{ "id": 3616530, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWIGHT BURNS, Defendant-Appellant", "name_abbreviation": "People v. Burns", "decision_date": "1988-05-27", "docket_number": "No. 85-0055", "first_page": "178", "last_page": "189", "citations": [ { "type": "official", "cite": "171 Ill. App. 3d 178" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "107 S. Ct. 1714", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6212322 ], "opinion_index": 0, "case_paths": [ "/us/481/0186-01" ] }, { "cite": "95 L. Ed. 2d 162", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6212322, 6930932 ], "opinion_index": 0, "case_paths": [ "/us/481/0186-01", "/us/340/0147-01" ] }, { "cite": "481 U.S. 1168", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "479 N.E.2d 936", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "134 Ill. App. 3d 228", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3636978 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0228-01" ] }, { "cite": "463 N.E.2d 929", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "124 Ill. App. 3d 140", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3429084 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0140-01" ] }, { "cite": "473 N.E.2d 506", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "130 Ill. App. 3d 254", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3492152 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0254-01" ] }, { "cite": "366 N.E.2d 433", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 94", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3383122 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0094-01" ] }, { "cite": "104 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146499 ], "pin_cites": [ { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0209-01" ] }, { "cite": "121 Ill. 2d 321", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201461 ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0321-01" ] }, { "cite": "274 Ill. 435", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2406316 ], "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/ill/274/0435-01" ] }, { "cite": "121 Ill. 2d 293", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201896 ], "weight": 2, "pin_cites": [ { "page": "317-18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0293-01" ] }, { "cite": "399 U.S. 149", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168934 ], "weight": 3, "year": 1970, "pin_cites": [ { "page": "158" }, { "page": "497" }, { "page": "1935" } ], "opinion_index": 0, "case_paths": [ "/us/399/0149-01" ] }, { "cite": "380 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525264 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0400-01" ] }, { "cite": "442 U.S. 62", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1532150 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/us/442/0062-01" ] }, { "cite": "476 U.S. 530", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12807 ], "weight": 6, "pin_cites": [ { "page": "539-41" }, { "page": "525-26" }, { "page": "2061-62" } ], "opinion_index": 0, "case_paths": [ "/us/476/0530-01" ] }, { "cite": "169 Ill. App. 3d 883", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3550343 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0883-01" ] }, { "cite": "391 U.S. 123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767670 ], "weight": 12, "pin_cites": [ { "page": "136" }, { "page": "485" }, { "page": "1628" } ], "opinion_index": 0, "case_paths": [ "/us/391/0123-01" ] }, { "cite": "116 Ill. 2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543083 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/116/0013-01" ] } ], "analysis": { "cardinality": 1031, "char_count": 25639, "ocr_confidence": 0.757, "pagerank": { "raw": 9.78964359662847e-08, "percentile": 0.5324739009880499 }, "sha256": "3c945fdcee66502da089561bdd4c6da8b6adecb91f50e61cba048194c8732e10", "simhash": "1:7ae5f40e77824565", "word_count": 4069 }, "last_updated": "2023-07-14T21:35:27.168167+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. DWIGHT BURNS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE PINCHAM\ndelivered the opinion of the court:\nIn an indictment defendant, Dwight Burns, was charged with armed robbery, residential burglary and home invasion. In another indictment codefendant Darryl Fletcher was similarly charged. Fletcher pled guilty. Following a jury trial the defendant, Burns, was found guilty and was sentenced to 27 years\u2019 imprisonment on the armed robbery and home invasion findings and to 15 years\u2019 imprisonment on the residential burglary finding. The sentences were concurrent. The defendant appeals. The pertinent issues presented for review are (1) whether the police officer\u2019s inadmissible hearsay testimony that the nontestifying codefendant, Fletcher, named the defendant as his accomplice in the commission of the alleged offenses violated the defendant\u2019s constitutional rights to confrontation and cross-examination; (2) whether the prosecutor injected prejudicial hearsay testimony into the trial by eliciting from the police officers the defendant\u2019s aliases of \u201cBuzz\u201d and \u201cJabbo\u201d; and (3) whether the prosecutor\u2019s comments during closing argument were impermissibly prejudicial.\nThe facts at the defendant\u2019s trial established that in the early morning of June 24, 1983, Steven Knox and Joseph Garcia were victims of an armed robbery, home invasion and residential burglary. They were asleep in the living room of their residence. The room air conditioner was on. They awakened and discovered an intruder armed with a knife standing over them. Knox and Garcia at trial identified this intruder as the codefendant, Darryl Fletcher (who was not on trial). Knox and Garcia saw another person in the apartment but they were unable to identify him. Fletcher and this person took various articles, including a stereo receiver, duffel bag, jewelry, money and the keys to Garcia\u2019s pickup truck, which was parked in the rear of the premises. When the offenders put the key in the ignition to Garcia\u2019s truck, an alarm sounded, which awakened Garcia\u2019s father, who lived in the apartment beneath Garcia. The offenders abandoned their stolen loot and fled on foot, pursued by Garcia\u2019s father and the police, who had been summoned. Fletcher was apprehended in the area shortly thereafter by the police but his unidentified accomplice escaped.\nOn November 2, 1983, five months after the offenses were committed, police officer O\u2019Callahan went to Fletcher\u2019s house and obtained several photographs, one of which was of the defendant, Dwight Burns. Seven days later, on November 9, 1983, Officer Whalen talked to the codefendant Fletcher, who was in custody.\nFollowing their conversation, Whalen stated that he submitted a request for a fingerprint comparison to be made of the defendant\u2019s fingerprints with the latent fingerprints found on the stereo receiver taken in the offenses and abandoned when the offenders fled. Defense counsel objected and asked for a mistrial, stating that Officer Whalen\u2019s testimony created the inference that the codefendant Fletcher made a statement to Officer Whalen which implicated the defendant in the commission of the offenses. The defense attorney\u2019s objection was overruled and his motion for a mistrial was denied. Whalen then testified that as a result of the fingerprint comparison he scheduled an interview with the defendant. Over defense counsel\u2019s objections Whalen further testified that during his interview of the defendant, he told the defendant that the codefendant Fletcher had told Whalen that he, Bums, the defendant, was the second offender in the home invasion offenses. Defense counsel\u2019s renewed objections were sustained and the jury was admonished to disregard this testimony of Officer Whalen.\nThe defendant contends that Officer Whalen\u2019s testimony that the nontestifying codefendant named him as his accomplice in the commission of the offenses was prejudicial, incriminating, inadmissible hearsay and violated his constitutional rights to confront and cross-examine his putative accuser. The State argues that Officer Whalen\u2019s testimony was elicited to explain police investigatory procedures and not to prove the truth of the matter asserted. The State further argues, assuming arguendo that Officer Whalen\u2019s testimony was inadmissible hearsay, the trial court sustained defense counsel\u2019s objection, instructed the jury to disregard the statement, and ordered the testimony stricken from the record, thereby rendering the error harmless beyond a reasonable doubt. We disagree with the State\u2019s contention.\nAt trial, Officer Whalen testified that he had a conversation with the codefendant Fletcher, who was in custody. Whalen further testified that following this conversation he submitted a request for a fingerprint comparison to be made against the defendant\u2019s fingerprints and the latent fingerprints found on the property taken in the robbery. Defense counsel objected and asked for a mistrial, stating that Whalen\u2019s testimony inferred that the codefendant Fletcher made a statement to him which obviously implicated the defendant in the commission of the offenses. The defense attorney\u2019s objection was overruled and his motion for a mistrial was denied. Whalen related further that as a result of the fingerprint comparison he scheduled an interview with the defendant.\nWhalen\u2019s testimony was far more than a simple description of his investigating process. (People v. Johnson (1987), 116 Ill. 2d 13.) Whalen\u2019s testimony of the codefendant\u2019s statement to him directly implicated the defendant in the crimes. Whalen testified:\n\u201cQ. And what is the next thing you said to the defendant, if you can remember?\nA. I told him that Darryl Fletcher had given his name\u2014\n[Defense Attorney]: Objection.\nThe Court: Overruled.\n[Defense Attorney]: I\u2019d ask for a side bar.\nThe Court: Denied. Proceed.\nThe Witness: That Darryl Fletcher had given me his name as the second offender in a home invasion robbery.\nThe Court: Objection sustained.\n[Defense Attorney]: Ask for a mistrial.\nThe Court: The jury is instructed to disregard the response. Be stricken from the record. Motion for mistrial will be denied. Proceed.\u201d (Emphasis added.)\nIn the case at bar, we are concerned with the use of this incriminating, inadmissible hearsay evidence of the codefendant as substantive evidence against the defendant. (Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.) We are also concerned with the ineffectiveness of the trial court\u2019s meager instruction to the jury to prevent the prejudice to the defendant from his codefendant\u2019s confession through the testimony of Officer Whalen.\nIn People v. Johnson (1987), 116 Ill. 2d 13, the supreme court reversed the defendant\u2019s murder conviction because the codefendant\u2019s statement was introduced by the State as substantive evidence against the defendant Johnson. Likewise in People v. Jones (1988), 169 Ill. App. 3d 883 this court reversed Jones\u2019 conviction because the evidence which placed Jones at the scene of the crime with the victim was the incriminating, inadmissible hearsay statement of his codefendant Nowden, who did not testify. Here, as in Johnson and Jones, reversal of the defendant\u2019s conviction is likewise mandated because this defendant was also impermissibly prejudiced by the admission of his codefendant\u2019s statement which incriminated him.\nThe defendant cites Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, in support of his contention that Officer Whalen\u2019s testimony violated his constitutional rights of confrontation and cross-examination. In Bruton, the Supreme Court held that the defendant\u2019s.confrontation clause rights of the sixth amendment made applicable to the States by the due process clause of the fourteenth amendment were violated when the codefendant\u2019s confession was admitted as substantive evidence against Bruton at their joint trial, even though the trial court carefully and meticulously instructed the jury that the codefendant\u2019s confession was admissible only against the codefendant. The Supreme Court in Bruton pointed out that a codefendant\u2019s confession that incriminates a defendant is so \u201cinevitably suspect\u201d and \u201cdevastating\u201d that the ordinarily sound assumption that a jury would faithfully follow an instruction to disregard the confession as to the nonconfessing defendant could not be applied. Bruton v. United States (1968), 391 U.S. 123, 136, 20 L. Ed. 2d 476, 485, 88 S. Ct. 1620, 1628.\nIn Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056, the Supreme Court held that the accused\u2019s constitutional right to confront and to cross-examine witnesses in a criminal case is primarily a functional right that promotes reliability of testimony in criminal trials. Lee was jointly tried with her codefendant boyfriend by the court without a jury for a double homicide. Both Lee and her codefendant confessed, but in their confessions each asserted somewhat contradictory roles to the other in the commission of the homicides. The trial court relied in part on the codefendant\u2019s confession as substantive evidence in finding Lee guilty. Lee\u2019s codefendant did not testify and thus Lee was not confronted by him and was unable to cross-examine him. The Supreme Court pointed out that Lee\u2019s confession and her codefendant\u2019s confession were not \u201cinterlocking\u201d under Parker v. Randolph (1979), 442 U.S. 62, 60 L. Ed. 2d 713, 99 S. Ct. 2132, and that the trial court\u2019s even partial reliance on Lee\u2019s codefendant\u2019s confession in finding Lee guilty violated Lee\u2019s constitutional rights to confront and cross-examine the witnesses against her, guaranteed under the sixth and fourteenth amendments to the Constitution of the United States. In reversing Lee\u2019s conviction the Supreme Court eloquently admonished:\n\u201cIn Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965), this Court unanimously held that the Confrontation Clause was applicable to the States, and in doing so, remarked that it \u2018cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him.\u2019 [Citations.] [W]e observed that \u2018[t]here are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in the expressions of belief that the right to confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country\u2019s constitutional goal.\u2019 [Citation.]\nOn one level, the right to confront and cross-examine adverse witnesses contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails. To foster such a system, the Constitution provides certain safeguards to promote to the greatest possible degree society\u2019s interest in having the accused and accuser engage in an open and even contest in a public trial. The Confrontation Clause advances these goals by ensuring that convictions will not be based on the charges of unseen and unknown \u2014 and hence unchallengeable \u2014 individuals.\nBut the confrontation guarantee serves not only symbolic goals. The right to confront and to cross-examine witnesses is primarily a functional right that promotes reliability in criminal trials. In California v. Green, 399 U.S. 149, 158, 26 L. Ed. 2d 489, 497, 90 S. Ct. 1930, 1935 (1970), we identified how the mechanisms of confrontation and cross-examination advance the pursuit of truth in criminal trials. Confrontation, we noted,\n(1) insures that the witness will give his statements under oath \u2014 thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the \u2018greatest legal engine ever invented for the discovery of truth; (3) permits the jury that is to decide the defendant\u2019s fate to observe the demeanor of the witness making his statement, thus aiding the jury in assessing his credibility.\u2019 (footnote omitted).\nOur cases recognize that this truthfinding function of the Confrontation Clause is uniquely threatened when an accomplice\u2019s confession is sought to be introduced against a criminal defendant without the benefit of cross-examination. As has been noted, such a confession \u2018is hearsay, subject to all the dangers of inaccuracy which characterize hearsay generally.\u2019 \u201d Lee v. Illinois, 476 U.S. at 539-41, 90 L. Ed. 2d at 525-26, 106 S. Ct. at 2061-62.\nBoth Bruton and Lee reversed the defendants\u2019 convictions because a nontestifying codefendant\u2019s confession was admitted and relied on as evidence in a joint trial against the other defendant. The instant case is practically identical to Bruton and Lee. This defendant was likewise implicated as an accomplice by the codefendant\u2019s post-arrest statement to Officer Whalen. Admission of the codefendant\u2019s statement requires reversal of the defendant\u2019s conviction.\nThe trial court\u2019s admonishment to the jury \u201cto disregard the response. Be stricken from the record\u201d (emphasis added) was nothing more than a futile collocation of words and failed of its purpose as a legal protection to the defendant. In People v. Hernandez (1988), 121 Ill. 2d 293, our supreme court held:\n\u201cThe State argues that even if there was a potential for unfair prejudice by the admission of Cruz\u2019 statements, the trial court guaranteed a fair trial by giving limiting instructions advising the jury that statements by Cruz and Hernandez could be considered only against their authors. That is precisely the argument rejected by this court in Buckminster and by the Supreme Court half a century later in Bruton. [Citation.] According to Buckminster, \u2018[i]t would be difficult to imagine any evidence that would be more prejudicial\u2019 than inculpation of the defendant by a nontestifying codefendant. (People v. Buckminster (1916), 274 Ill. 435, 448.) To suggest that the jury disregard such explosive evidence is, in the words of Judge Learned Hand, a \u2018recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody\u2019s else.\u2019 ([Citations.] (\u2018we cannot accept limiting instructions as an adequate substitute for [the] constitutional right of cross-examination\u2019); [Citation.] (\u2018The naive assumption that prejudicial effects can be overcome by instructions to the jury *** all practicing lawyers know to be unmitigated fiction\u2019).) Likewise, the trial court\u2019s ruling to strike Mares\u2019 reference to a \u2018friend\u2019 could not undo the damage already done; as this court has previously warned, \u2018it is practically impossible for the average juror to divest his mind of such testimony.\u2019 [Citation.]\nWe hold, therefore, that under these circumstances the defendant was deprived of his constitutional right to confront a prosecution witness and, consequently, of a fair trial.\u201d (Emphasis added.) 121 Ill. 2d at 317-18.\nIn the case at bar, the defendant was likewise deprived of his constitutional right to confront a prosecution witness and consequently of a fair trial. In reversing Cruz\u2019 murder conviction in the companion case to Hernandez, People v. Cruz, 121 Ill. 2d 321, the supreme court held:\n\u201cIn Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, the Supreme Court ruled that the admission in a joint trial of a statement by a nontestifying codefendant violated the defendant\u2019s constitutional right to confront witnesses against him, where that statement expressly named the defendant as an accomplice in the crime charged. The Bruton Court reasoned that \u2018there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored\u2019 [citation] and that the admission of a statement \u2018expressly implicating\u2019 the defendant constituted such a context. ***\n* * *\nIn this case we are not dealing with a carefully redacted written confession, we are dealing with out-of-court admissions made by defendants to third parties which inculpated other defendants. To date then, the Supreme Court has examined admission of a codefendant\u2019s confession which explicitly names the defendant [citation] ***.\nThe Bruton decision, as well as decisions of this court, recognizes that there are circumstances under which the presumption that a jury can and will follow a trial court\u2019s instruction to disregard an incriminating inference generated by a confession or admission introduced against a codefendant must fall. [Citations.] In Bruton, as we have noted, this meant the presentation to the jury of a statement by a codefendant directly naming the defendant as an accomplice.\u201d (Emphasis added.) 121 Ill. 2d at 329-30.\nWe note that in Bruton the trial court gave a far more extensive and informative instruction and direction to the jury to disregard the codefendant\u2019s confession.than was given by the trial court in the case at bar. For the reason previously set forth, we hold that on the record before us, there is no occasion to depart from the time-honored teaching that a factfinder\u2019s reliance on a nontestifying codefendant\u2019s confession which inculpates the defendant violates the constitutional rights of confrontation and cross-examination.\nThe defendant further contends that the State injected prejudicial hearsay testimony into the trial by eliciting from Officers O\u2019Callahan and Tansy the defendant\u2019s aliases of \u201cBuzz\u201d and \u201cJabbo.\u201d The State, however, argues that there was no error , where the testimony of the officers concerning the names depicted on the State\u2019s exhibits was relevant to clarify the evidence which might have been published to the jury.\nOfficer O\u2019Callahan testified that on November 2, 1983, he recovered a number of photographs from the codefendant Fletcher\u2019s apartment. Officer O\u2019Callahan testified further, \u201cI wrote the nickname \u2018Buzz\u2019 underneath the defendant who was depicted in the picture.\u201d The defendant did not object. By his failure to object to Officer O\u2019Callahan\u2019s testimony, the defendant waived the error. Alleged errors not preserved or brought to the attention of the trial court by objections are normally waived for purposes of review. People v. Arnold (1984), 104 Ill. 2d 209, 217.\nFollowing Officer O\u2019Callahan\u2019s testimony, Officer Tansy testified. The prosecution asked Officer Tansy if he knew the defendant \u201cby any other name.\u201d Defense counsel objected and moved for a mistrial. The court sustained the objection and denied the motion. Officer Tansy then identified one of the People\u2019s exhibits as a photo of the defendant and the codefendant. The prosecution then attempted to question Officer Tansy regarding the name \u201cBuzz\u201d written on the ex-Mbit which depicted the defendant\u2019s picture. Defense counsel objected, and a sidebar was held, the objection was overruled and defense counsel again moved for a mistrial, which was denied. During the sidebar, the trial court informed the State \u201cyou might ask whether or not he knows him by that name.\u201d Subsequently, the State asked Officer Tansy:\n\u201cQ. Do you know anyone by the name of Jabbo?\nA. Yes, I do.\nQ. Who is that, Detective?\nA. That is Dwight Burns, a name he used.\u201d\nIt was improper to ask Officer Tansy questions about the defendant\u2019s assumed name. Where the defendant testifies in his own behalf, it is proper to question him regarding his use of assumed names if proof of the assumed names is shown to be material. (People v. Pumphrey (1977), 51 Ill. App. 3d 94, 366 N.E.2d 433.) However, such evidence adduced at trial solely to raise the inference that the defendant had used assumed names in order to evade apprehension by law enforcement officers for prior criminal offenses is higMy prejudicial and improper. People v. Pumphrey (1977), 51 Ill. App. 3d 94.\nIn the case at bar, defendant\u2019s identification as \u201cJabbo\u201d was not material to prove the charges against him. His use of the assumed name had nothing to do with the issues in the case and was totally irrelevant. There was no legitimate reason to ask Officer Tansy if he knew \u201canyone by the name of \u2018Jabbo,\u2019 \u201d and the question was improper. We do not perceive wherein the fact that the defendant\u2019s nickname, \u201cJabbo,\u201d had any bearing whatever upon his guilt or innocence of the offense charged against him. It had no connection whatever with this case and shed no light upon it. Therefore the objection to Officer Tansy\u2019s testimony concerning the defendant\u2019s alias should have been sustained. We conclude, however, on the facts present, the error was harmless.\nLastly, the defendant contends that during the State\u2019s rebuttal closing argument the prosecution published photographs of the defendant to the jury, directing their attention to the gold chain defendant was wearing in the picture. The defendant argues that this conduct and the accompanying remarks were improper because it encouraged the jury to infer that the gold chain worn by the defendant was the stolen chain which belonged to the victim.\nIt is well established that although a prosecutor is permitted wide latitude in his closing argument (People v. Cunningham (1984), 130 Ill. App. 3d 254, 473 N.E.2d 506; People v. Clay (1984), 124 Ill. App. 3d 140, 463 N.E.2d 929), his comments must be based on facts in evidence and the reasonable inferences drawn therefrom (People v. Burba (1985), 134 Ill. App. 3d 228, 479 N.E.2d 936; People v. Cunningham (1984), 130 Ill. App. 3d 254); however, defense counsel cannot invite or provoke a prosecutor\u2019s response and then claim that defendant was prejudiced thereby (People v. Cunningham (1984), 130 Ill. App. 3d 254, 266).\nHere, Officer David testified that in the process of searching the defendant he removed items of jewelry from the defendant. The officer testified further that defendant \u201chad a gold chain on his neck we couldn\u2019t get off without breaking the cap.\u201d During closing argument counsel for the defendant argued:\n\u201cWhat supports their argument. What would you expect to support their argument. Where else, where else is the substance of this, case. David. He comes in here and he tells you he went \u2014 was at the jail and he searched Mr. Burns. He said he found jewelry on him. Here\u2019s a man who wears jewelry. Was it any jewelry from Mr. Garcia or Knox. No. There\u2019s no tie in there. If they had any jewelry and you know all the jewelry he had. If they had any jewelry from Mr. Knox and Mr. Garcia on Mr. Burns, you would have heard about it. So, you don\u2019t have that kind of support for this case.\u201d\nIn rebuttal the State in closing argument stated:\n\u201cMR. FEELEY: *** I\u2019d ask you to look back into the evidence and recall the items not recovered. The gold chains, the Phoenix watch and the screw driver.***\n* * *\nI would ask you to take a look at the photos involved here while I\u2019m going through the argument. And see if there\u2019s [sic] any gold chains around the neck of Dwight Burns.\nMR. FRIEDMAN: Objection, your Honor. There is no link from any gold chains to that being of Mr. Garcia or Mr. Knox.\nTHE COURT: Sustained.\nMR. FRIEDMAN: I would ask they not be shown the photos then.\nTHE COURT: That will be sustained, also, for that purpose.\nMR. FRIEDMAN: Ask for a mistrial because Mr. Feeley has shown it to two people already, Judge.\nTHE COURT: Just a moment. Motion for mistrial denied.\nMR. FEELEY: I would further point out to you the defendant seems to like gold.\u201d (Emphasis added.)\nIt is our view in the case at bar that the prosecutor did not exceed the appropriate bounds of legitimate closing argument. Officer David testified that the defendant \u201chad a gold chain on his neck we couldn\u2019t get off without breaking the cap.\u201d The prosecutor\u2019s comments appear to be in response to the closing argument of defense counsel. During the prosecutor\u2019s closing argument the defense counsel objected, stating, \u201cThere is no link from any gold chains to that being of Mr. Garcia or Mr. Knox.\u201d This objection was sustained. Yet, the prosecutor continued, \u201cI would further point out to you the defendant seems to like gold.\u201d This reference to the defendant\u2019s affinity for gold was improper. Although the trial court sustained defendant\u2019s objection, the prosecution, with total disregard to the trial court\u2019s order, improperly continued as if the objection had been overruled. \u201cI would further point out to you the defendant seems to like gold.\u201d This was not a legitimate comment and should not have been made. The error, however, was harmless.\nWe conclude, for the reasons stated, the defendant did not receive a fair trial. Since this cause must be reversed and remanded for a new trial, it is unnecessary to discuss the defendant\u2019s other assignments of errors, which in all likelihood will not recur on retrial.\nReversed and remanded.\nLORENZ, RJ., and MURRAY, J., concur.\nThe holding of the Supreme Court in Parker v. Randolph (1979), 442 U.S. 62, 60 L. Ed. 2d 713, 99 S. Ct. 2132, that the admission of nontestifying codefendants\u2019 interlocking confessions at their joint trial does not violate the constitutional right of confrontation and cross-examination, was recently overruled in Cruz v. New York (1987), 481 U.S. 1168, 95 L. Ed. 2d 162, 107 S. Ct. 1714.", "type": "majority", "author": "JUSTICE PINCHAM" } ], "attorneys": [ "Steven Clark and Karen Michels, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Bonnie Meyer Sloan, and Robert M. Podlasek, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWIGHT BURNS, Defendant-Appellant.\nFirst District (5th Division)\nNo. 85\u20140055\nOpinion filed May 27, 1988.\nSteven Clark and Karen Michels, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Bonnie Meyer Sloan, and Robert M. Podlasek, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0178-01", "first_page_order": 200, "last_page_order": 211 }