{ "id": 2639673, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESUS VELASCO, Defendant-Appellant", "name_abbreviation": "People v. Velasco", "decision_date": "1989-06-08", "docket_number": "No. 1\u201486\u20140918", "first_page": "618", "last_page": "641", "citations": [ { "type": "official", "cite": "184 Ill. App. 3d 618" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "461 N.E.2d 1380", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 972", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3521888 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0972-01" ] }, { "cite": "189 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "27 Ill. 2d 398", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360433 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/27/0398-01" ] }, { "cite": "449 N.E.2d 568", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1963, "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 933", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3591032 ], "weight": 4, "year": 1963, "pin_cites": [ { "page": "936" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0933-01" ] }, { "cite": "469 N.E.2d 1089", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "146 Ill. App. 3d 387", "category": "reporters:state", "reporter": "Ill. App. 3d", "opinion_index": 0 }, { "cite": "496 N.E.2d 1089", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "146 Ill. App. 3d 357", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3572645 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/146/0357-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "128 Ill. 2d 253", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228419 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "265-70" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0253-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1989, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "472 N.E.2d 1176", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "129 Ill. App. 3d 552", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3491019 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/0552-01" ] }, { "cite": "357 N.E.2d 487", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "65 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435255 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/65/0132-01" ] }, { "cite": "510 N.E.2d 1183", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "157 Ill. App. 3d 934", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3543462 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0934-01" ] }, { "cite": "85 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5470281 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-2d/85/0001-01" ] }, { "cite": "469 N.E.2d 634", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 622", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3563467 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0622-01" ] }, { "cite": "504 N.E.2d 126", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1986, "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 50", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3576130 ], "weight": 3, "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0050-01" ] }, { "cite": "510 N.E.2d 1026", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "157 Ill. App. 3d 700", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3542712 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0700-01" ] }, { "cite": "510 N.E.2d 963", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1987, "opinion_index": 0 }, { "cite": "157 Ill. App. 3d 899", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3543977 ], "weight": 3, "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0899-01" ] }, { "cite": "516 N.E.2d 1371", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "163 Ill. App. 3d 959", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3546394 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/0959-01" ] }, { "cite": "523 N.E.2d 1126", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3586277 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0001-01" ] }, { "cite": "72 Ill. 2d 17", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "478 N.E.2d 1154", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1978, "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 294", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3529194 ], "weight": 3, "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0294-01" ] }, { "cite": "369 N.E.2d 888", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "68 Ill. 2d 198", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809127 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-2d/68/0198-01" ] }, { "cite": "405 N.E.2d 343", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1978, "pin_cites": [ { "page": "345" } ], "opinion_index": 0 }, { "cite": "81 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5480573 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "8-9" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0001-01" ] }, { "cite": "473 N.E.2d 346", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "105 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141251 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/105/0001-01" ] }, { "cite": "493 N.E.2d 600", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "145 Ill. App. 3d 840", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3537245 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0840-01" ] }, { "cite": "466 N.E.2d 662", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1986, "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 694", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3631741 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "699" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0694-01" ] }, { "cite": "429 N.E.2d 861", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "864" } ], "opinion_index": 0 }, { "cite": "87 Ill. 2d 216", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3030605 ], "weight": 2, "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/87/0216-01" ] }, { "cite": "387 N.E.2d 331", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2991135 ], "weight": 3, "pin_cites": [ { "page": "15" }, { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/75/0001-01" ] }, { "cite": "379 N.E.2d 753", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "parenthetical": "IPI Criminal 2d" } ], "opinion_index": 0 }, { "cite": "63 Ill. App. 3d 186", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3336107 ], "weight": 3, "pin_cites": [ { "parenthetical": "IPI Criminal 2d" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/63/0186-01" ] }, { "cite": "377 N.E.2d 28", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1978, "opinion_index": 0 }, { "cite": "72 Ill. 2d 16", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5444161 ], "weight": 3, "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-2d/72/0016-01" ] }, { "cite": "525 N.E.2d 211", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 835", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3585353 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0835-01" ] }, { "cite": "503 N.E.2d 1092", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 1010", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3540040 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/1010-01" ] }, { "cite": "441 N.E.2d 152", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 880", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5453822 ], "weight": 4, "pin_cites": [ { "page": "883" }, { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0880-01" ] }, { "cite": "453 N.E.2d 21", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 123", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3482244 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0123-01" ] }, { "cite": "235 N.E.2d 634", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "39 Ill. 2d 325", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2858962 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-2d/39/0325-01" ] }, { "cite": "203 N.E.2d 404", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "31 Ill. 2d 615", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2831338 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-2d/31/0615-01" ] }, { "cite": "464 N.E.2d 252", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "102 Ill. 2d 145", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156303 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ill-2d/102/0145-01" ] } ], "analysis": { "cardinality": 1670, "char_count": 54015, "ocr_confidence": 0.781, "pagerank": { "raw": 1.9603091431732493e-07, "percentile": 0.7379198555591465 }, "sha256": "4329dbebbe50292c775a0f90b1f7306bda226489a2308e1725a8cbb9687db053", "simhash": "1:a334f5d47f65aee5", "word_count": 9261 }, "last_updated": "2023-07-14T17:19:22.278456+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. JESUS VELASCO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McMORROW\ndelivered the opinion of the court:\nFollowing a jury trial conducted in his absence, defendant was found not guilty of murder, but guilty of two counts of attempted murder. He was sentenced to concurrent terms of 30 years on the attempted murder convictions. On appeal, defendant contends that (1) he was improperly tried in absentia; (2) plain error occurred when the jury was incorrectly instructed on the mental state necessary to commit attempted murder; (3) he did not receive effective assistance of counsel; and (4) improper remarks by the trial judge constituted reversible error.\nAt trial, Able Vega (Able) testified that at approximately 8:30 p.m. on September 29, 1984, he, Enrique Vega (Enrique), Albino Correa (Albino) and Ruben Martinez (Ruben) drove in Ruben\u2019s car from their apartment to a wedding reception in a hall near 35th Street and Western Avenue in Chicago. They left the reception at midnight and walked to the nearby vacant lot where Ruben\u2019s car was parked. When they reached the car, Ruben was next to the driver\u2019s door, Able was beside him, Albino was next to the passenger\u2019s door and Enrique was near the rear of the passenger\u2019s side of the car. As Ruben was unlocking the door, three men, followed by at least another four or five men, none of whom he had seen at the reception, approached them and said \u201c26 Ambrose,\u201d which Able understood to mean that the men were members of the \u201cAmbrose\u201d gang from 26th Street. Someone then said, \u201cYou are Latin Kings,\u201d a rival street gang. Able, who formerly belonged to a different gang, responded, \u201cWe are not Latin Kings.\u201d The men nevertheless began to punch him and his companions. Two or three men struck him in the face several times but he did not fight back and could not see what was happening on the other side of the car. He then heard a few shots from the other side of the car, and as his assailants ran, he looked back and saw a man coming around the rear of the car with a gun in his hand. He identified a lineup photograph of defendant as that man. Defendant was four to five feet away when he extended his arm, pointed the gun toward him and Ruben, who was standing next to him, and fired one \u201chard shot\u201d which struck Ruben in the lower left abdomen. Defendant then ran into an alley. When Able looked toward the other side of the car, he saw Albino holding his arm and Enrique lying face-up on the ground. He was unable to lift Enrique into the car because he was too heavy. Shortly thereafter, an ambulance arrived and transported Enrique, Ruben and Albino to the hospital; he accompanied the police to the police station. The following evening he viewed a lineup and identified defendant as the gunman and another man as one of the other assailants.\nOn cross-examination, Able stated that he and his companions did not know the persons whose wedding reception it was and had not been invited to it; they heard about it from friends and simply walked in.\nAlbino\u2019s testimony regarding the events prior to the shooting was substantially the same as Abie\u2019s. Albino further testified that one of the men who accused them of being Latin Kings then stated that he and his group were \u201cKing Killers\u201d and displayed the \u201c[Latin] King Killers\u201d hand signal. Although he and his friends denied being members of any gang, the men began punching Able. Meanwhile, 8 to 10 more men approached and surrounded the car. One of them began punching him and said \u201cwe are Ambrose of 26th and don\u2019t forget that.\u201d He heard three shots from his left side toward the rear of the car, whereupon his assailant stopped hitting him. He looked toward Enrique, who was standing near the rear of the car surrounded by at least six men and saw a hand six or seven feet away from him reach out with a small, dark gun and fire a shot, at which point most of the men began running away. The man with the gun, however, went around the rear of the car toward the driver\u2019s side. Albino ducked down alongside the car and then heard one last shot. After the crowd had dispersed, he stood up and saw Enrique lying on the ground. He then realized that he had also been shot. When the police arrived, they took him to a hospital where he underwent surgery for injuries from the bullet, which passed through his left arm and entered the left side of his chest.\nOn cross-examination, Albino stated that he did not have anything to drink before or at the wedding reception, and although the men who initiated the fight had also been at the reception, no one bothered or threatened him or his friends while they were there. He was unable to describe the gunman\u2019s face but recalled that he had a heavy build, was approximately 20 years old and 5 feet 9 inches or 5 feet 10 inches tall.\nRuben\u2019s testimony was also essentially the same as Abie\u2019s and Albino\u2019s regarding the events that occurred and the description of the gunman. Ruben further testified that the gunman aimed the revolver and shot him in the stomach from a distance of four or five feet; and he identified defendant from a lineup photograph as the man who shot him. Ruben was hospitalized for two or three weeks during which time he underwent two surgical procedures necessitated by the bullet wounds.\nAssistant Medical Examiner Yuksel Konakci testified that his post-mortem examination of Enrique revealed abrasions on the face and arms resulting from blunt trauma consistent with being punched. He concluded that Enrique died from wounds caused by a bullet which entered the left chest area and lacerated the stomach, liver, right lung and heart.\nOfficer Dennis Maderak, a gang crimes specialist, testified that he and his partner were riding in their squad car near 35th Street and Western Avenue when he saw a bottle being thrown and 20 to 25 people running toward a vacant lot. He then heard four shots and saw people running back toward the reception hall. They drove the squad car across the street, and as they were questioning some individuals whose car they had stopped, they saw Martin Velasco, defendant\u2019s brother, driving away in a car they recognized to be defendant\u2019s. They stopped him for questioning but were interrupted by an unidentified man who said that a man with a gun was hiding in some nearby bushes. When they reached the car, he saw two men on the ground bleeding and another man leaning against the car, bleeding from his mouth. They did not see anyone with a gun. The following evening, defendant was found hiding in a friend\u2019s apartment and arrested.\nDetective Thomas O\u2019Connor testified that the following day, he recovered a bluesteel, .32-caliber revolver with a black plastic handle from an alley approximately 50 yards from the scene of the shooting. It contained two bullets and four expended cartridges. When defendant was brought in for questioning, he at first denied any involvement in the shooting, stating that he was at his girlfriend\u2019s home at the time. However, later that evening, after being advised of conflicts between his alibi and statements made by his girlfriend and her mother, he admitted the shooting and agreed to give a written statement to an assistant State\u2019s Attorney. He and some fellow officers then gave defendant some pizza and a soft drink in a cup and left the room. A few minutes later, they heard a thumping noise and, upon entering the room, saw that defendant, who was lying on the floor, had broken the glass cup and slit his left wrist with a piece of the handle. Defendant had also written messages on the wall and on a napkin stating, in substance, that he was \u2018\u2018sorry\u201d and wished \u201cit never happened.\u201d They transported defendant to the hospital for treatment and then, at about 10 p.m., returned him to the police station where he made a court-reported statement to Assistant State\u2019s Attorney David Stoioff.\nStoioff testified that defendant was coherent and said he felt fine prior to making his statement. In that statement, which Stoioff read to the jury, defendant said that on the evening of the shooting, he had taken enough PCP \u201cto get blown\u201d and also smoked some marijuana. The combination of the drugs caused him to feel as if he were \u201cmoonwalking.\u201d He left his girlfriend\u2019s house at about 11:30 p.m. and drove to the wedding reception to find his brother, Martin, and drive him home because he knew, as a former gang member, that trouble sometimes erupted between invited and uninvited members of rival gangs at such events. When he arrived at the hall at about midnight, he noticed a crowd of people shoving, pushing and punching each other. He left his car running and double-parked on the street and ran toward the fight to look for Martin. As he was running, someone wearing a blue sweater thrust a small dark gun into his stomach area in a football-passing gesture. He juggled the gun as he continued to run but eventually gained control of it in his right hand. He considered putting the gun into his pocket but decided to carry it \u201cin case something happened.\u201d He pushed through the crowd to the car and saw a few people standing against it. The person next to the driver\u2019s door then reached into his pocket. Not knowing whether the man was reaching for a key or a weapon, he said he didn\u2019t take any chances; he pointed the gun in the man\u2019s direction from about six feet away and started shooting \u201clow down and level\u201d in a \u201ccrazy wild,\u201d horizontal, swinging motion. He intended only to scare the man away, not to hurt him. He believed that he had fired only two shots and recalled hearing another shot from somewhere in the area. He did not see the bullet(s) hit the man nor did he see anyone fall. The other men were still standing side by side in the center of a crowd on the other side of the car. Suddenly, everyone began to run. He stood there for a moment in shock and then ran into an alley where he dropped the gun. As he was running, he saw some men holding bats coming toward him in a white Mustang, but a friend, Carlos; picked him up before he was \u201cjumped\u201d by the men.\nStoioff also identified photographs of the apology defendant had written on the wall as well as the message on the napkin, which read, \u201cI am sorry for what I did. I really did not mean to do it. Believe me, I feel hurt. Thank you for everything, for trying to help. Tell my girlfriend I love her and son [sic].\u201d\nMartin Velasco testified for the defense that he arrived at the wedding reception with some friends and fellow members of the \u201cAmbrose 26\u201d gang, between 10 and 10:30 p.m. and left at about midnight. Four men, whom he did not know, and a group of Ambrose 26 members also left the reception and walked toward the vacant lot. He then noticed defendant\u2019s car running and double-parked outside the hall. He walked toward the lot and saw the two groups of men fighting, \u201clike a rumble.\u201d He ran back to defendant\u2019s car and got in it. He then heard four to six shots and saw defendant among the group of people running away from the lot. He drove defendant\u2019s car around the block two or three times and then stopped to speak with the police.\nDefendant entered a plea of not guilty at his arraignment on December 7, 1984, and, on January 23, 1986, posted $25,000 bond. On February 4, he and his attorney appeared at a court proceeding at which trial was set, by agreement, for March 10. Defendant was then admonished as follows:\n\u201cTHE COURT: Do you understand, Mr. Velasco, that you are now on bond[;] if on the 10th you should not be present your case would be tried anyway, do you know that?\nDEFENDANT: I understand.\nCOURT: Before a jury. And if the jury found you guilty, you would be sentenced and thereafter when you were apprehended you would be brought directly to a penitentiary if that were the case, you would not come back to court. So, in other words, your case would go on whether you\u2019re here or not. So have that in mind.\u201d\nOn March 10, 1986, defendant failed to appear for trial. Defense counsel informed the court that defendant\u2019s parents had received a note from defendant indicating his intention to leave the jurisdiction and requested that the case be held on call for at least one day to allow counsel to attempt to locate defendant. The trial court granted the State\u2019s motion for bond forfeiture and issuance of an arrest warrant and, on the State\u2019s suggestion, continued the case for two days. When defendant did not appear on March 12, the trial court ruled, over defense counsel\u2019s objection, that defendant would be tried in absentia. Jury selection commenced on March 13, and on March 17, defendant was acquitted of the murder of Enrique but found guilty of the attempted murders of Albino and Ruben. The trial court denied defense counsel\u2019s post-trial motion and, following a hearing, sentenced defendant to concurrent terms of 30 years on each attempted murder conviction. This appeal followed.\nOpinion\nDefendant first contends that he was improperly tried in absentia because notice of the trial date was not sent to him by certified mail as is required by statute. He maintains that he is therefore entitled to a new trial.\nIt is fundamental that an accused has the right to be present at all stages of his trial and to confront witnesses against him and that this right can be waived only by the defendant himself. (People v. Owens (1984), 102 Ill. 2d 145, 464 N.E.2d 252; People v. Steenbergen (1964), 31 Ill. 2d 615, 203 N.E.2d 404.) However, a defendant may not prevent his trial by voluntarily absenting himself from it, and where a defendant has been released on bond, he has not only the right but the duty to present himself for trial. (Steenbergen, 31 Ill. 2d 615, 203 N.E.2d 404; People v. Davis (1968), 39 Ill. 2d 325, 235 N.E.2d 634; People v. Burns (1983), 117 Ill. App. 3d 123, 453 N.E.2d 21.) To allow a defendant to impede trial proceedings by absenting himself therefrom would permit him to benefit from his own wrong (Steenbergen, 31 Ill. 2d 615, 203 N.E.2d 404). Thus, a defendant\u2019s voluntary absence from the court is deemed a waiver of his right to be present and permits the court to proceed with trial in the same manner and with like effect as if he were present (Davis, 39 Ill. 2d 325, 235 N.E.2d 634), providing that defendant\u2019s constitutional rights have been protected.\nIllinois has enacted a legislative scheme designed to ensure that a trial in absentia is not held unless a defendant has made a valid waiver of his right to be present at trial and confront witnesses against him. (People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152.) Section 113 \u2014 4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. .38, par. 113 \u2014 4(e)) (the Code) requires:\n\u201cIf a defendant pleads not guilty, the court shall advise him at that time or at any later court date on which he is present that if he *** is released on bond and fails to appear in court when required by the court that his failure to appear would constitute a waiver of his right to confront the witnesses against him and trial could proceed in his absence.\u201d\nThe circumstances under which a trial in absentia may be held are then set forth in section 115 \u2014 4.1 of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 115 \u2014 4.1(a)), which provides in relevant part:\n\u201cWhen a defendant after arrest and an initial court appearance for a non-capital felony, fails to appear for trial, at the request of the State and after the State has affirmatively proven through substantial evidence that the defendant is willfully avoiding trial, the court may commence trial in the absence of the defendant. *** Trial in the defendant\u2019s absence shall be by jury unless the defendant had previously waived trial by jury. *** If trial had previously commenced in the presence of the defendant and the defendant willfully absents himself for two successive court days, the court shall proceed to trial. *** The court may set the case for a trial which may be conducted under this Section despite the failure of the defendant to appear at the hearing at which the trial date is set. When such trial date is set the clerk shall send to the defendant, by certified mail at his last known address indicated on his bond slip, notice of the new date which has been set for trial. Such notification shall be required when the defendant was not personally present in open court at the time when the case was set for trial.\u201d\nRelying primarily on People v. Williams (1987), 151 Ill. App. 3d 1010, 503 N.E.2d 1092, defendant argues that the requirement in section 115 \u2014 4.1 of notice by certified mail of a trial in absentia is mandatory and that the failure to comply therewith is reversible error. He maintains that because notice by certified mail of his trial date was not sent to him, he is entitled to a new trial. We disagree.\nIn Williams, the defendant pleaded not guilty at his arraignment after which the case was set for trial readiness call on April 14 and for jury trial on April 21. When Williams did not appear for the April 14 readiness call, it was rescheduled for April 17 and his counsel was to provide Williams with notice at the address shown on his bond form. When Williams failed to appear again on April 17, the trial court granted the State\u2019s motion to proceed with trial in absentia on April 30, ordered a warrant for Williams\u2019 arrest and that the clerk of the court send notice of the new trial date to Williams. On April 29, the court learned that special notice of the new trial date had not been sent to Williams and, thus, directed the State\u2019s Attorney\u2019s office to attempt to personally serve defendant with special notice of the trial. The following day, notice of defendant\u2019s bond forfeiture was sent by certified mail but was returned marked \u201cMoved, Left No Address.\u201d The court was advised that attempts to serve Williams with special notice had been unsuccessful because Williams had allegedly vacated his apartment two months earlier and moved out of State. Williams was then tried, found guilty and sentenced in absentia.\nCiting People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152, for the proposition that notice of a trial in absentia by ordinary mail is not an adequate substitute for notice by certified mail, the Williams court declared that certified mail notice of a trial in absentia is mandatory under section 115 \u2014 4.1 and that the failure to comply with that requirement was reversible error necessitating a new trial. We do not reach the same conclusion in the case at bar.\nFirst, we believe that the Watson decision does not serve as direct support for the holding in Williams because the facts of those cases are clearly distinguishable. In Watson, after the entry of defendant\u2019s plea of not guilty at his October arraignment, the trial court set the case \u201cfor jury trial on the January jury call.\u201d (Watson, 109 Ill. App. 3d at 883.) Following the arraignment proceeding, a written order was entered by the court and sent by regular mail to Watson, stating that the case was set for jury trial on January 11. When Watson failed to appear on that date, he was tried in absentia and found guilty of burglary and theft. On appeal, the Watson court noted that the provisions of sections 113 \u2014 4(e) and 115 \u2014 4.1 were enacted to ensure that such a trial would not be held unless the accused made a valid waiver of his right to be present at trial. The appellate court then reversed Watson\u2019s convictions, on the grounds that \u201c[t]he trial court\u2019s statement at Watson\u2019s arraignment that the case was \u2018set for jury trial on the January jury call\u2019 was insufficient to set the date in open court in defendant\u2019s presence\u201d (109 Ill. App. 3d at 283), and that section 115 \u2014 4.1 therefore required that Watson be sent notice of that date by certified, not ordinary, mail. In other words, the certified mail requirement was triggered in Watson because the specific trial date, January 11, was not set in open court in Watson\u2019s presence. It was the absence of actual notice in the manner provided for in the statute which formed the basis of the Watson ruling that certified mail notice was required.\nIn the instant c\u00e1se, defendant was personally present in open court when the specific trial date was set. Thus, we do not agree, nor do we read Watson as holding, that additional notice by certified mail was required under section 115 \u2014 4.1. To the extent Williams holds otherwise, we respectfully decline to follow that decision.\nMoreover, the Watson court specifically noted that Watson was not admonished of his right to be present at trial or of the consequences of his failure to appear. Neither is there any statement in Williams or facts from which we can infer that the trial court admonished Williams, at the arraignment proceeding when his case was set for trial, that his failure to appear on that date could result in his being tried in absentia as is required by section 113 \u2014 4(e). In contrast to those cases, it is undisputed in the instant case that defendant was admonished that if he failed to appear on March 10, trial would proceed in his absence and that he affirmatively responded \u201cI understand.\u201d Having been present in open court when his specific trial date was set and having been apprised of his right to be present and the consequences of his failure to appear, we find that there was compliance with the protective requirements of sections 113 \u2014 4 and 115 \u2014 4.1, and that the trial was therefore properly conducted in defendant\u2019s absence.\nWe are not persuaded otherwise by the fact that trial was continued for two days. Section 115 \u2014 4.1 does not require repeat notice, by certified mail or otherwise, where the defendant was present in open court when the original trial date was set. The continuation of trial for two days, which is mandated only \u201cif trial had previously commenced in the presence of the defendant\u201d who thereafter willfully absents himself from it (Ill. Rev. Stat. 1985, ch. 38, par. 115 \u2014 4.1(a)), was merely an additional safeguard of defendant\u2019s right to be present at trial which was ordered by the court, on the State\u2019s suggestion, to allow additional time within which to locate defendant or give him the opportunity to voluntarily present himself. See People v. Porter (1988), 170 Ill. App. 3d 835, 525 N.E.2d 211.\nDefendant next contends that plain error occurred when the jury was incorrectly instructed on the mental state necessary for attempted murder in that the instructions given to the jury permitted it to convict him of attempted murder without finding that he acted with the specific intent to kill. The record reveals that the jury was given the following sequence of instructions.\nFirst, the trial court gave the definitional attempted murder instruction which provides:\n\u201cA person commits the crime of attempt when he, with intent to commit the offense of murder, does any act which constitutes a substantial step toward the commission of the offense of murder.\nThe offense attempted need not have been committed.\u201d\nThe jurors were then given the attempted murder directive or what is commonly called the \u201cissues\u201d instruction:\n\u201cTo sustain the charge of attempt, the State must prove the following propositions:\nFirst: That the defendant performed an act which constituted a substantial step toward the commission of the offense of murder; and\nSecond: That the defendant did so with the intent to commit the offense of murder.\u201d\nThe court then gave the full definitional murder instruction which states:\n\u201cA person commits the offense of murder when he kills an individual without lawful justification if, in performing the acts which cause the death,\nhe intends to kill or do great bodily harm to that individual or another; or\nhe knows that such acts will cause death to that individual or another; or\nhe knows that such acts create a strong probability of death or great bodily harm to that individual or another.\u201d\nFinally, the jury was given the following \u201cissues in murder\u201d instruction:\n\u201cTo sustain the charge of murder, the State must prove the following propositions:\nFirst: that the defendant performed the acts which caused the death of Enrique Vega; and\nSecond: that when the defendant did so, he intended to kill or do great bodily harm to Enrique Vega; or\nhe knew that his acts would cause death or great bodily harm to Enrique Vega; or\nhe knew that his acts created a strong probability of death or great bodily harm to Enrique Vega.\nIf you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.\nIf you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.\u201d\nDefendant correctly asserts that nothing less than proof of specific intent to kill will support a conviction for attempted murder. (People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28; People v. Beverly (1978), 63 Ill. App. 3d 186, 379 N.E.2d 753.) He argues that the failure to modify the definition of murder for purposes of the attempted murder charge so as to omit the alternative propositions, i.e., that knowledge that his acts would cause death or great bodily harm or would create a strong probability of death or great bodily harm, permitted the jury to convict him without finding that he acted with specific intent to kill.\nCiting People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331, in which the defendant was held to have waived review of this issue, the State asserts that any error here was similarly waived by defense counsel\u2019s failure to object to the instructions or tender any of his own. Defendant responds that the waiver rule does not apply in this case because (1) the evidence was closely balanced; (2) he has raised as a separate issue that his trial attorney, whose responsibility it was to object to the erroneous instructions, did not provide him with effective assistance of counsel; and (3) the Roberts case was decided prior to the revision of the Illinois Pattern Jury Instructions, which now require that a modified definitional murder instruction be given for attempted murder.\nIn Roberts, the court stated that \u201cevery error in the giving of an instruction impinges upon the right of a party to a fair trial\u201d (75 Ill. 2d at 15) and that under Supreme Court Rule 451(c) \u201csubstantial defects [in instructions] are not waived by failure to make timely objections thereto if the interests of justice require.\u201d (58 Ill. 2d R. 451(c).) The court, however, declined to apply the plain error exception to the waiver rule in the Roberts case, ruling that, on the facts before it, the inclusion of mental states other than an intent to kill in the \u201cnonmandatory definitional instruction\u201d did not rise to the level of grave error because the evidence was not closely balanced. Roberts, 75 Ill. 2d at 14.\nHowever, in People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861, the supreme court, citing, inter alia, its decision in Roberts, stated:\n\u201cThe interests of justice demand that the rule of waiver be modified, in criminal cases, where necessary to ensure the fundamental fairness of the trial. [Citations.] Fundamental fairness includes, among other things, seeing to it that certain basic instructions *** are given. Instructions on the elements of the offense are among these basic instructions, and we have recognized that the trial court has responsibility for ensuring that they are given. [Citations.] The failure correctly to inform the jury of the elements of the crime charged has been held to be error so grave and fundamental that the waiver rule should not apply. [Citations.]\u201d 87 Ill. 2d at 222, 429 N.E.2d at 864.\nIn People v. McDaniel (1984), 125 Ill. App. 3d 694, 699, 466 N.E.2d 662, an attempted murder case in which the jury was instructed that murder occurs when a person \u201cintends to kill or do great bodily harm,\u201d the court applied the reasoning in Ogunsola and declined to apply the waiver rule. In People v. Jaffe (1986), 145 Ill. App. 3d 840, 493 N.E.2d 600, the jury was given attempted murder instructions virtually identical to those in the case before us. Although defendant did not raise the issue either at trial or on appeal, he did contend that his counsel was ineffective. In its review of counsel\u2019s performance, the Jaffe court sua sponte raised the issue of the erroneous instructions and considered it under the plain error rule. Because an error in mandatory jury instructions poses a potential for deprivation of substantial rights, we elect to consider the issue under the plain error doctrine.\nOur supreme court has unequivocally held that specific intent to kill is an essential element of the offense of attempted murder and, correlatively, that a finding of nothing less than specific intent to kill will sustain a conviction for attempted murder. (People v. Mitchell (1984), 105 Ill. 2d 1, 473 N.E.2d 346; People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343; People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28; People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888.) As the supreme court in Jones stated, \u201c[k]nowledge that the consequences of an accused\u2019s act may result in death (or grave bodily injury), *** is not enough; specific intent to kill is required [citation]. Both the indictment and the instructions must unambiguously reflect this.\u201d (Emphasis in original.) Jones, 81 Ill. 2d at 8-9, 405 N.E.2d at 345.\nWhere the defendant is tried for both murder and attempted murder at the same time, the trial court, for the purpose of the attempted murder charge (People v. Beverly (1978), 63 Ill. App. 3d 186, 379 N.E.2d 753), must give a separate instruction defining murder which limits the murder definition to acts committed with the specific intent to kill. People v. Kraft (1985), 133 Ill. App. 3d 294, 478 N.E.2d 1154; People v. Beverly (1978), 63 Ill. App. 3d 186, 379 N.E.2d 753; see Illinois Pattern Jury Instructions, Criminal, No. 6.05, Committee Notes (2d ed. 1981) (IPI Criminal 2d); IPI Criminal 2d No. 27.02 (which suggests the following definitional murder instruction for attempted murder: \u201cA person commits the offense of murder when he kills an individual if, in performing the acts which cause the death, he intends to kill that individual or another\u201d).\nReviewing courts of this State have repeatedly stated that attempted murder instructions such as those given here, which include the full definition of murder (IPI Criminal 2d. No. 7.01), are erroneous. (E.g., Jones, 81 Ill. 2d 1, 405 N.E.2d 343; Harris, 72 Ill. 2d 17, 377 N.E.2d 28; Trinkle, 68 Ill. 2d 198, 369 N.E.2d 888; People v. Fields (1988), 170 Ill. App. 3d 1, 523 N.E.2d 1126; People v. Page (1987), 163 Ill. App. 3d 959, 516 N.E.2d 1371; People v. Cantu (1987), 157 Ill. App. 3d 899, 510 N.E.2d 963; People v. Lincoln (1987), 157 Ill. App. 3d 700, 510 N.E.2d 1026; People v. Cloyd (1987), 152 Ill. App. 3d 50, 504 N.E.2d 126; People v. Jaffe (1986), 145 Ill. App. 3d 840, 493 N.E.2d 600; People v. Kraft (1985), 133 Ill. App 3d 294, 478 N.E.2d 1154; People v. Smith (1984), 127 Ill. App. 3d 622, 469 N.E.2d 634; People v. McDaniel (1984), 125 Ill. App. 3d 694, 466 N.E.2d 662.) Nevertheless, as the volume of cases in which this issue is presented demonstrates, attempted murder instructions which erroneously include the full definitional murder language inexplicably continue to be given.\nThe State does not argue that the instructions were not erroneous but, rather, that \u201cassuming arguendo that the jury should have received a modified instruction *** any alleged error is harmless.\u201d The State maintains that an error in instructions will not justify reversal where, as here, the evidence of defendant\u2019s guilt is so clear and convincing that even if properly instructed the jury could not reasonably have found him not guilty. People v. Jones (1979), 85 Ill. 2d 1, 405 N.E.2d 343; People v. Cloyd (1987), 152 Ill. App. 3d 50, 504 N.E.2d 126.\nAs we noted in People v. Gentry (1987), 157 Ill. App. 3d 899, 510 N.E.2d 963, two lines of analysis have developed in cases in which this issue has been raised. Courts have reasoned that because intent is an essential element of the State\u2019s case, where intent is at issue, the giving of an erroneous instruction with respect to the mental state required to commit attempted murder deprives the jury of the legal tools necessary to determine defendant\u2019s guilt or innocence. The courts have therefore held the erroneous instruction to be plain error and reversed the convictions without extensive consideration of the evidence. E.g., People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28; People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888; People v. Cantu (1987), 157 Ill. App. 3d 934, 510 N.E.2d 1183; People v. Gentry (1987), 157 Ill. App. 3d 899, 510 N.E.2d 963; People v. Lincoln (1987), 157 Ill. App. 3d 700, 510 N.E.2d 1026; People v. Kraft (1985), 133 Ill. App. 3d 294, 478 N.E.2d 1154; People v. McDaniel (1984), 125 Ill. App. 3d 694, 466 N.E.2d 662.\nThe other line of analysis has been applied in cases where the defendant\u2019s intent is not at issue or is blatantly evident from the facts. In these circumstances courts have reasoned that even if properly instructed on the mental state necessary for attempted murder, the jury could not reasonably have found defendant not guilty. The courts have thus held that the giving of an incorrect instruction, though error, was harmless error and have therefore upheld the defendants\u2019 convictions. E.g., People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343; People v. Page (1987), 163 Ill. App. 3d 959, 516 N.E.2d 1371; People v. Cloyd, (1987), 152 Ill. App. 3d 50, 504 N.E.2d 126; People v. Smith (1984), 127 Ill. App. 3d 622, 469 N.E.2d 634.\nIn the case at bar, defendant was charged with the attempted murder of two individuals and each conviction must be reviewed independently. Initially, we note that defendant\u2019s intent was one of the central issues in this case. Although defendant admitted limited participation in the shooting, he maintained that he did not intend to kill anyone. The question, then, is whether the State\u2019s evidence clearly and convincingly established otherwise.\nWith respect to the attempted murder of Ruben, the State\u2019s witnesses testified that defendant was approximately four feet from Ruben on the driver\u2019s side of the car when he pointed the gun toward Ruben and fired one \u201chard shot\u201d toward Ruben\u2019s stomach. Ruben thereafter underwent two surgical procedures for injuries caused by the bullet. Defendant himself admitted that when the man on the driver\u2019s side (Ruben) reached into his pocket he \u201cdidn\u2019t take any chances\u201d on whether Ruben was reaching for a key or a weapon and immediately pointed the gun at him from a distance of about five or six feet and shot \u201clow and level.\u201d Although defendant also stated that he \u201cfreaked out\u201d and fired in a horizontal swinging motion, \u201cgoing crazy wild,\u201d and that his intent was to scare Ruben, not to hurt him, the largely undisputed circumstances of the shooting and the seriousness of Ruben\u2019s injuries are sufficient to clearly and convincingly establish defendant\u2019s intent to kill Ruben. Thus, we conclude that the jury could not reasonably have acquitted defendant of the attempted murder of Ruben even if it had been properly instructed on the issue of intent.\nWith regard to the attempted murder of Albino, however, we are constrained to conclude that the evidence was not so blatantly clear on the question of defendant\u2019s intent to kill Albino as to withstand the damage of the erroneous instructions. The record discloses that defendant\u2019s intent was raised as an issue in defense counsel\u2019s opening statement and remained at issue through the trial. The evidence presented by the State consisted of the testimony of Able, who stated that once his assailants began beating him, he was unable to see what was occurring on the passenger\u2019s side of the car where Enrique and Albino were standing. Able testified only that as he was being struck, he \u201cheard a few shots\u201d from the other side of the car. At that point, his assailants ran, and it was only then that he saw defendant come around the rear of the car and shoot Ruben.\nRuben also testified that he did not witness the shooting of Albino. He merely stated that he was on the driver\u2019s side of the car when he heard two or three shots from the passenger\u2019s side of the car and saw Enrique fall.\nAccording to Albino\u2019s own testimony, he was backed up against the front right side of the car and shielding his face when his assailant was punching him. He heard three shots being fired from his left and, when he looked up, saw a \u201chand with a gun\u201d emerge from the crowd and reach out toward Enrique, who was standing near the rear of the car. He saw a bullet being fired and then saw a man he identified as defendant run around the rear of the car with a gun in his hand. He ducked alongside the car and, while in that position, heard one more shot. It was only after the group dispersed and Able came around to the passenger\u2019s side and told Albino to lift Enrique into the car that he realized that he, too, had been shot.\nMoreover, defendant did not admit shooting either Enrique or Albino. According to his statement, he did shoot Ruben but at no time was he on the passenger\u2019s side of the car, where Albino and Enrique were standing. The credibility of defendant\u2019s statements on the issue of intent, like the testimony of any other witness, was a matter for the jury and they were free to disbelieve any or all of it. However, the significance of the jury having found the defendant not guilty of the murder of Enrique cannot be ignored. In our view, the jury\u2019s acquittal of defendant of the most serious charge, on which the jury was properly instructed, further supports our opinion that it was critical that they also be correctly instructed on the elements of attempted murder, not only because there was conflicting evidence but because defendant\u2019s intent was a central issue in this case.\nIndeed, the record discloses that the first of the State\u2019s closing arguments was devoted almost exclusively to the issue of intent. Specifically, the assistant State\u2019s Attorney quoted that portion of the \u201cissues in murder\u201d instruction requiring proof that defendant \u201cperformed the acts which caused the death of Enrique Vega\u201d and argued:\n\u201c[T]here is no dispute *** that defendant fired the gun and that firing the gun caused the death of Enrique Vega. There is no dispute that the act of firing the gun caused serious bodily harm to *** Able [sic] Correa and *** Ruben Martinez. There is no dispute as to that. The evidence of that is overwhelming.\u201d (Emphasis added.)\nThe prosecutor then inaccurately stated that three eyewitnesses identified defendant as \u201cthe person who performed these acts\u201d and that defendant himself made a statement wherein he \u201ctells you that, yes, I did, in fact, fire the shots at these guys; that I drew a bead low in [sic] level and fired shots.\u201d\nCounsel for the State then quoted what she referred to as \u201cthe second part of the definition of murder,\u201d but which is actually the standard \u201cissues in murder\u201d instruction (IPI Criminal 2d No. 7.02), which required the State to prove that defendant intended to kill or do great bodily harm to Enrique or acted with knowledge that the acts would cause or created a strong probability of causing death or great bodily harm to Enrique. Notwithstanding the instruction\u2019s specific and exclusive reference to Enrique, the prosecutor then argued:\n\u201cNow [defense counsel] told you this [intent] was the only issue in the case. As you know now, *** the evidence in this case against the defendant is overwhelming. *** The witnesses testified how he stood four to seven feet away from each one of these individuals; how Able testified that he saw the defendant draw a bead on his partner, Ruben *** and how he was about five or six feet away and fired that gun; how it hit Abel [sic] *** in the chest area or hit Ruben *** in the chest area and the stomach area right where all the vital bodily organs are.\u201d (Emphasis added.)\nThe prosecutor also argued that the medical examiner\u2019s testimony concerning the trajectory of and damage done by the bullet which struck Enrique and the evidence that defendant shot him from a short distance \u201cshows his intent to kill.\u201d Once again, however, the assistant State\u2019s Attorney commingled the evidence relating to each offense charged and failed to delineate what evidence of mental state(s) applied to which crime. She argued as follows:\n\u201cAfter he pushed [the people in the crowd] away, *** he drew a bead and he fired low and level. He fired directly at these individuals. *** He told you about his intent. You know from his actions that he had intent to kill. * * *\nFurthermore, he knew that his acts would cause death or great bodily harm to this individual.\nAs to each one of these propositions, you will see in the second part here *** the State only has to prove one.\nIt only has to be proven, one, that he intended to kill or cause great bodily harm or that he knew his acts would cause death or great bodily harm. We do not have to prove each of these. Just one is enough to show his intent.\nI submit to you *** that we have proved each and every one because not only do you intend to kill someone, you come up and draw a bead on them low and level four or five feet away, but you also know when you do that act it creates a strong probability of death or great bodily harm.\nYou also know when you do that act it is going to cause death or great bodily harm when you aim at the interior, the vital organs in here. The evidence is overwhelming.\u201d (Emphasis added.)\nWe note that the evidence to which the prosecutor referred regarding shooting \u201clow and level\u201d from a distance of \u201cfour to five feet\u201d was introduced with sole reference to the shooting of Ruben.\nToward the end of her argument, the prosecutor quoted the definition of attempted murder and remarked that there was \u201cno dispute\u201d that defendant shot Ruben and Albino. Counsel then quoted the issue in the attempt instruction and argued the distance from which defendant shot and the location and seriousness of the injuries as overwhelming evidence that \u201cwhat he had intended to do was murder somebody.\u201d Counsel did not, however, define murder for purposes of attempted murder; and when we read the State\u2019s argument in its totality, we are not convinced that the jurors understood or could have understood that in order to convict defendant of attempted murder, it was necessary to find that he possessed nothing less than the intent to kill. Rather, it is our view that the jurors reasonably could have concluded that attempted murder can be committed if the defendant knew that his acts would or probably would cause either death or great bodily harm.\nFollowing closing argument, the trial court gave exactly the same erroneous instructions quoted by the prosecutor in her closing argument and which are set out earlier in this opinion. The trial court bears the burden of ensuring that the jury is properly instructed (People v. Parks (1976), 65 Ill. 2d 132, 357 N.E.2d 487; People v. Sanders (1984), 129 Ill. App. 3d 552, 472 N.E.2d 1176); and, in fact, the trial judge advised the jurors at the outset of voir dire that it is the function of the court to instruct as to the applicable law and the \u201cabsolute duty of the jury to accept the law as it is stated in the instructions and then to follow it.\u201d The jurors, therefore, had no option but to apply the inapplicable murder instructions, which were erroneous as to the attempted murder charges, given by the trial court and explained by the prosecutor.\nIn summary, we cannot conclude that defendant\u2019s intent to kill Albino was so \u201cblatantly clear\u201d from the evidence to overcome the damage of the erroneous instructions. We are unable to reasonably find that the jury would have found him guilty of the attempted murder of Albino even if they had been correctly instructed so as to find the error harmless beyond a reasonable doubt. We therefore hold that the misinstruction constituted plain error necessitating reversal and remandment for a new trial on the charge of the attempted murder of Albino Correa.\nDefendant next contends that he did not receive effective assistance of counsel. Defendant raises numerous examples of allegedly incompetent performance by his trial attorney, most of which fall into one or more of the following general categories: defense counsel was unprepared for trial; conceded a major issue (defendant\u2019s participation in the shootings) in the case; failed to effectively cross-examine the State\u2019s witnesses; failed to make appropriate objections; failed to ensure that the jury was properly instructed; and overall did little to promote his .own defense theory that defendant lacked the requisite intent to commit the offenses of murder and attempted murder. Defendant argues that as a result thereof, the State\u2019s case \u201cwith respect to the attempted murder charges was not subjected to any meaningful adversarial test.\nTo establish a denial of his constitutional right to representation by competent counsel, defendant must establish that his representation fell below an objective standard of reasonableness and that his attorney\u2019s shortcomings were so serious as to deprive him of his right to a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Johnson (1989), 128 Ill. 2d 253, 265-70; People v. Jaffe (1986), 145 Ill. App. 3d 840, 493 N.E.2d 600.) Defendant must clearly establish not only that his attorney was actually incompetent in the performance of his duties but also that were it not for that incompetence the outcome of the trial would likely have been different. (Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; Johnson, 128 Ill. 2d 253; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246; People v. McNutt (1986), 146 Ill. App. 3d 357, 496 N.E.2d 1089.) In determining the adequacy of counsel, a reviewing court will not focus on isolated instances of alleged deficiencies but, rather, must consider the totality of the circumstances; a defendant is entitled to competent, not perfect, representation. (McNutt, 146 Ill. App. 3d 387, 496 N.E.2d 1089.) Neither will the court extend its review to areas involving the exercise of judgment, trial tactics or strategy, or indulge in speculation as to whether the outcome of trial might have been different had the representation been of higher caliber. McNutt, 146 Ill. App. 3d 357, 469 N.E.2d 1089.\nIn this regard, the record discloses that counsel filed motions to quash defendant\u2019s arrest and to suppress evidence, made attempts to locate defendant before commencement of the trial in absentia, objected to the trial proceeding in defendant\u2019s absence on the ground that the statute allowing for trials in absentia was unconstitutional as applied to defendant, participated in discovery, presented an opening statement in which he raised the critical issue of intent, cross-examined the State\u2019s witnesses, made numerous objections, moved for a directed verdict, presented defense witnesses, successfully objected to a circumstantial evidence instruction, made a closing argument which challenged the sufficiency of the State\u2019s case, and filed a post-trial motion.\nFurthermore, it is noteworthy that defendant qualifies his argument on this issue by contending that \u201cwith respect to the attempted murders the State\u2019s case was not subjected to a meaningful adversarial test.\u201d The significance of this qualification is, of course, that defendant was acquitted of the murder charge which, as we stated earlier, cannot be overlooked in reviewing the alleged errors in this case and what, if any, prejudice resulted therefrom. Moreover, defense counsel in this case was faced with the additional burdens of overcoming whatever prejudice the jurors may have formed against defendant by reason of his absence from trial and of defending a client who failed, by his absence, to assist in his own defense. Our reversal of defendant\u2019s conviction of the attempted murder of Albino does not alter our conclusion since, as we have discussed at length, the misinstruction of the jury in this case constituted plain error which cannot be said was attributable solely to defense counsel. In summary, we have reviewed the record in its entirety and conclude that defense counsel\u2019s overall performance constituted competent and effective representation.\nDefendant\u2019s final contention is that the trial court committed reversible error and demonstrated his bias against defendant by certain improper remarks. The first comment of which defendant complains occurred during the cross-examination of Albino. The following colloquy took place:\n\u201cDEFENSE COUNSEL: Do you know the signal for the Villalobos [street gang]?\nWITNESS: Yes.\nDEFENSE COUNSEL: What is the signal?\nTHE COURT: Is that relevant here?\nPROSECUTOR: Object.\nTHE COURT: Is it relevant?\nDEFENSE COUNSEL: Yes, it is relevant. He purports to indicate that he is not a gang member. It is funney [sic] he know [sic] the gang signals.\nTHE COURT: No, all of the streets for miles around know the hand signals.\nDEFENSE COUNSEL: I don\u2019t know that this is true.\nTHE COURT: I can assure you that it is. This is a gang-dominated city. That is a matter we won\u2019t go into any further. The objection is sustained. Next question.\u201d\nDefendant asserts that it is reversible error to make references to gang activity which prey upon the deep, bitter and widespread prejudice against street gangs, and that the remark here was especially egregious because it reflected the trial judge\u2019s bias against defendant, who had admitted former membership in a gang.\nThe State argues that this issue also should be considered waived by defendant\u2019s failure to object or include it in a post-trial motion. However, as stated in People v. Heidorn (1983), 114 Ill. App. 3d 933, 449 N.E.2d 568, citing People v. Sprinkle (1963), 27 Ill. 2d 398, 189 N.E.2d 295, \u201cgiven the fundamental importance of a fair trial and the practical difficulties involved in objecting to the conduct of the trial judge, the waiver rule is applied less rigidly when the judge\u2019s conduct is the basis for the objection.\u201d 114 Ill. App. 3d at 936.\nEvery defendant, irrespective of the nature of the proof against him, is entitled to a trial that is free from improper or prejudicial comments by the trial judge. Although vested with wide discretion in the conduct of the trial, the trial judge must refrain from interjecting opinions or making comments or insinuations reflecting prejudice against or favor toward any party. Because jurors are generally watchful of the conduct of the trial judge, the court must exercise a high degree of care to avoid influencing the jury. Sprinkle, 27 Ill. 2d 398, 189 N.E.2d 295; Heidorn, 114 Ill. App. 3d 933, 449 N.E.2d 568; see People v. Merz (1984), 122 Ill. App. 3d 972, 461 N.E.2d 1380 (noting Supreme Court Rule 61 (107 Ill. 2d R. 61), and ABA Standards, Function of the Trial Judge \u00a76.4 (1972)).\nNevertheless, for comments by the trial judge to constitute reversible error the defendant must show that the remarks were prejudicial and that he or she was harmed thereby. Even when the court\u2019s method of ruling on an objection indicates an opinion as to the validity of a party\u2019s position, the context of the judge\u2019s remark must be considered in determining whether prejudice resulted. Heidorn, 114 Ill. App. 3d 933, 449 N.E.2d 568.\nAlthough the court\u2019s reference to gang domination of the city might have been improper under other circumstances, in the case at bar the charges arose from a gang-related shooting. The record is replete with testimony regarding gang membership and activity. Defendant and Able both admitted that they were former gang members, and defendant\u2019s brother admitted being a member of the Ambrose 26 gang at the time of trial. Indeed, the line of questioning by defense counsel which prompted the remark concerned Abie\u2019s familiarity with the hand signals of various street gangs, including the gang known as the \u201cVillalobos\u201d which, according to the evidence, was not involved in the incident leading to the shootings at issue. Thus, the court correctly ruled that the question was irrelevant; and it was only after defense counsel disputed that ruling that the remark complained of was made.\nThe second comment was made as the trial court was discharging the jury. After thanking the jurors for their service, the trial judge added, \u201cI must say that your verdicts will forever be a mystery to me, but they are your verdicts.\u201d Defendant argues that \u201cwhen a trial court has displayed his prejudice against a defendant and his predisposition to act in a certain manner is evident, the case should be reassigned to a different judge upon remand.\u201d\nWe have examined the entire record carefully and determine that the trial court conducted the trial fairly and with particular concern that defendant\u2019s rights were protected in his absence. Consequently, we decline to enter any directions concerning the court assignment of this case upon remand.\nFor the reasons stated, we affirm defendant\u2019s conviction and sentence for the attempted murder of Ruben Martinez. However, we reverse the conviction for the attempted murder of Albino Correa and we remand this case for a new trial on that charge.\nAffirmed in part; reversed in part and remanded for further proceedings.\nJIGANTI, P.J., and JOHNSON, J., concur.", "type": "majority", "author": "JUSTICE McMORROW" } ], "attorneys": [ "Paul P. Biebel, Jr., Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, Lynda Peters, and Gail Feiger, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESUS VELASCO, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201486\u20140918\nOpinion filed June 8, 1989.\n\u2014 Rehearing denied July 13, 1989.\nPaul P. Biebel, Jr., Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, Lynda Peters, and Gail Feiger, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0618-01", "first_page_order": 640, "last_page_order": 663 }