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Following a jury trial, Marcel Nicholas was convicted of the first degree murder of hismother. He was sentenced to 35 years in prison. Nicholas argues on appeal (1) that the trialcourt erred in refusing the instruct the jury on involuntary manslaughter, (2) that the prosecutormade improper arguments before the jury, and (3) that the trial court erred in denying the motionto suppress a confession that was involuntary. For the reasons that follow, we reverse andremand for a new trial.
 

Prior to trial, Nicholas filed a motion to suppress the court-reported statement he madewhile in custody. There is no dispute that Nicholas was given food, drinks, and cigarettes andotherwise treated fairly by the police while in their custody. Nicholas, after having spoken withhis lawyer, invoked his right to remain silent. Nonetheless, he did agree to sign a statement andindicated his willingness to speak with the police.

At the suppression hearing, Detective McNally testified that he met Nicholas, who was nothandcuffed, in an interview room in Area 1. Detective McNally provided Nicholas with water andread his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602(1966). Nicholas indicated that he understood those rights. After some further discussions,Detective McNally testified that Nicholas agreed to talk. According to Detective McNally,Nicholas detailed the fight he had with his mother on the morning of her death. Nicholas alsoindicated that he hoped the investigation would result in him getting boot camp or probation andthat he was hoping for the best. Detective McNally also testified that, in a later discussion,Nicholas incriminated himself. After that statement, Nicholas was formally arrested. Nicholascontinued to cooperate with the police in the investigation, indicating where the weapon might befound. No gun was recovered as described. Nicholas later consented to a search of hisapartment.

In further discussions with the police, Nicholas was repeatedly read his Miranda rights bypolice officers and the assistant state's attorney (ASA). Detective McNally also testified that laterNicholas specifically asked to speak with him and then later with the ASA. This was afterNicholas had consulted with his lawyer and invoked his right to remain silent. In speaking withDetective McNally, Nicholas admitted to lies in his previous oral statement. When speaking withthe ASA, Nicholas agreed to a court-reported statement.

Nicholas claimed the statement was not voluntary. By the time he gave the statement, hehad already allegedly orally confessed to the murder twice, but those confessions were notchallenged. Nicholas claims the statement was coerced by threats made against him by unnamedofficers. After a hearing, the trial court denied the motion and the case proceeded to trial.

On September 24, 1999, Cheryl Foster was sitting in her living room at approximately5:45 a.m. She was awaiting the arrival of a visiting nurse when she heard a woman scream "no,"then heard three or four gunshots. Foster was unable to see anything from her window so shecalled 911.

Shunte Thomas, who lived near Foster, was awake at that hour nursing her baby. Sheheard the front door of her building open, someone yell "please don't" followed by four gunshots. There was a pause between the third and fourth gunshot. When Thomas looked out the window,she saw a woman lying in front of the building by a car. Thomas also called 911, then wentdownstairs to the floor below and knocked on that apartment door. William Penn, the occupantof that apartment, answered the door and was told about the shooting. Penn and Thomas wentdown to the first floor to where Nicholas lived with the victim, Diane Jefferson-Nicholas. Initially, no one responded to their knocking. They were still pounding on the door when thepolice arrived on the scene. Various officers secured the crime scene.

Officer Ruth Singleton went into the building where Penn and Thomas were pounding onNicholas' door. Nicholas answered the door and was told that someone had been shot outside thebuilding. The police asked Nicholas if he knew where his mother was. Nicholas told them thathis mother had just left to go to a meeting. Nicholas then stepped outside and identified thevictim as his mother. She had suffered multiple gunshot wounds to the head, neck and upperchest. Nicholas attempted to go to his mother but was ordered back by the police. When theofficers rejoined Nicholas in the apartment, Nicholas wondered aloud how he was going to get towork and who was going to take care of him. Officer Singleton described Nicholas as calm andunemotional. Officer Singleton followed Nicholas into his bedroom and watched him collect apack of cigarettes and pour himself a glass of liquor. Officer Singleton suggested that Nicholasshould call his relatives and tell them what had happened. Nicholas made a phone call, which ledto the arrival of a family friend. Nicholas also gave the police a sheet to use to cover his mother'sbody. Thomas called her husband and asked him to come home. Later, Officer Singletoninterviewed both Thomas and her husband and determined that they had prior business dealingswith the victim.

Detectives and forensic investigators recovered four shell casings near the body. It waslater determined that they came from the same gun. The police also recovered two crochetedpurses in a nearby gangway. The victim's identification, money and other personal items werefound in one of the purses, but they were not processed because they were contaminated when thepolice officers opened them. Though the victim was allegedly on her way to a meeting, her carkeys were not located.

Dr. Tae Nyong An, an assistant medical examiner at the Cook County medical examiner'soffice, testified that he performed an autopsy. External examination revealed four entry and twoexit wounds. The first bullet entered below the right nostril and exited near the left ear. Anotherbullet entry wound was located but no corresponding exit wound was discovered. This bulletentered on the right side of the neck and lacerated part of the victim's brain and fractured theoccipital bone. Another bullet entered the chest on the upper portion of the right breast,fracturing the collarbone, thoracic vertebrae and spinal cord. Yet another bullet lacerated theheart and both lungs on its trajectory through the victim's body.

Detectives Thomas Benoit and Jean Romic spoke with Nicholas, who agreed to go totheir office and help in the investigation. The detectives made arrangement for Nicholas to betransferred to the Area 1 police station. They then conducted further investigation at thecoroner's office before returning to Area 1. Detectives Benoit and Romic briefly spoke withNicholas but wanted to complete other interviews first. They took Nicholas to central policeheadquarters for a polygraph test at 10 p.m., then brought him back to Area 1 the next day. Theinterview was then turned over to Sergeant Brannigan and Detective McNally. DetectiveMcNally had previously been assigned to canvas the area of the shooting to search for witnesses. Detective McNally noted that the garbage cans at the building had been emptied since theshooting.

Detective McNally testified that Nicholas was kept in an unlocked room until he wasformally arrested, then the door was locked. Prior to his arrest, Nicholas was allowed access tothe restroom so long as a police officer showed him where it was. Detective McNally readNicholas his Miranda rights. Nicholas discussed the argument he had with his mother but did notincriminate himself in the shooting. Detective McNally let Nicholas use the restroom andprovided him with something to drink. After further discussions, Nicholas was given a shortperiod to rest. When the conversations resumed, Nicholas was again read his Miranda rights. Nicholas discussed his return to Chicago and his experiences living in his mother's house. Theplan was to rehab an apartment building and allow Nicholas to live there in exchange for acting asthe manager.

Detective McNally testified that Nicholas told him about the fight he had with his motherprior to the shooting. It was an argument about rent and drinking alcohol in her apartment. Nicholas told him he left the apartment through the back door. He retrieved a handgun heconcealed underneath a chunk of concrete and walked around to the front of the house. Nicholasapproached his mother and fired the gun at her three times in order to scare her. When his motherfell to the ground, Nicholas retraced his steps back to the apartment.

At the conclusion of the statement, Nicholas was formally placed under arrest. Oncearrested, Nicholas said he had hidden the gun inside a television that was in the alley for garbagepickup. Detective McNally testified that Nicholas agreed to show them where the gun could befound. Detectives McNally and Brannigan took Nicholas back to the apartment building but wereunsuccessful in searching for the gun, the television or the rock. Nicholas directed the detectivesto the spot where he had his confrontation with his mother and pointed to where she had fallen. The detectives provided lunch and cigarettes for Nicholas on the way back to the police station. Nicholas was returned to the interview room. Detective McNally testified that, after Nicholasfinished eating, he was again read his Miranda rights. Nicholas gave Detective McNally a moredetailed version of the events of the previous Thursday and Friday. Detective McNally indicatedthat Nicholas was insistent that he was just trying to scare his mother when he fired the gun. Nicholas then signed a consent to search the apartment. Detectives McNally and Branniganthereafter searched the apartment but found no gun.

Assistant State's Attorney Lawrence O'Reilly also testified for the State. ASA O'Reillyfirst met with Detective McNally and reviewed the police reports before meeting with Nicholas. Once he was introduced to Nicholas, ASA O'Reilly claims he read Nicholas his Miranda rightsthen explained that he was not Nicholas' attorney. According to ASA O'Reilly, Nicholas told himhe understood his rights from watching television. ASA O'Reilly claims, despite Nicholas'explanation of the rights, he explained the rights to him.

Nicholas explained to ASA O'Reilly that he argued with his mother about the rent. According to Nicholas, his mother told him he needed to pay rent or get out. Nicholas went out,got the gun and walked through the basement to reach the front of the building. Nicholas saw hismother walking around the passenger side of the car. He pointed the gun "in her direction" andfired it three or four times. Nicholas ran back into the house, where he claims he looked out thewindow and saw his mother lying on the ground next to the car. When ASA O'Reilly askedNicholas why he shot his mother, Nicholas explained that he was hung over and angry.

ASA O'Reilly offered Nicholas the opportunity to memorialize the statement he wasmaking. ASA O'Reilly explained that any statement could be written, dictated to a court reporteror videotaped. According to ASA O'Reilly, Nicholas chose to give a handwritten statement. Theinterview was moved to a different room because there was no table in the room Nicholas hadbeen in. At around 9 p.m., before Nicholas recounted anything of substance, a police officerentered the room and informed everybody that counsel for Nicholas had arrived and wished tospeak with his client. The attorney was introduced to Nicholas. ASA O'Reilly explained toNicholas that it was his choice whether or not to speak with counsel. Nicholas agreed to talk withthe lawyer so the two were left alone. When counsel was done speaking with Nicholas, heinformed ASA O'Reilly that Nicholas would be invoking his right to remain silent. Nicholasrepeated his desire to remain silent. ASA O'Reilly testified that he did not talk to Nicholas againthat night. At trial, ASA O'Reilly did not recall if Nicholas' counsel had been told when Nicholaswould be processed and taken to the county jail. After counsel left, ASA O'Reilly documentedeverything that happened in his notes. In the notes, ASA O'Reilly indicated that Nicholas wouldbe taken to court on September 27, 1999. Detective McNally never completed paperworkindicating that Nicholas would be held past call. He then asked the detectives to continue theinvestigation and conduct another canvas of the neighborhood around the crime scene to look forwitnesses.

The next day, ASA O'Reilly checked in with Detective McNally, who told him they foundno gun and no witnesses. ASA O'Reilly then went to Nicholas to make sure he was fed, providedbeverages and given the opportunity to smoke, use the bathroom and sleep. Nicholas indicatedthat the police had treated him fairly. ASA O'Reilly asked Nicholas if he wanted to memorializehis statement. Nicholas chose to have his statement memorialized by a court reporter rather thanvideotaped because his hair looked terrible. According to ASA O'Reilly, once the court-reportedstatement was transcribed, Nicholas was given the opportunity to review the statement and makechanges. Nicholas, ASA O'Reilly and Detective McNally then signed each page. According tothe court-reported statement, Nicholas kept the gun in a duffel bag. He claimed he bought thegun on the street for $50 or $100. After shooting his mother, he went back in the apartment,turned off the television and got back into bed.

Once the State rested, Nicholas unsuccessfully made a motion for directed verdict. Thedefense then began with the testimony of Carolyn Campbell. She was leaving to go to work atthe time of the shooting. Campbell's home is on the same block as the victim's apartmentbuilding. She saw an African-American male whom she did not recognize wearing an orangesafety vest. Campbell admitted to having seen the defendant before and knew the man she sawwas not him. Campbell did not hear gunshots or see anyone lying in the street.

Defense counsel, Donald Bertelle, next testified for the defense. Bertelle testified that hereceived a call indicating that a son was being charged with killing his mother. The caller askedBertelle to represent the son, Nicholas. According to Bertelle, he called the police station, thentraveled there. Bertelle was told that Nicholas was not there. That officer left, then returned andtold Bertelle that Nicholas was in fact there. Bertelle indicated that he wanted to speak withNicholas immediately but was told to have a seat and wait. After approximately 20 minutes,Bertelle was met by ASA O'Reilly. ASA O'Reilly told Bertelle that Nicholas had not given astatement. Bertelle noticed that ASA O'Reilly was carrying a sheaf of the type of paper theyroutinely use for the taking of custodial statements. Bertelle was then taken to and given a privateinterview with Nicholas. Nicholas invoked his right to remain silent thereafter.

Michael Kopina next testified for the defense. He is the acting section chief of thebiochemistry unit at the Forensic Science Center of Chicago and is certified as an expert in thefield of gunshot residue. Kopina tested the cuffs of a blue, hooded sweatshirt and concluded thatboth cuffs may not have been in the vicinity of a discharged firearm or primer gunshot-residue-related item. Kopina also concluded that if the cuffs had been in the vicinity of a dischargedfirearm, the particles were either not deposited on them, they were removed by activity or theywere not detected by the tests.

Nicholas testified in his own defense. He was 22 years old and lived with his mother for ayear and a half. His mother's house rules were no alcohol or no drugs in the house. She alsoinsisted that Nicholas either be enrolled in school or gainfully employed in exchange for his livingarrangements. According to Nicholas, he and his mother argued frequently. Nicholas explainedthat, after his mother left, he tried to sleep but heard gunshots. He ignored the pounding of hisneighbors on his apartment door until the police arrived and told him his mother was dead.

Nicholas testified that he agreed to go to the police station for questioning. He wasplaced in a holding cell but was not handcuffed. Later, Nicholas was brought back to the policestation, where he spent the night. Nicholas denied saying he killed his mother. Nicholas alsotestified that, early that Saturday morning, he was introduced to Detective McNally. At varioustimes throughout the day, Nicholas spoke with Detective McNally and Sergeant Brannigan. Nicholas maintained that, when he was alone with Detective McNally, he was told of otherhomicide cases and told how to help himself. Nicholas indicated that Detective McNally read himhis Miranda rights, let him smoke and provided him with beverages. Later that day, Nicholas toldDetective McNally that he walked through the basement and shot his mother. Nicholas indicatedthat he believed that, if Detective McNally disbelieved his story, he would conclude that Nicholaswas innocent and let him go. Nicholas also admitted that he lied about having gotten the gunfrom a former friend with whom there had been a falling out. Nicholas explained that he told thesubsequent story about getting the gun on the street because he did not want to involve his formerfriend.

Nicholas was subsequently taken to the scene while the officers searched the area. Afterhaving fed him, the police returned him to the holding cell whereupon Nicholas gave consent tothe police to search the house. Nicholas then met ASA O'Reilly and told him the same fabricatedstory he told Detective McNally. He admitted he was trying to send the police on a "wild goosechase" so once they determined the story was untrue they would let him go. Nicholas testifiedthat he was returned to the interview room, where he spent the night. Nicholas claimed that,Saturday night, two detectives threatened to "kick his ass" and to arrange for him to be "fucked inthe ass" in the county jail. Nicholas testified that he became frightened and was too afraid ofretaliation to tell anyone about the threats. The next morning, Nicholas agreed to give a truestatement of what happened. He testified that he did not kill his mother and knew that she carrieda life insurance policy to which Nicholas was the sole beneficiary.

Nicole Smith, Nicholas' girlfriend, testified that she talked to Nicholas on the phone afterthe shooting. Smith indicated that Nicholas was distraught. Smith also testified that she neversaw Nicholas with a gun. Smith admitted that she was not with Nicholas when the shooting tookplace and, therefore, did not see what happened.

The jury found Nicholas guilty of first degree murder. On March 6, 2002, the trial courtsentenced Nicholas to 35 years' imprisonment.

Nicholas argues that the trial court erred in denying his motion to suppress his custodialstatements. He argues the statement was the product of psychological and mental coercion. Healso argues the statement was involuntary. Nicholas argues this court should examine the totalityof the circumstances surrounding the statement. He was 22 years old and never had been takeninto police custody before. He was not well-educated. The police allegedly threatened him withviolence and an involuntary sexual act. The detention was prolonged. Nicholas argues that, oncehe indicated he wanted to remain silent and no longer wanted to make a written statement, heshould have been transferred to county jail and brought before a judge for a probable causedetermination. He argues that ASA O'Reilly and Detective McNally contradicted each other asto whose responsibility it was to have Nicholas processed. Detective McNally did not completepaperwork for holding Nicholas past call. Nicholas argues he was held in the interview roomsolely for the purpose of gathering additional evidence.

The State responds that the trial court properly denied the motion to suppress whereNicholas initiated further communication with the police, knowingly and intelligently waived hisright to counsel and voluntarily made a court-reported statement in which he again confessed tothe murder. The State points out that Nicholas is only contesting the admissibility of his court-reported statement, not the oral statements in which he also confessed to the murder. The Statepoints out that, contrary to Nicholas' assertion, it disputes his claim that unknown police officersmade threats in the middle of the night that frightened and coerced him. The State admits it hasthe burden to show that the confession was voluntary.

"[I]n reviewing whether [defendant's] confession was voluntary, we will accord greatdeference to the trial court's factual findings, and we will reverse those findings only if they areagainst the manifest weight of the evidence. However, we will review de novo the ultimatequestion of whether the confession was voluntary." In re G.O., 191 Ill. 2d 37, 50 (2000). Although In re G.O. involved a minor, the standard of review is the same for an adult.

"In determining whether a confession was voluntary, we must consider the totality of thecircumstances. [Citation.] Factors to consider include the defendant's age, intelligence,background, experience, mental capacity, education, and physical condition at the time ofquestioning; the legality and duration of the detention; the duration of the questioning; and anyphysical or mental abuse by police, including the existence of threats or promises. [Citation.]Significantly, no single factor is dispositive. [Citation.] The test of voluntariness is whether the[defendant] 'made the statement freely, voluntarily, and without compulsion or inducement of anysort, or whether the [defendant's] will was overcome at the time he or she confessed.' " G.O.,191 Ill. 2d at 54, quoting People v. Gilliam, 172 Ill. 2d 484, 500 (1996).

Nicholas, a 22 year-old-man, was in custody for a lengthy period of time. We recognizethat his initial presence at the police station and his early participation in the investigation processwere voluntary; he was in the custody of the police both before and after his formal arrest. "Custody occurs when a person's movement is restrained by force or show of authority." Peoplev. Willis, 344 Ill. App. 3d 868, 875 (2003), citing People v. Ollie, 333 Ill. App. 3d 971, 981(2002). "The key inquiry is whether, under the circumstances, a reasonable person would haveconcluded that he was not free to go about his business." Willis, 344 Ill. App. 3d at 875, citingKaupp v. Texas, 538 U.S. 626, ___, 155 L. Ed. 2d 814, 819, 123 S. Ct. 1843, 1845 (2003), andOllie, 333 Ill. App. 3d at 981. Willis, Kaupp, and Ollie, stand for the proposition that evenvoluntary presence at a police station can turn into unlawful detention with the passage of time.

The record suggests that Nicholas was fed sporadically and, when he was fed donuts andfast food, it was with only a passing glance to the notion of nutrition. Additionally, over thesignificant period of the custody, the record does not suggest that even the most basicarrangements were made for Nicholas to be given a blanket or pillow. Instead, if possible, he wasforced to sleep on the benches or tables in the room in which he was being held.

At some point in the detention, a decision was made that Nicholas would be held past call. This means he would not be taken before a judge for a probable cause hearing at the earliestpossible moment, which is the norm. The State's Attorney suggested that it was the responsibilityof the police to process Nicholas. We note that Nicholas made his first incriminating statementsfairly early in the proceedings when he was formally arrested. He was not, however, taken beforea judge at that time. The United States Supreme Court has indicated that "[w]hatever procedurea State may adopt [for getting an accused before a judge or magistrate], it must provide a fair andreliable determination of probable cause as a condition for any significant pretrial restraint ofliberty, and this determination must be made by a judicial officer either before or promptly afterarrest." Gerstein v. Pugh, 420 U.S. 103, 124-25, 43 L. Ed. 2d 54, 71-72, 95 S. Ct. 854, 868-69, (1975). The Gerstein rule has been codified in Illinois pursuant to section 109-1(a) of the Code ofCriminal Procedure of 1963 (725 ILCS 5/109-1(a) (West 1998)). Instead of taking Nicholasbefore a judge, the investigation was classified as ongoing when, we presume, additional evidencewas to be gathered. Willis instructs us:

"The Court held when police make warrantless arrests, thestates must provide a probable cause determination by a judicialofficer promptly after arrest. [Gerstein v. Pugh, 420 U.S. 103, 125,43 L. Ed. 2d 54. 71-72, 95 S. Ct. 854, 868-69, (1975)]. The courtdid not define 'promptly.'

In McLaughlin, the Court held the 'promptness requirementof Gerstein' requires probable cause determinations by neutralmagistrates within 48 hours of warrantless arrests. [Riverside v.McLaughlin, 500 U.S. 44, 56, 114 L. Ed. 2d 49, 63, 111 S. Ct.1661, 1670, (1991)]. If a suspect receives a probable causedetermination within 48 hours of his arrest, a delay may still beunconstitutional if the defendant shows it was unreasonable.McLaughlin, 500 U.S. at 56, 114 L. Ed. 2d at 63, 111 S. Ct. at1670. The Court listed 'delays for the purpose of gatheringadditional evidence to justify the arrest, a delay motivated by ill willagainst the arrested individual, or delay for delay's sake' asexamples of unreasonable delays. McLaughlin, 500 U.S. at 56, 114L. Ed. 2d at 63, 111 S. Ct. at 1670.

If the delay is longer than 48 hours, the burden shifts to theState to show the delay was due to a 'bona fide emergency or otherextraordinary circumstance.' McLaughlin, 500 U.S. at 57, 114 L.Ed. 2d at 65, 111 S. Ct. at 1670." (Emphasis omitted.) Willis, 344Ill. App. 3d at 877.

After a detailed analysis of state and federal law, the Willis opinion concluded as followson the issue of what remedy was appropriate for a McLaughlin/Gerstein violation:

"We are persuaded the decisions we have cited require us tomaintain a distinction between the interests served by the fourth andfifth amendments. We deal with the kind of unlawful detention heldunlawful in McLaughlin. This is a fourth amendment issue. If wewere to say there is no remedy for violation of it, we would bedoing exactly what the courts in Dunaway v. New York and Peoplev. White said we cannot do - allow law enforcement officers toviolate the fourth amendment with impunity, 'safe in the knowledgethat they could wash their hands in the "procedural safeguards" ofthe Fifth.' Dunaway v. New York, 442 U.S. 200, 219, 60 L. Ed.2d 824, 840, 99 S. Ct. 2248, 2260 (1979); White, 117 Ill. 2d at223.

The deterrent purpose of the exclusionary rule would bewell served by suppression of statements that are unpurged of theprimary taint created by a McLaughlin violation. Suppressionwould discourage police officers from parking an arrestee in a jailcell for more than 48 hours without good reason. It would deprivethem of any benefit gained by their violation of the fourthamendment's guarantee that it will 'furnish meaningful protectionfrom unfounded interference with liberty.' Gerstein, 420 U.S. at114, 43 L. Ed. 2d at 65, 95 S. Ct. at 863.

Having said that, we now must decide whether defendant'sconfession is " ' "sufficiently an act of free will to purge the primarytaint of the unlawful invasion." ' " Brown, 422 U.S. at 598, 45 L.Ed. 2d at 424, 95 S. Ct. at 2259, quoting Wong Sun, 371 U.S. at486, 9 L. Ed. 2d at 486, 83 S. Ct. at 416.

The decision was made to hold Nicholas past call even though he had been in contact with hislawyer, who appeared at the station and participated in Nicholas' exercise of his right to remainsilent. Despite the exercise of that right, the interrogation continued until Nicholas confessed. We do not believe, under all the facts and circumstances of this case, that the confession can beconsidered free of the taint of the fourth amendment violation. As a result, the trial court shouldhave suppressed the statement and any evidence flowing therefrom. Upon remand, the State willhave an opportunity to try the case, this time without the statement.

Nicholas next argues that the trial court erred in refusing defense counsel's request toinstruct the jury on involuntary manslaughter because there was evidence from which the jurycould have found that, because he was only trying to scare his mother, he lacked the intent to killher. He argues that, though he acted recklessly, he lacked the specific intent to kill her. Nicholasbelieves that, because this error turns exclusively on a question of law, it should be subject to denovo review. Here the defendant was charged with one count of intentionally and knowinglykilling the victim. The second count alleged that Nicholas shot his mother with a gun, knowingthat such a shooting created a strong probability of death or great bodily harm. Nicholas arguesthat the jury should have been able to consider involuntary manslaughter because that crime turnson the unintentional or reckless killing of another. Nicholas argues it was error for the trial court,not only to take from the jury the question of whether there was any evidence to support theinvoluntary manslaughter theory, but to have weighed the quality of that evidence itself.

The State responds that the trial court committed no error. The State maintains there wasno evidence that the defendant acted recklessly. Nicholas testified at trial that he did not shoot hismother. He also denied the truth of his pretrial confessions. After having argued with his mother,Nicholas armed himself, met her at the front of the building, pointed a gun at her and shot it fourtimes. The State maintains this does not support the notion of involuntary manslaughter. Thejury was correctly instructed because the purpose of instructions is to inform the jury of thecorrect principles of law to be applied to the particular facts of a case. The defendant's assertionthat he did not intend to kill anyone is not a sufficient basis to warrant an involuntarymanslaughter instruction where the defendant intended to fire a gun, pointed it and shot.

"Jury instructions should guide the jury in its deliberations and help it reach the properverdict through application of legal principles to the evidence." People v. Moore, 343 Ill. App. 3d331, 338 (2003), citing People v. Santos, 333 Ill. App. 3d 1, 7 (2002); People v. Williams, 181 Ill.2d 297, 318 (1998). "Very slight evidence of a defendant's theory of the case will justify thegiving of a tendered instruction." Moore, 343 Ill. App. 3d at 338, citing Santos, 333 Ill. App. 3dat 7. "A court's decision to decline a particular instruction is subject to an abuse-of-discretionstandard of review." Moore, 343 Ill. App. 3d at 338-39, citing People v. Edmondson, 328 Ill.App. 3d 661, 664 (2002); People v. Garcia, 188 Ill. 2d 265, 283 (1999). "Even if the trial courterrs in denying a particular instruction, the decision is subject to a harmless error analysis and maybe affirmed if evidence of defendant's guilt was so clear and convincing as to render the errorharmless beyond a reasonable doubt." Moore, 343 Ill. App. 3d at 339, citing People v. Dennis,181 Ill. 2d 87, 95-96 (1998) and People v. Amaya, 321 Ill. App. 3d 923, 929 (2001).

"A person commits first degree murder when he 'kills anindividual without lawful justification *** [and] either intends tokill or do great bodily harm to that individual or another, or knowsthat such acts will cause death to the individual or another; or ***he knows that such acts create a strong probability of death or greatbodily harm to that individual or another.' 720 ILCS 5/9-1(a)(1),(a)(2) (West 1994). In contrast, a person commits involuntarymanslaughter when he 'unintentionally kills an individual withoutlawful justification *** [and] his acts whether lawful or unlawfulwhich cause the death are such as are likely to cause death or greatbodily harm to some individual, and he performs them recklessly.' [Citation.] 'The basic difference between involuntary manslaughterand first degree murder is the mental state that accompanies theconduct resulting in the victim's death.' [People v. DiVincenzo,183 Ill. 2d 239, 249 (1998)]." People v. Tainter, 304 Ill. App. 3d847, 849 (1999).

Involuntary manslaughter turns on recklessness. " 'A person is reckless or acts recklessly,when he consciously disregards a substantial and unjustifiable risk that circumstances exist or thata result will follow, described by the statute defining the offense; and such disregard constitutes agross deviation from the standard of care which a reasonable person would exercise in thesituation.' " (Emphasis in original.) Tainter, 304 Ill. App. 3d at 849-50, quoting 720 ILCS 5/4-6(West 1994). "The facts and circumstances of each case must be considered when determiningwhether an involuntary manslaughter instruction is warranted. [Citation.] The following factors,although not dispositive, may suggest there was evidence of recklessness that would support thegiving of an involuntary manslaughter instruction: (1) the disparity in size between the defendantand the victim; (2) the brutality and duration of the beating, and the severity of the victim'sinjuries; and (3) whether a defendant used his bare fists or a weapon, such as a gun or a knife." Tainter, 304 Ill. App. 3d at 850, citing DiVincenzo, 183 Ill. 2d at 251.

The fact that Nicholas shot the gun three or four times does not support the claim that hewas trying to scare his mother. Also, assuming he was just trying to scare his mother, the naturalconsequence of shooting at someone is that he or she could get shot. Nicholas intended to shoota gun, pointed it and shot. Based on the facts of this case, merely claiming one is trying to scaresomeone else is insufficient to support the claim that one's actions are reckless and not intentionalso as to justify an involuntary manslaughter instruction.

Nicholas next argues that the prosecutor improperly argued to the jury that the defendantwas evil and repeatedly urged the jury to use his courtroom demeanor as evidence against him. During the closing arguments, the State described the shooting of multiple bullets into a victim'sbody, going back in the house afterwards to sleep and wondering about who was going to do thedefendant's hair now that his mother was dead as "pure evil." The State also said, "Check hisdemeanor in the courtroom, sitting there slouched, with a big scowl on his face, takes the stand,raises his voice, cursing, actions of a guilty man."

The State responds that this issue is waived due to Nicholas' failure to object at trial orraise it in a posttrial motion. The State argues that plain error review is not appropriate herebecause the evidence was not closely balanced. In fact, Nicholas does not now contend that theevidence was insufficient to prove his guilt beyond a reasonable doubt. The State further arguesthat, despite these few comments by the prosecutor, Nicholas received a fair and impartial trial. The comments did not constitute a material factor in his conviction. Further, the State arguesthat, taken in context of the whole argument, the prosecutor was not calling the defendant evil butwas commenting on his actions. The State should be allowed to comment on the evidence anddraw inferences, even if such would be detrimental to the defendant.

"As a general rule, a defendant must object to an error at trial and include the objection ina posttrial motion to preserve it for review on appeal." People v. Canulli, 341 Ill. App. 3d 361,368-69 (2003), citing People v. Basler, 193 Ill. 2d 545, 549 (2000); People v. Mullen, 141 Ill. 2d394, 401 (1990); People v. Casillas, 195 Ill. 2d 461, 491 (2000); People v. Enoch, 122 Ill. 2d 176,186 (1988). The rule of waiver is a limitation on the parties and not on the courts, and areviewing court may ignore the waiver rule in order to achieve a just result. People v. Armstead,322 Ill. App. 3d 1, 11-12 (2001), citing People v. Lopez, 152 Ill. App. 3d 667, 676 (1987). Asubstantial right has been denied if the error affected the proceedings to such a degree that wecannot confidently state that the defendant's trial was fundamentally fair. People v. Keene, 169 Ill.2d 1 (1995). This court will act on error that is of such gravity that it threatens the very integrityof the judicial process. People v. Blue, 189 Ill. 2d 99 (2000).

"Illinois reviewing courts, faced with allegations of plain error, examine, substantively, ona rudimentary level, the records before them to determine if the claimed errors constitute 'plain'and 'reversible' errors." People v. Johnson, 208 Ill. 2d 53, 63 (2003), citing People v. Keene, 169Ill. 2d 1, 17 (1995); People v. Terrell, 185 Ill. 2d 467, 526 (1998) (Freeman, C.J., speciallyconcurring, joined by McMorrow, J.). "Our plain error rule is set forth in Supreme Court Rule615(a), which states as follows: 'Any error, defect, irregularity, or variance which does not affectsubstantial rights shall be disregarded. Plain errors or defects affecting substantial rights may benoticed although they were not brought to the attention of the trial court.' " Johnson, 208 Ill. 2dat 63-64, quoting 134 Ill. 2d R. 615(a). "[The Illinois Supreme Court's] prior decisions makeclear that this court may invoke the plain error rule to review alleged errors not properlypreserved when (1) the evidence in a criminal case is closely balanced or (2) the error is sofundamental and of such magnitude that the accused is denied the right to a fair trial andremedying the error is necessary to preserve the integrity of the judicial process." (Emphasisadded.) Johnson, 208 Ill. 2d at 64, citing People v. Lindsey, 201 Ill. 2d 45, 54 (2002), quotingPeople v. Nieves, 192 Ill. 2d 487, 502-03 (2000); People v. Hall, 194 Ill. 2d 305, 335 (2000);People v. Williams, 193 Ill. 2d 306, 348 (2000). It is important to acknowledge that the supremecourt in Johnson used the conjunction "or" in explaining when reviewing courts may invoke theplain error rule. In so doing, the supreme court recognized that certain errors are of such amagnitude that they are plain without regard to the relative closeness of the evidence.

Every defendant is entitled to fair trial free from prejudicial comments by the prosecution.People v. Billups, 318 Ill. App. 3d 948, 958 (2001). It is well settled that the prosecutor has widelatitude in making closing remarks. People v. Bell, 343 Ill. App. 3d 110, 116 (2003), citingPeople v. Foster, 322 Ill. App. 3d 780, 790 (2000); People v. Mendez, 318 Ill. App. 3d 1145,1152 (2001). "A prosecutor may comment on the evidence and may draw all legitimateinferences from the evidence, even if unfavorable to the defendant." Bell, 343 Ill. App. 3d at 115, citing People v. Toney, 337 Ill. App. 3d 122, 147 (2003). Improper remarks will not meritreversal unless they result in substantial prejudice to defendant which constitutes a material factorin the conviction. Bell, 343 Ill. App. 3d at 116, citing Foster, 322 Ill. App. 3d at 790; People v.Castaneda, 299 Ill. App. 3d 779, 784 (1998) (reversible error results when comments by aprosecutor substantially prejudice a defendant, causing one to question whether the guilty verdictresulted from those comments); People v. Joyner, 317 Ill. App. 3d 93, 105 (2000) ("where aprosecutor's remarks exceed the bounds of proper comment, a reviewing court should not disturbthe verdict unless it can be said that the remarks in question resulted in substantial prejudice to theaccused such that absent those remarks the verdict would have been different"). In Johnson, thesupreme court indicated the following:

"[W]e note that a pattern of intentional prosecutorialmisconduct may so seriously undermine the integrity of judicialproceedings as to support reversal under the plain error doctrine.See United States v. Young, 470 U.S. 1, 33 n.16, 84 L. Ed. 2d 1,24 n.16, 105 S. Ct. 1038, 1055 n.16 (1985) (Brennan, J.,concurring in part and dissenting in part, joined by Marshall andBlackmun, JJ.); People v. Moss, 205 Ill. 2d 139, 189 (2001)(Freeman, J., concurring in part and dissenting in part, joined byKilbride, J.). Indeed, concern over the cumulative effect of errorsthat 'created a pervasive pattern of unfair prejudice,' much of itattributable to misconduct of the prosecutors, is what drove thiscourt's analysis in [People v. Blue, 189 Ill. 2d 99, 138-40 (2000)].This court recognized in Blue the 'synergistic effect' that multipleerrors of this kind can have in a trial. Blue, 189 Ill. 2d at 139. Seealso People v. Hill, 17 Cal. 4th 800, 847, 952 P.2d 673, 699, 72Cal. Rptr. 2d 656, 682 (1998) (A unanimous California SupremeCourt, foregoing harmless error analysis, reversed a death penaltyconviction due to pervasive prosecutorial misconduct and trialerrors that, cumulatively, 'created a negative synergistic effect,rendering the degree of overall unfairness to defendant more thanthat flowing from the sum of the individual errors')." Johnson, 208Ill. 2d at 64-65.

The allegedly improper comments must be evaluated "in light of the context of thelanguage used, its relationship to the evidence, and its effect on the defendant's right to a fair andimpartial trial." Billups, 318 Ill. App. 3d at 958-59, citing People v. Barker, 298 Ill. App. 3d 751,757 (1998); Mendez, 318 Ill. App. 3d at 1152, citing People v. Morgan, 142 Ill. 2d 410 (1991). "The trial court can generally correct any error resulting from an improper remark by sustainingan objection or instructing the jury to disregard the statement." Bell, 343 Ill. App. 3d at 115,citing Foster, 322 Ill. App. 3d at 791. Based upon the wide latitude given to prosecutors tostructure the closing arguments, "the prosecutor may respond to comments made by defensecounsel, denounce the activities of the defendant, and highlight inconsistencies or weaknesses inthe defendant's argument." People v. Campbell, 332 Ill. App. 3d 721, 727 (2002), citing Peoplev. Sutton, 260 Ill. App. 3d 949, 960 (1994). "While the State may comment unfavorably on thedefendant and the evil results of the crime (People v. Alvarez (1981), 93 Ill. App. 3d 111, 416N.E.2d 1217), he may not thereby attempt to inflame the passion of the jury nor arouse theprejudice of the jury against the defendant. (People v. Wallace (1981), 100 Ill. App. 3d 424, 426N.E.2d 1017.)" People v. Alexander, 127 Ill. App. 3d 1007, 1014 (1984).

Multiple references to the prosecutor's opinion that the defendant and his conduct is "pureevil" are inappropriate. This prosecutor said "and when she screams, please don't, he pulls thetrigger, and pulls the trigger again and pulls the trigger again and pulls the trigger again, pureevil." There is no purpose for the addition of the phrase "pure evil" other than to inflame thepassions of the jury. Though the argument has been made that the phrase was a comment on theconduct, not the person, we find that unpersuasive when coupled with the prosecutor'ssubsequent comments that "[h]e goes and gets rid of the gun, goes back into the house, and goesto bed, tries to get a little sleep. All that shooting and killing will tire a guy out - pure evil." Then later in the argument, the prosecutor argued "Marcel, your mom, she's dead in the street. Who's going to braid my hair now? Pure evil." Additionally, the prosecutor remarked "[a]nd itwas that evil, that cold reaction that led to his capture." Rather than letting the evidence speakfor itself, the prosecutor set out to paint Nicholas as evil. This is improper and, in light of theevidence in this case, unnecessary.

In light of the foregoing, we reverse and remand this matter for a new trial.

Reversed and remanded.

Campbell, P.J. and Neville, J., concur.