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February 13, 2001

No. 3--99--0395

______________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

________________________________________________________________

PRESIDING JUSTICE HOMER delivered the opinion of the court:________________________________________________________________

On August 21, 1998, the defendant, Jose Mendez, pled guiltyto aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2)(West 1998)) in case No. 98--CF--315. Pursuant to a fullynegotiated agreement with the State, the 17-year-old defendantwas sentenced to 24 months' probation and 45 weekends in thecounty jail. Two months later, he was charged with attemptedmurder and aggravated discharge of a firearm in case No.98--CF--678. As a consequence of these charges, the State filed apetition to revoke probation in No. 98--CF--315.

The causes proceeded to a joint jury trial and probationrevocation hearing. A jury found the defendant guilty ofaggravated discharge of a firearm and acquitted him of theattempted murder charge. The court contemporaneously found thatthe defendant had violated his probation. The defendant wassubsequently sentenced to 20 years' imprisonment in No. 98--CF--678, and he was resentenced to a concurrent 15-year prison termin No. 98--CF--315. In this appeal, the defendant contends that(1) he was deprived of his right to due process by the court'suse of closed circuit television at his arraignment and upon thereturn of the jury's verdict; (2) he was denied a fair trial bythe prosecutor's comments during closing argument; and (3) he wasdenied effective assistance of counsel because his attorneyfailed to request an instruction limiting the jury's use ofevidence of the defendant's gang affiliation. Based on theseissues and the cumulative effect of the claimed errors, thedefendant requests that both cases be reversed and remanded forfurther proceedings. We affirm.

The record shows that the defendant made his firstappearance in case No. 98--CF--678 without counsel on October 19,1998. At that time, a copy of the information chargingaggravated discharge of a firearm was served on him, and counselwas appointed. A superseding indictment was filed on October 23,1998, adding charges of attempted murder. On November 5, 1998,the defendant appeared on closed circuit television for hisarraignment. Counsel entered the defendant's plea of not guiltyand waived a formal reading of the indictment. The defendantthen asked if his attorney was going to talk to him. Whencounsel said he had just received the file and police reports,the defendant responded, "All right. This is bullshit, man."

Prior to trial, the defendant moved to bar evidence of hisgang affiliation. This motion was denied.

At trial, 13-year-old L.M. testified that she was standingoutside her home on Poplar Street in Kankakee, Illinois, on theafternoon of October 16, 1998. She was talking to her brother,17-year-old Miguel, when she observed two young men approach thehouse. L.M. recognized one of the men from the neighborhood asBreck Brookshaw. The other, a Hispanic, she did not recognize. As L.M. watched, Brookshaw handed a gun to the Hispanic. Whenthey reached the middle of the street in front of the house, theHispanic yelled, "Harrison Gent killer" at Miguel. Miguel yelledback, "King killer." The Hispanic then pulled out the handgunand fired at Miguel. Miguel ran into the house and came back outwith his friend, Anthony Doss, a Maniac Latin Disciple. L.M.said the Hispanic fired the gun at Miguel and Doss, then he randown an alley with Miguel and Doss in pursuit. She heard threemore gunshots.

A short while later, the police arrived at L.M.'s house toinvestigate the shooting. Two squad cars also pulled up. L.M.said she identified Brookshaw in the first squad car and theHispanic shooter in the second. The prosecutor asked if L.M. sawthe shooter in the courtroom. She said she did not. L.M. saidthat Miguel was deceased at the time of the trial from causesunrelated to the shooting.

Anthony Doss testified that he was talking to his girlfriendinside the house, when Miguel came in and said that Latin Kingswere outside. Doss said that neither the Harrison Gents nor theManiac Latin Disciples got along with the Latin Kings. Doss wentoutside with Miguel and saw "the Mexican guy" in the streetpointing a handgun at them. After a brief exchange of words, theman fired once or twice. Doss and Miguel ran back inside andthen came back out. The shooter ran down an alley. When he sawDoss and Miguel in pursuit, he turned and fired two more roundsat them. Doss and Miguel turned back and phoned the police. Doss subsequently identified the shooter when the police broughthim to the scene in a squad car. He denied seeing the shooter inthe courtroom.

Breck Brookshaw testified that he was a Vice Lord and afriend of the defendant. At the time of the offense, the ViceLords and Latin Kings were "at war" with the Harrison Gents. Hesaid the defendant told him to hold a black .380 "nation" pistolwhen they left defendant's house on October 16, 1998. As theyapproached Poplar Street, the defendant asked for the gun andBrookshaw passed it to him. The defendant exchanged verbal ganginsults from the street with Miguel, who was standing on hisfront porch. Then, the defendant fired at Miguel. Brookshawtook off running. Brookshaw heard two more shots and met up withthe defendant a block and a half away. Brookshaw said thedefendant "unjammed" the gun. The defendant hid it behind afriend's house, and Brookshaw picked it up. A short time later,they saw the police and began running. Brookshaw tossed the gunin some weeds before they were apprehended. Brookshaw identifiedthe gun in court as the one used in the shooting. Brookshawsubsequently pled guilty to his part in the offense and receivedan eight-year prison sentence with "boot camp" recommended inexchange for his testimony.

Police witnesses testified that they recovered a black .380handgun in the alley near where they apprehended the defendantand Brookshaw. The police returned the young men to the scene,where Doss and L.M. identified the defendant as the shooter. Expert testimony established that a spent shell casing recoveredfrom the street outside L.M.'s house had been fired from the gunrecovered from the alley. The defendant's fingerprint was foundon the magazine inside the gun.

After the State rested, the defense rested withoutpresenting evidence. Following closing arguments, the defendantwas returned to the jail, from where he viewed the return of theverdict via closed circuit television. The jury found thedefendant guilty of aggravated discharge of a firearm, but notguilty of attempted murder. After the jurors were polled, thecourt entered a finding that defendant was in violation of hisprobation.

The defendant was sentenced, as aforesaid, and he appeals.

The defendant first argues that his constitutional right tobe present in person at every critical stage of his trial wasviolated by the court's use of closed circuit television duringthe defendant's arraignment and upon the return of the jury'sverdict. In the alternative, he contends that the court erred bynot complying with section 106D--1 of the Code of CriminalProcedure of 1963 (725 ILCS 5/106D--1 (West 1998)).

It is well settled that a defendant in a felony case has aright to be present at his arraignment and when the jury returnsits verdict. People v. Lindsey, 309 Ill. App. 3d 1031, 723N.E.2d 841 (2000), pet. for leave to appeal allowed No. 89138;People v. Nelson, 18 Ill. 2d 313, 164 N.E.2d 16 (1960). However,the right to be present may be waived. Lindsey, 309 Ill. App. 3d1031, 723 N.E.2d 841; People v. Nettles, 107 Ill. App. 2d 143,246 N.E.2d 29 (1969). Where a defendant appears by closedcircuit television without objection, he is deemed to haveconsented to the procedure and thereby waives the issue on reviewunless plain error is shown. Lindsey, 309 Ill. App. 3d 1031, 723N.E.2d 841.

A procedural defect is plain error if the evidence of guiltwas closely balanced or if the defendant was deprived of asubstantial right. People v. Keene, 169 Ill. 2d 1, 660 N.E.2d901 (1995). A substantial right has been denied if the erroraffected the proceedings to such a degree that we cannotconfidently state that the defendant's trial was fundamentallyfair. Keene, 169 Ill. 2d 1, 660 N.E.2d 901. In other words,this court will act on error that is of such gravity that itthreatens the very integrity of the judicial process. People v.Blue, 189 Ill. 2d 99, 724 N.E.2d 920 (2000).

A defendant's constitutional right to appear in person isnot a substantial right in itself. People v. Bean, 137 Ill. 2d65, 560 N.E.2d 258 (1990). Rather, it is a means of securingsubstantial due process rights that may be affected by theproceeding. Bean, 137 Ill. 2d 65, 560 N.E.2d 258 (1990). Adefendant is constitutionally guaranteed the right to be presentwhenever his presence has a reasonably substantial relation tothe fulness of his opportunity to defend against the charge. People v. Lofton, 194 Ill. 2d 40, 740 N.E.2d 782 (2000). Thus,at proceedings implicating the ultimate decision of guilt orinnocence, a defendant's appearance solely by closed circuittelevision may be considered plain error, regardless of thestrength of the State's evidence. See People v. Guttendorf, 309Ill. App. 3d 1044, 723 N.E.2d 838 (2000).

In this case, the defendant did not object to the use ofclosed circuit television procedure either at his arraignment orupon the return of the jury's verdict. Although he complained ofhis attorney's failure to interview him prior to the arraignment,he gave no indication that he wished to appear before the courtin person.

Further, the record does not support the defendant's claimthat the use of the closed circuit procedure was plain error. The defendant does not argue that the evidence of guilt wasclosely balanced. There is no indication that the defendant didnot understand the charges he faced. While youthful, thedefendant was not unfamiliar with the criminal justice system andhad pled guilty to another aggravated discharge offense within afew months prior to the Poplar Street shooting. At thearraignment, counsel merely entered a not-guilty plea to the newcharges and waived a formal reading of the indictment. Under thecircumstances, it is difficult to see how the closed circuitprocedure could have prejudiced the defendant or impaired anysubstantial right.

Nor did the video procedure upon the return of the jury'sverdicts result in plain error. The jury was polled, and everyone of the jurors unequivocally stated that the verdicts as readreflected their votes. At one point, the court stumbled on ajuror's number and name, but the juror gave no indication thathis vote was not properly recorded. Based on our careful reviewof the record, we conclude that any benefit of the defendant'spersonal presence at this stage of the proceedings was negligibleas well. See Lofton, 194 Ill.2d at 67, 740 N.E.2d at ___.

We also reject the defendant's argument that the trial courtcommitted reversible error by failing to comply with the statuterequiring it to promulgate local rules for the use of closedcircuit television. See 725 ILCS 5/106D--1 (West 1998). Asaforesaid, the defendant did not preserve the issue by objectingin the trial court. The evidence was not closely balanced; and,without any basis upon which to find that the fairness ofproceedings to arraign the defendant and to accept the jury'sverdict was impaired, the trial court's rule-making oversight wasnot plain error. See Lindsey, 309 Ill. App. 3d 1031, 723 N.E.2d841.

Next, the defendant contends that several comments in theprosecutor's rebuttal argument were improper and individually orcumulatively deprived the defendant of a fair trial.

It is well settled that the prosecutor has wide latitude inmaking closing remarks. People v. Barkauskas, 147 Ill. App. 3d360, 497 N.E.2d 1183 (1986). In rebuttal, the prosecutor ispermitted to respond to comments made by defense counsel whichclearly invite a response. People v. Kliner, 185 Ill. 2d 81, 705N.E.2d 850 (1998). The prosecutor's argument must be examined inits entirety and the complained-of comments placed in theirproper context. People v. Morgan, 142 Ill. 2d 410, 568 N.E.2d755 (1991). Improper remarks will not merit reversal unless theyresult in substantial prejudice to the defendant. People v.Thompkins, 121 Ill. 2d 401, 521 N.E.2d 38 (1988). Such remarksmust constitute a material factor in the defendant's convictionwithout which the jury might have reached a different result. People v. Lyles, 106 Ill. 2d 373, 478 N.E.2d 291 (1985). Further, improper comment by counsel may be cured by providingproper instructions of law. People v. Hobley, 159 Ill. 2d 272,637 N.E.2d 992 (1994).

To preserve an issue based on improper closing argument, thedefendant must make a timely objection at trial and include theissue in his posttrial motion. People v. Enoch, 122 Ill. 2d 176,522 N.E.2d 1124 (1988). A general reference to closing argumentsin a posttrial motion is insufficient to preserve an issue withrespect to specific remarks. People v. Henderson, 142 Ill. 2d258, 568 N.E.2d 1234 (1990). Errors not properly preserved willnot be reviewed under the plain error doctrine unless theevidence was closely balanced or the alleged error was of suchgravity as to deny the defendant a fair trial. People v. Hill,226 Ill. App. 3d 670, 589 N.E.2d 1087 (1992).

In this case, the defendant waived any objection to commentsconcerning the eyewitnesses' reluctance to identify the defendantin court by failing to make a contemporaneous objection or tospecify the remarks in his posttrial motion. We nonetheless haveanalyzed each remark under the plain error doctrine.

In rebuttal, the prosecutor opined that the witnesses weretoo scared to identify the defendant in open court and that suchfear was common at trials involving gang violence. Thesecomments were not based on any evidence at trial. However, theywere responsive to defense counsel's argument stressing that thewitnesses did not identify the defendant in court; and, the trialjudge properly instructed the jury to disregard any statementsmade in closing argument that were not based on the evidence.Illinois Pattern Jury Instructions, Criminal, No. 1.03 (3d ed.1992) (hereinafter IPI Criminal 3d). Therefore, even assumingthat the prosecutor's comments were improper, they clearly werenot plain error.

Defense counsel interjected an objection at a later point,when the prosecutor argued along the same lines and stated thatthe witnesses' failure to identify the defendant in court was"not significant." The objection was overruled. Resolution ofconflicts in the evidence, believability of witnesses and theweight to be assigned to evidence are all matters within theprovince of the jury. The jury in this case was properlyinstructed as much (IPI Criminal 3d Nos. 1.02, 3.11). Thus, anyerror in the prosecutor's comments on the "significance" of theeyewitnesses' in-court nonidentification of the defendant wascured and did not constitute a material factor in his conviction.

More troublesome were two remarks which arguably overstatedthe defendant's role within his gang. In response to defensecounsel's argument that Brookshaw "sold" his testimony for alight sentence, the prosecutor stated,

"MR. ASTRELLA [Assistant State's Attorney]: That'spart of what we have to do. We climb the ladder to getthe big fish. Jose is a big fish, the big gang member. We had to deal with the lower level guys to get the bigguy. That's part of our job.

MR. ASTRELLA: We might not be able to solve all thegang problems, convicting this Defendant would be asmall step in that direction."

In response to defense counsel's objection to the "big fish"remark, the court admonished the jury that it should disregardargument not supported by the evidence and cautioned theprosecutor to "proceed with caution." The prosecutor thentempered his comments by explaining the plea bargaining processused in Brookshaw's case. Defense counsel's subsequent objectionto the "small step" remark was overruled.

While the prosecutor's closing remarks certainly oversteppedthe bounds of proper prosecutorial argument in this case byappealing to the jurors' fears and prejudices against gangs, wecannot say that the remarks constituted plain error. Where, ashere, the evidence of the defendant's guilt of the offense ofwhich he stands convicted was so substantial that the remarks,neither individually nor cumulatively, could not have influencedthe jury's decision, improper closing arguments are notreversible error. See Henderson, 142 Ill. 2d at 323, 568 N.E.2dat 1265. Therefore, the defendant is not entitled to a new trialbased on improper closing arguments.

The defendant next argues that defense counsel providedineffective assistance by failing to request a limitinginstruction on gang evidence. He contends that any reasonablycompetent attorney would have requested that the jury receiveboth an oral instruction at the time the gang affiliationevidence is presented at trial and a written jury instructionlimiting the use of such other "conduct" at the close of trial. See IPI Criminal 3d No. 3.14, Committee Note, at 16 (Supp. 1996);People v. Matthews, 299 Ill. App. 3d 914, 702 N.E.2d 291 (1998).

To succeed on his claim of ineffective assistance ofcounsel, the defendant must show that (1) the attorney'srepresentation fell below an objective standard ofreasonableness; and (2) there is a reasonable probability that,but for the attorney's unprofessional errors, the result of theproceedings would have been different. Strickland v. Washington,466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In thiscase, after unsuccessfully moving to preclude evidence of thedefendant's gang affiliation in limine, defense counsel notedduring his opening statement that the State's witnesses weremembers of a rival gang and would lie to implicate the defendantfor a crime he did not commit. Counsel's decision not to requestan instruction limiting the use of gang affiliation thereaftermay have been a tactical decision to avoid confusing the jury orto avoid focusing the jury's attention on the gang evidence. Inany event, even if an instruction had been given during trial andat its conclusion, there is no reasonable probability that thejury would have found the defendant not guilty of aggravateddischarge of a firearm. As noted above, the evidence of thedefendant's guilt of that crime was overwhelming. Therefore, thedefendant's claim of ineffective assistance of counsel must fail.

Finally, defendant argues that his conviction of aggravateddischarge of a firearm in No. 98--CF--678 and the revocation ofhis probation in No. 98--CF--315 should be reversed based on thecumulative effect of all of the errors claimed on appeal. Wedisagree.

Where errors claimed on appeal which are not individuallyconsidered sufficiently egregious to entitle the defendant to anew trial nevertheless create a pervasive pattern of unfairprejudice to defendant's case, a new trial may be granted on theground of cumulative error. Blue, 189 Ill.2d 99, 724 N.E.2d 920. Most of the defendant's claims in this case do not presenterroneous rulings by the trial judge. Nor are we able to say onthis record that the few errors occurring at trial weresufficiently pervasive to deny the defendant a fair trial. Accordingly, the defendant is not entitled to a new trial.

For the reasons stated, the judgment of the circuit court ofKankakee County is affirmed.

Affirmed.

HOLDRIDGE and SLATER, JJ., concurred.