{ "id": 3021480, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRAD LIEBERMAN, Defendant-Appellant", "name_abbreviation": "People v. Lieberman", "decision_date": "1982-06-29", "docket_number": "No. 80-2690", "first_page": "949", "last_page": "960", "citations": [ { "type": "official", "cite": "107 Ill. App. 3d 949" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "431 N.E.2d 344", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082585 ], "weight": 2, "pin_cites": [ { "page": "499-501" }, { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0482-01" ] }, { "cite": "429 N.E.2d 1255", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 414", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3077130 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0414-01" ] }, { "cite": "399 N.E.2d 206", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 213", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3231016 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0213-01" ] }, { "cite": "416 N.E.2d 1149", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "93 Ill. App. 3d 61", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3134476 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/0061-01" ] }, { "cite": "406 N.E.2d 153", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 916", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3204687 ], "pin_cites": [ { "page": "920" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0916-01" ] }, { "cite": "398 N.E.2d 68", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. App. 3d 156", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5608950 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/0156-01" ] }, { "cite": "309 N.E.2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "56 Ill. 2d 461", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405143 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/56/0461-01" ] }, { "cite": "389 N.E.2d 1200", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. 2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2984278 ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0019-01" ] }, { "cite": "390 N.E.2d 414", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 838", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5579238 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0838-01" ] }, { "cite": "426 N.E.2d 575", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 57", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5498131 ], "pin_cites": [ { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0057-01" ] }, { "cite": "420 N.E.2d 625", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "96 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12121530 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0001-01" ] }, { "cite": "411 N.E.2d 223", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. 2d 571", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5479830 ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0571-01" ] }, { "cite": "62 Ill. 2d 114", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2971537 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/62/0114-01" ] }, { "cite": "320 N.E.2d 442", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "23 Ill. App. 3d 907", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2507736 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/0907-01" ] }, { "cite": "381 N.E.2d 307", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 472", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3330849 ], "pin_cites": [ { "page": "474" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0472-01" ] }, { "cite": "423 N.E.2d 1206", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 1055", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3106966 ], "pin_cites": [ { "page": "1068" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/1055-01" ] }, { "cite": "425 N.E.2d 1236", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 1077", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3097135 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/1077-01" ] }, { "cite": "243 N.E.2d 825", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. 2d 390", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2851935 ], "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0390-01" ] }, { "cite": "264 N.E.2d 554", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "130 Ill. App. 2d 633", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2822755 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/130/0633-01" ] }, { "cite": "296 N.E.2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "54 Ill. 2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933485 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-2d/54/0280-01" ] }, { "cite": "386 N.E.2d 857", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. 2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994769 ], "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0514-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "430 N.E.2d 1091", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. 2d 245", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3083259 ], "pin_cites": [ { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0245-01" ] }, { "cite": "74 Ill. 2d 444", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994926 ], "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0444-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "619" }, { "page": "98" }, { "page": "2245" } ], "opinion_index": 0, "case_paths": [ "/us/426/0610-01" ] } ], "analysis": { "cardinality": 1192, "char_count": 26183, "ocr_confidence": 0.904, "pagerank": { "raw": 2.1189485045979902e-07, "percentile": 0.7642279530582671 }, "sha256": "50cd878acc52ce181dd3452a40c74e302632e33883528d6a1ae15316a5acc446", "simhash": "1:67d6b8cdb78794d7", "word_count": 4442 }, "last_updated": "2023-07-14T19:24:47.401260+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRAD LIEBERMAN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nDefendant, Brad Lieberman, was found guilty by a jury of the offense of rape and was sentenced to an extended term of 50 years imprisonment. Defendant raises as issues on appeal whether: he was denied due process by the State\u2019s inquiry into and comment upon his post-arrest failure to disclose his alibi; he was denied a fair trial by certain evidentiary rulings of the trial court; the trial court\u2019s response to an emotional outburst by a prosecution witness was prejudicial; the substitution of an alternate juror for a juror on the final day of trial was error; the State\u2019s closing argument denied him a fair trial; he was proved guilty of rape beyond a reasonable doubt; and the 50-year extended term imposed upon him was proper.\nThe victim testified to the following facts. On December 17,1979, at about 11:30 a.m., as she was checking her lobby mailbox, a man, 6'2\" tall, 210 pounds, light brown hair and wearing a maroon windbreaker with the name \u201cWilson\u201d written across the chest, blue jeans and a blue T-shirt, approached her. She identified him as defendant. He flashed a\u00a1 badge inside a wallet, said he was a policeman and a part-time plumber employed by her building, and told her that there was a leak in her apartment he needed to get to. They both went upstairs to her apartment where the victim told him about some of the plumbing problems she had been experiencing. While defendant toured the apartment looking for leaks she observed his face. Defendant went into her bedroom, looked in the closet and told her that the closet would have to be emptied so he could get to the leak. She answered the telephone and told the caller, her roommate, Maria Hemzo, that there was a plumber in the apartment and she would call back. Defendant told her that he had to find his crew and left. He returned 3 minutes later and said that they would have to empty out the closet.\nAs she started emptying the closet, defendant grabbed her from behind, put a knife up against her throat and told her not to struggle or he would kill her. He told her what was going to happen and not to do anything or she would be hurt. He said that he had to cut up another girl before so that she should just relax and it will be all over. He had her pull down the window shades, take off her clothes, lie on the bed, and close her eyes, occasionally threatening to kill her if she did not obey. She started crying, and said \u201cplease go, please leave.\u201d He put his mouth to her vagina and then had intercourse with her. She opened her eyes and had a \u201cvery good\u201d look at his face. He told her he would come back and cut her up with a knife if she were to call the police.\nShe was with defendant for a total of about one-half hour. Defendant did not try shielding his face from her until he got into bed. People\u2019s exhibit No. 8 was identified as the black leather case and silver star defendant flashed to her in the lobby. She did not recall whether there was also a picture in the wallet. Right after the incident, when she spoke with the police, she could not remember whether it was a badge or shield. People\u2019s exhibit No. 9 looked like the knife defendant wielded. She told the police after the incident that the weapon was a \u201clong metallic pointed object\u201d but did not use the word \u201cknife\u201d.\nAfter a few minutes, she telephoned her roommate and said that she had been raped by the plumber. Later, she was examined at the St. Francis Hospital in Evanston. It was stipulated between the State and the defense that an extracted vaginal smear indicated the presence of sperm.\nOn January 4, 1980, she identified defendant as her assailant in \u00e1 lineup. At trial there was no question in her mind that defendant was the man who raped her.\nThe testimony of Maria Hemzo, the victim\u2019s roommate, concerning the substance of her interaction with the victim on the day of the incident was substantially consistent with the victim\u2019s testimony.\nThree other witnesses testified without objection about incidents involving defendant occurring on various days, September 12, 1979, November 16, 1979, and December 10, 1979. In each incident defendant: approached the witness near her residence; asked each if she lived in or owned the building; and held himself out to be a plumber. In two of the incidents, the witnesses believed defendant\u2019s representation and allowed him to come into their apartments. Once inside, defendant told them that the bedroom closet would have to be emptied to fix the leak. As the witnesses began to remove clothes from the closet, defendant grabbed their throats from behind, told them to take off their clothes, to close their eyes, and to relax. One witness stated that defendant had a knife like People\u2019s exhibit No. 9 in his hand. Defendant had nonconsenting intercourse with each of them. Both witnesses identified defendant as their assailant at a pretrial lineup. In the third instance, the witness told defendant that she was the owner of the building and that no plumbing work needed to be done. Defendant left. She described defendant to police as white, in his early twenties or 25, sandy brown hair, 200 pounds, about 6'2\", and clean shaven.\nErnest Halvorsen, the investigating police officer, stated that the third witness described the suspect as being between 25 to 27 years, 6'1\" or 6'2\", 190-200 pounds, and having light brown, neatly trimmed hair. After speaking with the third witness, he and his partner stopped defendant in his car. Defendant told him that: he was living with his father in Skokie; he was in the area to visit a friend named Mike who was the manager of the Jewel on Morse; and at one time he worked as a security guard at a nearby Community Store. The officers let defendant proceed. The next day, Halvorsen received a composite photograph that resembled defendant. Thereafter, he and his partner went to the Morse Avenue Jewel, but discovered that no employee there was named \u201cMike.\u201d Two weeks later, defendant was apprehended and placed into custody.\nEvidence was adduced showing that a steak knife, identified as People\u2019s exhibit No. 9, was found underneath the driver\u2019s seat of a car registered to defendant\u2019s father but driven on occasion by defendant. In the center console of the car, three badges and a badge holder were found: one was issued by Lutheran General Hospital, another was a patrolman\u2019s star, and the third was a silver star in a black leather wallet.\nDefendant\u2019s mother testified that on December 17,1979, her son was at her home in Des Plaines from about 10:10 a.m. to 1:40 p.m. at which time her son went to work. On September 12, 1979, defendant arrived at her home for dinner at about 2:30 p.m. and stayed until about 6:30 p.m. People\u2019s exhibit No. 21, a badge and identification card inside a folded wallet, looked like it belonged to her son. Neither one of the other two resembled his badges.\nDefendant\u2019s fiancee stated that on December 16, 1979, defendant spent the night at her apartment. The next morning at about 10 a.m. they left in separate cars. Defendant went to his mother\u2019s house.\nDefendant, age 20, stated that he had never been inside the victim\u2019s apartment and that he did not rape her. Defendant did not rape or converse with the other two women who claimed he raped them. On November 16, 1979, the day of one of the alleged rapes, he was at his fiancee\u2019s apartment and later in the afternoon he went to work at Lutheran General Hospital. When shown a time card from this hospital, he stated that he \u201capparently\u201d did not work that day. He did not see or speak with the third witness on December 10,1979. The knife found in his car was used to repair speaker wires. He used the \u201cCrosstown Security\u201d badge found in his car when he worked at Marshall Field\u2019s.\nI\nDefendant contends that the State\u2019s cross-examination of his failure to disclose his alibi to the police after his arrest and comment on that silence during final argument constituted reversible error, relying upon Doyle v. Ohio (1976), 426 U.S. 610, 619, 49 L. Ed. 2d 91, 98, 96 S. Ct. 2240, 2245, and People v. Green (1979), 74 Ill. 2d 444, 386, N.E.2d 272. In each it was held that the constitution forbids the prosecution from using evidence of a defendant\u2019s post-arrest silence for purposes of impeaching an exculpatory alibi offered at trial. Defendant assigns error to the following cross-examination:\n\u201cQ. [State\u2019s Attorney]: Did you tell them that you were with your mother on the 17th, yes or no?\nA. [Defendant]: No.\nQ. Did you tell them you were with anybody on November the 16th when # # 6 [another named person] was raped?\nA. No.\nQ. Did you tell them that you were with anybody on September the 12th when * * * [still another named person] was raped?\nA. No, I didn\u2019t.\u201d\nIn closing argument the State made the following comment:\n\u201cYou heard Mr. Haddad [State\u2019s Attorney] ask him [defendant] questions, did you tell the police you were with your mother on December the 17th, 1979? No. That\u2019s where he says he was today, ladies and gentlemen. Did he tell the police when he was severely questioned, according to him? Absolutely not, absolutely not.\u201d\nThe State concedes that the cross-examination and closing argument on defendant\u2019s post-arrest silence violated Doyle, but contends that the issue was waived. It argues, in the alternative, that the error was harmless.\nThe issue of plain error in the context of a Doyle violation was recently addressed by the Illinois Supreme Court in People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091, which was concerned with the effect of the prosecutor\u2019s closing argument that Lucas had failed to assert his claim of self-defense at the time of his arrest. The court there held that the plain error rule could not be invoked, since the evidence was not closely balanced.\nThe evidence pointing to defendant\u2019s guilt in the present case is strong. The victim had a good opportunity to observe him up close for an extended period of time during the incident. Her claim that she had been raped was corroborated by her prompt call minutes after the incident to her roommate and by the extracted vaginal smear. Her testimony was corroborated by the discovery of a badge, wallet and knife inside defendant\u2019s car. The description of the assailant approximated that of defendant. Defendant was identified as the assailant by the victim at a pretrial lineup and at trial. Defendant\u2019s identity and modus operandi was substantially corroborated by the testimony of three other women who positively identified him at a pretrial lineup or at trial or both. In contrast, defendant\u2019s credibility was undermined with respect to the incident of November 16,1979. On that date, defendant stated he was at his fiancee\u2019s apartment in the morning, went to get a haircut, and then proceeded to work at Lutheran General Hospital, in the afternoon. When shown a time card from Lutheran General Hospital on cross-examination, defendant conceded that \u201capparently\u201d he did not work that day. One must conclude from the foregoing that the State\u2019s improper comments and examination concerning defendant\u2019s post-arrest silence were harmless beyond a reasonable doubt (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824), and did not contribute to defendant\u2019s conviction. People v. Better (1979), 74 Ill. 2d 514, 526, 386 N.E.2d 857.\nII\nDefendant next contends that the prejudicial effect created by witnesses testifying to two other rapes and one assault for which he had not been convicted, outweighed any probative value resulting from admission of that testimony. No objection to the admission of the \u201cother crimes\u201d evidence was made at trial by defendant nor was it identified as error in his post-trial motion. Accordingly, this argument has been waived. (People v, Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Nevertheless, this issue will be examined for the purpose of determining whether or not to apply the plain error rule to these circumstances. People v. McMillan (1970), 130 Ill. App. 2d 633, 264 N.E.2d 554. '\nEvidence of other crimes is admissible to show knowledge, intent, motive, design, plan or identity (People v. Armstrong (1968), 41 Ill. 2d 390, 398, 243 N.E.2d 825), provided its probative value and need outweighs its prejudicial effect. (People-v. Triplett (1981), 99 Ill. App. 3d 1077, 425 N.E.2d 1236.) In view of the striking similarities between the three other crimes and the instant offense, and the strong eyewitness testimony that the other crimes were committed by defendant, this evidence was highly probative on the issue of modus operandi and identity. (McCormick, Evidence sec. 190 (2d ed. 1972).) Defendant claims prejudice because, with the other crimes evidence, he was no longer on trial for one rape but for others as well; however, the decision of whether to admit or exclude such testimony is within the sound discretion of the trial court. (People v. Johnson (1981), 97 Ill. App. 3d 1055, 1068,423 N.E.2d 1206.) No such abuse of discretion is evident in the present case. The State\u2019s eyewitness testimony and corroborating physical evidence was contradicted by defendant\u2019s alibi defense; identity and modus operandi of the assailant was therefore in question and the State clearly had a need to present evidence probative and relevant to.these issues.\nIII\nAlso under attack is the submission of the State\u2019s Jury Instruction Number 9, Illinois Pattern Jury Instructions, Criminal, No. 3.14 (1968) (hereinafter IPI Criminal), which provided:\n\u201cEvidence has been received that the defendant has been involved in crimes other than that charged in the indictment. This evidence has been received solely on the issue of the defendant\u2019s identification \u2014 presence\u2014intent\u2014motive\u2014design\u2014knowledge. This evidence is to be considered by you only for the limited purpose for which it was received.\u201d\nDefendant contends that the submitted instruction: (1) erroneously used the term \u201ccrimes\u201d insofar as the defendant had not been convicted of any crime in relation to the acts described by the three prosecution witnesses, and (2) was overly broad since \u201cpresence, intent, motive, design and knowledge\u201d were not at issue. In People v. Richards (1978), 64 Ill. App. 3d 472, 474, 381 N.E.2d 307, the court held that the use of the term \u201ccrimes\u201d in the instruction was improper. As the dissent in that case observed, however, the use of this word did not necessarily imply that defendant was convicted of these crimes. The word \u201coffense\u201d would have been better suited under such circumstances, and has been so used. (See People v. Weathers (1974), 23 Ill. App. 3d 907, 320 N.E.2d 442, rev\u2019d on other grounds (1975), 62 Ill. 2d 114.) IPI Criminal, No. 3.14 (2d ed. 1981), which became effective in 1981, is now so phrased. Further, the use of this jury instruction without modification was erroneous, since it was overly broad. (People v. Weathers.) As was held in Weathers, however, and in view of the strong evidence of defendant\u2019s guilt as presented to the jury in the instant case, it cannot be said that articulation of the objectionable words in this instruction could have influenced the outcome of the jury\u2019s decision, and we decline to reverse on this ground.\nIV\nRelying on People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223, defendant urges that he should have been allowed to impeach a prosecution witness by the use of an \u201cIdenti-kit\u201d sketch prepared by that witness and an artist. In Rogers it was held that an authenticated composite sketch was admissible for purposes of corroborating a witness\u2019 identification testimony where the sketch was based upon a description provided by such witness. People v. Tyllas (1981), 96 Ill. App. 3d 1, 420 N.E.2d 625, extended the Rogers holding to sketches admitted to impeach the identification testimony. (Accord, People v. Brown (1981), 100 Ill. App. 3d 57, 70, 426 N.E.2d 575.) It is evident from the record, however, that the witness in the present case could not remember what the sketch looked like. It is also unclear from the record as to whether the sketch was ever displayed to her. Assuming, arguendo, that the sketch could have been properly authenticated and should have been received in evidence, the error, if any, was harmless in view of the forceful evidence against defendant.\nV\nNext defendant assigns error to the trial court\u2019s reaction to an incident alleged to have occurred while the court was in chambers. Defense counsel reported to the court that a prosecution witness started crying and was helped out of the courtroom. In defendant\u2019s post-trial motion, defendant further alleged that this witness also uttered words to the effect that she \u201ccould not take it any more.\u201d The trial court admonished the jury that prejudice and sympathy should have no bearing in the outcome of the trial and to arrive at a conclusion based on the evidence from the witness stand. Defendant insists that the court abused its discretion in failing to examine the courtroom personnel in chambers or poll the jurors individually. This assertion lacks merit. Any prejudice to defendant resulting from the incident was cured by the trial court\u2019s admonition. Defendant also urges that the court erred in not excluding previous witnesses still in courtroom after the incident. Since no other \u201coutbursts\u201d occurred, manifestly the court\u2019s decision in this regard did not prejudice the rights of defendant.\nVI\nDefendant claims next that the trial court\u2019s dismissal of a juror without conducting a sufficient, on-record inquiry was prejudicial to him. On the morning of the last day of trial, the deputy sheriff testified that he had received a phone call from one of the jurors, who told him that she was intoxicated. The deputy stated that she sounded like she was intoxicated. At a subsequent proceeding, the trial court recalled that he spoke with the juror by telephone and detected a slurred voice on the end of the line. The first alternate juror was selected to replace her. At the hearing on defendant\u2019s post-trial motion, defense counsel stated that the caller told the deputy sheriff that she couldn\u2019t make up her mind and for that reason got intoxicated. Assuming, arguendo, that the juror was drinking due to her indecision in the case, the trial court did not abuse its discretion in finding her incapacitated and unable to serve as a juror. (People v. Thomas (1979), 71 Ill. App. 3d 838, 390 N.E.2d 414.) The first alternate juror had been selected during voir dire, sat through the entire trial, and was fully qualified to serve as a juror. Defendant contends that he was denied \u201cthe right to have an undecided juror involved in the deliberations\u201d and the \u201cright to have a juror who would have voted for a verdict of not guilty,\u201d but does not explain how he could conclude that the juror would have voted for a verdict of not guilty after hearing the remaining evidence and deliberating with other jurors. How this juror ultimately would have voted could not have been determined by an on-the-record examination. No error is found here.\nVII\nDefendant maintains that he was prejudiced by certain comments made by one of the prosecutors during closing argument, as follows:\n\u201cMR. ANGAROLA [State\u2019s Attorney]: Ladies and gentlemen, there is one thing about the case that there is no testimony on, but it may be something you are thinking about.\nMR. WINN [Defense attorney]: Objection, Your Honor. I\u2019m going to object to any remark not in evidence.\nTHE COURT: The objection will be sustained.\nMR. ANGAROLA: Ladies and gentlemen, you saw [defendant\u2019s fiancee] * *' * testify. She is a nice young lady, apparently pregnant. There is a question. Why would this man who is apparently enjoying a sexual relationship rape anyone. That is the sublety [sic] that is supposed to flow across to you, ladies and gentlemen.\nWell, ladies and gentlemen, there is a basic misconception about what a rape is. The basic misconception is that rape is a crime of sexual gratification. It is not true, ladies and gentlemen. That is not what rape is all about.\nMR. WINN: Objection, Your Honor.\nTHE COURT: As to what rape is the objection to the last portion is sustained.\nMR. ANGAROLA: Ladies and gentlemen, rape is a crime of violence. It is a crime of violence against women. It is a method of degrading women. I am sure\u2014\nMR. WINN: Objection, Your Honor.\nTHE COURT: You may proceed. The objection is overruled.\nMR. ANGAROLA: It is an act of degrading [sic]. That is what this man did. That is what this overgrown coward did. And I call him that, ladies and gentlemen, \u00b0 *\nDefendant maintains that these comments were improper since they were made solely to inflame the passions of the jury. Generally, improper remarks do not constitute reversible error unless it can be said that an accused was substantially prejudiced by them. (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.) In light of the overwhelming evidence of defendant\u2019s guilt, we cannot say that the remarks, even if deemed improper, were prejudicial.\nDefendant maintains that the following remark during closing argument violated the rule that the prosecutor may not accuse defendant\u2019s attorney of fabricating evidence:\n\u201cMR. ANGAROLA: * * * Think back about what he [defense counsel] told you about his case [during opening statements] and about what he told you he would prove. He didn\u2019t even mention to you the defendant was going to say he was with his mother on that day. He didn\u2019t even mention that.\nWhy? Because, ladies and gentlemen, that defense was made up as the case went along. He couldn\u2019t stand up here in front of you and tell you that because he wasn\u2019t quite sure exactly what he was going to do. He was going to lay back in the weeds so to speak. Let\u2019s see how the State\u2019s case goes first and then we\u2019ll decide what\u2019s happening.\nWell, he decided in the middle of the case\u2014\nMR. WINN: I\u2019m going to object as to what my motives are.\nTHE COURT: This is merely an inference. The jury understands they have a reasonable inference from the evidence and they heard the evidence. They will only consider the evidence from the witnesses in arriving at their verdict, whatever their verdict may be.\nProceed.\u201d\nThis comment was clearly improper. (People v. Stock (1974), 56 Ill. 2d 461, 309 N.E.2d 19; People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.) The only question is whether it\u2019s prejudicial error. In view of the convincing evidence of defendant\u2019s guilt in this case, we hold that it is not, as we hold with respect to other comments of the State of which defendant complains.\nVIII\nThe evidence adduced at trial manifestly proved defendant guilty beyond a reasonable doubt. Defendant\u2019s argument to the contrary is entirely without merit and warrants no further discussion than has already been set forth above.\nIX\nThe 50-year extended sentence is next challenged as improper under section 5 \u2014 5\u20143.2(b)(1), (2) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 \u2014 5\u20143.2(b)(1), (2)), since he had neither a prior \u201cconviction\u201d as defined by statute nor was the offense accomplished by exceptionally brutal or heinous behavior indicative of wanton cruelty. At the sentencing hearing on October 14, 1980, the prosecution presented a certified copy of a half sheet from the Lake County Circuit Court indicating that on October 3, 1980, defendant was found guilty of rape, robbery and intimidation. At the time of the sentencing hearing in the instant case, the Lake County case had not yet proceeded to the sentencing phase. Since no sentence had been imposed in Lake County, defendant argues, that case could not have been deemed a \u201cconviction\u201d for purposes of applying the extended term, citing sections 5 \u2014 1\u20145 and 5 \u2014 1\u201412 of the Code. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005 \u2014 1\u20145 and 1005 \u2014 1\u201412.) We are compelled to agree that at the time of sentencing, no \u201cjudgment of conviction\u201d had yet been entered against defendant, as those terms are defined by the Code sections above cited. (See People v. Robinson (1980), 84 Ill. App. 3d 916, 920, 406 N.E.2d 153.) Accordingly, no section 5 \u2014 5\u20143.2(b)(1) basis existed for imposition of an extended term of 50 years, and such sentence must be vacated and the cause remanded for resentencing. The other basis for an extended term provided for by section 5 \u2014 5\u20143.2(b)(2), \u201cexceptionally brutal or heinous behavior indicative of wanton cruelty,\u201d is also absent from these facts. Compare People v. Turner (1981), 93 Ill. App. 3d 61, 416 N.E.2d 1149, and People v. Gray (1979), 80 Ill. App. 3d 213, 399 N.E.2d 206, with People v. Clark (1981), 102 Ill. App. 3d 414, 429 N.E.2d 1255. See also People v. La Pointe (1981), 88 Ill. 2d 482, 499-501, 431 N.E.2d 344.\nBecause defendant\u2019s last argument with respect to sentencing may again arise at the resentencing proceeding, we shall give it consideration here.\nDefendant urges that the sentence was a product of the court\u2019s consideration and reliance upon evidence of other rapes and assaults upon women for which defendant had neither been charged nor convicted. The State contends that the trial court properly reviewed this testimony, relying primarily on People v. La Pointe. In La Pointe, the supreme court considered a similar argument and decided that a trial court may \u201cproperly receive proof of criminal conduct for which no prosecution and conviction ensued,\u201d with caution and sensitivity to possibilities of preju-\ndice to defendant. (88 Ill. 2d 482,499.) We find neither prejudice nor error in the present case as to this issue.\nFor the aforesaid reasons, we affirm defendant\u2019s conviction, vacate the sentence imposed and remand for a new sentencing hearing.\nAffirmed; sentence vacated and remanded.\nDOWNING and PERLIN, JJ., concur.", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Mary Robinson and Paul J. Glaser, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat and Paula Carstensen, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRAD LIEBERMAN, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 80-2690\nOpinion filed June 29, 1982.\nMary Robinson and Paul J. Glaser, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat and Paula Carstensen, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0949-01", "first_page_order": 971, "last_page_order": 982 }