{ "id": 5274335, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK GRACA, Defendant-Appellant", "name_abbreviation": "People v. Graca", "decision_date": "1991-09-30", "docket_number": "No. 1\u201487\u20142999", "first_page": "214", "last_page": "230", "citations": [ { "type": "official", "cite": "220 Ill. App. 3d 214" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "363 N.E.2d 838", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "546 N.E.2d 574", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. 2d 417", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5570293 ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0417-01" ] }, { "cite": "447 N.E.2d 174", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "94 Ill. 2d 303", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106373 ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0303-01" ] }, { "cite": "569 N.E.2d 26", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "210 Ill. 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App. 3d", "case_ids": [ 2668728 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0423-01" ] }, { "cite": "505 N.E.2d 1191", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "153 Ill. App. 3d 92", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3609367 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0092-01" ] }, { "cite": "549 N.E.2d 681", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 819", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2505775 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0819-01" ] }, { "cite": "469 N.E.2d 275", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 642", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3562925 ], "weight": 2, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0642-01" ] }, { "cite": "538 N.E.2d 481", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "128 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229038 ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0066-01" ] }, { "cite": "551 N.E.2d 288", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "295" }, { "page": "295" } ], "opinion_index": 0 }, { "cite": "194 Ill. App. 3d 634", "category": "reporters:state", "reporter": "Ill. 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App. 3d 328", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3609108 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0328-01" ] }, { "cite": "543 N.E.2d 555", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "187 Ill. App. 3d 541", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2667157 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0541-01" ] }, { "cite": "559 N.E.2d 254", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 91", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2593459 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0091-01" ] }, { "cite": "473 N.E.2d 103", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "129 Ill. App. 3d 745", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3489221 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/0745-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "527 N.E.2d 325", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "173 Ill. App. 3d 344", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3479336 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/173/0344-01" ] }, { "cite": "543 N.E.2d 572", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "187 Ill. App. 3d 531", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2667332 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0531-01" ] }, { "cite": "366 N.E.2d 623", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1989, "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 324", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3383719 ], "weight": 3, "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0324-01" ] }, { "cite": "483 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "108 Ill. 2d 54", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130811 ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0054-01" ] }, { "cite": "362 N.E.2d 9", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 406", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3366877 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0406-01" ] }, { "cite": "217 N.E.2d 371", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "69 Ill. App. 2d 429", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2592453 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-2d/69/0429-01" ] }, { "cite": "498 N.E.2d 547", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 215", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3643819 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0215-01" ] }, { "cite": "410 N.E.2d 866", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "81 Ill. 2d 537", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5480259 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/81/0537-01" ] }, { "cite": "432 N.E.2d 1285", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. App. 3d 598", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5475843 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/104/0598-01" ] } ], "analysis": { "cardinality": 1192, "char_count": 35009, "ocr_confidence": 0.8, "pagerank": { "raw": 1.728042365711364e-07, "percentile": 0.7049524895080755 }, "sha256": "9166d813a7ce8b0ec0e5ed177984936a8587413a31f32c045890d98e926b8b68", "simhash": "1:3f37b07e35cb15c1", "word_count": 5898 }, "last_updated": "2023-07-14T21:04:36.621238+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. FRANK GRACA, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McNULTY\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Frank Graca was found guilty of attempted murder, armed violence, aggravated battery by use of a deadly weapon and battery based on great bodily harm. He was sentenced to a term of six years to be served concurrently for attempted murder and armed violence.\nThe record sets forth the following facts. On August 23, 1986, Frank Graca was at Mr. Charley\u2019s Tavern on 63rd Street. Roy Wokosin and his roommate, Ray Drish, arrived at Mr. Charley\u2019s at approximately 2 a.m. Roy Wokosin had been barred from Mr. Charley\u2019s because of a prior verbal altercation with the manager. Drish, an employee of the tavern, went in to talk to the manager in an effort to get Wokosin readmitted to the bar.\nWokosin testified that as he waited outside, he heard Graca make a comment to Drish about Wokosin. Wokosin testified that defendant said \u201cand there\u2019s that faggot.\u201d Wokosin responded, \u201cYou\u2019re not talking to me, calling me a faggot.\u201d A verbal argument then ensued, and both men exchanged insults characterized by vulgar language. When Drish emerged from the bar approximately 25 minutes later, Wokosin and defendant were still in the midst of their argument. Sometime thereafter, Wokosin walked on to the street and challenged Graca to a fist fight. Defendant did not enter the street, but the argument continued. There is conflicting testimony as to what happened from this point on. According to Wokosin, defendant then commented that he was going to get his gun. Defendant, however, testified that he went inside the bar at the owner\u2019s request to wait until Wokosin and Drish left. When he exited the bar, the argument continued. Two friends of Wokosin and Drish, Diane Penchak and Cathy Sheldon, walked out of the bar at about this time. Penchak testified that defendant said to her, \u201cYour boyfriend over there, he\u2019s a fag and I\u2019ve got proof\u201d and \u201cI\u2019m going to pop him.\u201d She testified that two men bet defendant $50 that he wouldn\u2019t \u201cpop\u201d him, and defendant replied, \u201cWell, I\u2019m going to go home and get my gun.\u201d\nShortly thereafter, defendant was escorted by one of Mr. Charley\u2019s bouncers and a patron of the bar to his truck. Wokosin followed defendant and his two escorts as Drish got into his truck and drove away. Drish left to follow defendant and Wokosin. Penchak and Sheldon then got into Penchak\u2019s car and followed Drish. They met up with Drish near defendant\u2019s home and waited for defendant to arrive.\nThere is conflicting testimony as to what happened next. Wokosin and Penchak testified that they went to defendant\u2019s house to talk to defendant. Penchak testified that after defendant arrived home from the bar, defendant told her, \u201cI don\u2019t care if I spend the rest of my life in jail, I\u2019m going to shoot that faggot.\u201d She testified that she saw a gun in defendant\u2019s hand when he made that statement. Wokosin testified that defendant pulled out a gun from his waist area and started walking toward Wokosin. Wokosin then said, \u201cHey Frank, what\u2019s going on? What\u2019s the deal? I\u2019m on your neighbor\u2019s property. I mean, you are not going to shoot me?\u201d When defendant did not respond, Wokosin then began to back up. Defendant kept walking straight toward Wokosin and shot him in the stomach.\nDefendant testified to a different scenario. Defendant claimed that after he arrived home from the bar, he went into his house and retrieved his .22 revolver for protection. He then went to his father\u2019s house two blocks away and told his father that some guys were after him, that they were at his house looking for trouble and to call the police for him, because if they came after him, he was going to shoot them. Defendant then returned home, and upon exiting the truck, saw Wokosin in his gangway. He testified that Wokosin then came after him. Defendant told Wokosin that he had a gun, but Wokosin said that he didn\u2019t care. Defendant pointed the gun at Wokosin and told him to leave him alone and that if he didn\u2019t stop he would shoot, to which Wokosin replied, \u201cNot unless I get you first.\u201d Defendant testified that he then saw Wokosin reach behind himself, at which point defendant pulled the trigger once, shooting Wokosin in the stomach.\nOn appeal, defendant contends that (1) the State failed to prove beyond a reasonable doubt that he did not act in self-defense when he shot Roy Wokosin; (2) improper comments made during opening and closing statements by the prosecutor deprived him of a fair trial; (3) he was improperly prevented from introducing evidence as to the reputation of the victim\u2019s violent character and nature; and (4) his convictions for aggravated battery and armed violence were improper since they are lesser included offenses of attempted murder.\nDefendant first maintains that the State failed to prove beyond a reasonable doubt that he did not act in self-defense when he shot Roy Wokosin. Once the defendant raises the affirmative defense of self-defense and presents some evidence, the State has the burden of proving beyond a reasonable doubt that defendant did not act in self-defense. (People v. Evans (1982), 104 Ill. App. 3d 598, 432 N.E.2d 1285.) Whether an act was justified under the law of self-defense is for the trier of fact and depends on all of the surrounding facts and circumstances. (People v. Woods (1980), 81 Ill. 2d 537, 410 N.E.2d 866.) A decision as to whether a defendant acted in self-defense will not be disturbed on review unless it is so improbable or unsatisfactory that it raises a reasonable doubt of defendant\u2019s guilt. People v. Balfour (1986), 148 Ill. App. 3d 215, 498 N.E.2d 547.\nDefendant maintains that the weight of the evidence clearly shows that he reasonably believed he was in imminent danger of receiving great bodily harm given the fact that he had just had a confrontation with Wokosin and Drish at the bar, Drish and Wokosin then followed him home and Wokosin approached him at the gangway of his house. Defendant cites People v. Honey (1966), 69 Ill. App. 2d 429, 217 N.E.2d 371, and People v. Reeves (1977), 47 Ill. App. 3d 406, 362 N.E.2d 9, in support of his argument. These cases can be easily distinguished from the case at bar. In Honey, the court found that the defendant reasonably believed the use of force was necessary to defend himself in light of the fact that the defendant and the victim had engaged in a fist fight four days earlier. Likewise, in Reeves, a history of violence existed between defendant and the victim. In fact, the defendant in Reeves had been beaten so severely on numerous occasions that hospitalization was required.\nIn the case at bar, defendant and Wokosin had not previously engaged in a physical altercation. We are instead faced with the evidence that the defendant and Wokosin argued in front of Mr. Charley\u2019s tavern for over 30 minutes, and no blows were struck. Although threats of fighting were made, the argument remained simply verbal. While Wokosin maintains that conversation was all that he had in mind when he went over to defendant\u2019s house, it is reasonable to believe that Wokosin intended to escalate the argument into a physical altercation, especially since Wokosin had previously challenged defendant to a fist fight at the tavern. In addition, we are faced with conflicting testimony as to the events occurring immediately before the shooting, such as whether Wokosin was backing up from defendant when he was shot or whether Wokosin kept coming at defendant despite defendant\u2019s pleas for Wokosin to leave him alone. It is the function of the jury to observe the demeanor of the witnesses and judge their credibility. (People v. Almo (1985), 108 Ill. 2d 54, 483 N.E.2d 203.) Where the evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of fact. (People v. Montgomery (1977), 51 Ill. App. 3d 324, 366 N.E.2d 623.) Accordingly, our review of the record reveals that there was sufficient evidence for the jury to conclude that it was not reasonably necessary for the defendant to shoot Wokosin in order to prevent the threat of great bodily harm. See People v. Collins (1989), 187 Ill. App. 3d 531, 543 N.E.2d 572; People v. Alcazar (1988), 173 Ill. App. 3d 344, 527 N.E.2d 325.\nDefendant next contends that certain remarks made by the prosecutors in their opening and closing statements misstated the law and misinformed the jury on evidence, thereby denying him a fair trial. We initially note that the alleged errors may be waived by defendant\u2019s failure to object at trial to the errors or to mention them in his written motion for a new trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The plain error exception to the waiver rule will apply where the accused was deprived of a fair and impartial trial and in criminal cases in which the evidence is closely balanced. (People v. Eddington (1984), 129 Ill. App. 3d 745, 473 N.E.2d 103.) We will, therefore, review the alleged errors in order to ascertain whether they so seriously prejudiced the defendant as to deprive him of a fair trial.\nDefendant alleges that the prosecutor misstated the evidence in opening statement on two occasions. Defendant first cites the following portion of the opening statement as being unsupported by the testimony at trial:\n\u201cWhat he (defendant) did is start yelling about his gun. I\u2019m going to go home and get my gun. I\u2019ll take care of you I\u2019ll get my gun! Over and over again about his gun ***. Because this guy\u2019s (defendant) yelling about going to get a gun ***.\u201d\nDefendant contends that nobody at trial testified that defendant yelled he was going to get his gun, said defendant was going to \u201ctake care\u201d of Wokosin or that defendant repeatedly stated that he was going to get his gun. A review of the record demonstrates that while Penchak, Drish and Wokosin each testified that defendant said he would go home and get his gun, they all refer to the same time that it was said. All three witnesses testified that the statement was made just before defendant was escorted to his truck by two men. Both Drish and Penchak testified as to the same conversation occurring just prior to the statement being made. The record is also devoid of any testimony that defendant yelled or repeated the statement that he was going to get his gun. Furthermore, even the State concedes that there was no exact testimony regarding defendant\u2019s statement that he would \u201ctake care\u201d of Wokosin. The State argues, nonetheless, that both Drish and Penchak testified that defendant said he was going to \u201cpop\u201d Wokosin and that \u201ctake care of someone\u201d or \u201cpop him\u201d mean the same thing, to shoot a person.\nDefendant also maintains that the prosecutor misstated evidence by attributing a statement made by defendant to Drish as applying instead to the victim, Wokosin. The prosecutor stated in his opening statement that Graca told Penchak:\n\u201cI don\u2019t care if I spend the rest of my life in prison, I\u2019m going to shoot that faggot.\u201d\nOn cross-examination, Penchak testified that after Graca made that comment, she told Drish that Graca \u201cwanted to shoot him.\u201d\nAn opening statement in a criminal trial should outline the fact which the prosecutor in good faith expects to prove. (People v. Foss (1990), 201 Ill. App. 3d 91, 559 N.E.2d 254.) To include in opening statements matters which are not later proved at trial is improper if it is done with the prosecutor\u2019s foreknowledge. (People v. Coleman (1989), 187 Ill. App. 3d 541, 543 N.E.2d 555.) However, reversible error occurs only where the impropriety is attributable to the deliberate misconduct of the prosecutor and results in substantial prejudice to the defendant. People v. Wills (1987), 153 Ill. App. 3d 328, 505 N.E.2d 754.\nAlthough these remarks by the prosecutor may have been improper, we find that the remarks did not \u201csubstantially prejudice\u201d the defendant so as to require a new trial. The fact that the prosecutor said that defendant yelled over and over again about going to get his gun does not amount to substantial prejudice, particularly in light of the fact that the testimony shows that defendant did make this statement at least once. Furthermore, while \u201cpop\u201d someone and \u201ctake care of\u201d someone may not mean the same thing, we do not find that the use of the term \u201ctake care of\u201d was the result of deliberate misconduct by the prosecutor or resulted in substantial prejudice to the defendant. Nor do we find reversible error in the prosecutor\u2019s reference to defendant\u2019s comment about shooting \u201cthat faggot,\u201d which defendant claims referred to Drish rather than Wokosin. It is a fundamental principle of trial practice that statements based upon facts in evidence or upon reasonable inferences drawn therefrom are within the scope of proper argument. (People v. Beier (1963), 29 Ill. 2d 511, 194 N.E.2d 280.) During cross-examination, defendant admitted that during his verbal argument with Drish and Wokosin outside of Mr. Charley\u2019s, he called both Drish and Wokosin \u201cfaggots.\u201d Thus, when defendant referred to \u201cthat faggot\u201d later in the evening outside of his home, the prosecutor was drawing a reasonable inference that defendant was referring to Wokosin, and not just Drish. We also find significant the fact that before the opening statements were made, the court informed the jury that opening statements were not to be considered as evidence.\nWe next consider whether remarks made by the prosecutor in closing argument deprived defendant of a fair trial. Defendant contends that the prosecutor misstated the law and injected extraneous inflammatory comments into his closing arguments.\nIt is well established that a prosecutor is given great latitude in closing argument and the propriety of his comments are within the trial court\u2019s discretion. (People v. Morrison (1985), 137 Ill. App. 3d 171, 484 N.E.2d 329.) In closing argument, the prosecution may base its argument on the evidence presented or reasonable inferences therefrom, respond to comments by defense counsel which clearly invite or provoke response, denounce the activities of defendant and highlight inconsistencies in defendant\u2019s argument. (Morrison, 137 Ill. App. 3d at 184, 484 N.E.2d at 340.) A statement made during closing argument constituting alleged prejudice to the defendant will be cured when the trial court subsequently instructs the jury that closing arguments are not evidence and that they should disregard any argument not based on the evidence. (People v. Scott (1990), 194 Ill. App. 3d 634, 551 N.E.2d 288.) To merit a reversal a prosecutor\u2019s improper comments must be of \u201csubstantial magnitude\u201d when viewed in the context of the entire record and argument. (Scott, 194 Ill. App. 3d at 645, 551 N.E.2d at 295.) If the improper comments did not constitute a material factor in the conviction of the defendant, the verdict will not be disturbed. Scott, 194 Ill. App. 3d at 645, 551 N.E.2d at 295.\nDefendant maintains that the prosecutor in his closing argument again improperly attributed defendant\u2019s statement that he was going \u201cto shoot that faggot\u201d to Wokosin when it actually referred to Drish. As noted above, this argument was properly based on the reasonable inferences drawn from the evidence.\nDefendant next claims the following statement made during closing argument was a misstatement of fact:\n\u201cWell, where was he going to look for these guys that had just insulted him *** the reason he went and got a gun is because he intended to pop one of them.\u201d\nOnce again, the prosecutor\u2019s statement is based on the evidence and the reasonable inferences created therefrom. While the evidence shows that it was Drish and Wokosin who initially went looking for defendant, there is also evidence that after defendant saw Drish outside of his home, defendant entered his house to retrieve his gun and then went back outside. Furthermore, there is testimony that just before the shooting, defendant said that, \u201cI don\u2019t care if I spend the rest of my life in jail, I\u2019m going to shoot that faggot.\u201d\nDefendant next contends that the following statements during the State\u2019s closing arguments were not supported by the evidence:\n\u201cYou heard him say, T thought he had a gun in the bar.\u2019 The defendant told you that from the witness stand ***. I thought the other guy had a gun. *** But this guy said, he would have had bulges in his pants he would have had something in his belt *** 11\nThe record does, however, reveal testimony sufficient to support the prosecutor\u2019s statement. For example, when the prosecutor questioned defendant about the argument at the bar, the following exchange occurred:\n\u201cQ. By fighting him, he wanted to work it out with his fists, didn\u2019t he?\nA. I don\u2019t believe so, no.\nQ. Roy didn\u2019t have any weapons on him that you could see, did he?\nA. That doesn\u2019t mean he didn\u2019t have any weapons.\u201d\nMoreover, defendant testified that he believed Wokosin had a gun when he approached him on the gangway. Defendant also testified that he had known Drish to carry a weapon.\nDefendant next alleges prosecutorial misconduct in the prosecutor\u2019s statement:\n\u201cDid ever you hear the neighbors (the Dresdons) call the police? They hear a shot, four o\u2019clock in the morning. They see these people, they call the police? No.\u201d\nThe State contends that the prosecutor\u2019s statement was reasonable in that the failure of the Dresdons to call the police directly speaks to their credibility. The credibility of witnesses is a proper subject for closing argument if it is based on the facts in the record or inferences drawn from those facts. (People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481.) As the defendant correctly points out, however, the neighbors were never questioned as to whether or not they called the police. Nevertheless, even if this remark by the prosecutor was improper, we do not find that that comment constitutes a material factor in defendant\u2019s conviction.\nDefendant next claims that the following statement made by the prosecutor during closing argument was not based on the evidence:\n\u201cBut that is why Mr. Drish wanted to go talk to this guy, he wanted to save his job.\u201d\nDrish testified:\n\u201cThey wanted to know why I was there and I said, \u2018Well, this basically is going to have to end. I really should talk to him, you know I don\u2019t want any repercussions at the bar.\u2019 \u201d\nAccordingly, this statement by the prosecutor was indeed based on the evidence presented at trial.\nDefendant next argues that the following statements were made by the prosecutor solely to inflame the jury, were not based on the evidence, and shifted the burden of proof:\n\u201cRoy Wokosin is lucky to be alive.\n* * *\n*** [I]f he had actually killed him, we would be talking about murder, not attempt.\n***\nI submit to you, when a person takes a gun, points it right at a person, and pull[s] that trigger, knowing that weapon is loaded, that he intends to kill that person. He almost accomplishes his purpose.\n* * *\nSome of the other stuff the defendant said was to bolster his side of the case to get you to have sympathy for him ***.\u201d\nWe agree with defendant that it was improper for the prosecutor to state that \u201cWokosin is lucky to be alive\u201d and that \u201cif [defendant] had actually killed him, we would be talking about murder, not attempt.\u201d In People v. Estes (1984), 127 Ill. App. 3d 642, 650, 469 N.E.2d 275, the prosecutor made the following comment:\n\u201c \u2018Well, one thing we know and I want you to keep in mind first of all is that Mrs. Estes is not charged with murder.\u2019 \u201d\nThe court agreed with defendant that the prosecutor\u2019s irrelevant comment in closing argument was for the obvious purpose of minimizing the significance of finding the defendant guilty to the crime charged. Likewise, the prosecutor\u2019s comments in the instant case were made to inform the jury that defendant was lucky not to be charged with murder and therefore defendant would still be getting a break even if he were found guilty of attempted murder. While these comments by the prosecutor were indeed improper, we find that the comments did not constitute a material factor in defendant\u2019s conviction.\nIn contrast, we find nothing improper with the prosecutor\u2019s statement that when you aim a gun at somebody, you have an intent to kill, since here the prosecutor is merely stating an opinion based on a reasonable inference from the evidence. We likewise find no merit to defendant\u2019s contention that the prosecutor improperly commented on defendant\u2019s attempt to gain sympathy from the jury. The record reveals that the prosecutor\u2019s statement regarding defendant\u2019s attempt to gain sympathy for his cause constitutes invited comment. (See People v. Hall (1989), 192 Ill. App. 3d 819, 549 N.E.2d 681.) Defense counsel stated in his closing argument:\n\u201cNow, he is scared and he is afraid. Some officers coming in, shouting, \u2018this is going to kill your mother. Your mother is going to die because of this.\u2019 \u201d\nIn addition, we disagree with defendant\u2019s contention that the prosecutor left the jury to speculate when he referred to the word \u201cstuff\u201d when commenting on defendant\u2019s attempt to gain sympathy. A review of the record demonstrates that the prosecutor did give specific examples of defendant\u2019s plea to sympathy right after making his general statement. The prosecutor followed by saying:\n\u201cThey told me my mother is going to die, she is going to have a heart attack. Did you hear them ask Detective Ciegelski, did you hear them ask that question ***[?] They didn\u2019t give him an opportunity to say, no, that never happened *** because there is a reason why, because none of that was ever said.\u201d\nTherefore, considering the foregoing portion of the prosecutor\u2019s closing argument, it is clear that the prosecutor did mention the \u201cstuff\u201d he had in mind when referring to the attempt by defendant to play on the jury\u2019s sympathy.\nDefendant next claims the following statements made by the prosecutor in rebuttal unfairly shifted the burden of proof:\n\u201cMight have, maybe (had a gun) isn\u2019t good enough to use deadly force.\n* * *\nDid you hear him once give you one fact why he thought he would have a gun?\n***\nDid he tell you where he saw the gun? No he did not. Did he tell you when he saw the gun? No, he did not. Did he bring any State firearms owner\u2019s identification card in to say that this guy ever went to get a card to be able to purchase a gun? No, he did not. There is nothing here beside the defendant\u2019s blatant assertion, his friend had a gun, I thought he could have had a gun.\nWhat evidence is there of that (imminent death or bodily harm)? There is none. There is not one dot of evidence to suggest that this shooting was reasonable.\u201d\nDefendant contends that these comments unfairly addressed themselves to evidence not introduced by defendant and therefore shifted the burden of proof to him and made it appear as though he was trying to keep unfavorable evidence from the jury. Once the issue of self-defense has been raised, the State has the burden of proving the defendant\u2019s guilt beyond a reasonable doubt. (People v. Ranola (1987), 153 Ill. App. 3d 92, 505 N.E.2d 1191.) In addition, when some evidence of self-defense is presented by a defendant, the State must disprove the defense beyond a reasonable doubt. (People v. Colson (1989), 187 Ill. App. 3d 423, 543 N.E.2d 282.) In other words, the burden is on the State to prove defendant acted unreasonably when he used deadly force. In light of defendant\u2019s testimony that he thought Wokosin had a gun, in making the foregoing comments, the prosecutor was merely disputing defendant\u2019s belief that deadly force was reasonable under the circumstances, he was not shifting the burden of proof.\nDefendant next maintains that the following remarks by the prosecutor were misstatements of law:\n\u201cThe phrase reasonable belief or reasonably believes means that a person can only use deadly force when you are confronted with a situation wherein your life is in jeopardy, wherein you are confronted with deadly force. This is certainly not the situation wherein a person is entitled to use deadly force.\n* * *\nIt is not reasonable to fire a weapon at an individual who is not using or about to use deadly force against him. There is no indication in this trial that the victim was ever going to use deadly force.\n***\nOnly if he reasonably believes such force is necessary to prevent imminent death. Imminent.\n* * *\nIt is not enough to use deadly force in defense of your home, your car, your truck, unless you are being threatened with deadly force.\u201d\nDefendant contends that these statements of law made by the prosecutor are shaded to favor the State\u2019s case and prejudice defendant by overlooking the element of \u201cgreat bodily harm.\u201d It is well established that the use of deadly force in self-defense is justified only where that deadly force is reasonably necessary to prevent imminent death or great bodily harm to himself or another. (People v. Balfour (1986), 148 Ill. App. 3d 215, 498 N.E.2d 547.) Yet none of the prosecutor\u2019s statements contain the phrase \u201cgreat bodily harm.\u201d Only phrases \u201cdeadly force\u201d and \u201cimminent death\u201d are mentioned by the State. From our review of the record, we find that the prosecutor\u2019s statements, although misstating the law of self-defense, were not so prejudicial as to deny defendant a fair trial. The jury was properly instructed on the law of self-defense and further instructed that neither opening nor closing arguments are evidence. Accordingly, any error by the prosecutor\u2019s statements was cured by the jury receiving the proper instructions. See People v. Lawler (1991), 142 Ill. 2d 548, 568 N.E.2d 895.\nDefendant\u2019s next contention is that the prosecutor continued to improperly define self-defense with the following statements:\n\u201cYou know, if that was the police officer that shot him in the back, that police officer would probably be in an awful lot of trouble, an awful lot. The same standard is applied to the defendant.\n* * *\nMight have had a gun isn\u2019t good enough to use deadly force.\n***\nThere is no question as to the intent in this case because self-defense requires him to say I intended to shoot the victim. There is only the question before you ladies and gentleman of the jury of whether or not it was reasonable to believe that the victim had a gun.\u201d\nWe find that these remarks by the prosecutor were not definitions of the law but were instead permissible deductions from the evidence. The comments by the prosecutor merely address the question of whether defendant\u2019s use of force was reasonable under the circumstances.\nDefendant next argues that the following two statements are improper:\n\u201cBecause under the law, I believe mere words are not enough to use force of any kind against somebody just because somebody calls somebody fat, faggot, anything like that. That is not enough to start a fight.\n* * *\nSomebody calls you up and says I am going to kill your kids. I have got them, they are kidnapped, and we are coming to get you. That is imminent, pending, right there.\u201d\nDefendant\u2019s argument is specious, however, since rather than state why he thinks the foregoing two statements by the prosecutor are improper, he merely states that he disagrees with the prosecutor\u2019s characterization of imminent. Once again, the State was merely attempting to persuade the jury based on the evidence and reasonable inferences therefrom.\nDefendant also maintains that the State improperly commented on defendant\u2019s failure to retreat. Defendant cites People v. Estes (1984), 127 Ill. App. 3d 642, 469 N.E.2d 275, for the proposition that a prosecutor should not place the suggestion before the jury that the defendant had a duty to retreat because it is a misstatement of Illinois law and could have substantially influenced the determination of the jury. What defendant cites as the specific instance of the prosecutor stating there was a duty to retreat is the following:\n\u201cI will go home and get my gun. In fact, that is exactly what he did. He went home, got his gun. You saw the gun. He loaded the gun. Did he stay at home then? No, he went back out in his pick up truck.\u201d\nThat statement by the prosecutor did not so blatantly suggest to the jury that there is a duty to retreat so as to have substantially influenced the determination of the jury.\nDefendant\u2019s final allegation is that the prosecutor implied a fabricated theory of defense. Unless based on some evidence, statements made in closing arguments by the prosecution which suggest that defense counsel fabricated a defense theory, attempted to free his client through trickery or deception, or suborned perjury are improper. (People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41.) Defendant cites the following statements by the prosecutor as improper in these regards:\n\u201cAnd then, when he came into court today, he again told you what he thought you should hear. He told you what he thinks will hopefully get him off. He used some magic words, T really thought he had a gun, I reasonably believed that.\u2019 Did you hear him once give you one fact why he thought he would have a gun?\n***\nBut the defendant has got these magic words that he is supposed to say.\n***\nNow, the fact that a juror [sic] of his peers is going to judge him, are you expecting to believe that he is not going to try to lie now at this last moment to get out from underneath this charge? That is incredible.\n***\nYou have been told lies in the case. The reason you have been told lies is because he has to try to worm his way from underneath the reasonable belief. He lied down the line. He lied to you in court today.\u201d\nA prosecutor may challenge the credibility of a defendant and his theory of defense in closing argument when there is evidence which justifies this challenge. (People v. Muzard (1991), 210 Ill. App. 3d 200, 569 N.E.2d 26.) In fact, a prosecutor may state his opinion that a defendant is lying provided that the statement is based on the evidence. (People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.) The record in this case shows that there were adequate bases for the State to challenge the defendant\u2019s credibility. There are instances where defendant\u2019s testimony conflicted with that of other witnesses. In addition, defendant admitted that he had lied to the police officer who came to his house to investigate the shooting. The evidence demonstrated that Wokosin was shot with a .22 caliber gun. Yet when defendant was questioned about the ownership of a gun, defendant told the officer that he owned only a .9 millimeter gun. Defendant later retracted that statement and admitted that he did own a .22 caliber handgun and that after the shooting he had hid the gun in a garage owned by a friend. Defendant also lied to the detective investigating the shooting. Defendant initially told the detective that he had had an argument with Wokosin outside of Mr. Charley\u2019s but he had not seen Wokosin again after he left the bar. When the detective informed defendant that witnesses had given a different account of the events, defendant told the detective about his confrontation with Wokosin outside of his house. Moreover, at trial, defendant initially denied that he had told his father that he was going to shoot Wokosin and Drish if they came after him. However, after being confronted with his written statement to the police, defendant admitted to the contents of the statement which contained the statement made to his father that he would shoot Wokosin and Drish if they came after him. Accordingly, the prosecutor had ample justification for challenging the defendant\u2019s credibility.\nDefendant next contends that the trial court erred in not allowing testimony that defendant sought to introduce through one of his own witnesses, Bob Jordan, as to the reputation of Roy Wokosin\u2019s violent nature. As the State correctly points out, the defendant\u2019s failure to make an offer of proof regarding the questions to Jordan precludes his claim on review.\nThe purpose of an offer of proof is to inform the trial court and a court of review of the nature and substance of the evidence sought to be introduced. (People v. Sanchez (1989), 131 Ill. 2d 417, 546 N.E.2d 574.) In order to preserve a question for review where the trial court refuses to allow the testimony of a witness to a certain matter, a formal offer of proof is required unless it is apparent that the trial court clearly understood the nature and character of the evidence sought to be introduced. People v. Montgomery (1977), 51 Ill. App. 3d 324, 366 N.E.2d 623.\nThe relevant portion of the record contains the following:\n\u201cQ. Okay, now during the period of time that Mr. Wokosin has been frequenting Mr. Charley\u2019s and up to the date of this incident, did you have any occasion to ever discuss Mr. Wokosin\u2019s reputation with anybody?\n[PROSECUTOR]: Objection, Your Honor.\n[THE WITNESS]: A. Yes, probably.\nTHE COURT: Sustained.\n[DEFENSE COUNSEL]: I will rephrase the question, Your Honor.\nQ. During that period of time, and prior to the date of that incident, have you heard, how often have you heard, how often have you heard Mr. Wokosin discussed by people?\n[PROSECUTOR]: Objection, Your Honor.\nTHE COURT: Sustained.\n[DEFENSE COUNSEL]: I have nothing further of this witness.\u201d\nIt is undisputed that defendant ceased questioning Jordan without making a formal offer of proof. What is unclear from a review of the two questions posed by defendant to Jordan, however, is exactly what type of reputation evidence defendant sought to elicit. We cannot ascertain whether defendant was seeking to elicit testimony regarding specific acts to establish defendant\u2019s character or to establish his reputation. (See People v. Montgomery (1977), 51 Ill. App. 3d 324, 366 N.E.2d 623.) Accordingly, defendant\u2019s failure to make an offer of proof at trial precludes review of defendant\u2019s claim on appeal concerning the victim\u2019s violent reputation or character.\nLastly, defendant contends that his convictions of aggravated battery based on bodily harm, aggravated battery based on use of a deadly weapon and armed violence are improper since they are lesser included offenses of attempted murder. The State agrees with defendant under the authority of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, where our supreme court held a defendant may not be convicted of multiple offenses which arise from a single act or course of conduct.\nAccordingly, we affirm defendant\u2019s conviction for attempted murder and vacate defendant\u2019s conviction for aggravated battery and armed violence.\nAffirmed in part; vacated in part.\nLORENZ, P.J., and MURRAY, J., concur.", "type": "majority", "author": "JUSTICE McNULTY" } ], "attorneys": [ "Randolph N. Stone, Public Defender, and Rita Fry, both of Chicago (Frederick Weil and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Michael J. Monaco, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK GRACA, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201487\u20142999\nOpinion filed September 30, 1991.\nRandolph N. Stone, Public Defender, and Rita Fry, both of Chicago (Frederick Weil and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Michael J. Monaco, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0214-01", "first_page_order": 236, "last_page_order": 252 }