{ "id": 2637531, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OSBORNE ALEXANDER, Defendant-Appellant", "name_abbreviation": "People v. Alexander", "decision_date": "1989-06-16", "docket_number": "No. 1\u201486\u20143611", "first_page": "855", "last_page": "865", "citations": [ { "type": "official", "cite": "184 Ill. App. 3d 855" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "499 N.E.2d 1016", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1018" } ], "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 646", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3643864 ], "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0646-01" ] }, { "cite": "374 N.E.2d 194", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "71 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5448796 ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0166-01" ] }, { "cite": "473 N.E.2d 1319", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "105 Ill. 2d 275", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3142311 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-2d/105/0275-01" ] }, { "cite": "532 N.E.2d 472", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "177 Ill. App. 3d 602", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3621483 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0602-01" ] }, { "cite": "484 N.E.2d 383", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "137 Ill. App. 3d 148", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3640268 ], "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/137/0148-01" ] }, { "cite": "523 N.E.2d 1061", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1075" } ], "opinion_index": 0 }, { "cite": "169 Ill. App. 3d 716", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3551634 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0716-01" ] }, { "cite": "500 N.E.2d 128", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "133" }, { "page": "133", "parenthetical": "defendant's fiancee not equally available to State because she is likely biased toward defendant" } ], "opinion_index": 0 }, { "cite": "149 Ill. App. 3d 293", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3458431 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "300" }, { "page": "300" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0293-01" ] }, { "cite": "511 N.E.2d 661", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "670" }, { "page": "674" }, { "page": "670" } ], "opinion_index": 0 }, { "cite": "158 Ill. App. 3d 614", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3579267 ], "weight": 3, "pin_cites": [ { "page": "625-26" }, { "page": "632" }, { "page": "625-26" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/158/0614-01" ] }, { "cite": "532 N.E.2d 1365", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1372-72" }, { "page": "1372-73" }, { "page": "1372-73" } ], "opinion_index": 0 }, { "cite": "178 Ill. App. 3d 453", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2431585 ], "weight": 3, "pin_cites": [ { "page": "465-66" }, { "page": "466" }, { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0453-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1130" } ], "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "152 N.E.2d 850", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "851" } ], "opinion_index": 0 }, { "cite": "14 Ill. 2d 338", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2770779 ], "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/14/0338-01" ] }, { "cite": "399 N.E.2d 1283", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "78 Ill. 2d 292", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3075190 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/78/0292-01" ] }, { "cite": "368 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. 2d 506", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2902947 ], "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0506-01" ] }, { "cite": "268 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "698" } ], "opinion_index": 0 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] } ], "analysis": { "cardinality": 899, "char_count": 23898, "ocr_confidence": 0.774, "pagerank": { "raw": 8.784116796067803e-08, "percentile": 0.4958982164597241 }, "sha256": "57de3e7b03ff2197df2af9321b1839198ec6ca98b10bd48c7288fa1071a97a5b", "simhash": "1:8932e0ec52ca6597", "word_count": 4075 }, "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. OSBORNE ALEXANDER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE QUINLAN\ndelivered the opinion of the court:\nThe defendant, Osborne Alexander, was arrested and charged by indictment with the murder and armed robbery of Michael Winfield. Following a jury trial in the circuit court of Cook County, the defendant was found guilty and sentenced to 40 years in the Illinois Department of Corrections. The defendant has appealed his conviction to this court, asking that this court reverse his conviction and order a new trial.\nOn March 3, 1985, Michael Winfield, a Checker Cab driver, was found shot to death in his cab in the 7300 block of South Clyde in Chicago. Chicago police officer Phyllis Stewart was called to the scene and discovered the cab wedged between two cars, with its motor still running, and the driver slumped behind the wheel of the car. The cab\u2019s fare box was still on and registered $3.60, plus 50 cents in extras. Upon investigation, neighborhood residents gave a description of the offender as a male black, approximately 6 feet tall. Later, the defendant, Osborne Alexander, was arrested and charged with the murder and armed robbery of Winfield.\nAt defendant\u2019s trial, the State\u2019s chief witness was Claude Young. Young admitted that he was under indictment for 10 armed robberies and that the State had agreed to recommend a maximum sentence of 15 years on those robberies in return for his testimony. He also admitted that he had previously been convicted of voluntary manslaughter. In his testimony, Young stated that he was at home on March 3, 1985, at 3 a.m., watching television in his second-floor apartment, when he heard a gunshot, which was followed by the sound of crashing automobiles. He then heard someone banging on the window of the first floor of the building. Young went downstairs and saw the defendant, Osborne Alexander, and Jerry Polk, who lived on the first floor of Young\u2019s building, standing together and talking. Young said the defendant had a .38 caliber gun with him, which Young said he knew was the defendant\u2019s gun. Young further testified that he noticed blood on the sleeve of the defendant\u2019s coat.\nYoung additionally testified that the defendant told him at that time that the defendant and his wife had been at the Jedi Lounge and had taken a cab home. He said the defendant also told him he had instructed the cab driver to drop his wife off at home and then drive him to 73rd and Clyde. Once the cab driver reached 73rd and Clyde, the defendant stated that he pulled out his gun and demanded the cab driver\u2019s money. The cab driver, the defendant said, refused to give him any money and turned around to hit the defendant in the face. Young stated that the defendant then shot the cab driver, jumped out of the cab, and took the cab driver\u2019s money from his pockets, along with some pornographic pictures that were on the front seat of the cab, and ran to Young\u2019s building, which was just down the alley from 73rd and Clyde.\nYoung said that the defendant initially wanted to escape through the back of Young\u2019s building, but decided to wait when he saw that the police had arrived. The defendant, Young and Polk then went down to Polk\u2019s apartment. At one point, Polk went to the defendant\u2019s house and brought back a change of clothes for him. Once the police were gone, the defendant changed his clothes, gave his gun to Young, and left. Around noon that same day, Young returned the defendant\u2019s clothes and gun to him. Several days later, the defendant gave the gun back to Young and asked Young to sell it. Young then sold the gun to a bootlegger.\nLater, Young said, on April 8, 1985, he was arrested on an unrelated charge, and after talking with the police officers, agreed to take them to the bootlegger to retrieve the defendant\u2019s gun. The bootlegger had sold the gun, but was able to recover it. Thereafter, the gun was turned over to the police.\nRobert Loeb next testified that he was an assistant State\u2019s Attorney and on April 8, 1985, was assigned to the felony review unit of the State\u2019s Attorney\u2019s office. On April 8, he was called to the police station to talk -with the defendant concerning the murder of Winfield. The defendant was not handcuffed and appeared alert and composed. Loeb introduced himself to the defendant, explained that he was working with the police, and advised the defendant of his Miranda rights. Loeb talked with the defendant for approximately 45 minutes. Loeb then asked the defendant if he would go through the same statement again in front of a court reporter. The defendant refused, but agreed to sign a typed statement of what he had just said.\nLoeb then typed a summary of the defendant\u2019s statement and read the statement to the defendant. Loeb read the statement a second time and the defendant pointed out two mistakes. Loeb then wrote in the corrections that the defendant told him to make and the defendant initialled those corrections. On cross-examination, Loeb said that the defendant had never actually signed the typed statement and had never admitted that he shot Winfield, but instead said that a man named James Grace had done the shooting. Loeb also said that he saw the defendant\u2019s wife at the police station, but that she was not in custody or restrained in any way.\nThe defendant\u2019s typed statement was then read to the jury. In his statement, the defendant said that James Grace had dropped the defendant and his wife, Lydia, off at the Jedi Lounge at 11 p.m. on March 2, 1985. Defendant and Lydia left the Jedi around 1:30 a.m. (now March 3) and took a cab home. The cab dropped Lydia off, and defendant then told the cab driver to pick Grace up at the P & J Liquor store. After picking Grace up, the defendant had the cab driver take them to \u201cCaiman\u2019s\u201d to buy cocaine. The defendant went up to Cat-man\u2019s and left Grace in the cab. The defendant did not want to take his gun to Caiman\u2019s, so he left it with Grace. Defendant then returned to the cab and sat in the front seat. When the cab reached the 7300 block of South Clyde, Grace pulled out defendant\u2019s gun. The cab driver tried to hit Grace, and Grace shot him. The cab then hit a parked car. Grace jumped out of the cab and defendant took $30 from the driver\u2019s pocket, and then he also jumped out of the cab. The defendant ran to Young\u2019s house. Young went to defendant\u2019s house and brought a change of clothes back for the defendant. Young later sold defendant\u2019s gun to a bootlegger.\nThe defense next presented its case and the defendant testified on his own behalf. The defendant testified that he and his wife went to the Jedi Lounge on March 2, 1985, at 10 p.m. They left at 3 a.m., March 3, and took a cab home. On the way home, defendant and his wife had an argument because the defendant had wanted to stay at the Jedi Lounge. When the cab driver arrived at the defendant\u2019s home, defendant\u2019s wife got out of the cab and the defendant paid the driver $7. Defendant then told the driver to wait because he did not want to go home yet. He got back in the cab and told the driver to take him back to the Jedi. When he did so, the driver started the cab\u2019s meter again. On the way back to the Jedi, the defendant told the driver to stop at the P & J Liquor store so he could get some cigarettes. The cab waited while the defendant went into the liquor store. As the defendant was walking into the liquor store, he saw Grace and had a brief conversation with him. When the defendant came out of the store, both the cab and Grace were gone. The defendant went into a nearby bar for a few drinks and then walked home, arriving home around 4:30 a.m.\nLater that day, around 3 or 4 p.m., Grace and Young came over to defendant\u2019s apartment and told him to turn on the television news. The defendant sent his wife into the kitchen while he had a conversation with Grace and Young. When the television news reported the story of Winfield\u2019s murder, Grace told the defendant that the victim was the driver of the cab that the defendant had been in the night before. Grace told the defendant that he got into the cab when the defendant went into the liquor store and that he had killed the cab driver. Young and Grace threatened the defendant and his wife when the defendant said he was going to call the police.\nOn April 7, 1985, the defendant was arrested and was informed that Grace told the police that the defendant had murdered Winfield. The defendant claimed that he told the arresting officers the same story that he had just told on direct examination, but that the detectives told him that his story was a \u201cbunch of bullshit\u201d and that he should remember that the officers also had his wife in custody and could charge her with murder. The detectives then told the defendant what to say and this version was put into the statement that Loeb typed. Defendant testified that the entire time he was being interrogated, he was in handcuffs. At trial, the defendant said that the statement Loeb typed was a lie and that he had never signed it because it was not true. The defendant also said that Young\u2019s testimony on the stand was fabricated and that the gun used to kill Winfield was not his. The defendant admitted that he had been convicted of armed robbery in Illinois. He also said that he was 6 feet 8 inches tall and he estimated that Grace was 5 feet 11 inches tall. The defense then rested.\nThe State presented a rebuttal witness and also offered into evidence an abstract of a judgment from California which reflected that the defendant had been convicted of voluntary manslaughter in California. The defendant then testified in surrebuttal and explained that the voluntary manslaughter conviction was based on a homicide that he committed when he was acting in self-defense. After the defendant\u2019s testimony on surrebuttal, the trial judge gave the jury its instructions on the law, which were followed by closing arguments. As noted, the defendant was found guilty and sentenced to 30 years of imprisonment. The defendant raises three issues on appeal.\nDefendant\u2019s first issue on appeal is that the trial court committed reversible error when it allowed the State to impeach his testimony with evidence of a voluntary manslaughter conviction from California, to which he had entered a plea of nolo contendere. Defendant argues that according to the Illinois Supreme Court\u2019s decision in People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, a plea of nolo contendere is not admissible to impeach a defendant\u2019s credibility. In addition, the defendant contends that his credibility, as opposed to the credibility of Claude Young, was crucial at his trial and thus the evidence of his prior homicide most likely had a negative effect on the jury\u2019s evaluation of his testimony. Finally, the defendant admits that he also failed to raise this issue in his post-trial motion, but asks this court to consider the issue nonetheless under Illinois Supreme Court Rule 615(a), which allows a reviewing court to consider an issue not raised in the trial court if that issue involves a plain error affecting substantial rights. 107 Ill. 2d R. 615.\nThe State argues that the defendant has waived this issue upon review because, in addition to the fact that he did not raise the issue in his post-trial motion, his only objection at trial to the admission of his prior homicide was that the document showing his California conviction was an abstract of judgment and not a certified copy of the conviction. Alternatively, the State contends that the defendant\u2019s prior homicide was properly admitted at trial because it would have been admissible in California to impeach the defendant, as well as in the Federal courts, and, consequently, Illinois should also allow use of the conviction. The State also argues that any error here was, in any event, harmless and did not rise to the level of reversible error.\nIn People v. Montgomery (1971), 47 Ill. 2d 506, 516, 368 N.E.2d 695, our supreme court adopted proposed Federal Rule of Evidence 609, which provided at that time that \u201cfor the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime, except on a plea of nolo contendere, is admissible.\u201d Subsequently, however, the version of Rule 609 which was eventually adopted deleted several parts of the proposed rule, including the phrase \u201cexcept on a plea of nolo contendere.\u201d Nonetheless, in People v. Yost (1980), 78 Ill. 2d 292, 399 N.E.2d 1283, the Illinois Supreme Court said that the standards set forth in Montgomery for impeachment would continue to apply in Illinois and would not change merely to correspond to changes in Federal Rule 609. At issue in Yost was a provision in the proposed rule at the time of the Montgomery case which gave judges the final discretion to allow or deny impeachment by evidence of certain convictions. This provision has also been deleted in the rule\u2019s final Federal form. Yost, 78 Ill. 2d 292, 399 N.E.2d 1283.\nWe have found no Illinois case specifically addressing the issue of whether a felony conviction based on a nolo contendere plea may be used as impeachment evidence, possibly because Illinois does not recognize the nolo contendere plea. (In re Eaton (1958), 14 Ill. 2d 338, 341, 152 N.E.2d 850, 851.) We do not need, however, to decide whether a felony conviction based on a nolo contendere plea can be used for impeachment, because we find that the defendant has waived this issue. In order to preserve an issue for review, a defendant must make a specific objection at trial and also raise the issue in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Here, the defendant never objected at trial or in his post-trial motion to the admission of the California homicide on the ground that it was based on a nolo contendere plea and, thus, we must find that he has waived the issue.\nIn addition, it was proper for the trial court to allow this prior homicide of the defendant to be used for impeachment here. Under Montgomery, even if a prior conviction meets the standards of the proposed Rule 609, the final decision to admit or refuse to admit the conviction is committed to the trial court\u2019s discretion and the trial court must then balance the probative value of the prior conviction against its prejudicial effect. (Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698.) Here, there is no support for defendant\u2019s contention that the admission of the California homicide so prejudiced his case that it caused the jury to automatically conclude that Claude Young was the more credible witness.\nHere, although the State introduced the prior conviction into evidence, the State did not question the defendant concerning this conviction. It was defendant\u2019s counsel who questioned the defendant about the California homicide and it was the defendant who testified on surrebuttal that he had entered a plea of \u201cno contender [sic]\u201d to a charge of \u201cinvoluntary [sic]\u201d manslaughter because this was \u201cthe quickest way to get off.\u201d The defendant further claimed in his testimony on surrebuttal that the California homicide occurred as a result of self-defense. Inasmuch as the defendant explained this conviction on surrebuttal, any prejudice caused by the conviction was lessened by the fact that the defendant was allowed to give his version of the circumstances surrounding that offense.\nFurthermore, it is unlikely that admission of defendant\u2019s prior homicide conviction negatively affected the jury\u2019s evaluation of the defendant\u2019s credibility vis-a-vis the credibility of Claude Young, since Young admitted that he had also been convicted of voluntary manslaughter and theft and was under indictment for 10 armed robberies. Finally, we note, as the State observed, the defendant\u2019s testimony was the only evidence that the defendant had actually entered a nolo contendere plea to the California charge, because the abstract of judgment merely revealed that a plea had been entered. The defendant offered no support for this assertion. Accordingly, we conclude that no error occurred here by the admission of this conviction.\nDefendant\u2019s next issue on appeal is that the State made several improper comments during its closing argument which, he claims, substantially affected his right to a fair trial, and, thus, he is entitled to a new trial. Specifically, defendant asserts that the State improperly commented on his failure to call his wife, a nonalibi witness, to testify. Because she was equally accessible as a witness to both sides, it was, he says, error for the State to comment on his failure to call her. The defendant also contends that the State improperly commented on a matter not in evidence when the prosecutor said that James Grace must have implicated the defendant in Winfield\u2019s murder, as Grace was never called to testify. The defendant further argues that the State improperly told the jury that it could not \u201ccreate possible scenarios, inconsistent with guilt.\u201d These errors were compounded, according to the defendant, because the comments occurred during the State\u2019s rebuttal argument and, therefore, could not be responded to by him.\nThe State\u2019s initial response to this argument is that the defendant has again waived this argument on appeal because he failed to object to these comments during trial and in his post-trial motion. Even assuming this issue was not waived, the State says that the comments were not improper. The State argues that it can comment on a defendant\u2019s failure to call an alibi witness or a witness that is not equally accessible to it and, even though the defendant\u2019s wife was not specifically named as an alibi witness, his wife was clearly not equally accessible to both parties because she would have been biased in favor of the defendant here. In response to defendant\u2019s next assertion, the State apparently concedes that its comment concerning Grace was erroneous, but contends that the error was harmless and did not prejudice the defendant. The State further argues that its comment regarding \u201cpossible scenarios,\u201d when read in context, was, in fact, a proper comment.\nA prosecutor is given great latitude in this closing argument and may base his argument on the evidence presented or reasonable inferences therefrom. (People v. Rader (1988), 178 Ill. App. 3d 453, 465-66, 532 N.E.2d 1365, 1372-72.) In determining whether a prosecutor\u2019s remarks constituted reversible error, the test is whether the remarks, when considered in light of all the evidence at trial, materially contributed to the defendant\u2019s conviction or, stated otherwise, the jury would have reached a different result had the remarks not been made. People v. Lasley (1987), 158 Ill. App. 3d 614, 625-26, 511 N.E.2d 661, 670.\nAddressing first the defendant\u2019s claim that the State improperly commented on his failure to call his wife, a nonalibi witness, to testify, we find that the comment was not erroneous. It is true that the State cannot properly comment on a defendant\u2019s failure to call a nonalibi witness when the comment implies that the witness would have testified unfavorably to the defendant and when that witness is equally accessible to both parties. (Lasley, 158 Ill. App. 3d at 632, 511 N.E.2d at 674.) A witness is not considered equally available, however, if the witness would likely be biased against the State. (People v. Wilson (1986), 149 Ill. App. 3d 293, 300, 500 N.E.2d 128, 133.) Here, we believe that the defendant\u2019s wife was not equally accessible to the State inasmuch as she was likely biased in favor of the defendant. See People v. Morando (1988), 169 Ill. App. 3d 716, 523 N.E.2d 1061, 1075 (brother of defendant likely to be biased in favor of defendant and thus not equally accessible to the State); Wilson, 149 Ill. App. 3d at 300, 500 N.E.2d at 133 (defendant\u2019s fiancee not equally available to State because she is likely biased toward defendant); People v. Taylor (1985), 137 Ill. App. 3d 148, 154, 484 N.E.2d 383, 387 (defendant\u2019s stepchildren not equally available to State).\nWe also find that the comment concerning Grace was a proper comment. The record reveals that defense counsel, in his closing argument, said \u201c[the defendant] was taken into custody on April 7th when he was told that James Grace had implicated him in a crime.\u201d Thus the prosecutor\u2019s comment in rebuttal was invited by the defendant\u2019s statement in closing argument. A defendant cannot complain of a prosecutor\u2019s statements made on rebuttal when defendant\u2019s own argument invited those statements. (Rader, 178 Ill. App. 3d at 466, 532 N.E.2d at 1372-73.) Additionally, this statement was based on the evidence presented, since the defendant himself testified that Grace implicated him in the murder, and a prosecutor may properly base his closing argument on any evidence presented. Rader, 178 Ill. App. 3d at 466, 532 N.E.2d at 1372-73.\nWe also believe that the prosecutor\u2019s comment that the jury was \u201cnot entitled to create possible scenarios, inconsistent with guilt,\u201d if erroneous, did not amount to reversible error. Based on the record here, we cannot say that the jury would have reached a different result even if the remark had not been made. (Lasley, 158 Ill. App. 3d at 625-26, 511 N.E.2d at 670.) Therefore, we conclude that any error was harmless.\nThe defendant\u2019s last issue on appeal is that he was deprived of a fair trial and is entitled to a new trial because the trial court gave its instructions to the jury before closing arguments, rather than after closing arguments, as required in the Illinois Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 4(i).) The State contends that the defendant has also waived this issue on appeal because he failed to object to the giving of the instructions at trial or in his post-trial motion. However, the State contends that even if this issue was not waived, there was no error here because the instructions were clear, accurate and complete, and in any event, any error here was harmless and did not rise to the level of reversible error.\nThis court recently addressed the issue of whether the giving of jury instructions before closing argument amounted to reversible error and concluded that such a procedural error did not require reversal so long as the jury instructions were clear, accurate and complete. (People v. Fox (1988), 177 Ill. App. 3d 602, 532 N.E.2d 472.) Here, a review of the record shows that the jury instructions were clear, accurate and complete and the defendant himself does not claim otherwise. Accordingly, in the present case, although the Illinois Code of Criminal Procedure provides for the giving of the jury instructions after closing argument, this error did not rise to the level of reversible error.\nFor all of the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. Also, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319, and People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State\u2019s request that the defendant be assessed $75 as costs for the State\u2019s defending this appeal and incorporate it as part of our judgment.\nAffirmed.\nEGAN, P.J., and LaPORTA, J., concur.\nWe note that Illinois courts have long recognized that a conviction results from a nolo contendere plea, just as with a guilty plea, and that a defendant does not avoid conviction simply by pleading nolo contendere rather than guilty. See Gerdes v. Edgar (1986), 148 Ill. App. 3d 646, 648, 499 N.E.2d 1016,1018.", "type": "majority", "author": "JUSTICE QUINLAN" } ], "attorneys": [ "Michael J. Pelletier and Leia M. Norton, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Christine Perille, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OSBORNE ALEXANDER, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201486\u20143611\nOpinion filed June 16, 1989.\nMichael J. Pelletier and Leia M. Norton, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Christine Perille, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0855-01", "first_page_order": 877, "last_page_order": 887 }