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                                                                   FirstDivision

August 26, 2002

No. 1-00-0760

PRESIDING JUSTICE COHEN delivered the opinion of the court:

Following a jury trial, defendant Javell Ivory was found legally accountable (720 ILCS 5/5-2(c) (West 2000)) for two counts of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1)(West 1996)) and two counts of first degree murder (720 ILCS 5/9-1(a)(3) (West 1996)). Defendantwas sentenced to consecutive terms of 30 years' imprisonment on each charge of aggravated batterywith a firearm and sentenced to natural life imprisonment for each charge of first degree murder. Defendant appeals, arguing: (1) the State failed to prove defendant guilty of the crimes chargedbeyond a reasonable doubt; (2) defendant was prejudiced by the admission into evidence of certainweapons and ammunition; (3) the trial court erred in allowing inadmissible hearsay evidence; (4) thetrial court erred in permitting testimony that one of the murder victims left behind a child; (5)defendant was deprived of his right to a fair trial by improper prosecutorial comment comparingdefendant to an animal; and (6) the trial court's order that defendant's sentences be servedconsecutively violates the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d435, 120 S. Ct. 2348 (2000). For the following reasons, we affirm.

BACKGROUND

The evidence presented at trial revealed that a street gang known as the Mafia Insane ViceLords controls an area just west of Cicero Avenue along Adams Street in Chicago. A rival gangknown as the Undertaker Vice Lords controls an area east of Cicero Avenue along Adams Street. On June 22, 1997, Joshua Thomas, Salada Smith, Robert Carr and Derrick Wandrick were gatheredaround Carr's automobile talking at a gas station located on the northeast corner of Cicero Avenueand Adams Street when a group drove by in a van and began shooting. Thomas and Smith werekilled; Carr and Wandrick were wounded.

Detective Dominick Rizzi testified that he and his partner, Detective Alan Jaglowski, werethe lead detectives investigating the shooting. After receiving information regarding possiblesuspects early on June 24, 1997, Detectives Rizzi and Jaglowski located and spoke with ParisWilliams. Over defendant's objection, Detective Rizzi testified that after speaking with Williams,he and Detective Jaglowski "proceeded to several locations in the neighborhood and *** learned ofaddresses of possible offenders." Defendant, Sherron Dillon, Darnell Foxx, and Tyreece Roberts (allmembers of the Mafia Insane Vice Lords) were arrested in connection with the shooting. KevinTucker, a fifth Mafia Insane Vice Lord, was apprehended a year later.

At approximately 10 a.m. on June 24, 1997, Detective Jaglowski spoke with defendant. Defendant told Jaglowski that at some time prior to the shooting in the instant case defendant waspresent with a group of individuals at a beef stand when an individual arrived who wanted to becomea member of the Mafia Insane Vice Lords. According to Jaglowski, defendant indicated that thegroup at the beef stand was "assigned to go steal a van" so that the van could be used to "roll onanother gang." Jaglowski testified that to "roll on another gang" meant to hunt for other gangmembers. Defendant admitted to Detective Jaglowski that he participated in stealing a van and laterlearned that the van which he had helped steal was used for the shooting in the instant case. Defendant told Jaglowski that he was a member of the Conservative Vice Lords street gang anddenied being present for the shooting.

At approximately 4 p.m. on June 24, 1997, Detective Rizzi spoke with defendant. Overdefendant's objection, Detective Rizzi testified that he informed defendant that he had just spokenwith Roberts and Dillon. After Detective Rizzi gave defendant "a summary or brief review of someof the facts" that he learned in his conversations with Roberts and Dillon, defendant admitted toDetective Rizzi that he had gotten "into a van with some of his friends and they were going to do ashooting." Defendant told Detective Rizzi that Roberts drove the van, Foxx (the front seatpassenger) was armed with an Intertech 9-millimeter semi-automatic pistol, and defendant, Dillonand Tucker were in the backseat. The group drove to Tucker's home where Tucker picked up anS.K.S. rifle. The group then proceeded to the corner of Cicero Avenue and Adams Street. Afterconfirming the presence of an Undertaker Vice Lord, Foxx and Tucker began shooting.

At approximately 11 p.m. that evening, Assistant State's Attorney (ASA) Thomas Mahoneyand Detective Rizzi spoke with defendant regarding the shooting. At the conclusion of theconversation, ASA Mahoney told defendant that they could memorialize their discussion either bypreparing a handwritten statement or by arranging to have a court reporter record and transcribe theconversation. Defendant opted for a handwritten statement.

ASA Mahoney and Detective Rizzi met with defendant again at approximately 3:30 a.m. onJune 25, 1997, to prepare the handwritten statement. ASA Mahoney first spoke with defendant aloneto ask whether defendant had any complaints about his treatment by the police. Defendant deniedhaving any complaints. Detective Rizzi then entered the room and ASA Mahoney handwrote asummary of the 11 p.m. conversation. After writing out the statement, ASA Mahoney first haddefendant read some paragraphs aloud to verify that defendant was able to read and was able todecipher ASA Mahoney's handwriting. Then ASA Mahoney read the statement aloud and defendantwas given the opportunity to make any changes or corrections that he wished. ASA Mahoney,Detective Rizzi, and defendant each signed at the bottom of each page after corrections were made.

Defendant's written statement was read aloud to the jury at trial and reads, in pertinent partas follows:

"[Defendant] states that he is seventeen years old and his birthdate is January 15, 1980. [Defendant] states that he can read andwrite English and that he is going into the twelfth grade at VonSteuben High School in Chicago.

[Defendant] states he's a member of the Mafia Insane ViceLords Street Gang. [Defendant] states that his nickname is Vello. [Defendant] states that he lives at 4914 West Monroe on the firstfloor.

[Defendant] states that on June 22, 1997 he was with someother Mafia Insane Vice Lords out in front of his house at 4914 WestMonroe. [Defendant] states that Kevin Tucker whose nickname isK.E., Darnell Foxx, whose nickname is Buggy, Sherron Dillon,whose nickname is Ron, Tyreece Roberts, whose nickname is HalfPint, were outside at about 12:30 a.m.

[Defendant] states that he was carrying a loaded .22 caliberpistol when he was outside. [Defendant] states that Buggy and KevinTucker wanted to shoot some Undertaker Vice Lords. [Defendant]states that Buggy had driven by the gas station at Cicero and Adamsand saw some Undertaker Vice Lords in the lot.

[Defendant] states that the Mafia Insane Vice Lords and theUndertake Vice Lords are rivals. [Defendant] states that the MafiaInsane Vice Lords and the Undertaker Vice Lords have been fightingfor about four months.

[Defendant] states that after Buggy drove by the gas stationBuggy, Kevin Tucker, Sherron Dillon, Half Pint and himself wentinto a van which was parked nearby. [Defendant] states that he hadhis gun with him.

[Defendant] states that Buggy had a Tech .9 millimeter gunand sat in the front. [Defendant] states that Kevin Tucker drove thevan over to his house on Quincy and went to his grandmother's on thefirst floor. [Defendant] states that Kevin Tucker went to thebasement and came out with a S.K.S. rifle in a garbage bag.

[Defendant] states that he waited in the van with Buggy, HalfPint, and Sherron Dillon. [Defendant] states that Kevin Tucker gotin the back of the van and took the S.K.S. rifle out of the bag. [Defendant] states that Half drove the van over to Adams and Ciceroand drove by the gas station and went around the block.

[Defendant] states that he knew they were going to shootsome Undertaker Vice Lords at the gas station. [Defendant] statesthat after they drove around the block and pulled up to the gas station[defendant] states that an Undertaker Vice Lord named Derrick wasstanding by a car with three or four other people at the gas station.

[Defendant] states that Kevin Tucker threw open the side doorto the van and pointed the rifle out the door and began shooting at thepeople in the gas station. [Defendant] states that Buggy pointed hisgun out the window and began shooting at the people.

[Defendant] states that Buggy fired about four shots andKevin Tucker fired about ten or fifteen times. [Defendant] states thatafter the shooting stopped Half Pint drove off real fast down Cicerothen turned left on Adams.

[Defendant] states that he got out of the van with Buggy andthey ran in separate directions. [Defendant] states that he ran hometo 4914 West Monroe and went into his house.

[Defendant] states that the next day, at about 12:30 or 1:00o'clock in the afternoon he saw Buggy, Half Pint and Sherron Dillonon his block. [Defendant] states they saw Paris Williams who saidy'all got them [racial epithet] last night.

[Defendant] states that Paris Williams is a Mafia Insane ViceLord. [Defendant] states that Buggy, Half Pint, Sherron and himtalked about the shooting and that a lady got shot."

In his written statement defendant additionally identified photographs of the Intertech 9-millimetersemi-automatic pistol, the S.K.S. rifle and Kevin Tucker. These photographs were admitted intoevidence at trial.

Police recovered an S.K.S. assault rifle and an assortment of ammunition from Tucker'sresidence at 5018 Quincy in Chicago. The police also searched both the first and second floorapartments at 4914 West Monroe where defendant and Foxx respectively resided. Police recoveredadditional ammunition from defendant's apartment and, led by Foxx's mother, recovered an Intertech9-millimeter semi-automatic pistol from inside a diaper bag under the back porch at 4914 W.Monroe. Police also recovered a .38-caliber pistol from Roberts' house.

Beth Patty, a firearm identification expert, testified that she was able to determine that a 9-millimeter bullet recovered from Thomas' body had been "fired by the Intertech" pistol "to theexclusion of every other gun in the world." Patty determined that a bullet recovered from Thomas'hospital cart had been fired from the S.K.S. rifle, again "to the exclusion of every other gun in theworld." Patty testified to the same degree of certainty that one bullet recovered from Smith's bodyhad been fired from the S.K.S. rifle and another from the Intertech pistol. Finally, Patty determinedthat the 9-millimeter casings recovered from the driveway of the gas station could have been firedby the Intertech pistol.

Though no evidence was presented that defendant personally fired any of the weapons, hadacted as a lookout, or otherwise actively participated in the shooting, the State argued that defendantwas accountable for the shootings because he aided and abetted his companions. The jury founddefendant guilty beyond a reasonable doubt of two counts of first degree murder (for the deaths ofSmith and Thomas) and two counts of aggravated battery with a firearm (for the shooting of Carrand Wandrick). Defendant's posttrial motion for a new trial was denied.

Defendant was sentenced to consecutive terms of natural life imprisonment on each of thefirst degree murder charges and 30 years' imprisonment for each of the aggravated battery charges. Defendant's motion to reconsider his sentence was denied and this appeal followed.

ANALYSIS

I. Reasonable Doubt

On appeal, defendant first argues that the State failed to prove him guilty beyond a reasonabledoubt. Defendant does not contend that the evidence was insufficient to establish that Foxx andTurner were guilty of first degree murder and aggravated battery with a firearm. Rather, defendantargues that the State failed to present sufficient evidence to establish that defendant was legallyaccountable for the actions of Foxx and Turner. In reviewing the sufficiency of the evidence tosupport a criminal conviction, our inquiry is whether, after viewing the evidence in the light mostfavorable to the prosecution, any rational trier of fact could have found the elements of the crimebeyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985).

Section 5-2(c) of the Criminal Code of 1961 provides that a person is legally accountablefor the criminal conduct of another if "[e]ither before or during the commission of an offense, andwith the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attemptsto aid, such other person in the planning or commission of the offense." 720 ILCS 5/5-2(c) (West1996). To prove that the defendant possessed the intent to promote or facilitate the crime, the Statemay present evidence which establishes beyond a reasonable doubt that: (1) the defendant shared thecriminal intent of the principal; or (2) there was a common criminal design. People v. Williams, 193Ill. 2d 306, 338 (2000).

A defendant's intent may be inferred from the nature of his actions and the circumstancesaccompanying the criminal conduct. Williams, 193 Ill. 2d at 338. Under the common design rule,if two or more persons engage in a common criminal design or agreement, any acts in the furtheranceof that common design committed by one party are considered to be the acts of all parties to thedesign or agreement and all are equally responsible for the consequences of the further acts. In reW.C., 167 Ill. 2d 307, 337 (1995). Words of agreement are not needed to establish a commondesign. Williams, 193 Ill. 2d at 338. Accountability may be established through a person'sknowledge of and participation in the criminal scheme, even though there is no evidence that hedirectly participated in the criminal act itself. People v. Perez, 189 Ill. 2d 254, 267 (2000).

Defendant correctly notes that mere presence at the scene of a crime, even when combinedwith knowledge that a crime is being committed and flight from the scene, is insufficient to establishguilt by accountability. Williams, 193 Ill. 2d at 339. However, proof that defendant: (1) was presentduring the preparation of the offense; (2) fled from the scene of the crime; (3) maintained a closeaffiliation with his companions after the commission of the crime; and (4) failed to report the crimeare all factors that the trier of fact may consider in determining the defendant's legal accountability. Perez, 189 Ill. 2d at 267. Evidence that a defendant voluntarily attached himself to a group bent onillegal acts with knowledge of the group's design supports an inference that defendant shared thegroup's common purpose and is sufficient to sustain his conviction for an offense committed byanother group member. Williams, 193 Ill. 2d at 339.

In the case before us, the State presented uncontroverted evidence that defendant knew of theplan to shoot members of the Undertaker Vice Lords and voluntarily accompanied his companionsto the scene of the crime. In his written statement, defendant admitted that-knowing the groupplanned to shoot Undertaker Vice Lords and armed with a .22-caliber handgun-defendantvoluntarily accompanied the group to the van from which the plan was carried out. Defendantfurther admitted that he met with Dillon, Foxx, and Roberts the following day and discussed theshooting. Defendant's own statement clearly establishes that defendant voluntarily attached himselfto a group bent on illegal acts with knowledge of the group's design and then maintained a closeaffiliation with his companions after the commission of the crime. Such evidence is sufficient toprove defendant's guilt based on accountability beyond a reasonable doubt. Williams, 193 Ill. 2d at339; Perez, 189 Ill. 2d at 267.

II. Admissibility of Evidence

Defendant next argues that he was prejudiced by the improper admission into evidence ofcertain weapons and ammunition. Defendant has waived this issue by failing to either object at trialor raise the matter in a timely posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 190 (1988). In his reply brief, defendant urges this court to address the issue as plain error. 134 Ill. 2d R. 615(a).

Plain error is a limited and narrow exception to the general waiver rule, to be invoked onlywhere: (1) the evidence is closely balanced; or (2) the alleged error is so substantial that it deprivedthe defendant of a fair trial. People v. Kuntu, 196 Ill. 2d 105, 128 (2001). Defendant argues thisexception is applicable because "the evidence was so closely balanced (with no evidence of[defendant's] participation)." As noted above, accountability may be established through a person'sknowledge of and participation in the criminal scheme, even though there is no evidence that hedirectly participated in the criminal act itself. Perez, 189 Ill. 2d at 267. The evidence of defendant'sguilt based on accountability-which includes his confession-was unrebutted at trial. We do not findthat the evidence was closely balanced. Defendant is not entitled to plain error review under the firstprong of the exception.

The " 'second prong of the plain error exception is to be invoked only where the possibleerror is so serious that its consideration is "necessary to preserve the integrity and reputation of thejudicial process." ' [Citations.]" Kuntu, 196 Ill. 2d at 128, quoting People v. Hampton, 149 Ill. 2d 71,102 (1992). Although defendant argues that "the improper admission of the weapons evidencedenied [defendant] a fair trial," he fails to "explain[] why the error is so severe that it must beremedied to preserve the integrity of the judicial process" (People v. Nieves, 192 Ill. 2d 487, 503(2000). Accordingly, we find that this argument is waived. Nieves, 192 Ill. 2d at 503. We declinedefendant's request to review this issue as plain error.III. Hearsay

Defendant next argues that he was denied his right to a fair trial when the trial court permittedDetective Rizzi to testify that: (1) after speaking with Paris Williams, Detective Rizzi and his partner"proceeded to several locations in the neighborhood and *** learned of addresses of possibleoffenders"; and (2) defendant agreed to make a statement after Detective Rizzi informed defendantof information received from Roberts and Dillon. Defendant contends that Detective Rizzi'stestimony amounted to inadmissible "indirect hearsay" because Detective Rizzi "gratuitouslyrevealed the substance of the statements given by out-of-court declarants."

A. Rizzi's conversation with Williams

Hearsay is testimony or written evidence of an out-of-court statement offered to establish thetruth of the matter asserted and is generally inadmissible. People v. Brooks, 297 Ill. App. 3d 581, 583 (1998). A police officer's testimony recounting steps taken in the course of an investigationdoes not constitute inadmissible hearsay-"even though the officer's description of the progress of thecase might suggest that nontestifying witnesses implicated the defendant" (People v. Johnson, 116Ill. 2d 13, 24 (1987))-unless "the testimony *** gratuitously reveal[s] the substance of ***statements [made by nontestifying witnesses] and so inform[s] the jury that [nontestifying witnesses]told the police that the defendant was responsible for the crime" (People v. Henderson, 142 Ill. 2d258, 304 (1990)).

Defendant argues that "the only conclusion" to be drawn from Detective Rizzi's testimonythat he proceeded to the addresses of possible offenders (including defendant) after talking toWilliams is that Williams "fingered" defendant and therefore Detective Rizzi "gratuitously reveal[ed]the substance" of Williams' statement. We disagree. Nothing in Detective Rizzi's testimony revealswhat, if anything, Williams told the detective about defendant or the shooting. Rather, DetectiveRizzi's testimony simply indicates that, after speaking to Williams, Detective Rizzi learned theaddresses of possible offenders. At most, this testimony suggests that the detective began lookingfor defendant as a result of William's statement. Testimony regarding the progress of aninvestigation is admissible "even if a jury would conclude that the police began looking for adefendant as a result of what nontestifying witnesses told them, as long as the testimony does notgratuitously reveal the substance of their statements." Henderson, 142 Ill. 2d at 304. The "mere factthat one of the many inferences which the jurors could have drawn" was that Williams implicateddefendant does not render Detective Rizzi's testimony inadmissible. Henderson, 142 Ill. 2d at 303-04. Because Detective Rizzi never revealed the substance of any statement made by Williams, histestimony that he spoke with Williams did not contain hearsay and did not deprive defendant of hisright to a fair trial.

B. Statements of Roberts and Dillon

Defendant further claims that Detective Rizzi's testimony gratuitously revealed the substanceof statements made by Roberts and Dillon because the only possible inference to be drawn is thatRoberts and Dillon named defendant as an offender. It is well-established that an out-of-courtstatement not offered for the truth of the matter asserted is not hearsay. People v. Simms, 143 Ill. 2d154, 173 (1991). Evidence of prior out-of-court statements offered to show that a person didsomething as a reaction to the statements does not violate the hearsay rule. People v. Fauntleroy,224 Ill. App. 3d 140, 147 (1991). It is clear from the record that Detective Rizzi's testimony thathe provided defendant with " a summary or brief review" of facts gleaned from Roberts' and Dillon'sstatements was not offered to prove the truth of those statements but, rather, to explain whydefendant decided to change his original story and confess to his role in the shooting. The trial courtdid not err in allowing Detective Rizzi to testify that he provided defendant with a summary ofRoberts' and Dillon's statements. Fauntleroy, 224 Ill. App. 3d at 147.

IV. Victim's Family

Defendant next argues that the trial court erred in permitting testimony that one of the murdervictims left behind a child. Having failed to object to this testimony at trial, defendant has waivedthis claim of error. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Defendant does not assert that thisissue is reviewable as plain error.

V. Improper Prosecutorial Comment

Defendant next complains that he was deprived of a fair trial based on improper commentby the State during closing argument. Specifically, defendant objects to the following passage:

"And, ladies and gentlemen, today [defendant is] all dressedup in his nice wool suit. Well, judge him for the person he was onJune 22, 1997. Right now, he's just a wolf in sheep's clothing. Andon June 22, 1997, when they decided to go to that gas station, he waspart of a pack of predators, and when you run with the pack, youshare in the kill."

While prosecutors are afforded wide latitude in closing argument, prosecutors may notengage in inflammatory arguments designed solely to arouse the passions of the jury. People v.Armstrong, 183 Ill. 2d 130, 145 (1998). Closing arguments must be viewed in their entirety, andremarks must be viewed in context. Armstrong, 183 Ill. 2d at 146. A trial court's determinationregarding the propriety of closing arguments will not be disturbed absent an abuse of discretion. Armstrong, 183 Ill. 2d at 145.

The State, relying on this court's decision in People v. Liddell, 240 Ill. App. 3d 229, 234(1992), argues that the prosecutor's comments were not improper. In Liddell, the prosecutor madethe following comments during closing rebuttal argument:

"'You saw the defendant testify yesterday. He was in a suitand a tie. He looked good. Did you ever hear a story of the wolf insheep's clothing?

* * *

The funny thing about wolves, they not only like to wear alamb's clothing; they like to run in packs.' " Liddell, 240 Ill. App. 3dat 234.

The majority in Liddell suggested that the State never "directly" referred to the defendant as ananimal; rather, "the State was merely attempting to persuade the jurors to not be deceived bydefendant's appearance during trial" and "[t]he reference to 'pack' was to convey to the jurors thatdefendant was part of a group working in concert with one another." Liddell, 240 Ill. App. 3d at234-35. The majority concluded that the prosecutor's comments were not improper.⁽¹⁾

In the instant case, there is no question that the prosecutor directly referred to defendant asan animal. Specifically, the prosecutor commented that "he's [defendant is] just a wolf in sheep'sclothing" and defendant "was part of a pack of predators." As our supreme court has explicitly andunequivocally held that referring to defendant as an animal is improper (People v. Johnson, 119 Ill.2d 119, 139 (1987)), we find the trial court erred in overruling defendant's objection to this comment.

Nonetheless, " '[i]mproper remarks generally do not constitute reversible error unless theyresult in substantial prejudice to the accused.' " Johnson, 119 Ill. 2d at 139-40, quoting People v.Tiller, 94 Ill. 2d 303, 321 (1982). We have already noted that the evidence of defendant'sguilt-based in substantial part on defendant's own confession-was overwhelming. Further, viewingthe improper comment in the context of the closing argument as a whole (Armstrong, 183 Ill. 2d at146), we note that the objectionable commentary was contained in a single "isolated [passage] andwas not dwelled upon further by the prosecutor" (Johnson, 119 Ill. 2d at 140). We thereforeconclude that the improper characterization of defendant as a wolf did not rise to the level ofreversible error.

VI. Apprendi

Finally, defendant contends that the consecutive sentences imposed in this case violate therule announced in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct.2348, 2362-63 (2000) , that "[o]ther than the fact of a prior conviction, any fact that increases thepenalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and provedbeyond a reasonable doubt." The Illinois Supreme Court has held, however, that "[b]ecauseconsecutive sentences remain discrete, a determination that sentences are to be served consecutivelycannot run afoul of Apprendi." People v. Wagener, 196 Ill. 2d 269, 286 (2001). Defendant'sargument to the contrary is thus without merit.

CONCLUSION

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

Affirmed.

McNULTY and COUSINS, JJ., concurred.

1. But see Liddell, 240 Ill. App. 3d at 235 (Manning, J., specially concurring) (concludingthat the State's "implication" that "defendant behaved like a wolf, running in packs" was "nodifferent than directly calling a defendant an animal" but that this improper comment did notamount to reversible error under the facts of that case).