{ "id": 2490742, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR NEWELL, Defendant-Appellant", "name_abbreviation": "People v. Newell", "decision_date": "1990-01-26", "docket_number": "No. 3-88-0649", "first_page": "373", "last_page": "383", "citations": [ { "type": "official", "cite": "196 Ill. App. 3d 373" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "425 N.E.2d 1317", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 914", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3100419 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0914-01" ] }, { "cite": "436 N.E.2d 655", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 838", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3031578 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0838-01" ] }, { "cite": "387 N.E.2d 1061", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "69 Ill. App. 3d 748", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3239008 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0748-01" ] }, { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "501 N.E.2d 241", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "149 Ill. App. 3d 918", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3460211 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0918-01" ] }, { "cite": "529 N.E.2d 972", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "124 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217570 ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0176-01" ] }, { "cite": "503 N.E.2d 594", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 649", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3539889 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "660", "parenthetical": "Heiple, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0649-01" ] }, { "cite": "463 N.E.2d 742", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "123 Ill. 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App. 3d", "case_ids": [ 3173298 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0247-01" ] }, { "cite": "404 N.E.2d 233", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069192 ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0564-01" ] }, { "cite": "469 N.E.2d 119", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "103 Ill. 2d 133", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152504 ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0133-01" ] }, { "cite": "508 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "155 Ill. App. 3d 641", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3464631 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/155/0641-01" ] }, { "cite": "447 N.E.2d 218", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "94 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3105961 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/94/0378-01" ] }, { "cite": "493 N.E.2d 332", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "112 Ill. 2d 284", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5538616 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/112/0284-01" ] }, { "cite": "444 N.E.2d 609", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 551", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5437718 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0551-01" ] }, { "cite": "492 N.E.2d 1303", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "112 Ill. 2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5538496 ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0111-01" ] }, { "cite": "432 N.E.2d 1062", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "104 Ill. App. 3d 451", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5478415 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/104/0451-01" ] }, { "cite": "398 N.E.2d 68", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. App. 3d 156", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5608950 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/0156-01" ] }, { "cite": "365 N.E.2d 43", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 989", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3368066 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0989-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "408 N.E.2d 280", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 794", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3186449 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0794-01" ] }, { "cite": "420 N.E.2d 1076", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "95 Ill. App. 3d 1132", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3114813 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/1132-01" ] }, { "cite": "381 N.E.2d 677", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill. 2d 421", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443843 ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0421-01" ] }, { "cite": "410 N.E.2d 1151", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "88 Ill. App. 3d 793", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3172120 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0793-01" ] }, { "cite": "482 N.E.2d 104", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 629", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599470 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0629-01" ] }, { "cite": "535 N.E.2d 1001", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "180 Ill. App. 3d 26", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2615644 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/180/0026-01" ] } ], "analysis": { "cardinality": 936, "char_count": 22885, "ocr_confidence": 0.753, "pagerank": { "raw": 1.2953734574273133e-07, "percentile": 0.620867278362561 }, "sha256": "7652125a433ee8e9f015e39545a7d72d6f2e2defccea576f7a19c9f5ee62e420", "simhash": "1:a203fd5c2b77b7c5", "word_count": 3712 }, "last_updated": "2023-07-14T18:37:27.698771+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. ARTHUR NEWELL, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STOUDER\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Arthur Newell was convicted of felony murder (Ill. Rev. Stat. 1987, ch. 38, par. 9\u20141(a)(3)) and sentenced to a 60-year, nonextended term of imprisonment. The jury found defendant guilty but mentally ill. (Ill. Rev. Stat. 1987, ch. 38, par. 6\u20142(c).) The defendant appeals.\nThe record indicates that during the evening of January 11, 1988, the defendant, along with Joe Robinson, Duane Page, Brian Page, Benjamin Burnett, and a boy named \u201cPookey\u201d chartered a limousine from the victim, Robert DeYoung. DeYoung chartered and drove a black stretch limousine. At trial, Joe Robinson testified that after cruising the streets of Joliet in the limousine, Duane Page directed DeYoung to a park, where Burnett held a gun to DeYoung\u2019s head. Robinson stated that he began leaving at that point and noticed defendant looting the front part of the limousine. A short time later, Duane Page, Brian Page, Burnett, and the defendant arrived at Robinson\u2019s house. The defendant had a flashlight and a car phone. Robinson testified that he heard Burnett say, \u201cDuane, why did you have to shoot the man twice in the head?\u201d Duane answered, \u201cSo what. I did it.\u201d DeYoung was later found dead in the park with two gunshot wounds to the head. The record shows that after his arrest, Duane Page admitted shooting DeYoung.\nThree psychiatrists testified concerning the defendant\u2019s mental state at the time of the offense. Dr. Barr and Dr. Egle testified for the defense. They testified the defendant was mildly retarded and in their opinion did not understand the proceedings against him. The State\u2019s psychiatrist explained that although the defendant was mildly retarded, he fully understood the consequences of his actions. At the close of all of the evidence, the trial judge instructed the jury on, inter alia, the elements of guilty but mentally ill.\nWe first address whether the defendant proved his insanity by a preponderance of the evidence. Three psychiatrists testified at trial about the defendant\u2019s mental state at the time of the offense. Dr. Egle and Dr. Barr testified for the defense and Dr. Kruglik testified for the State. Defendant asserts the testimony of his two expert witnesses established his insanity and that their testimony was more credible than the State\u2019s expert witness. Dr. Egle observed that the defendant was moderately retarded, and as a result, the defendant did not possess the capability to conform his conduct to the law. Dr. Barr testified that the defendant did not know that a certain act was wrong unless told by someone. However, the State\u2019s expert, Dr. Kruglik, commented that although the defendant was mildly retarded, he was able to appreciate the criminality of his conduct.\nWhen a defendant asserts the affirmative defense of insanity, he has the burden of establishing by a preponderance of the evidence that he was insane. (Ill. Rev. Stat. 1987, ch. 38, pars. 3\u20142(b), 6\u20142(e).) The resolution of this fact question is to be made by the fact finder. (People v. Bouchard (1989), 180 Ill. App. 3d 26, 535 N.E.2d 1001.) A trier of fact\u2019s finding a defendant legally sane at the time of the offense will not be disturbed on appeal unless it is against the manifest weight of the evidence. (People v. Bouchard (1989), 180 Ill. App. 3d 26, 535 N.E.2d 1001.) Upon review of the record, we do not believe the trier of fact\u2019s finding was against the manifest weight of the evidence.\nIn deciding questions of sanity, the trier of fact may accept one expert\u2019s opinion over another. (People v. Schwartz (1985), 135 Ill. App. 3d 629, 482 N.E.2d 104.) Here, the trier of fact was presented with a conflict of the evidence as to whether defendant was sane. The jury resolved this conflict in favor of finding defendant sane at the time of the offense. This decision is amply supported by the testimony of the State\u2019s expert witness.\nWe next address the issue of whether the trial court abused its discretion in finding the defendant fit to stand trial. A criminal defendant has a constitutional right not to be tried or convicted while he or she is incompetent to stand trial. (People v. Turner (1980), 88 Ill. App. 3d 793, 410 N.E.2d 1151.) The defendant is unfit if, because of a mental or physical condition, he or she is unable to understand the nature and purpose of the proceedings or to assist in his or her defense. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) In making this determination, the court should consider whether the defendant has sufficient present ability to consult with defense counsel with a reasonable degree of rational understanding and whether the defendant has both a rational and factual understanding of the proceedings. People v. Turner (1980), 88 Ill. App. 3d 793, 410 N.E.2d 1151.\nThe law presumes that the defendant is fit to stand trial. (People v. Barnard (1981), 95 Ill. App. 3d 1132, 420 N.E.2d 1076.) However, where a bona fide doubt of the defendant\u2019s fitness has been raised, the State has the burden of proving, by a preponderance of the evidence, that the defendant is fit. (People v. Turner (1980), 88 Ill. App. 3d 793, 410 N.E.2d 1151.) Both the initial determination as to whether a bona fide doubt as to the defendant\u2019s fitness exists and a finding of fitness after a hearing are matters for decision by the trial court, reversible only upon a showing of abuse of discretion. People v. Dominique (1980), 86 Ill. App. 3d 794, 408 N.E.2d 280.\nHere, the trial court ordered a fitness hearing. Doctors Egle, Barr, and Kruglik examined the defendant. Dr. Egle testified that based upon his observations, the defendant could not understand the proceedings against him. Dr. Barr testified that the defendant was incapable of understanding cause and effect relationships and the consequences of his actions. Dr. Kruglik, however, explained the defendant understood that Dr. Kruglik was a psychiatrist conducting a fitness examination and that the defendant understood the function of the court and the proceedings. The defendant told Dr. Kruglik that he didn\u2019t know anyone carried a gun on the day of the murder and that he was \u201cshocked\u201d when the shooting occurred. The trial judge determined the defendant was fit to stand trial.\nThe record indicates the trial court recognized that it was required to determine the facts and make the ultimate decision as to the defendant\u2019s fitness. The court determined that based upon the evidence presented, the defendant was fit to stand trial. Under these circumstances, we find no abuse of discretion.\nDefendant next maintains that the trial judge committed reversible error by refusing to ask the jurors about their attitudes toward mental retardation during voir dire. In the instant case, defendant submitted questions pertaining to the prospective jurors\u2019 views of mental retardation. The defendant contends that the questions submitted were designed to discover any potential bias or prejudice regarding that condition. The trial judge did not ask the submitted questions. The trial judge concluded that asking the questions would delve too far into the personal lives of the prospective jurors. The trial judge also noted that if he allowed an open-ended question to be asked he risked possibly prejudicing the other prospective jurors.\nThe State asserts the defendant waived any alleged error. Specifically, the State contends the defendant did not object in his post-trial motion to the questions relating to mental retardation. Rather, the defendant\u2019s objection in his post-trial motion relates to questions submitted and not asked regarding \u201cthe insanity defense.\u201d The State argues that defense counsel\u2019s failure to object to the specific questions regarding mental retardation waived the issue.\nIt is well settled that a defendant must object to alleged errors at trial and include such errors in his post-trial motion or the errors are deemed waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The State\u2019s argument, however, elevates form over substance. In his post-trial motion, the defendant objected to the trial court\u2019s refusal to ask the questions in voir dire tendered by the defendant. The questions the trial court refused to ask the prospective jurors pertained to the prospective jurors\u2019 views of mental retardation. We believe, therefore, the defendant properly preserved the issue for appeal.\nIt is well established that limiting the scope of voir dire questioning may constitute reversible error where its effect is to deny a party a fair opportunity to probe an important area of potential bias or prejudice among prospective jurors. (Gasiorowski v. Homer (1977), 47 Ill. App. 3d 989, 365 N.E.2d 43.) The purpose of the voir dire examination is to permit counsel to ascertain whether the minds of prospective jurors are free from bias and prejudice. (People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.) Voir dire examination is to be initiated by the trial judge and may be supplemented by the parties at the court\u2019s discretion. (People v. Pitts (1982), 104 Ill. App. 3d 451, 432 N.E.2d 1062.) However, the scope and extent of voir dire is left to the sound discretion of the trial judge. People v. Morgan (1986), 112 Ill. 2d 111, 492 N.E.2d 1303.\nDefendant cites People v. Pitts (1982), 104 Ill. App. 3d 451, 432 N.E.2d 1062, for the proposition that a trial judge's failure to make pertinent inquiries during voir dire amounts to reversible error. In Pitts the trial judge refused to ask the jurors whether they had any viewpoint on the defense of insanity in a criminal case. In contrast, the trial judge in the instant case specifically asked the jurors whether they had any feelings for or against the use of the insanity defense in a criminal case. We note that the precise issue the jurors would eventually encounter in the instant case was whether the insanity defense applied, and defense counsel\u2019s submitted question whether any of the prospective jurors\u2019 relatives suffered from mental retardation was tangential to the insanity issue. Therefore, the question asked by the judge at voir dire was appropriately directed at an area of potential bias against the defendant. Accordingly, we believe the trial judge did not abuse his discretion in failing to ask the questions submitted by defense counsel to the prospective jurors during voir dire.\nWe next address the issue of whether it was reversible error for the trial judge to allow testimony concerning the defendant\u2019s prior juvenile history to be introduced. Prior to Dr. Barr\u2019s testimony, defense counsel moved in limine to preclude the prosecution from eliciting the fact that Dr. Barr\u2019s examination of defendant was made in conjunction with an unrelated juvenile case. Defendant contends that the court erred in denying the motion since the probative value of the evidence was far outweighed by its prejudicial effect.\nThe State contends the defendant waived this issue by not properly objecting both at trial and in a written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The State contends that the defendant did not object to the questions on cross-examination and therefore waived the issue on appeal. The defendant contends that there was a pretrial order forbidding the introduction of evidence regarding the defendant\u2019s juvenile past and that the line of questioning violated such order. The defendant also asserts that the issue was properly preserved for appeal. The Enoch rule, however, requires an objection at trial and in a written post-trial motion. The defendant did not object to the question on cross-examination as required by Enoch. We believe, therefore, defendant waived this issue on appeal.\nMoreover, when the defense of insanity is raised, almost every aspect in a defendant\u2019s life is relevant. (People v. Vanda (1982), 111 Ill. App. 3d 551, 444 N.E.2d 609.) It is well established that wide latitude will be allowed in cross-examination of an expert witness. (People v. Buggs (1986), 112 Ill. 2d 284, 493 N.E.2d 332.) Relevancy, however, remains a prerequisite for the admission of evidence. (People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218.) Therefore, when an expert witness expresses an opinion as to a defendant\u2019s sanity, the scope of the inquiry into the basis for that opinion is broad. People v. Buggs (1986), 112 Ill. 2d 284, 493 N.E.2d 332.\nThe record shows that Dr. Barr offered expert testimony as to the defendant\u2019s sanity based upon tests administered to the defendant. On cross-examination, the prosecutor elicited from Dr. Barr that at the time of the test the defendant was facing \u201clegal difficulties.\u201d The prosecutor did not elaborate on the nature of the legal difficulties, and we believe the defendant was not prejudiced by such comment.\nIn addition, if eliciting this statement constitutes error, it is harmless. If evidence of the defendant\u2019s criminal record is later introduced, any error in the prosecutor\u2019s reference to such record is harmless. (People v. Jones (1987), 155 Ill. App. 3d 641, 508 N.E.2d 357.) In the instant case, defense counsel introduced testimony about his criminal history. Indeed, during direct examination, Dr. Barr, a defense witness, explained that part of defendant\u2019s problems related to depression defendant felt at receiving probation while his brother received imprisonment for a previous offense. In the instant case, we believe the trial court\u2019s denial of defendant\u2019s motion in limine did not constitute reversible error.\nThe defendant next contends the prosecutor committed reversible error during the cross-examination of Dr. Barr, in objecting to defense counsel\u2019s closing argument, and in his closing argument. The State initially asserts that defense counsel waived these issues on appeal by failing to properly preserve these issues on appeal. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The record indicates that defense counsel properly preserved the objections to the prosecutor\u2019s closing argument and the statement made by the prosecutor during defense counsel\u2019s closing argument. Defense counsel, however, did not properly preserve the objections to the cross-examination of Dr. Barr.\nAs to the merits of these objections, defendant first argues the prosecutor\u2019s cross-examination of Dr. Barr insinuated that Dr. Barr violated the law by releasing the defendant after an earlier examination of defendant, and that Dr. Barr could have somehow prevented the murder from occurring by having defendant admitted in a hospital. The defendant asserts that the prosecutor improperly attempted to discredit Dr. Barr and that such line of questioning constitutes error. Although we believe the prosecutor\u2019s attempt to discredit Dr. Barr was improper, such conduct does not amount to plain error.\nDefendant next contends that reversible error occurred when the prosecutor asserted that the defense counsel \u201clied\u201d during her closing argument. Comments made in closing argument not based on the evidence are improper. (People v. Holman (1984), 103 Ill. 2d 133, 469 N.E.2d 119.) Improper remarks, however, are harmless when the trial judge acts promptly to remove the remarks from the jury\u2019s consideration. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) In the instant case, the prosecutor objected to a statement made by defense counsel at closing argument and commented that it was an \u201cabsolute total lie.\u201d At that point, the trial judge defined lie and asked the prosecutor to withdraw the remark. The prosecutor promptly withdrew his remark. The trial judge further instructed the jury to disregard anything said by the lawyers that is not in evidence. Accordingly, we conclude the prosecutor\u2019s remark was harmless error.\nNext, the defendant contends that the prosecutor engaged in an inflammatory and prejudicial closing argument. During the prosecutor\u2019s closing argument he stated that Dr. Barr and Dr. Egle had \u201cthe audacity to come in here and condemn mentally retarded people.\u201d The defense counsel objected to the comment, and the trial judge sustained the objection. Defendant contends this statement was so prejudicial that it warrants a new trial.\nWe note that a prosecutor has wide latitude during closing argument. (People v. Richard (1980), 88 Ill. App. 3d 247, 410 N.E.2d 459.) Improper remarks in closing argument will not constitute reversible error unless they result in substantial prejudice to the defendant. (People v. Kinion (1982), 105 Ill. App. 3d 1069, 435 N.E.2d 533.) In the instant case, the record does not reveal the prosecutor\u2019s comments regarding the \u201caudacity\u201d of defendant\u2019s expert witnesses substantially prejudiced the defendant. We conclude, therefore, that such comment does not amount to reversible error.\nDefendant also argues the guilty but mentally ill (GBMI) verdict form (Ill. Rev. Stat. 1987, ch. 38, par. 115\u20144(j)) is unconstitutional. Defendant contends the GBMI verdict \"violates his due process rights under the Illinois and Federal Constitutions. He asserts that \u201c[ajuthorizing a jury to find a defendant guilty but mentally ill deprives an accused of liberty without due process of law because it introduces into the jury\u2019s fact-finding task a consideration that is wholly extraneous to the jury\u2019s function, it diverts the jury\u2019s attention from its primary duty, and it is unconstitutionally vague.\u201d\nThe State contends that the defendant waived this issue on appeal. In order to challenge the constitutionality of a statute, the defendant must preserve the issue at trial and in a written post-trial motion. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124; People v. Kerker (1984), 121 Ill. App. 3d 1072, 460 N.E.2d 771.) In the instant case, the defendant\u2019s failure to properly preserve the issue at trial or in a written post-trial motion constitutes a waiver of such issue on appeal.\nMoreover, defendant\u2019s challenge to the constitutionality of this statute is not novel. In People v. DeWit (1984), 123 Ill. App. 3d 723, 463 N.E.2d 742, the defendant asserted that the GBMI verdict form promotes jury confusion and encourages a finding of GBMI as a compromise. The court disagreed and noted that section 115 \u2014 4(j) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115\u20144(j)) expresses its requirements in simple and clear language and that the definition of mental illness provides meaningful standards for a jury to make required findings. People v. DeWit (1984), 123 Ill. App. 3d 723, 463 N.E.2d 742.\nIn addition, this court has upheld the constitutionality of the GBMI statute when faced with defendant\u2019s procedural due process argument. In People v. Fierer (1987), 151 Ill. App. 3d 649, 503 N.E.2d 594, aff\u2019d on other grounds (1988), 124 Ill. 2d 176, 529 N.E.2d 972, the defendant proposed that the GBMI statute violated his procedural due process rights. This court disagreed and held that the introduction of the GBMI verdict form into a criminal trial does not constitutionally deprive the defendant of procedural due process of law. (151 Ill. App. 3d at 660 (Heiple, J., concurring).) We note the supreme court affirmed this court\u2019s decision without addressing the due process issue.\nIn addition, section 115 \u2014 4(j) provides in part: \u201cWhen the affirmative defense of insanity has been presented during the trial, the court, where warranted by the evidence, shall also provide the jury with a special verdict form of guilty but mentally ill ***.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 115\u2014 4(j).) Defendant submits the language \u201cwhere warranted by the evidence\u201d is unconstitutionally vague.\nInstructing the jury on the elements of an offense is within the trial court\u2019s discretion. (107 Ill. 2d R. 451.) This standard is consistent with the present standard that an instruction should be submitted where there is any evidence which supports a party\u2019s theory of the case. (See People v. Carr (1986), 149 Ill. App. 3d 918, 501 N.E.2d 241.) Likewise, it is the trial judge\u2019s duty to give an instruction or verdict form when enough evidence has been presented to \u201csupport\u201d or \u201cwarrant\u201d the giving of such. Accordingly, we find the GBMI verdiet form is not unconstitutionally vague.\nDefendant finally contends that his nonextended, 60-year sentence was excessive. Pursuant to Supreme Court Rule 615(b)(4), we have the discretionary power to reduce an excessive sentence. (107 Ill. 2d R. 615(b)(4).) However, a trial court\u2019s sentencing decision will not be disturbed absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The Illinois Constitution requires that \u201c[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.\u201d (Ill. Const. 1970, art. I, \u00a711.) Here, the defendant argues the trial court abused its discretion in imposing the nonextended term of 60 years\u2019 imprisonment.\nWith respect to the nature and circumstances of the particular offense, we note that in the instant case, defendant was amongst a group of people involved in a shooting, another member of the group brought the gun used in the shooting, and defendant has repeatedly stated that he did not know a member of the group carried a gun the day of the murder. Taken in its proper context, we believe the defendant\u2019s actions do not compare to a calculated, premeditated murderer.\nWith respect to the issue of rehabilitation, we have reduced a defendant\u2019s sentence on the basis of rehabilitative potential where a defendant came from a poor social environment and had a limited education (see People v. Kosanovich (1979), 69 Ill. App. 3d 748, 387 N.E.2d 1061), where a defendant has expressed a desire to continue his education (see People v. Nelson (1982), 106 Ill. App. 3d 838, 436 N.E.2d 655), and where the defendant was 16 years old (see People v. Rickard (1981), 99 Ill. App. 3d 914, 425 N.E.2d 1317). In the instant case, defendant was found to be a mildly retarded 17-year-old at the time of the incident by the State\u2019s psychiatrist.\nIn light of the circumstances presented, the defendant\u2019s age and his mild mental retardation, we believe that defendant\u2019s rehabilitative potential was not given adequate consideration. Therefore, we affirm the defendant\u2019s murder conviction but reduce the sentence from 60 years to 30 years.\nJudgment affirmed as modified.\nSCOTT and WOMBACHER, JJ, concur.", "type": "majority", "author": "JUSTICE STOUDER" } ], "attorneys": [ "Catherine Fitzsimmons, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Edward F. Masters, State\u2019s Attorney, of Joliet (Rita Kennedy Mertel, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR NEWELL, Defendant-Appellant.\nThird District\nNo. 3\u201488\u20140649\nOpinion filed January 26, 1990.\nRehearing denied May 14, 1990.\nCatherine Fitzsimmons, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nEdward F. Masters, State\u2019s Attorney, of Joliet (Rita Kennedy Mertel, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0373-01", "first_page_order": 395, "last_page_order": 405 }