{ "id": 5792674, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDDIE JEFFERSON, Defendant-Appellant", "name_abbreviation": "People v. Jefferson", "decision_date": "1992-03-18", "docket_number": "No. 1\u201489\u20140308", "first_page": "491", "last_page": "507", "citations": [ { "type": "official", "cite": "227 Ill. App. 3d 491" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "71 Ill. App. 3d 356", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5581573 ], "pin_cites": [ { "page": "362-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0356-01" ] }, { "cite": "83 Ill. App. 3d 919", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5553863 ], "pin_cites": [ { "page": "933" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0919-01" ] }, { "cite": "30 Ill. 2d 101", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2828193 ], "weight": 3, "pin_cites": [ { "page": "105" }, { "page": "104" }, { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0101-01" ] }, { "cite": "129 Ill. 2d 567", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "189 Ill. App. 3d 535", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2681905 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "544, 546" }, { "page": "544" }, { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/189/0535-01" ] }, { "cite": "24 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2799906 ], "weight": 2, "pin_cites": [ { "page": "99" }, { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/24/0093-01" ] }, { "cite": "27 Ill. 2d 398", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360433 ], "pin_cites": [ { "page": "400-01" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0398-01" ] }, { "cite": "20 Ill. 2d 126", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2737298 ], "weight": 2, "pin_cites": [ { "page": "132" }, { "page": "131-32" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0126-01" ] }, { "cite": "109 S. Ct. 142", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "102 L. Ed. 2d 115", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "488 U.S. 854", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1494305, 1495457, 1494371, 1494589, 1494277, 1495528, 1494088, 1494603, 1493421, 1493263, 1494644, 1493527, 1494909, 1495294 ], "opinion_index": 0, "case_paths": [ "/us/488/0854-06", "/us/488/0854-07", "/us/488/0854-11", "/us/488/0854-01", "/us/488/0854-13", "/us/488/0854-14", "/us/488/0854-08", "/us/488/0854-04", "/us/488/0854-03", "/us/488/0854-12", "/us/488/0854-05", "/us/488/0854-10", "/us/488/0854-09", "/us/488/0854-02" ] }, { "cite": "121 Ill. 2d 576", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "166 Ill. App. 3d 413", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5068863 ], "year": 1988, "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0413-01" ] }, { "cite": "142 Ill. 2d 548", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236817 ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0548-01" ] }, { "cite": "194 Ill. App. 3d 547", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498974 ], "year": 1991, "pin_cites": [ { "page": "558-59" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/0547-01" ] }, { "cite": "113 Ill. App. 3d 588", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3625836 ], "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0588-01" ] }, { "cite": "110 S. Ct. 2594", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "110 L. Ed. 2d 275", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "496 U.S. 908", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12138787, 12138141, 12137863, 12138665, 12137706, 12137579, 12138412, 12137997, 12139211, 12137455, 12138290, 12138932, 12137335, 12138552, 12139069 ], "opinion_index": 0, "case_paths": [ "/us/496/0908-12", "/us/496/0908-07", "/us/496/0908-05", "/us/496/0908-11", "/us/496/0908-04", "/us/496/0908-03", "/us/496/0908-09", "/us/496/0908-06", "/us/496/0908-15", "/us/496/0908-02", "/us/496/0908-08", "/us/496/0908-13", "/us/496/0908-01", "/us/496/0908-10", "/us/496/0908-14" ] }, { "cite": "132 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5589139 ], "year": 1990, "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/132/0366-01" ] }, { "cite": "96 Ill. 2d 548", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 384", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3520847 ], "year": 1983, "pin_cites": [ { "page": "395-96" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0384-01" ] }, { "cite": "55 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2937684 ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0172-01" ] }, { "cite": "109 S. Ct. 187", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "102 L. Ed. 2d 156", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "488 U.S. 871", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1494934 ], "opinion_index": 0, "case_paths": [ "/us/488/0871-01" ] }, { "cite": "121 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201150 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "445" }, { "page": "445-46" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0401-01" ] }, { "cite": "94 Ill. 2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106990 ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0514-01" ] }, { "cite": "93 Ill. 2d 169", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3101524 ], "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/93/0169-01" ] }, { "cite": "49 Ill. 2d 162", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2909498 ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0162-01" ] }, { "cite": "98 Ill. 2d 294", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3123281 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "307" }, { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0294-01" ] }, { "cite": "194 Ill. App. 3d 653", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499128 ], "weight": 3, "pin_cites": [ { "page": "657" }, { "page": "658" }, { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/0653-01" ] }, { "cite": "459 N.E.2d 1337", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. 2d 427", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163414 ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0427-01" ] }, { "cite": "500 U.S. 391", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6224653 ], "weight": 15, "pin_cites": [ { "page": "401" }, { "page": "447" }, { "page": "1891" }, { "page": "403" }, { "page": "449" }, { "page": "1893" }, { "page": "404-05" }, { "page": "449" }, { "page": "1893-94" }, { "page": "408" }, { "page": "452" }, { "page": "1895" } ], "opinion_index": 0, "case_paths": [ "/us/500/0391-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 6, "pin_cites": [ { "page": "24" }, { "page": "710-11" }, { "page": "828" } ], "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "135 Ill. 2d 559", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "202 Ill. App. 3d 316", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2587359 ], "year": 1990, "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/202/0316-01" ] }, { "cite": "335 Ill. 424", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5788684 ], "year": 1990, "pin_cites": [ { "page": "429-30" } ], "opinion_index": 0, "case_paths": [ "/ill/335/0424-01" ] }, { "cite": "67 S. Ct. 298", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1929, "opinion_index": 0 }, { "cite": "91 L. Ed. 673", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1929, "opinion_index": 0 }, { "cite": "329 U.S. 786", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6250116, 6249416, 6249771, 6250453, 6250745, 6249115 ], "year": 1929, "opinion_index": 0, "case_paths": [ "/us/329/0786-04", "/us/329/0786-02", "/us/329/0786-03", "/us/329/0786-05", "/us/329/0786-06", "/us/329/0786-01" ] }, { "cite": "394 Ill. 183", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2472386 ], "year": 1946, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/ill/394/0183-01" ] }, { "cite": "131 Ill. App. 3d 517", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3436830 ], "year": 1946, "pin_cites": [ { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0517-01" ] }, { "cite": "353 N.E.2d 385", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "420 N.E.2d 509", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "95 Ill. App. 3d 595", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3114866 ], "year": 1976, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/0595-01" ] }, { "cite": "2 Ill. App. 3d 734", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2748786 ], "pin_cites": [ { "page": "736" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/0734-01" ] }, { "cite": "194 Ill. App. 3d 238", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498391 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/0238-01" ] }, { "cite": "41 Ill. App. 3d 205", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2488845 ], "weight": 5, "pin_cites": [ { "page": "207" }, { "page": "208" }, { "page": "208" }, { "page": "207-08", "parenthetical": "where the State attempted to change its burden of proving the requisite intent to commit burglary to a different burden of proving intent to promote a burglary through the use of an accountability theory" }, { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0205-01" ] }, { "cite": "397 U.S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054393 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/397/0358-01" ] }, { "cite": "491 U.S. 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6212721 ], "weight": 3, "pin_cites": [ { "page": "265" }, { "page": "221" }, { "page": "2420" } ], "opinion_index": 0, "case_paths": [ "/us/491/0263-01" ] } ], "analysis": { "cardinality": 1286, "char_count": 33121, "ocr_confidence": 0.765, "pagerank": { "raw": 1.1848388641697341e-07, "percentile": 0.5895038668277571 }, "sha256": "89aae1609b89e9b8a48210ed0ecdf2b328c9298eccfe4be21da89a4439f0443f", "simhash": "1:ebbebd6e723d4439", "word_count": 5569 }, "last_updated": "2023-07-14T16:10:11.260403+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. FREDDIE JEFFERSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SCARIANO\ndelivered the opinion of the court:\nDefendant Freddie Jefferson appeals from his conviction by a jury of the murder of Tammy Washington on the grounds that (1) the trial judge gave improper instructions on accomplice liability; (2) the prosecutor made inappropriate remarks during his closing argument; and (3) the trial judge improperly questioned the defendant and impermissibly commented on the evidence. Defendant seeks a reversal of his conviction with a remand for a new trial.\nOn the evening of June 14, 1987, defendant and his half-brother Fleener Jefferson drove to the 6800 block of South Winchester in Chicago where Eric Green lived. Green had been involved in a fight with Fleener\u2019s half-brother Joe Jefferson that afternoon. When Fleener and defendant arrived, Fleener pointed to Green, who was walking into view, and identified him as Joe\u2019s assailant. Defendant had Fleener\u2019s loaded .32 caliber revolver, which Fleener had given to him before they left. After they had gotten out of their car, Green started running. According to defendant\u2019s testimony, Fleener said \u201cshoot, shoot,\u201d and defendant fired \u201cabout three or four times.\u201d Green testified that he heard about four shots and felt some bullets passing by. Tammy Washington, 13 years old, who was jumping rope on the sidewalk in front of her grandmother\u2019s house at 6840 South Winchester, was shot and killed.\nDefendant testified on direct examination that he shot \u201cat the ground *** just to scare\u201d Green; that he did not deliberately try to shoot or kill Eric Green; and that he was under a sudden and intense passion at the time of the shooting. However, on cross-examination, defendant admitted that he was not firing \u201cup into the air\u201d or \u201cstraight down into the ground.\u201d He also admitted that he saw some people \u201cbehind Eric Green as he was running down the sidewalk.\u201d\nThree eyewitnesses, Brian Banks, Lena Robinson and Leon Coleman, testified as to the shooting. Banks testified that defendant \u201cwas standing in the middle of the street shooting, shooting, following Eric Green running.\u201d Banks continued, \u201cHe was shooting across the street, Eric \u2014 because Eric was running he was following him shooting.\u201d In demonstrating the manner in which defendant was shooting, the record reflects \u201cthat the [defendant] had his arm extended and his fingers in the shape of a gun moving back and forth.\u201d Robinson testified that defendant \u201cgot out of the car and he aimed. He just started shooting bang, bang, bang.\u201d She also stated that defendant\u2019s arm was extended and that \u201chis legs were bent\u201d as he was firing. Robinson further testified that she \u201cheard him shooting and saw him when he got out of the car and aiming the gun and shot,\u201d that \u201che was not shooting at the ground,\u201d and that there were bullet holes in the side of her house. Coleman\u2019s testimony was that he \u201csaw Freddie Jefferson shooting at Eric Green,\u201d and in demonstrating the manner in which defendant was shooting, the record reflects that \u201cthe [defendant] had his arm extended and his hands and fingers positioned as a gun and going across in a shooting motion.\u201d\nEach of the three witnesses picked defendant out of a lineup and identified him in court. Green also picked defendant out of a lineup. In addition, the Cook County assistant medical examiner testified that Washington\u2019s round wounds were not characteristic of ricochet wounds. However, she admitted on cross-examination that it would be possible for an imperfect or ricochet bullet to leave a round hole.\nDefendant was charged with the attempted murder of Eric Green and the transferred intent murder of Tammy Washington. The jury convicted him on both charges. The trial judge vacated the conviction for attempted murder and sentenced defendant to 40 years\u2019 imprisonment on the murder conviction. We affirm.\nI\nDefendant claims that the trial judge erred in instructing the jury on accomplice liability because he was the principal wrongdoer and not an accomplice. The instruction at issue was given as follows:\n\u201cA person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.\u201d\nPursuant to the Illinois Pattern Jury Instructions (IPI) Committee Note to this instruction, the phrase \u201cor one for whose conduct he is legally responsible\u201d was inserted after the word \u201cdefendant\u201d in each proposition of the issues instructions for the offenses of attempt murder, murder and involuntary manslaughter with which the defendant was charged. According to defendant, the jury understood the accountability instruction to mean that Fleener\u2019s mental state could be held against him. In support of this claim defendant cites the following remarks, which were made by the trial judge outside the presence of the jury:\n\u201cTHE COURT: [T]wo people [are] acting in concert with a conspiracy to commit a crime and they succeed.\n* * *\nSo that what you are really doing is taking the conduct of both gentlemen and tag the intent of both gentlemen to decide whether Freddie is guilty of murder or not.\n[DEFENSE]: The point that I am making, judge, is how can you hold Freddie accountable for Fleener\u2019s state of mind? You can\u2019t be held accountable for another man\u2019s state of mind.\nTHE COURT: The idea is that they didn\u2019t have a separate state of mind, that they both have the same state of mind and it\u2019s by using both their actions you determine that state of mind.\u201d\nDefendant argues that the improper instruction allowed the jury to convict him \u201cwithout making any finding as to his mental state\u201d in violation of his right to due process of law. Carella v. California (1989), 491 U.S. 263, 265, 105 L. Ed. 2d 218, 221, 109 S. Ct. 2419, 2420 (\u201cThe Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense\u201d); In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068.\nThe State conceded during oral argument before this court that because defendant\u2019s participation as principal was clearly established by his own testimony at trial, the judge\u2019s giving of the accountability instruction to the jury was improper. (See People v. Lusietto (1976), 41 Ill. App. 3d 205, 207 (\u201cguilt predicated on an accountability theory is proper only if the other evidence is inconclusive as to defendant\u2019s direct participation in the crime\u201d).) Defendant contends that the erroneous instruction constitutes reversible error. (See People v. Payne (1990), 194 Ill. App. 3d 238; People v. McCauley (1972), 2 Ill. App. 3d 734, 736 (\u201cIt is reversible error to inject into the case, by way of instruction, issues which are not properly before the jury. [Citation]\u201d).) However, \u201c[e]ven an inappropriately given accountability instruction does not constitute reversible error where, as here, sufficient evidence was adduced from which the jury could find defendant guilty as principal. (People v. Andrews (1981), 95 Ill. App. 3d 595, 598, 420 N.E.2d 509; People v. Lusietto (1976), 41 Ill. App. 3d 205, 208, 353 N.E.2d 385.)\u201d People v. Faysom, (1985), 131 Ill. App. 3d 517, 528; see also People v. Finch (1946), 394 Ill. 183, 191, cert, denied (1946), 329 U.S. 786, 91 L. Ed. 673, 67 S. Ct. 298; People v. Lehner (1929), 335 Ill. 424, 429-30; People v. Batchelor (1990), 202 Ill. App. 3d 316, 332, appeal denied (1990), 135 Ill. 2d 559.\nBecause defendant claims that the improper instruction violated his fourteenth amendment right to due process of law, we assess the error under the harmless error standard enunciated in Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (Lusietto, 41 Ill. App. 3d at 208), which requires us to determine whether it appears \u201cbeyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.\u201d (Chapman, 386 U.S. at 24, 17 L. Ed. 2d at 710-11, 87 S. Ct. at 828.) Recently, in Yates v. Evatt (1991), 500 U.S. 391, 114 L. Ed. 2d 432, 111 S. Ct. 1884, the Supreme Court had occasion to examine a jury instruction containing a mandatory presumption which unconstitutionally shifted the burden of proof of intent to the defendant. \u201cThe jury was told that \u2018malice is implied or presumed\u2019 from the \u2018willful, deliberate, and intentional doing of an unlawful act\u2019 and from the \u2018use of a deadly weapon.\u2019 \u201d (Yates, 500 U.S. at 401, 114 L. Ed. 2d at 447, 111 S. Ct. at 1891.) Although we do not believe that the erroneous accountability instruction given by the judge in the case at bar created a mandatory presumption, Yates is helpful in appraising the weight to be given the error especially since defendant claims that it enabled the State to convict him without proving his intent. (See Lusietto, 41 Ill. App. 3d at 207-08 (where the State attempted to change its burden of proving the requisite intent to commit burglary to a different burden of proving intent to promote a burglary through the use of an accountability theory).) According to Yates, \u201c[t]o say that an error did not contribute to the verdict is *** to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.\u201d Yates, 500 U.S. at 403, 114 L. Ed. 2d at 449, 111 S. Ct. at 1893.\n\u201cFirst, [the court] must ask what evidence the jury actually considered in reaching its verdict. *** In answering this question, a court does not conduct a subjective enquiry into the jurors\u2019 minds. The answer must come, instead, from analysis of the instructions given to the jurors and from application of that customary presumption that jurors follow instructions and, specifically, that they consider relevant evidence on a point in issue when they are told that they may do so.\nOnce a court has made the first enquiry into the evidence considered by the jury, it must then weigh the probative force of that evidence as against the probative force of the presumption standing alone. To satisfy Chapman\u2019s reasonable doubt standard, it will not be enough that the jury considered evidence from which it could have come to the verdict without reliance on the presumption. Rather, the issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption. Since that enquiry cannot be a subjective one into the jurors\u2019 minds, a court must approach it by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption.\u201d Yates, 500 U.S. at 404-05, 114 L. Ed. 2d at 449, 111 S. Ct. at 1893-94.\nTherefore, the \u201cfirst step in determining whether [the accountability instruction] contributed to the jury\u2019s verdict is to determine what evidence the jury considered on the issue of intent, independently of the [accountability instruction itself].\u201d Yates, 500 U.S. at 408, 114 L. Ed. 2d at 452, 111 S. Ct. at 1895.\nDefendant\u2019s testimony that he fired the gun about three or four times just to scare Green clearly established his role as the principal wrongdoer. Although he testified that he sought only to scare Green, he admitted on cross-examination that he was not shooting \u201cstraight down into the ground\u201d of \u201cup into the air.\u201d He also admitted that he saw people behind Eric Green. Detective Tuider testified that defendant told him he \u201cshot at the dude.\u201d Green testified that he felt the bullets passing by him. Robinson testified that he got out of the car, aimed the gun with his legs bent, and was not shooting at the ground. She also testified that there were bullet holes in her house. Banks and Coleman demonstrated how defendant was shooting with his arm extended. In addition, the medical examiner testified that Tammy Washington\u2019s wounds indicated that she was not hit by a ricochet bullet. Moreover, defendant admitted on cross-examination that he received the gun from Fleener, put it in a holster before they left for their destination, and checked to see if it was loaded. Defendant also admitted that when he got out of the car, he did not try to talk to Green, but just started to fire.\n\u201cThe intent to commit a crime can be inferred from the conduct of the accused and all the surrounding circumstances. (People v. Terrell (1984), 99 Ill. 2d 427, 459 N.E.2d 1337.)\u201d (People v. Murray (1990), 194 Ill. App. 3d 653, 657.) \u201cTo prove the crime of murder, it is not necessary to show that the defendant has a specific intent to kill or do great bodily harm or that he knows with certainty that his acts will achieve those results.\u201d (People v. Bartall (1983), 98 Ill. 2d 294, 307.) For example, in affirming the murder conviction in People v. Cannon (1971), 49 Ill. 2d 162, the \u201ccourt observed that the defendant \u2018intended to fire the gun and did in fact point it and shoot in the decedents\u2019 general direction. This act, done voluntarily and wilfully, is sufficient evidence of the intent requisite to constitute the offense of murder.\u2019 \u201d Bartall, 98 Ill. 2d at 307.\nYates next instructs us to weigh the probative force of the evidence of defendant\u2019s intent against the probative force of the erroneous accountability instruction. As we have previously noted, the judge\u2019s remarks about the accountability instruction were made outside the presence of the jury. Further, defendant was never charged on a conspiracy theory. He claims, however, that the prosecutor indirectly argued accountability to the jury when he said that defendant was \u201cresponsible for\u201d the shooting. Defendant also contends that the evidence about Fleener\u2019s anger toward Green in conjunction with the accountability instruction confused the jury in making the fine distinction between the intent required for murder as opposed to the intent required for involuntary manslaughter. The prosecutor stated to the jury, \u201cyou are here today to decide whether or not [Freddie Jefferson] is going to be held responsible, whether or not he is going to be held accountable for the death of Tammy Washington.\u201d\nWe find the prosecutor\u2019s use of the words \u201cresponsible\u201d and \u201caccountable\u201d to be consistent with their commonly understood everyday meanings which could not have misled or confused the jury. Therefore, it does not appear that the prosecutor was arguing that Jefferson was liable as an accomplice. In fact, in his closing argument, the prosecutor, in addressing the issue of defendant\u2019s intent at length, emphasized that \u201c[t]he name of this case is the People of the State of Illinois versus Freddie Jefferson *** this man is charged with the murder and you are to decide if he is to be held responsible for his acts.\u201d In weighing the probative force of the evidence relating to defendant\u2019s intent against the probative force of the accountability instruction, we hold the error to be harmless when viewed in light of all of the evidence and the arguments the jury considered on this issue. Lusietto, 41 Ill. App. 3d at 208.\nII\nDefendant also contends that certain of the prosecutor\u2019s remarks during closing arguments deprived him of a fair trial. He complains that the prosecutor misstated the elements of murder and that he improperly used evidence of his prior convictions to show his propensity to commit crime.\nDefendant cites the following excerpt from the prosecutor\u2019s closing remarks in support of the first part of his contention:\n\u201c[PROSECUTION]: If you look at all of that [testimony] it will show that all the pieces fit perfect, all the pieces show that he is in fact responsible for the death of Tammy Washington and should be held guilty for that\u2014\n[DEFENSE]: Objection, that is not the law.\n* * *\n[PROSECUTION]: Look at the court reported statement *** and use your own common sense as to the intent of the defendant and remember it\" is not an intentional killing, it doesn\u2019t make any difference, it is a general intent crime if you know what you are doing can cause the death of somebody else, boom, you are guilty of murder\u2014\n[DEFENSE]: Objection, that is not the law.\nTHE COURT: I will sustain the objection and ladies and gentlemen, it will be my instructions that you will follow in this regard.\n* * *\n[PROSECUTION]: [You were told] that the issue in this case is not who did it but what was intended. What was intended doesn\u2019t matter, what happened does, that is what the law says and you will read the instructions on that\u2014 [DEFENSE]: Objection, that is not the law.\nTHE COURT: I will sustain the objection. Ladies and gentlemen, you will get my instructions and you are to follow my instructions.\u201d\nIn contrast, the State maintains that the prosecutor was stating, albeit \u201cunartfully,\u201d the second prong of the Illinois murder statute, which provides in part:\n\u201c(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:\n* * *\n(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another.\u201d 111. Rev. Stat. 1985, ch. 38, par. 9 \u2014 1(a)(2).\n\u201cProsecutors are afforded wide latitude in closing argument, and improper remarks will not merit reversal unless they result in substantial prejudice to the defendant (People v. Pittman (1982), 93 Ill. 2d 169, 176), considering the context of the language used, its relationship to the evidence, and its effect on the defendant\u2019s right to a fair and impartial trial. (People v. Bryant (1983), 94 Ill. 2d 514.)\u201d (People v. Thompkins (1988), 121 Ill. 2d 401, 445, cert, denied (1988), 488 U.S. 871, 102 L. Ed. 2d 156, 109 S. Ct. 187.) \u201c[A]bsent a clear abuse of discretion, the determination of the trial court as to the propriety of such argument should be followed. (People v. Smothers (1973), 55 Ill. 2d 172.)\u201d Thompkins, 121 Ill. 2d at 445-46.\nThis case does not present a situation in any way similar to the one in People v. Starks (1983), 116 Ill. App. 3d 384, 395-96, appeal denied (1983), 96 Ill. 2d 548, on which defendant relies, where the conduct was so pervasive and severe that it led the trial court ineluctably to conclude that \u201cany improper argument that was not made and any improper tactic that was not used would seem to have been omitted by inadvertence rather than by design.\u201d In any event, the fact that the trial judge in the instant case sustained defendant\u2019s timely objections to the latter two of the three remarks at issue is sufficient to cure the error in argument. In addition, the trial judge instructed the jury, at the end of the case, to disregard all questions to which objections were sustained. In People v. Harris (1989), 132 Ill. 2d 366, 386, cert, denied (1990), 496 U.S. 908, 110 L. Ed. 2d 275, 110 S. Ct. 2594, the court held that where the trial judge sustained objections to eight out of nine of the instances of error alleged by the defendant, such action was sufficient to cure the error committed in argument to the jury. Moreover, here, the trial court properly instructed the jury on the elements of murder including intent, the element which the prosecutor was attempting to describe in his last two remarks. In addition, the prosecutor alluded to the anticipated instruction in the last of the disputed remarks. These factors may also be considered by the court in determining whether or not the claimed error is harmless. See People v. Bell (1983), 113 Ill. App. 3d 588, 601.\nThe other part of defendant\u2019s contention is that the prosecutor made the following improper statement to the jury regarding the defendant\u2019s prior felony convictions:\n\u201c[Y]ou can use the facts that Freddie Jefferson is a 4 time convicted felon when you determine whether or not to believe him ***. If you are going to hire a baby sitter to watch your kids you check their background, you want to see whether or not you can trust them so when you determine whether or not you are going to trust or believe him from the witness stand consider the fact that he is a 4 time convicted felon.\u201d\nDefendant claims that because a background check is designed to uncover information about performance as well as credibility, the prosecutor\u2019s analogy to such a procedure impermissibly allowed the jury to consider his prior convictions as evidence of his propensity to commit crime. The State correctly maintains that the defendant has waived any error by failing to object to the statement at trial. People v. Bartall (1983), 98 Ill. 2d 294.\nAssuming arguendo that the defendant has not waived argument on this issue, we disagree with his contention. \u201cIt is a fundamental concept in our criminal justice system that evidence of past crimes is not admissible to prove the defendant\u2019s disposition to commit the crime charged. [Citation.] If a prior conviction is for a felony or a crime involving dishonesty, the trial court has the discretion to allow the conviction to be introduced into evidence to impeach the defendant if the trial court believes the prejudicial effect of the impeachment is outweighed by its probative value on the issue of credibility. [Citation.]. Evidence of a conviction used to impeach a witness is not admissible if more than 10 years have elapsed since the date of the conviction or the release of the witness from confinement, whichever is the later date. [Citation.]\u201d (People v. Lawler (1990), 194 Ill. App. 3d 547, 558-59, affd, (1991), 142 Ill. 2d 548.) In the instant case, the felony convictions were less than 10 years old and the trial judge carefully considered the arguments of both parties before reaching his decision. In exercising his discretion, the trial judge allowed the State to read into evidence that the defendant was convicted of five felonies and the date of those convictions, but he prevented the State from disclosing the charge or the sentence. Accordingly, we cannot conclude that the judge abused his discretion in finding that the probative value of defendant\u2019s convictions outweighed their prejudicial effect. Moreover, it is clear from the prosecutor\u2019s statement that the use of such evidence was proper in impeaching his credibility. Therefore, defendant\u2019s reliance on Lawler is baseless, as the prosecutor\u2019s remark in that case that \u201c\u2019if a person is willing *** to commit a felony, then the law presumes that he is willing to lie\u2019 \u201d clearly distorted the law. Lawler, 194 Ill. App. 3d at 559.\nIll\nFinally, defendant maintains that the trial judge improperly assumed the role of an advocate by questioning him and commenting on the evidence. Specifically, he complains that the judge should not have questioned him about his mental state and his relationship with Joe Jefferson.\nWhile \u201c[i]t is an abuse of discretion for the trial court to assume the role of an advocate\u201d (People v. Murray (1990), 194 Ill. App. 3d 653, 658), \u201c[a] trial court has the right to question witnesses in order to elicit truth or clarify material issues which seem obscure as long as he does so in a fair and impartial manner.\u201d (People v. Gross (1988), 166 Ill. App. 3d 413, 422, appeal denied (1988), 121 Ill. 2d 576, cert, denied (1988), 488 U.S. 854, 102 L. Ed. 2d 115, 109 S. Ct. 142.) Moreover, \u201c[i]t is the judge\u2019s duty to see that justice is done, and where justice is liable to fail because a certain fact has not been developed or a certain line of inquiry has not been pursued it is his duty to interpose and either by suggestions to counsel or an examination conducted by himself avoid the miscarriage of justice.\u201d People v. Franceschini (1960), 20 Ill. 2d 126, 132.\nIn Franceschini, for example, the court held that the trial judge\u2019s suggestion to the prosecutor, after both sides had rested, that evidence be offered on how the defendant gained entrance to an apartment, was proper. (Franceschini, 20 Ill. 2d at 131-32.) The trial court does not assume the role of prosecutor \u201cmerely because its unbiased and impartial questions elicit evidence material to the State\u2019s case.\u201d Murray, 194 Ill. App. 3d at 658.\nDefendant cites the following questions propounded by the trial court judge:\n\u201cTHE COURT: When did you learn of the fight with Joe and Eric Green?\nTHE WITNESS: Joe came over to Fleener\u2019s house.\nTHE COURT: What time was that?\nTHE WITNESS: Guess around 7:30.\nTHE COURT: Where is Joe today?\n[DEFENSE]: Objection.\nTHE COURT: Overruled.\nTHE WITNESS: Last time I heard he moved to Milwaukee.\n* * *\nTHE COURT: So at the present time you don\u2019t know where he is at?\nTHE WITNESS: No.\nTHE COURT: Now, from the time that you learned about the beating or the fight between Joe and Eric Green and the time of the actual shooting how many minutes transpired?\nTHE WITNESS: About 15 or 20 minutes.\n* * *\nTHE COURT: Where was the gun obtained from or where did you get the gun?\nTHE WITNESS: From [Fleener].\nTHE COURT: Do you know where he got it?\nTHE WITNESS: He come out the bedroom with it.\nTHE COURT: What were your intentions in relation to Eric Green when you fired?\nTHE WITNESS: Just to scare him so he\u2019d stop messing with Joe.\n* * *\nTHE COURT: Did you figure that he would know \u2014 get the meaning of that when you fired?\nTHE WITNESS: Yes.\nTHE COURT: Were you intending to inflict any injury on Eric Green?\nTHE WITNESS: No.\nTHE COURT: Were you angry when you fired?\nTHE WITNESS: I was a little upset.\nTHE COURT: Were you angry?\nTHE WITNESS: I would say yes.\u201d\nThese questions led to the following re-cross-examination by the prosecutor:\n\u201c[PROSECUTION:] This is the guy you treated as your brother?\n[WITNESS:] Yes.\n[PROSECUTION:] And you haven\u2019t talked to him since? [WITNESS:] No.\n[PROSECUTION:] Have you talked to him since your case was set for trial?\n[WITNESS:] No.\n[DEFENSE:] Objection.\nTHE COURT: Overruled.\n[PROSECUTION:] Have you tried to talk to him?\n[WITNESS:] No.\u201d\nAfter several rounds of re-cross and redirect examination on this subject by counsel, the judge again questioned the witness.\n\u201cTHE COURT: Did Fleener tell you whether Joe indicated who started the fight between him and Eric Green?\nTHE WITNESS: Yes.\nTHE COURT: What did Fleener tell you that Joe said?\nTHE WITNESS: He said that Joe said that it started over Eric Green\u2019s girlfriend.\nTHE COURT: Well, did he say who started the fight?\nTHE WITNESS: No.\nTHE COURT: Did he indicate what weapons were used in the fight, if any?\nTHE WITNESS: He said they wasn\u2019t no weapons used in the fight.\nTHE COURT: No weapons at all?\nTHE WITNESS: No.\u201d\nWith respect to the State\u2019s assertion, which was made for the first time at oral argument before this court, that defendant waived this issue, we note that although a standing objection would have been the preferred way of preserving the alleged error for appeal, defendant\u2019s objection at the beginning of the court\u2019s examination of the witness may have been sufficient. See People v. Sprinkle (1963), 27 Ill. 2d 398, 400-01.\nThe reason the judge gave for examining defendant was to determine the proper instructions to be given in the case. Despite his acknowledgement that the judge\u2019s questions \u201celicited no new testimony\u201d \u201cabout [his] state of mind,\u201d defendant claims that \u201cthe court\u2019s interrogation improperly emphasized testimony which pointed to guilt and *** cast *** discredit upon *** a key witness for the defense. \u2018The witness had already testified to these facts on direct examination, and the matter was of importance only so far as it affected the credibility of the witness in the minds of the jurors.\u2019 \u201d (People v. Santucci (1962), 24 Ill. 2d 93, 99.) However, Santucei is distinguishable from this case because there the court examined every witness and made hostile comments to the defense. Santucei, 24 Ill. 2d at 99.\nPeople v. Enoch (1989), 189 Ill. App. 3d 535, appeal denied (1990), 129 Ill. 2d 567, relied on by the State, is also distinguishable. In that case the court questioned a witness in order to clarify his rapid, rambling and sometimes inaudible testimony. (Enoch, 189 Ill. App. 3d at 544, 546.) Although there is some indication in the record in this case that the judge could not hear defendant\u2019s answers during the redirect examination proceeding his questioning of defendant, these answers were immediately clarified by the judge, who stated a different reason for his questions; and although the judge\u2019s questions about defendant\u2019s mental state had already been covered by defense counsel, it appears that the judge was attempting to clarify the material issue of the defendant\u2019s intent. Therefore we cannot conclude that the judge was in error in his interrogation of the defendant.\nAs to the questions about his relationship with Joe Jefferson, defendant contends that they \u201cfurther served to emphasize weaknesses in [the] defense and to cast doubt upon [defendant\u2019s] veracity.\u201d (People v. Tyner (1964), 30 Ill. 2d 101, 105.) However, Tyner is also distinguishable from the case at bar since there the court openly accused the witness of lying. (Tyner, 30 Ill. 2d at 104.) Defendant contends that the questions had \u201cthe effect of impeaching [his] testimony that Joe was like a brother to him and that he saw Joe practically every day.\u201d According to defendant, \u201c[t]he impeachment value of these questions was obvious to the prosecutor, who avidly pursued this line of questioning after it was suggested by the judge. Another result of the judge\u2019s examination was that it forced defense counsel to bring out that [he] was incarcerated, and had been for some time, in an attempt to rebut the inference that Freddie didn\u2019t care to talk to Joe.\u201d In fact, as previously noted, these questions led to several rounds of re-cross and redirect on this subject.\nAssuming without deciding that the judge was in error in asking these questions, we are of the opinion that such error does not mandate reversal, given the exceedingly formidable evidence of defendant\u2019s guilt in this case and also because there is no indication that the judge\u2019s colloquy with defendant formed the basis for the jury\u2019s verdict. Enoch, 189 Ill. App. 3d at 544.\nDefendant also claims that the court made the following improper comment to the jury:\n\u201cThere is no evidence whatsoever as to the physical condition of Joe Jefferson after the fight and the only testimony [in] the record is that he was crying when he was seen by the defendant.\u201d\nAccording to defendant, this comment invaded the province of the jury whose function it is to determine the facts. In support of this argument defendant cites Tyner, in which the court stated:\n\u201cRarely, if ever, is a judge called upon to comment on the evidence during trial except where necessary in ruling upon its admissibility, and under no circumstances should he express an opinion as to its veracity, for this is the province of the jury, and any intimation of such nature, however slight, may carry great weight with the jury and could prove controlling.\u201d (Tyner, 30 Ill. 2d at 104.)\nThe State responds that the trial judge was merely explaining his ruling regarding the State\u2019s objection to the defense counsel\u2019s misstatement of the evidence. We agree.\nCounsel for the defense told the jury that Joe Jefferson \u201cwas hit at least five times\u201d and \u201cwas beaten so bad he couldn\u2019t get up.\u201d The State objected to this statement on the grounds that it was not supported by the evidence. At that point the judge made the remark in issue. Although Green testified that he hit Joe at least five times, it is clear that the judge was trying to prevent the defense from improperly arguing facts not in evidence as to Joe\u2019s physical condition after the fight. (Babcock v. Chesapeake & Ohio Ry. Co. (1979), 83 Ill. App. 3d 919, 933.) The defendant himself testified that he did not see any marks on Joe Jefferson. We believe the judge\u2019s remarks were necessary to explain his ruling on the State\u2019s objection and were therefore proper. (See People v. Stack (1979), 71 Ill. App. 3d 356, 362-63.) Furthermore, given the overwhelming evidence of guilt, even if the remark did constitute error, it would not require reversal since it was not \u201ca material factor in the defendant's conviction.\u201d Enoch, 189 Ill. App. 3d at 543.\nFor all of the above reasons, the judgment of the circuit court is affirmed.\nAffirmed.\nDiVITO and McCORMICK, JJ., concur.\nThe record indicates that, for some obscure reason, Joe is a Jefferson; however, only the defendant and Fleener have the same father; Fleener and Joe have the same mother.\nAlthough the judge mentioned five felony convictions, the State elected to introduce only four into evidence.", "type": "majority", "author": "JUSTICE SCARIANO" } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Tina Liebling, Assistant Public Defender, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Randall E. Roberts, and Gigi Gilbert, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDDIE JEFFERSON, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201489\u20140308\nOpinion filed March 18, 1992.\nRandolph N. Stone, Public Defender, of Chicago (Tina Liebling, Assistant Public Defender, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Randall E. Roberts, and Gigi Gilbert, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0491-01", "first_page_order": 515, "last_page_order": 531 }