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SIXTH DIVISION
December 3, 2004

James Lowry was charged with attempted first degree murder, aggravated battery with afirearm, and armed robbery. After a jury trial, he was found not guilty of attempted murder and foundguilty of aggravated battery and armed robbery. He was sentenced to two concurrent terms of 30years in the Illinois State Penitentiary. On appeal defendant contends as follows: (1) the trial courterred by failing to provide the definition of "knowingly" in response to a written question submittedby the jury; (2) defense counsel was ineffective when he failed to tender the pattern jury instructiondefining the mental state for "knowingly" in response to the jury's question; (3) the trial court abusedits discretion in denying a mistrial based on the State's failure to disclose a statement that a bribe wasoffered in exchange for the victim dropping the charges; and (4) the State's closing argument violateddefendant's right to a fair trial.

BACKGROUND

On November 26, 2001, defendant, Ross Bulski, and Phillip Harbaugh (PJ) agreed to meetat PJ's house to transact a drug sale. Bulski testified that during the meeting defendant tied him up,shot him in the back, and took his car keys, identification, and between $350 and $600. PJ testifiedthe defendant tied him up and threatened him, and that he heard the gun go off.

Approximately 40 minutes after arriving at Loyola Hospital, Bulski identified a man namedMarcus Ranieri as the person who shot him from photos provided by Officer Vallejo. Two days later,on November 28, 2001, Detective Page showed Bulski a photo lineup and Bulski identified defendantas the man who shot him. This photo lineup did not include any photographs of Marcus Ranieri, nordid Detective Page know that Bulski had previously identified Ranieri as the person who shot him.

Defendant gave a statement to the police and assistant State's Attorney that he did not meanto hurt or kill the victim. The defense called various police witnesses and the victim's brother,Nicholas Bulski, to testify regarding Ross Bulski's sales of narcotics. The jury found defendant guiltyof armed robbery and aggravated battery with a firearm, but not guilty of attempted murder. Defendant appeals.

I. JURY INSTRUCTION

Defendant contends the trial court committed reversible error by failing to instruct the jurywith the pattern jury instruction defining "knowingly" in response to a jury question. During jurydeliberation the following question was brought to the attention of the court:

"THE COURT: We received a question from the jury. It states, does, quote, knowingly, end of quote, implies [sic] that itwasn't an accident, or can it be accidental and knowing.

All attorneys and the judge agree on the following response. You have heard the evidence and been instructed on the law. Pleasekeep deliberating."

The State argues that defendant has waived the issue because he failed to provide theinstruction or raise the issue in his posttrial motion. People v. Enoch, 122 Ill. 2d 176, 187 (1988). Errors involving jury instructions are reviewed under Supreme Court Rule 451(c) (177 Ill. 2d R.451(c)), which states that "substantial defects" are not waived "if the interests of justice require." While the defense argues the standard of review is de novo, the State responds the standard is "notde novo as defendant claims, but the plain error rule." Based on the nature of the evidence, includingthe victim's original identification of Marcus Ranieri as the person who shot him and theinconsistencies in the testimony of the victim and PJ, who were admitted drug dealers, the plain errorexception to the waiver rule applies. People v. Johnson, 114 Ill. 2d 170, 198 (1986); People v.Herrett, 137 Ill. 2d 195, 203 (1990) (plain error rule applies when the evidence is closely balanced).

A trial court may exercise its discretion in resolving questions asked by jurors duringdeliberations. People v. Reid, 136 Ill. 2d 27, 38-40 (1990). Regarding the defendant's argument thatthe trial court committed reversible error by failing to properly instruct the jury, we find People v.Childs, 159 Ill. 2d 217, 228-29 (1994), instructive. While Childs addressed the trial court's ex parteresponse to a jury's question, the court in Childs provided detailed discussion as to the nature andextent of the duty of the trial court to provide instruction to the jury. The court in Childs indicated:

"A trial court may exercise its discretion and properly declineto answer a jury's inquiries where the instructions are readilyunderstandable and sufficiently explain the relevant law, where furtherinstructions would serve no useful purpose or would potentiallymislead the jury, when the jury's inquiry involves a question of fact,or if the giving of an answer would cause the court to express anopinion which would likely direct a verdict one way or another.[Citation.] However, jurors are entitled to have their inquiriesanswered. Thus, the general rule is that the trial court has a duty toprovide instruction to the jury where it has posed an explicit questionor requested clarification on a point of law arising from facts aboutwhich there is doubt or confusion. [Citation.] This is true eventhough the jury was properly instructed originally. [Citation.]" Childs, 159 Ill. 2d at 228-29.

In addition to defendant's argument that the trial court erred by failing to properly instructthe jury, defendant further argues his counsel was ineffective when he failed to tender the properpattern jury instruction defining "knowingly" in response to the question by the jury. The UnitedStates and Illinois Constitutions guarantee the right to effective assistance of counsel. U.S. Const.,amends. VI, XIV; Ill. Const. 1970, art. I,