We'rehere to help you find the truth. Weshouldn't be hiding things from you, weshouldn't be masking things from you. Weshouldn't be playing word games.

Now, the judge is going to tell you andyou swore yesterday that you were going todecide this case by the law. You took anoath, and you said we will follow the law,

and we will determine this case by theevidence. The only evidence in this case iswhat you heard from the witness stand. WhatI say, what my partner says, what the defense attorney say[s], they're not evidence. Theonly evidence is what you heard from thewitness stand.

* * *

Now, ladies and gentlemen, I'm not goingto play any games with you, but I want tofocus on something that happened during thistrial.

* * *

You heard us ask DeShon Thompson, thevictim in this armed robbery, what everybodydid. We're not hiding anything from you. What did everybody do here? And he toldyou."

The prosecutor then reiterated the victim's testimony.

We find that these challenged remarks were invited bydefense counsel's closing argument, which suggested that thevictim had changed his story several times based on an officer'stestimony at a preliminary hearing for a codefendant, and assuch, these remarks were proper. See Jackson, 293 Ill. App. 3dat 1016-17.

Comments that violated the motion in limine

Defendant also argues that the State's closing argumentsviolated the court's order on the pretrial motion in limineregarding the getaway car as being stolen. Specifically,defendant points to four sets of remarks made during rebuttalregarding the getaway car. Two of the remarks were objected toat trial and preserved for review. The two remarks that were notobjected to will be reviewed under plain error. Moore, 171 Ill.2d at 99.

The following remarks were made during the State's rebuttalargument:

"[ASSISTANT STATE'S ATTORNEY]: Now, counselsaid use your common sense, please use yourcommon sense. We know that the three ofthese individuals, all of them together wereriding around in a car that didn't belong tothem.

[DEFENSE COUNSEL]: Objection, your Honor,improper argument.

THE COURT: Ladies and gentlemen, anystatement made by the lawyers not based onthe evidence should be disregarded by you. What the lawyers say during argument is notevidence.

[ASSISTANT STATE'S ATTORNEY]: You heard whatDetective Leuser told you who the owner ofthe car was.

[DEFENSE COUNSEL]: Objection.

THE COURT: Objection overruled.

[ASSISTANT STATE'S ATTORNEY]: They were in acar that didn't belong to them - -

[DEFENSE COUNSEL]: Objection, your Honor,that's improper.

THE COURT: Any statement made by a lawyerthat is not based on the evidence should bedisregarded by you. What the lawyers sayduring argument is not evidence.

[ASSISTANT STATE'S ATTORNEY]: You have threeguys driving around in a car that doesn'tbelong to them, so it can't be traced back tothem with a gun, and you hear testimony thatthey're there for at least a half hourbecause you hear DeShon tell you that hewalked by them when he was walking his friendhome, and they cruised by and kind of talkedto him.

* * *

Now, only one of the defendants were[sic] apprehended there at the scene wherethe car was stopped, and that was JacobyAdams. ***"

Reviewing the State's rebuttal argument, we find no impropercomment regarding the stolen car, even though the State didmention that the car did not belong to defendant or codefendantsbecause Detective Leuser testified at trial that the car did notbelong to defendant or codefendants. Thus, the prosecutor'scomments were based on the evidence. Moreover, upon defendant'sobjection, the trial court promptly instructed the jury that"[a]ny statement made by a lawyer that is not based on theevidence should be disregarded by you. What the lawyers sayduring argument is not evidence." Thus, we find that the trialcourt's instruction to the jury in this instance cured anyimproper prosecutorial comments. Jackson, 293 Ill. App. 3d at1016. Accordingly, we conclude that these challenged remarks bythe State during closing arguments did not deny defendant a fairtrial.

Hearsay Evidence of Flight

Defendant next contends that hearsay evidence of flightdenied him a fair trial. Officer Julian testified to informationhe received from another officer during a radio call regarding avehicle matching the victim's description. Specifically, hestated that as the vehicle was stopped by police, the threeoccupants of the car ran and one was caught. Defendant arguesthat the court's later admission of error in allowing thattestimony was not harmless error and denied him a fair trial.

Hearsay is an out-of-court statement that is offered toprove the truth of the matter asserted and depends for its valueon the credibility of the out-of-court declarant. People v.Rodriguez, 312 Ill. App. 3d 920, 928, 728 N.E.2d 695 (2000). Apolice officer may recount the steps taken in the investigationof a crime and may describe the events leading up to thedefendant's arrest "'where such testimony is necessary andimportant.'" People v. Warlick, 302 Ill. App. 3d 595, 598-99,707 N.E.2d 214 (1998), quoting People v. Simms, 143 Ill. 2d 154,174, 572 N.E.2d 947 (1991). The police officer may not testifyto information beyond what was necessary to explain the officer'sactions. People v. Hunley, 313 Ill. App. 3d 16, 33, 728 N.E.2d1183 (2000). The State may not use the limited investigatoryprocedure exception to place into evidence the substance of anyout-of-court statement that the officer hears during hisinvestigation, but may only elicit the substance of aconversation to establish the police investigative process. Hunley, 313 Ill. App. 3d at 33-34.

Here, Officer Julian testified to the contents of a radiocall concerning the stop of a vehicle matching the victim'sdescription of the getaway car and that the three occupants fled. The victim was then taken to that location and identified thevehicle and the individual that had been caught by police as oneof the robbery participants. We find that the content of theradio message was inadmissible and hearsay because it went beyondwhat was necessary to show steps in the police investigation. Moreover, the trial court admitted that the admission of thisevidence was error. We conclude that the trial court erred inadmitting this evidence.

Accordingly, the judgment of the circuit court is reversedand the cause remanded for a new trial.

Reversed and remanded.

GORDON and McNULTY, JJ., concur.