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FIRST DIVISION

October 26, 1998

No. 1-96-4048

JUSTICE O'BRIEN delivered the opinion of the court:

Following a jury trial, defendant, Joseph Nunn, was convicted of attempted murder andaggravated battery. The trial court merged the aggravated battery conviction into the attemptedmurder conviction, and sentenced defendant to 10 years' imprisonment. On appeal, defendantargues: (1) the trial court erred by granting the State's motion in limine; (2) the prosecutorimproperly adduced evidence and made arguments to which defendant was prohibited fromresponding by the in limine ruling; (3) defense counsel provided ineffective assistance; and (4)the State failed to prove defendant guilty of attempted murder beyond a reasonable doubt. Weaffirm.

The victim, Michael James, was severely beaten on the morning of January 16, 1995. Defendantwas later arrested in connection with the beating, and gave the following written statement toAssistant State's Attorney Sharon Opryszek:

"[Defendant] states that on January 16, 1995, at about 2 a.m. he was at apartment 1107 withArnetta Price, Pascha, Annie Price and their kids when Michael James came over. [Defendant]states that Michael James and Annie Price *** were arguing and Michael James was asked toleave the apartment by both [defendant] and Pascha.

[Defendant] states that Michael James left the apartment 1107. [Defendant] states that fiveminutes after Michael James left the apartment 1107, [defendant] left the apartment. [Defendant]states that he met up with Michael James down by the elevator at the first floor of the building at4352 South State. [Defendant] states that he asked Michael James why he had been messing withAnnie Price's daughter, Vernetta. [Defendant] states that he heard that Michael James had beensexually messing with Vernetta, who is only 13 years old. [Defendant] states that Michael Jamessaid he wasn't messing with Vernetta. [Defendant] states that he and Michael James startedarguing and then Michael James admitted that he messed with Vernetta. [Defendant] got madafter Michael James admitted he messed with Vernetta and so [defendant] pushed Michael Jamesbackward and Michael James fell backward by the stair and grabbed on to the pole next to thestairs. [Defendant] states that he punched Michael James in the face four to five times. [Defendant] states that Uncle Billy told him to stop and let him go. [Defendant] states thatBenny Nunn, also called Bingo, Daze, NaRolas, and a fat guy were there when [defendant] wasfighting with Michael James. [Defendant] states that these guys asked him why [defendant] wasfighting Michael James and he told Bingo, Daze, NaRolas and the fat guy that Michael Jameshad supposedly raped Vernetta.

[Defendant] states that he then left and saw Daze hit Michael James. [Defendant] states that heleft to go get cigarettes at the gas station at 43rd and State. [Defendant] states that he came backfrom the gas station a few minutes later and saw Michael James laying on the ground with bloodcoming out of his mouth, nose, and ears.

[Defendant] states that he went back to apartment 1107 and told Pascha about Michael Jamesbeing hurt. [Defendant] states that [Annie Price] went downstairs to see about Michael James. [Defendant] states that the paramedics came and took Michael James to the hospital."

Prior to trial, the State made a motion in limine to: (1) preclude defendant from introducingMichael James' arrest based on a complaint of alleged criminal sexual abuse against Vernetta; (2)exclude any mention of the alleged criminal sexual abuse at trial; and (3) redact the portion ofdefendant's confession that mentions the alleged sexual abuse. The trial court granted themotion.

At trial, Twyla Charles, a Chicago Housing Authority police officer, testified that atapproximately 2:30 a.m. on January 16, 1995, she observed an ambulance parked in front of ahousing complex at 4352 South State Street. Charles walked inside and observed an African-American male, later identified as Michael James, lying face-down in the lobby. He wasunconscious and bleeding from the head.

Michael James (hereafter, the victim) testified that in the late evening hours of January 15, 1995,he visited his girlfriend, Annie Price, at her sister's apartment at 4352 South State Street. Annie,defendant, and "Pashaw" were in the apartment when the victim arrived. The victim argued withAnnie for about 10 to 15 minutes, then he left the apartment and started to walk downstairs.

The victim heard footsteps behind him on the stairwell. When the victim reached the first floor,defendant and "three or four" other men approached him. Defendant said "Let's kill this punk." One of the men held the victim from behind, while defendant punched him in the jaw and hit himseveral times in the face with a 40 ounce beer bottle. The other men with defendant also hit thevictim several times in the face. The next thing the victim remembers is waking up in thehospital.

Doctor John Barrett testified he assisted the victim after he was brought to Cook County Hospitalon January 16, 1995. Doctor Barrett observed that the victim was "pretty badly injured," withevidence of blunt head trauma and a very depressed level of consciousness. Doctor Barrettconducted a CT scan which revealed that the victim had a "diffuse axonal injury," meaning hehad a very severe head injury that had damaged his brain tissue.

Detective Armata testified that in late January 1995 he went to 4352 South State Street where hespoke with defendant about the victim's beating. Defendant told Armata that he witnessed thevictim arguing with Annie in her sister's apartment on January 16. However, defendant deniedknowing how the victim sustained his injuries.

Armata testified that at approximately 12:45 a.m. on July 10, 1995, he spoke with defendantagain, this time at police headquarters. During this conversation, defendant stated that he saw agroup of men beat the victim in the lobby of Annie's apartment building on January 16.

Following defendant's statement, Armata called Assistant State's Attorney Opryszek, who arrivedat approximately 2:30 a.m. and spoke with defendant. Armata was present during thatconversation. Defendant repeated his story about seeing several men beating the victim, butadded that he also saw a heavyset woman stomp the victim with her feet.

Detective Jones testified he spoke with defendant at police headquarters on July 11. Defendanttold Jones that he witnessed the victim and Annie arguing in the apartment on January 16, afterwhich the victim left the apartment and went downstairs. Defendant followed the victim downthe stairs to the first floor and punched the victim four or five times in the face.

Detective Jones contacted Assistant State's Attorney Opryszek and informed her that defendantnow admitted hitting the victim. Opryszek then spoke with defendant, who agreed to make awritten statement. The written statement, set forth near the beginning of this opinion, waspublished to the jury; however, pursuant to the motion in limine, the portions of the statementregarding the victim's alleged sexual abuse of Vernetta were redacted.

Defendant's uncle, Billy Nunn, testified he was standing by a food and liquor store on January 16,when he saw defendant arguing and fighting with another man in front of an apartment building. Defendant had nothing in his hands during the fight. Nunn walked over and "took [defendant]away from the fight." When he and defendant left, the man was still standing next to thebuilding, apparently uninjured. Nunn and defendant walked to a store to get some cigarettes. When they returned to the apartment building, Nunn saw the man lying on the ground, bleeding. Nunn and defendant "just kept going about [their] business" and did not help the man or call thepolice.

The jury found defendant guilty of aggravated battery and attempted murder. The trial courtmerged the aggravated battery conviction into the attempted murder conviction and sentenceddefendant to 10 years in prison. Defendant filed this timely appeal.

First, defendant argues the trial court erred by granting the State's motion in limine to prevent thedefense from introducing any evidence of the victim's alleged sexual abuse of Vernetta. Defendant waived this argument by failing to raise it in his post-trial motion. People v. Enoch,122 Ill. 2d 176, 186 (1988). Even choosing to address the issue on the merits, we find no error.

The State introduced defendant's written statement that he punched the victim; however, pursuantto the motion in limine, the portions of defendant's statement mentioning the reason he punchedthe victim, for sexually abusing 13-year-old Vernetta, were redacted. Defendant claims his entirestatement should have been admitted pursuant to the "completeness doctrine," which providesthat "'if one party introduces part of an utterance or writing the opposing party may introduce theremainder or so much thereof as is required to place that part originally offered in proper contextso that a correct and true meaning is conveyed to the jury.'" People v. Williams, 109 Ill. 2d 327,334 (1985), quoting Lawson v. G.D. Searle & Co., 64 Ill. 2d 543, 556 (1976).

The right to bring out all of a writing or conversation is not absolute, but depends on therelevancy of the additional parts of the writing or conversation the party wishes to introduce. Williams, 109 Ill. 2d at 335. Defendant contends that the redacted portion of his statement wasrelevant to show that defendant lacked the specific intent to kill the victim. We disagree. Although the redacted portion shows that defendant hit the victim after the victim admitted tosexually abusing a child, it gives absolutely no indication, one way or the other, whetherdefendant intended to kill the victim, or leave him bruised, bloodied, but alive. Accordingly,People v. Rivera, 260 Ill. App. 3d 984 (1994), People v. Quick, 236 Ill. App. 3d 446 (1992),People v. Upton, 230 Ill. App. 3d 365 (1992), and People v. Perez, 209 Ill. App. 3d 457 (1991),cited by defendant for the proposition that state of mind evidence is relevant where intent ismaterial to defendant's guilt, are inapposite here, where the redacted portions of defendant'sstatement give no clue as to his state of mind at the time of the beating.

While the evidence defendant sought to admit provides an arguably understandable reason, at anemotional level, for the beating he administered to the victim, the evidence does not legallyjustify defendant's use of force. Article seven of the Criminal Code of 1961 (720 ILCS 5/7-1 etseq. (West 1996)) provides for the justifiable use of force under certain circumstances, such aswhen the force is in defense of self or defense of others. None of those circumstances apply todefendant's beating of the victim. Thus, since the evidence of the victim's sexual abuse ofVernetta provided no legal justification for defendant's conduct, said evidence was not relevant,and the "completeness doctrine" did not apply.

Defendant next argues that the trial court's granting of the State's motion in limine improperlyprecluded the defense from impeaching the victim's credibility. Specifically, defendant arguesthat the victim was allowed to portray himself as a good man who was concerned with hisgirlfriend's (Annie Price's) behavior rather than one who violently attacked her because sheconfronted him about his alleged sexual abuse of her daughter. The victim was also allowed totestify that he said nothing to defendant prior to the beating. Defendant contends that had thetrial court not granted the motion in limine, the defense would have shown that the victim andAnnie argued very violently over what the victim had supposedly done to Vernetta. The defensealso would have shown that, just prior to the beating, the victim admitted to defendant that he hadsexually abused Vernetta.

Impeachment is not allowed on collateral matters that are irrelevant to a material issue of thecase. Kinkaid v. Ames Department Stores, Inc., 283 Ill. App. 3d 555, 567 (1996). As discussedabove, the victim's alleged sexual abuse of Vernetta was a collateral matter, not relevant to anymaterial issue of the case, and therefore not a proper subject for impeachment.

Defendant also argues that the evidence of the victim's alleged sexual abuse of Vernetta wasadmissible to show his bias or motive for testifying against defendant. Specifically, defendantargues that the jury might have inferred from said evidence that the victim expected to avoidprosecution for the sexual abuse charge in exchange for his cooperation in the case againstdefendant.

The confrontation clause of the sixth amendment of the United States Constitution (U.S. Const.,amend VI) guarantees defendant the right to cross-examine a witness against him to show thewitness' bias, interest or motive to testify falsely. People v. Harris, 123 Ill. 2d 113, 144 (1988). However, the sixth amendment does not prevent the trial judge from imposing limits on defensecounsel's inquiry into the potential bias of a prosecution witness. Harris, 123 Ill. 2d at 144. Thetrial judge retains wide latitude to impose reasonable limits on such cross-examination based onconcerns about confusion of the issues or interrogation that is of little relevance. Harris, 123 Ill.2d at 144.

We find no abuse of discretion here. The sexual abuse charges against the victim were droppedprior to trial when the complainants refused to follow through with the complaint; thus, there waslittle, if any, motivation for the victim to testify falsely against defendant in order to curry favorwith the State's Attorney's office. Cross-examination of the victim concerning the alleged abusewould have provided no information of any relevance to the material issue in the case, i.e.,whether defendant beat the victim with the specific intent to kill him. Accordingly, the trial courtdid not abuse its discretion in granting the motion in limine and preventing defendant from cross-examining the victim about the alleged sexual abuse.

Next, defendant contends that the State "abused" the order in limine by questioning the victim ondirect examination about the fight he had with Annie Price. Defendant argues this was errorbecause "the State was aware that there was another version of that fight but that it would not beintroduced to impeach [the victim] due to the [order in limine]."

We find no error; defendant is rearguing the trial court's decision to grant the in limine motion. As discussed above, the trial court did not err in granting the motion.

Defendant argues that the State made comments during closing argument to which the defensecould not respond due to the order in limine. Defendant failed to object to those comments whenthey were made and, thus, waived the issue for review. Enoch, 122 Ill. 2d at 186. Even choosingto address the issue on the merits, we find no error.

Defendant refers to the prosecutor's comment that defendant inflicted "senseless violence" on thevictim "for no reason at all"; defendant contends said comment was reversible error because thein limine ruling prevented the defense from responding that defendant beat the victim for sexuallyabusing Vernetta.

In support, defendant cites People v. Chavez, 265 Ill. App. 3d 451, 457 (1994), which held thatwhen a trial court determines evidence to be inadmissible, counsel may not refer to that evidenceduring closing argument. Chavez is inapposite, as the State here never referred to theinadmissible evidence concerning the victim's alleged sexual abuse of Vernetta. Defendant'sargument is another effort to seek reversal based on the trial court's in limine ruling; as discussedabove, that ruling was not in error.

Defendant also faults the prosecutor for stating of the defendant:

"He's the only person who would know what to put in [his written statement], he read it, hecan read *** it's his statement. He told you *** he beat him."

Defendant contends this comment incorrectly implied that the statement the jury heard was acomplete version of the offense when, in fact, the statement was redacted of much of its originalcontent. We disagree. The prosecutor was merely informing the jury that defendant wrote out astatement admitting that he beat the victim. The prosecutor's comment was an accurate reflectionof the evidence and not error.

Defendant contends the State erred when it stated:

"[C]ounsel raised questions about Annie Price, the girlfriend, well it's true the defendantdoesn't have to prove anything, it's the [P]eople *** that have to prove this defendant guiltybeyond a reasonable doubt. But ladies and gentlemen, the defense counsel has the power tosubpoena as the State does, in fact there were people such as the State's Attorney or anyother witness that counsel felt should be here to testify before you, he has the same poweras the State."

Defendant contends this comment incorrectly implied that defendant failed to call Annie Priceand other witnesses because their testimony would have been damaging to defendant. Defendantcontends that the actual reason he failed to call Annie Price is because of the order in limine,which precluded him from inquiring about the victim's alleged sexual abuse of Price's daughter.

The State's comments were permissible here because they were made in response to defensecounsel's own reference in his closing argument to the State's failure to call Annie Price as awitness. See People v. Griffin, 247 Ill. App. 3d 1, 8 (1993).

Next, defendant argues that his counsel provided ineffective assistance by failing to preserve forappellate review the issues concerning the motion in limine and prosecutorial misconduct. Asdiscussed above, we have chosen to address the in limine and prosecutorial misconduct issues onthe merits; therefore, defendant's ineffective assistance claim fails. See People v. Pecoraro, 144Ill. 2d 1, 13 (1991) (court may dispose of an ineffective assistance claim on the ground of lack ofsufficient prejudice).

Defendant also argues that his trial counsel provided ineffective assistance by failing toadequately argue against the State's motion in limine to prevent the defense from introducingevidence of the victim's alleged sexual abuse of Vernetta. Defendant contends his counsel shouldhave argued that the evidence was admissible pursuant to the "completeness doctrine," to showdefendant lacked the specific intent to kill, and to impeach the victim's credibility and show hisbias for testifying against defendant.

As discussed above, the evidence of the victim's alleged sexual abuse of Vernetta was notadmissible under the "completeness doctrine," to show defendant's lack of specific intent, or toimpeach the victim's credibility and show his bias. Thus, defendant was not prejudiced bycounsel's failure to raise those arguments in the trial court, since those arguments would not haveresulted in the denial of the motion. Accordingly, defendant's claim of ineffective assistancefails. Pecoraro, 144 Ill. 2d at 13.

Finally, defendant argues that the State did not prove him guilty of attempted murder beyond areasonable doubt. When challenging the sufficiency of the evidence, the relevant question iswhether, after viewing the evidence in the light most favorable to the prosecution, any rationaltrier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985).

Defendant commits attempted murder when, with the specific intent to kill, he does any act thatconstitutes a substantial step toward the commission of murder. People v. Hill, 276 Ill. App. 3d683, 687 (1995). The specific intent to kill may be shown by surrounding circumstances,including the character of the assault, the nature and seriousness of the injury, and the use of adeadly weapon. In re T.G., 285 Ill. App. 3d 838, 843 (1996).

Viewed in the light most favorable to the prosecution, the evidence established that defendantand three or four other men confronted the victim on the first floor of an apartment building. Defendant said "Let's kill this punk." One of the men held the victim in a "full-nelson," whiledefendant punched him in the jaw and hit him several times in the face with a 40 ounce beerbottle. The victim lapsed into a coma and suffered brain damage as a result of the beating.

A rational jury could determine from defendant's stated intent to kill the victim, coupled with thebrutality of the beating and the victim's resulting injuries, that defendant possessed the specificintent to kill. A rational jury could also determine that defendant's act of beating the victim withhis hands and the 40 ounce beer bottle, while the victim was unarmed and prevented fromfighting back, constituted a substantial step toward the commission of murder. Accordingly, weaffirm defendant's conviction.

Defendant questions the victim's credibility, calling his testimony "inherently unreliable." It isthe province of the jury, as trier of fact, to judge the credibility of the witnesses and determine theweight to be accorded their testimony. People v. Steidl, 142 Ill. 2d 204, 226 (1991). In this case,the jury heard the evidence and chose to believe the victim's testimony. We will not substituteour judgment therefor.

For the foregoing reasons, we affirm the trial court. As part of our judgment, we assessdefendant $150 as costs for this appeal.

Affirmed.

GALLAGHER and O. FROSSARD, J.J., concur.