{ "id": 5292877, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARL MOORE, Defendant-Appellant", "name_abbreviation": "People v. Moore", "decision_date": "1991-05-21", "docket_number": "No. 1\u201487\u20140464", "first_page": "836", "last_page": "848", "citations": [ { "type": "official", "cite": "215 Ill. App. 3d 836" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "51 Ill. App. 3d 549", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3386210 ], "pin_cites": [ { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0549-01" ] }, { "cite": "175 Ill. App. 3d 272", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3555201 ], "year": 1977, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0272-01" ] }, { "cite": "74 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2993996 ], "pin_cites": [ { "page": "7" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0001-01" ] }, { "cite": "92 Ill. 2d 101", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3098172 ], "pin_cites": [ { "page": "106-07" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0101-01" ] }, { "cite": "106 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138824 ], "pin_cites": [ { "page": "334-35" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0327-01" ] }, { "cite": "79 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069192 ], "pin_cites": [ { "page": "576-77" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0564-01" ] }, { "cite": "141 Ill. 2d 394", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238368 ], "weight": 2, "pin_cites": [ { "page": "401-02" }, { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0394-01" ] }, { "cite": "117 Ill. 2d 317", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545304 ], "weight": 2, "pin_cites": [ { "page": "347-48" }, { "page": "347-48" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/117/0317-01" ] }, { "cite": "114 Ill. 2d 170", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542174 ], "pin_cites": [ { "page": "201" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0170-01" ] }, { "cite": "159 Ill. App. 3d 494", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3611521 ], "weight": 2, "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/0494-01" ] }, { "cite": "91 Ill. 2d 346", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092628 ], "weight": 2, "pin_cites": [ { "page": "350-51" }, { "page": "349-50" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0346-01" ] }, { "cite": "123 Ill. 2d 322", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550912 ], "year": 1982, "pin_cites": [ { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0322-01" ] }, { "cite": "20 Ill. 2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2738166 ], "pin_cites": [ { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0437-01" ] }, { "cite": "77 Ill. App. 3d 169", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3291203 ], "year": 1960, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0169-01" ] }, { "cite": "101 Ill. App. 3d 857", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3080395 ], "weight": 2, "pin_cites": [ { "page": "869" }, { "page": "869" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0857-01" ] }, { "cite": "89 Ill. App. 3d 592", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5540902 ], "weight": 2, "pin_cites": [ { "page": "601-02" }, { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0592-01" ] }, { "cite": "126 Ill. 9", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5404663 ], "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/ill/126/0009-01" ] }, { "cite": "173 Ill. App. 3d 597", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3477708 ], "year": 1888, "pin_cites": [ { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/173/0597-01" ] }, { "cite": "380 U.S. 609", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524757 ], "weight": 3, "pin_cites": [ { "page": "615" }, { "page": "110" }, { "page": "1233" } ], "opinion_index": 0, "case_paths": [ "/us/380/0609-01" ] }, { "cite": "106 Ill. 2d 373", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3139376 ], "year": 1965, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0373-01" ] } ], "analysis": { "cardinality": 1296, "char_count": 30645, "ocr_confidence": 0.783, "pagerank": { "raw": 8.057966522576254e-08, "percentile": 0.4663115494378244 }, "sha256": "7676fd32afdbe6e1e0ab180ca8f95eb43caf25885b97f3151f22682ff2acbea2", "simhash": "1:ae34a09bf0231114", "word_count": 5215 }, "last_updated": "2023-07-14T22:48:50.210219+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. EARL MOORE, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE SCARIANO\ndelivered the opinion of the court:\nEarl Moore appeals from his jury convictions for attempt (murder) and armed robbery, claiming that his trial was unfair in that: during closing arguments, the State improperly remarked on his failure to testify and argued facts not in evidence; testimony about his criminal background and that the State\u2019s Attorney approved the prosecution against him was wrongfully admitted; the trial judge impermissibly communicated with the jury during its deliberations; and a juror was inappropriately separated from the rest of the jury panel during deliberations. He seeks reversal of his convictions and a remand of his cause for a new trial.\nMoore was tried for the July 22, 1985, shooting and robbery of Peter DiVizio. DiVizio testified that he was a messenger for an armored car company at the time of the incident, and that his route included a stop at a grocery store on North Sheridan Road, in Chicago. He and his partner parked in front of the store at around noon.\nDiVizio carried a bag of money into the store and dropped it off at the \u201ccourtesy counter.\u201d He then received three bags containing cash, checks and food stamps, with a combined worth of about $22,000. He placed the bags containing the cash and checks into a larger \u201ccole\u201d bag, and carried it and the bag containing the food stamps out of the store. As he approached his truck, he heard someone yell, \u201cHey.\u201d He looked in the direction from which the voice was coming and saw Moore, about 40 feet away by an exit on the east side of the building, clutching something in his hand. DiVizio then heard a \u201cbang,\u201d felt a sharp pain in his abdomen and fell to the ground, dropping the bags as he collapsed. After hearing another shot and someone running up and grabbing the bags, DiVizio crawled under the truck. He did not view the person who grabbed the bags.\nApproximately two or three weeks after the shooting, the police showed DiVizio five photographs, from which he identified Moore\u2019s photo as that of someone who resembled his assailant; but he was not positive about his identification, saying that he would \u201cha[ve] to see him in person.\u201d On August 11, 1985, DiVizio identified Moore in a police lineup, saying that he \u201cthought it was him,\u201d his doubts stemming from Moore\u2019s hair being shorter than he had remembered. DiVizio also testified that he couldn\u2019t see the gunman\u2019s eyes because the assailant was wearing sunglasses, and that the gunman was wearing a white hat, similar to a \u201cnavy hat,\u201d with the flaps pulled down and which covered part of the man\u2019s head. At trial, DiVizio also testified that he was \u201cpositive\u201d about his identification, asserting that he had \u201cbeen having flashbacks, dreams and I could just see his face that I remember.\u201d\nKimberly McHugh, a stock clerk for the grocery store, got off work at noon on the day of the incident. After shopping at the store for about 10 minutes, she left with her groceries through the exit on the east side of the building, where she noticed a man about two feet away, wearing a black coat, black pants and black shoes; she took note of the man because he seemed \u201coverly dressed\u201d for a \u201chot July day.\u201d McHugh testified that the man was black, that he was \u201cfairly young,\u201d wore mirrored, dark sunglasses, was of medium build, between 145 and 160 pounds, wore a hat, and was clean shaven.\nThe man looked back and forth between the parking lot and the inside of the store. McHugh stated that from his vantage point, he had a direct view of the courtesy booth where \u201call the money\u201d is kept. After observing the stranger for about a minute, she walked to her car, drove it over to where her cart was and noticed that the man was still there. When he saw her return, the man walked into the store and then back out of the store through the same exit. After the incident, the police showed McHugh several photographs, of which she identified one as that of the man she saw outside the grocery store; that picture, however, was not of Moore. On August 11, 1985, she identified Moore in a police lineup. McHugh identified Moore in court as the man she saw, acknowledging that she did not witness the robbery.\nWalter Lewis was working as a bus driver at the time of the robbery. He was speaking with his supervisor on Sheridan Road, just north of and on the same side of the street as the grocery store. He heard two gunshots come from the direction of the store, and while his supervisor walked across Sheridan, Lewis maintained his position and looked in the direction of the store. He saw a man, whom he described as a black male, approximately 5 feet 10 inches to 6 feet tall, wearing a white and black shirt, a white cap, sunglasses and white \u201cutility gloves,\u201d run toward him and across Sheridan, carrying a money sack of the kind \u201cused at banks\u201d in his left hand, and a \u201cnickel plated automatic weapon\u201d in his right hand. The man ran into an alley leading to a parking lot on the opposite side of Sheridan; about a minute to a minute-and-a-half later, Lewis saw the man as a passenger in a white station wagon driven slowly by a black male, shorter and stockier, who was not wearing a cap. The passenger was still wearing his hat and sunglasses, but Lewis could see only his profile, rather than his entire face. Lewis identified Moore in a police lineup on August 12, 1985, and then at trial, as the man he saw leaving the store with the gun and money sack.\nLovelace Coston testified that he owned an auto body shop at the time of the incident and that he knew Moore. During the middle of July 1985, Moore came into his shop and asked him to work on a white station wagon. When confronted with photographs of a white station wagon identified earlier by Lewis as being the one in which he saw Moore, Coston testified that it was \u201csimilar.\u201d\nJohn Redmond, an evidence technician for the Chicago police department, testified that he found two .30 caliber cartridge cases near the scene of the crime on the day of the shooting.\nConrad Pagan testified that he was on duty as a Chicago police officer when the shooting took place. After arriving at the crime scene in response to a call about an armed robbery and about a white vehicle heading north from the scene, Pagan discovered a white station wagon in an alley; and from the same photographs as those from which Lewis identified the car as the one he saw being used by Moore, Pagan identified it as the one he found. The vehicle was listed as a stolen car. Robert Dieringer, a crime lab technician for the Chicago police department, examined the car along with his partner and found a .30 caliber cartridge case on the passenger side of the auto and a white glove on the front seat. They also recovered a fingerprint impression from the exterior portion of the passenger-side window. Further, according to John DuShane, an employee of the identification section of the Chicago police department, another fingerprint was found on the driver\u2019s side seat belt; neither, however, was Moore\u2019s.\nPhilip Mannion, a Chicago police officer, testified that on August 11, 1985, he and his partner were given a photo of Moore and a description of a 1978 Oldsmobile he was alleged to be driving. After locating the vehicle, other officers arrived. When Moore arrived and drove off in the car. Mannion\u2019s car and three other unmarked vehicles followed. When Moore stopped at a traffic light, the other vehicles stopped behind and next to him. When the light changed, Moore drove off \u201cat a high rate of speed.\u201d Employing flashing lights and sirens, the police cars gave chase; the chase ended when Moore lost control of his car and struck another car. He was then arrested.\nLawrence Thezan, a Chicago police officer, testified that he investigated the robbery and shooting. He spoke with Deborah Tucker during the first week of August 1985, after which he began to look for Moore. After Moore\u2019s arrest, Thezan informed him that he was being charged with armed robbery. Moore later asked to speak with him in the \u201cinterview room,\u201d and told him \u201cthat if he beat this case he would tell me who the second person was that was with him during the robbery.\u201d At the time of his confession, Moore was handcuffed to a wall, and had been so handcuffed for the previous 36 hours, except for the periods during which he was questioned. Moore had been interrogated several times while in such custody, and was also required to participate in some lineups. Thezan further testified that he did not take a written statement from Moore and that he alone heard Moore\u2019s confession.\nJanice Vaughns testified that she was a good friend of Debra Tucker and through her met Moore in 1985. On the Sunday after she met Moore, she was speaking with him when he began \u201ctalking about, just things in general that people have did or was trying to do or would like to do. And he brought the subject up about hitting an armed car.\u201d The next day, Vaughns heard on the radio about the robbery at the grocery store. Two or three days later, she was at Tucker\u2019s apartment when Moore arrived carrying a brown paper bag. He opened the bag onto Tucker\u2019s kitchen table and poured \u201cmoney, checks and food stamps\u201d from the bag. A man, whom she tentatively identified as \u201cZeke,\u201d then came to the apartment and spoke with Moore about the \u201carmored car robbery.\u201d While they spoke, there was a pistol on the table and another on the bed. Vaughns stated that Moore referred to one of the pistols as the one \u201cthat he had shot the armored car driver with.\u201d She also heard that \u201cthe white station wagon was supposed to have been involved,\u201d and that \u201csome guy was going to get rid of the station wagon and clean it up.\u201d She described one pistol as short, the other as about a foot long, with a brown handle.\nOn cross-examination, Vaughns testified that she was questioned by the police several weeks after the robbery, but that she said nothing about Moore\u2019s statement about robbing an armored car, or about the conversation between him and \u201cZeke.\u201d She did, however, tell the police about Moore\u2019s dumping of cash and food stamps on Tucker\u2019s table, about seeing the pistols, and about the plan to clean fingerprints off the white station wagon. Further, she stated that Tucker and Moore had been sexually involved.\nThezan testified that he and his partner interviewed Vaughns around August 12, 1985, and that she told the officers that she heard Moore plan the robbery; she said nothing, however, about his statement about \u201chitting an armored truck.\u201d Vaughns also told the officers that the day after first meeting Moore, they ate Chinese food together. She saw that he had a gun, asked him what he was doing, and received the reply, \u201cNothing.\u201d Vaughns also told him that Moore had admitted shooting an armed guard, had dumped cash out on Debra Tucker\u2019s table and had admitted involvement in the robbery. She said nothing to him about the station wagon or about cleaning fingerprints from it.\nNorman Anderson was on his rounds as a meter reader for Commonwealth Edison on the day of the crime. After making some phone calls at the grocery store, he proceeded to cross the street, and heard what he thought was the backfire of a car. He then saw a man, whose face he could not see, and who was carrying a handgun, run south on Sheridan, crossing the street as he ran. Anderson then saw another man approximately 20 feet away, who was getting up from the ground. The second man was wearing mirrored glasses, had a green sweatshirt on and was wearing a hat similar to a sailor\u2019s hat. The man had an incompletely grown-in beard, and a mustache. Anderson saw the man run north on Sheridan Road on the side of the street opposite the grocery store. Anderson was unable to identify Moore as the person he saw, testifying that he saw the man\u2019s face for only a second, but that Moore \u201ccould have been\u201d the man he saw.\nJoseph Christiano testified that he was a private investigator and had been asked by Moore\u2019s defense counsel to measure the distance from the location from which Lewis viewed the perpetrator to the parking lot across Sheridan from the grocery store. By pacing the distance off, he estimated it as being about 160 feet. From Lewis\u2019 location to the spot where the shooting took place, he similarly estimated the distance to be about 305 feet.\nPaul Carroll testified that after the robbery, he showed McHugh several photographs. McHugh picked out a picture of a person whom she said \u201cresembled\u201d the perpetrator, except for differences in his hair, in the fullness of his face, and except that the perpetrator did not have a prominent mustache like the man in the photograph.\nMoore was convicted by a jury on December 10, 1986, of armed robbery and attempt (murder). He was sentenced to an extended term of 60 years in the custody of the Illinois Department of Corrections.\nMoore first contends that the circuit court abused its discretion when it overruled his objections to the following prosecutorial statement during the State\u2019s rebuttal argument:\n\u201cWhere are the proceeds [of the crime]? Where are the guns?\nWell, I\u2019ll tell you, I know one guy who knows where they are, and he is sitting over here in this chair.\u201d\nMoore argues that the statement brought to the jury\u2019s attention his failure to testify, violating his right not to be compelled to testify against himself as enunciated in the fifth amendment to the United States Constitution (U.S. Const., amend. V), in section 10 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a710) and in division 12, section 6, of \u201cAn Act to revise the law in relation to criminal jurisprudence\u201d (Ill. Rev. Stat. 1985, ch. 38, par. 155 \u2014 1). The State replies that the comments were not intended to draw the jury\u2019s attention to Moore\u2019s failure to testify; rather, they were a justifiable response to Moore\u2019s argument, during closing, that:\n\u201cI told you in opening statement that the police never recovered any of the money and they never recovered any of the proceeds, the stamps. And they never recovered any of the guns that were used in the robbery.\nAfter they arrested Earl Moore, did they go to his apartment? Did they find 11 Thousand Dollars in cash? Did they find food stamps, did they find guns? No.\u201d\nMoore\u2019s counsel continued by arguing that the robbery was committed by one \u201cwho wanted the money and wanted it then\u201d and that if Moore had stolen the money he would have been spending it and flashing it around.\n\u201cThe prosecution cannot directly [citation], or indirectly [citation], comment on the defendant\u2019s failure to take the stand in his own defense.\u201d (People v. Lyles (1985), 106 Ill. 2d 373, 390. See also Griffin v. California (1965), 380 U.S. 609, 615, 14 L. Ed. 2d 106, 110, 85 S. Ct. 1229, 1233.) \u201cThe test *** of whether the defendant\u2019s fifth amendment guarantees were abridged is whether \u2018the reference [was] intended or calculated to direct the attention of the jury to the defendant\u2019s neglect to avail himself of the legal right to testify.\u2019 \u201d People v. Quinn (1988), 173 Ill. App. 3d 597, 602, quoting Watt v. People (1888), 126 Ill. 9, 32.\nFor example, in People v. Thomas (1980), 89 Ill. App. 3d 592, 601-02, a prosecutor objected to defense questions which implied that the witness on the stand was the only person who could testify as to what had occurred during a robbery. In objecting, the prosecutor remarked that there was \u201canother person in this courtroom who can tell us what happened.\u201d Even though the remark could have referred to a victim of the crime who had been present for most of the proceedings, the court found error.\nEven more oblique references to a defendant\u2019s failure to testify have been found to be improper. In People v. Weinger (1981), 101 Ill. App. 3d 857, 869, the court held that the prosecutor\u2019s comment that \u201c \u2018the evidence that we *** have presented to you is uncontradicted and undenied\u2019 *** was erroneous and improper.\u201d \u201c \u2018Where the State\u2019s case is not in fact unchallenged, *** [t]he only reasonable point to the comment is the defendant\u2019s silence.\u2019 \u201d Weinger, 101 Ill. App. 3d at 869, quoting People v. Escobar (1979), 77 Ill. App. 3d 169, 178. See also People v. Morgan (1960), 20 Ill. 2d 437, 441 (error resulted from repeated reference to witness as the \u201conly witness for the defense\u201d).\nWe see no significant difference between the comment in Thomas that \u201canother person in this courtroom *** can tell us what happened\u201d (Thomas, 89 Ill. App. 3d at 601), and the comment in the instant case that \u201cI know one guy who knows where they [the criminal proceeds and the guns] are, and he is sitting over here in this chair.\u201d In both instances, the prosecutor alleged that the defendant had important information, and such allegation called to the jury\u2019s attention the defendant\u2019s failure to testify about whether he actually had that knowledge.\nNevertheless, \u201ca defendant may not claim prejudice from comments by the prosecutor when those comments were invited by defendant\u2019s argument.\u201d (People v. Richardson (1988), 123 Ill. 2d 322, 356. See also People v. Dixon (1982), 91 Ill. 2d 346, 350-51.) In Dixon, the defendant was accused of participating in violence at a jail. Defense counsel asked the jury to keep in mind what was going on in the defendant\u2019s mind regarding racial tensions at the institution, and in rebuttal, the prosecutor asked the jury whether it had heard any testimony about what was transpiring within the defendant\u2019s mind; no error was found. 91 Ill. 2d at 349-50.\nIn People v. Bunch (1987), 159 Ill. App. 3d 494, the defendants argued in closing, without any support, that the State\u2019s witnesses were lying and had a reason to lie; the prosecutor responded by asking the jury, \u201chas either one of those two gentlemen stepped up here and given you that reason[?].\u201d While the court held that any prejudice was cured by the court\u2019s sustaining of defense counsel\u2019s objection and by its instruction to the jury to ignore the statement, the court also held that the response was nevertheless justifiable and not improper. 159 Ill. App. 3d at 515.\nThe State also puts forth People v. Johnson (1986), 114 Ill. 2d 170, 201, to support its argument that Moore invited the comment. In Johnson, the prosecutor implied that the defendant had, for several months, hidden evidence of his wrongdoing. Because there was evidence that he had in fact hidden evidence, and because the remarks were considered invited by defense counsel\u2019s suggestion that it was \u201cincredible\u201d that no physical evidence linking defendant to the crimes was discovered until eight months after they occurred, no error was found. In the instant case, there was evidence, most notably Janice Vaughns\u2019 testimony that following the robbery Moore dumped the proceeds onto Debra Tucker\u2019s kitchen table, and that he referred to a pistol in his possession as the one he had used in the crime, from which the jury could easily have inferred that Moore knew where the spoils of the crime and the guns were. Further, as in Johnson, Moore pointed out a weakness in the State\u2019s case by discussing the lack of physical evidence linking him to the crime; the State responded with an explanation of the whereabouts of such evidence. Moreover, in People v. Shum (1987), 117 Ill. 2d 317, 347-48, in which the defendant had argued that the State\u2019s failure to produce the gun used in the crime showed his innocence, the prosecutor argued that the defendant had \u201cditched\u201d the gun. The court found no impropriety:\n\u201cWhile there was no eyewitness testimony that this defendant concealed the gun in question, it is a legitimate inference based upon that fact that a gun was used in the assault and was not recovered.\u201d 117 Ill. 2d at 347-48.\nAccordingly, we hold that despite the similarity of the prosecutorial comments in the instant case to comments which would ordinarily be held to improperly draw attention to the defendant\u2019s failure to testify, the comments were supported by the evidence and were a proper response to Moore\u2019s closing argument. In any event, even if we were to assume, arguendo, that the trial judge abused his discretion in overruling defendant\u2019s objection to the prosecutor\u2019s statement in his rebuttal argument to the jury, the evidence against the defendant in this case was of such massive proportions as to render the error harmless.\nMoore raises other alleged errors, to which the State replies that because he failed to preserve the issues by both objecting at trial and raising them in his post-trial motion, his right to their review has been waived.\nDuring Moore\u2019s cross-examination of Detective Thezan concerning the detective\u2019s testimony that Moore had admitted his involvement in the armed robbery, Thezan testified that Moore\u2019s statement was never reduced to writing because, \u201cHe wouldn\u2019t have signed a statement.\u201d During the State\u2019s redirect examination, the prosecutor asked, \u201cHow do you know he wouldn\u2019t sign the statement?\u201d Thezan replied, \u201cDuring the course of our conversations that we were having, Mr. Moore was telling me about his background. He had stated to me that once before he told the police officer something \u2014. *** And he said that it wouldn\u2019t come out in court anyway.\u201d Moore avers that the statement was inadmissible because it served as evidence of offenses he committed other than that for which he was on trial.\nNext, Moore points out that during Thezan\u2019s testimony, the State asked when Moore was charged in the case. Thezan replied that Moore was not charged until after the police had \u201ccontacted the State\u2019s Attorney\u2019s Office, felony review unit to review the case.\u201d Thezan then stated, \u201cHe was charged after the state\u2019s attorney reviewed the case.\u201d This testimony, according to Moore, prejudiced the jury by placing an official imprimatur on the filing of charges, leading the jury to believe that someone in authority had reviewed the case and had found it to bear substantial weight.\nNext, Moore claims that during closing argument, the State argued that Moore bragged to his girlfriend about robbing the armored car. According to the State, Moore did not anticipate that, \u201csometime in August Debra Tucker would call Officer Fitzsimmons and Thezan of the Chicago Police Department and say, T know who did the Dominick\u2019s [grocery store].\u2019 \u201d Moore alleges that there was no evidence to support such an allegation, and that by commenting on the substance of a conversation between the nonwitness Tucker and the police, the State was attempting to introduce evidence that was otherwise inadmissible hearsay.\nFinally, Moore claims that during closing arguments the State improperly implied that Moore had threatened possible witnesses against him. The prosecutor stated:\n\u201cEarl Moore, at the time he was bragging, was impressed with himself. Did not expect anyone to ever talk about it or he was relying upon these people\u2019s friendship, the fact they would be impressed with his great accomplishment, or he knew he could frighten these people to never talk.\u201d\nMoore argues that the statement was improper because there was no evidence that he could frighten possible witnesses from talking.\nMoore failed to both object to the aforementioned statements and to preserve them as issues in his post-trial motion; accordingly, because of the strength of the State\u2019s case, the alleged errors could not reasonably have affected the verdict, and he has waived their review. (People v. Mullen (1990), 141 Ill. 2d 394, 401-02.) Moore points out that in Mullen, the court examined a claim that the State had argued to the jury, without supporting evidence, that one of the State\u2019s witnesses had initially been reluctant to testify because he feared getting shot in the back in retribution. The court held that the comment, made despite specific instructions from the trial judge to refrain from commenting on the witness\u2019 initial reluctance, was of \u201c \u2018such magnitude that the commission thereof denie[d] the accused a fair and impartial trial.\u2019 \u201d 141 Ill. 2d at 404, quoting People v. Carlson (1980), 79 Ill. 2d 564, 576-77.\nWe hold that the alleged errors neither presumptively denied Moore a fair trial, nor could they reasonably have affected the verdict; accordingly, there is no basis for excepting the aforementioned issues from the impact of the waiver rule. Three eyewitnesses identified Moore as being at the scene of the crime, while other testimony placed him in a getaway car. There was also testimony that he had possession of a gun and of proceeds connected with the crime, and that he confessed to the crime. While much of the evidence was vigorously attacked, most notably the identification of Moore at the crime scene by DiVizio, McHugh and Anderson, as to which there was conflicting testimony about whether the perpetrator had a beard, there was no contradiction about Lewis\u2019 identification of Moore, nor about testimony that Moore confessed to the crime and had a firearm and proceeds from the incident. Finally, Moore\u2019s attempt to discredit Lewis\u2019 testimony by measuring large distances between the crime scene and Lewis\u2019 location were irrelevant, since they did not measure the distance between Lewis\u2019 location and some of the locations where he claimed to have seen Moore.\nFurther, unlike in Mullen, where the jury was aware of a witness\u2019 reluctance to testify, and could therefore have been prejudiced by the prosecutor\u2019s violation of a specific order by proceeding to explain that reluctance, the comment that Moore thought he could frighten witnesses did not relate to anything the jury had perceived; no witnesses appeared to have been so intimidated, and the effect on Moore\u2019s trial was harmless. The other alleged errors: the implication that Moore had previously given a statement to an officer and the comment that Moore was not charged until after the State\u2019s Attorney reviewed the case, were both sufficiently oblique and ambiguous as to negate any prejudicial effect on the jury. We hold, therefore, that the alleged errors did not deprive Moore of a fair trial.\nMoore\u2019s remaining claims of error concern incidents which allegedly occurred during jury deliberations. First, Moore alleges that from about 6:05 to 6:20 in the evening of the final day of jury deliberations, a juror was absent from the jury room. Within 15 minutes after that juror returned, the panel indicated that they had reached a verdict. This separation, argues Moore, violates sections 115 \u2014 4(1) and (m) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, pars. 115 \u2014 4(1), (m)):\n\u201c(1) When the jury retires to consider its verdict an officer of the court shall be appointed to keep them together and to prevent conversation between the jurors and others ***.\n(m) [A]ny juror *** shall be permitted to separate from other such jurors [of his panel] during every period of adjournment to a later day, until final submission of the cause to the jury for determination ***.\u201d\nMoore then claims that at the jury\u2019s request, the trial judge improperly provided the panel with a dictionary which had not been admitted into evidence. He allegedly so acted without the knowledge or presence of Moore or his counsel, thus violating Moore\u2019s right to be present at all stages of his trial.\nFinally, Moore contends that during the jury\u2019s deliberations, the trial judge improperly inquired, in the absence of defense counsel, how much longer they needed to deliberate, and that such inquiry allegedly hastened the verdict.\nIn support of these claims Moore notes the following exchange, which occurred before the jury returned its verdict:\n\u201cDEFENSE COUNSEL: Judge, for the record, we have three motions. First motion is, by my watch, from about 6:05 to 6:20, one of the jurors whose name I forget was, I can look it up if necessary, was out of the jury room, and that was about, little less than 15 minutes after that the buzzer rang three times [indicating that a verdict had been reached], I think at that critical stage it was improper for that juror to be let out of the room.\nTHE COURT: All right. That motion is denied.\nDEFENSE COUNSEL: The second motion is, *** the sending back of the question as to how much longer the jury has to go we think was unduly coercive.\nTHE COURT: All right. That motion is denied.\nDEFENSE COUNSEL: Third motion is, giving the jury the dictionary which they requested.\nTHE COURT: That motion is denied.\u201d\nMoore avers that his post-trial motion contained detailed descriptions of these allegations and that during the hearing on the motion, his counsel asked whether \u201cthe court has any questions, or wish any clarification on any of the points made in the motion.\u201d The court replied, \u201cNo, your motions are very clear,\u201d and denied the motion without farther comment. Moore claims that it is \u201cinconceivable\u201d that the trial judge would not have challenged his allegations if they were false. He points to no other evidence in the record that the alleged improprieties occurred.\n\u201cResponsibility for preserving and presenting a sufficient record of the asserted error necessarily falls on the party who makes the assertion of error.\u201d (People v. Smith (1985), 106 Ill. 2d 327, 334-35.) \u201cA court of review must determine the issues before it solely on the basis of the record made in the trial court.\u201d (People v. Reimolds (1982), 92 Ill. 2d 101, 106-07.) \u201cWhere the record is insufficient or does not demonstrate the alleged error, the reviewing court must refrain from supposition and decide accordingly.\u201d (People v. Edwards (1978), 74 Ill. 2d 1, 7.) The trial judge\u2019s failure to deny Moore\u2019s allegations no more constitutes proof of their truth than Moore\u2019s failure to deny the charges against him constituted proof thereof. (See discussion above regarding the allegedly improper prosecutorial comments.) Although affidavits or juror testimony could have been proffered to support the allegations (see People v. Schuld (1988), 175 Ill. App. 3d 272, 280; People v. Boyce (1977), 51 Ill. App. 3d 549, 562), we have been offered nothing in the record to assist us in deciding whether the alleged incidents occurred; hence, we decline to review the issues.\nFor the foregoing reasons, Moore\u2019s conviction is affirmed.\nAffirmed.\nHARTMAN and DiVITO, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE SCARIANO" } ], "attorneys": [ "Michael J. Pelletier and Karen Daniel, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARL MOORE, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201487\u20140464\nOpinion filed May 21, 1991.\nModified on denial of rehearing July 30, 1991.\nMichael J. Pelletier and Karen Daniel, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0836-01", "first_page_order": 858, "last_page_order": 870 }