{ "id": 5188598, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN A. RICE, Defendant-Appellant", "name_abbreviation": "People v. Rice", "decision_date": "1992-08-25", "docket_number": "No. 1\u201490\u20141433", "first_page": "12", "last_page": "29", "citations": [ { "type": "official", "cite": "234 Ill. App. 3d 12" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "542 N.E.2d 872", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "186 Ill. App. 3d 772", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2655121 ], "pin_cites": [ { "page": "778-79" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0772-01" ] }, { "cite": "499 N.E.2d 422", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "113 Ill. 2d 516", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173661 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-2d/113/0516-01" ] }, { "cite": "440 N.E.2d 432", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 352", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5448189 ], "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0352-01" ] }, { "cite": "384 N.E.2d 553", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "67 Ill. App. 3d 69", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3315883 ], "year": 1982, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/67/0069-01" ] }, { "cite": "309 N.E.2d 338", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill. App. 3d 173", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2612481 ], "pin_cites": [ { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0173-01" ] }, { "cite": "451 N.E.2d 1298", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 384", "category": "reporters:state", "reporter": "Ill. 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App. 3d 558", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3539295 ], "weight": 2, "pin_cites": [ { "page": "562-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0558-01" ] }, { "cite": "447 N.E.2d 564", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 659", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3625850 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0659-01" ] }, { "cite": "577 N.E.2d 1250", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "218 Ill. App. 3d 184", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498489 ], "pin_cites": [ { "page": "195-96" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0184-01" ] }, { "cite": "291 N.E.2d 5", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "8 Ill. 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App. 3d", "case_ids": [ 3327923 ], "pin_cites": [ { "page": "378-79" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0375-01" ] } ], "analysis": { "cardinality": 1416, "char_count": 40261, "ocr_confidence": 0.793, "pagerank": { "raw": 1.2107578169046938e-07, "percentile": 0.5959156306024019 }, "sha256": "6dd3464794509ae1c6a82438aeaef6c4cf06f53b3df346dfe15ca69f0208ed45", "simhash": "1:0a783ed7fa4e9255", "word_count": 6547 }, "last_updated": "2023-07-14T17:59:47.941433+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. MELVIN A. RICE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE DiVITO\ndelivered the opinion of the court:\nA jury found defendant Melvin A. Rice guilty of aggravated battery and he was subsequently sentenced to 10 years\u2019 imprisonment. On appeal, he contends that the State improperly elicited testimony in violation of a motion in limine regarding a pending sex offense charge against him; the circuit court improperly restricted his cross-examination of a State witness; the circuit court erroneously admitted alleged prejudicial hearsay; he was denied a fair trial by several instances of alleged prosecutorial misconduct; the circuit court erred in instructing the jury on self-defense over his objection; and the circuit court improperly sentenced him to an extended term.\nEvidence at trial showed that in November 1989, Demetra Anderson met defendant while both were students at Harold Washington College in Chicago. Thereafter, they began a relationship which ended during the first week of December 1989.\nAccording to Anderson, on December 11, 1989, while she was home alone in her apartment, defendant telephoned three times between 8 p.m. and 10 p.m., wanting to talk about renewing their relationship. During each of defendant\u2019s calls, he asked Anderson if he could come to her apartment that evening; Anderson repeatedly told defendant that he could not. At approximately 5 a.m., Anderson was awakened by someone ringing her doorbell; when she went to the door, she saw defendant, who told her that he needed a place to sleep because he could not go home, but that he did not desire sex. Although Anderson did not want defendant to stay with her, she \u201cfelt sorry\u201d for him and allowed him to enter her apartment. Once inside, Anderson told him to sleep on a mattress on the floor of the living room; defendant, however, wanted to sleep with Anderson in her bedroom. Anderson again told defendant to sleep in the living room and he again refused. Not wanting to argue with defendant, Anderson went to her room. Defendant then followed her into the bedroom; when defendant asked Anderson if they could have sex, she refused.\nAt that point, defendant \u201csnapped\u201d and became \u201cviolent\u201d; he yelled at Anderson and, when she sat on the bed, hit her in the face three times. She fell back onto the bed and began screaming and hitting the bedroom wall in order to summon her neighbors for help. When she began screaming, though, defendant pushed a pillow onto her face and told her to stop. Because she was suffocating and gasping for breath, Anderson struggled with defendant, scratching him in the face.\nAfter Anderson told him that she would stop screaming, defendant removed the pillow from her face, though he still was on top of her. When Anderson began yelling again and reached for the phone, defendant choked her and hit her twice more, near the eye and nose.\nStill screaming, Anderson begged defendant to let her get some ice for her face, which was bleeding. Defendant, however, refused and just looked at her face, stating, \u201cFucked up your pretty face, didn\u2019t I.\u201d Defendant then ordered Anderson to stay in the bedroom.\nShortly thereafter, while Anderson was in the bedroom, crying and wiping up her blood, the doorbell rang. Defendant told her not to move while he went to answer the door; Anderson, however, ran to the window adjacent to the front door and, pulling back the towel that covered the window, began screaming, \u201cHelp, somebody please call the police. He\u2019s trying to kill me.\u201d Defendant then told her, \u201cWell, you got your police,\u201d and opened the door after about two or three minutes, letting the police in. After the police arrived, Anderson was taken to the hospital, treated, and released.\nOn cross-examination, Anderson acknowledged that she had recently pled guilty in Federal court to unlawful secretion of the mail. She further admitted that she had once had a drug problem, but stated that she had not taken any drugs for 18 months and was not under the influence of drugs during the fight with defendant. She explained that, though she had regained custody of her son, she allowed her son to live with her great aunt because \u201cit\u2019s the best place for him because I\u2019m not working and I\u2019m a full time student.\u201d Defense counsel attempted to question Anderson about her drug use; however, the court limited the examination regarding any recent drug use, stating that defendant was unable to present any evidence or offer proof to support his accusation that Anderson did not have custody of her son because she continued to use drugs.\nThe court further limited defendant\u2019s cross-examination of Anderson concerning discrepancies between what she had said her follow-up instructions were when she left the hospital and what what was contained in her written instructions on the hospital\u2019s discharge instruction sheet. Defense counsel attempted to show that, although Anderson testified that the doctor had told her to return to the hospital for treatment, the written instructions required her to return for treatment only \u201cif needed.\u201d Thus, defendant attempted to show that Anderson\u2019s injuries were not as severe as she had led the jury to beHeve. The circuit court sustained the State\u2019s objection to the admission of the discharge instruction sheet from the hospital, noting that it was inadmissible under the business records exception to the hearsay rule.\nChicago police officer Marie Watkins testified that, on December 12, 1989, at approximately 5:15 a.m., she and her partner responded to a battery-in-progress call occurring at Anderson\u2019s apartment. Upon arrival, Watkins heard a woman screaming, \u201cGod, help me. Somebody, please help me. He\u2019s trying to kill me.\u201d Watkins then ran to the front window, where she saw Anderson with a bloody face, screaming. The two officers knocked on the apartment door and announced their office; after several minutes defendant opened the door.\nWhile Watkins\u2019 partner isolated defendant from Anderson, Watkins attempted to calm Anderson, who was hysterical and screaming and whose face was bloody and swollen. Shortly thereafter, Anderson was taken to South Chicago Hospital for emergency treatment.\nPlacing defendant under arrest, Watkins and her partner transported him to the police station. While in the squad car, defendant voluntarily told Watkins, \u201cDo you want to know what happened? *** That bitch scratched me on my face. That\u2019s why I hit her. *** I don\u2019t let no bitch hit me in the face and get away with it.\u201d Defendant also told Watkins that if he did not have handcuffs on he would \u201ckick [her] ass,\u201d because \u201cevery woman needs to get their ass kicked *** once in a while.\u201d After arriving at the station, Watkins told defendant that hospital personnel had informed her that Anderson might lose an eye, to which defendant responded, \u201cI don\u2019t give a fuck if that bitch lose[s] her eye. She shouldn\u2019t have scratched me in my face.\u201d Watkins noticed that defendant had a small scratch on his face, less than an inch long and not bleeding.\nAssistant State\u2019s Attorney Laura Lambur testified that she spoke with defendant while he was at the police station. There, defendant told Lambur that he had hit Anderson because she had scratched his face. Lambur noticed that defendant had two or three \u201csmall marks\u201d on his cheeks; according to Lambur, defendant\u2019s \u201cskin wasn\u2019t broken. Rather it looked like if you take a nail and scratch your own skin when your skin is dry.\u201d\nMohammed S. Baig, M.D., the emergency room physician at South Chicago Hospital, testified that he treated Anderson immediately after her arrival; he observed that her eye was extremely swollen, tender to the touch, discolored, and she had a laceration over her left eyebrow which required four stitches to close. Anderson also suffered from a blow-out fracture of the left orbit of her eye, consistent with a severe blow to the eye. Before she was released, Anderson was given a cold pack and two nonprescription Tylenol tablets.\nDefendant testified that, after meeting Anderson, he began an affair with her despite being married and having a five-year-old child. On the night of December 11, 1989, he called Anderson three times; during the last call, sometime between 10 and 11 p.m., she asked him to come over. Because defendant did not arrive at Anderson\u2019s apartment until about 3:30 or 4 a.m., she became upset. After telling Anderson that he just needed a place to sleep, she told him to sleep on a mattress in the living room; defendant, however, explained to her that he did not want to sleep there because it was very cold and the heat was not on. Following their disagreement as to where he would sleep, defendant followed Anderson into her bedroom, where he took off his coat and shoes and began to get into bed, as he had done in the past. Anderson, unprovoked, then scratched defendant\u2019s face. Defendant reflexively reacted by hitting Anderson three times within a five-second period, unaware that he was hitting her in the face.\nDefendant panicked when Anderson began screaming because he did not want anyone to think that he had hurt her intentionally. He reacted by placing a pillow over Anderson\u2019s face, but removed it when he realized that it was not the right thing to do. He then began consoling Anderson and asked to see her eye, suggesting that he get a towel to clean her face. Approximately four or five minutes later, while defendant was on his way to the bathroom to get a towel, the police arrived and Anderson inexplicably ran to the door and began screaming. Defendant then immediately let the police into the apartment.\nDefendant denied, however, telling the police officers that he had intentionally hit Anderson because she had scratched him. He further denied that Watkins told him that Anderson might lose an eye.\nFollowing closing arguments, the jury found defendant guilty of aggravated battery. During the sentencing hearing, after arguments in aggravation and mitigation, the circuit court noted that defendant had a prior felony conviction which made him eligible for an extended-term sentence. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 5\u20143.2(bXl).) Stating that \u201cI only wish that I could sentence you to more time, Mr. Rice, because it just seems to me that this is just an outrageous crime and you deserve more in my opinion listening to the evidence,\u201d the court sentenced defendant to a 10-year term of imprisonment.\nI\nDefendant initially contends that the introduction of evidence of a pending sexual assault charge against him in violation of a motion in limine deprived him of a fair trial. The State responds that any error was immediately cured by the court\u2019s promptly sustaining defendant\u2019s objection, immediately admonishing the jury to disregard, and later instructing the jury to disregard stricken testimony.\nIn the instant case, the circuit court granted a motion in limine barring the introduction of a sexual assault charge pending against defendant. During the State\u2019s redirect examination of Anderson, however, the State inquired as to a January 3, 1990, telephone conversation between defendant and Anderson, asking her, \u201cWhat, if anything, did he say to you on January 3rd when he called you collect?\u201d Anderson testified that \u201cHe asked me to drop the charges. To don\u2019t come back to court. That he would pay me and that he would pay my doctor bills if I didn\u2019t come back to court and he told me that I knew he was in the system for attempted rape already and that he was lookin\u2019 at some time \u2014 .\u201d Following an immediate objection by the defense, the court instructed the jury, \u201cThat last comment. The jury is instructed to disregard that.\u201d\nIt is plain error for a prosecutor to imply that a defendant has committed crimes other than the one for which he is on trial. (People v. Valdery (1978), 65 Ill. App. 3d 375, 378-79, 381 N.E.2d 1217.) An instruction, however, to disregard evidence ordinarily cures error in its admission. (People v. Keen (1990), 206 Ill. App. 3d 940, 954-55, 564 N.E.2d 1314.) This is particularly true when the improper testimony is not directly responsive to the question and is promptly stricken, with an instruction to the jury to disregard it. People v. Thomas (1981), 96 Ill. App. 3d 443, 454, 421 N.E.2d 357.\nIn the present case, Anderson\u2019s reference to defendant\u2019s pending \u201cattempted rape\u201d charge was not solicited by the State\u2019s question in a calculated attempt to prejudice the jury; rather, it appears as an inadvertent remark which went beyond the question asked and was then quickly stricken by the court and the jury was instructed to disregard it. Nonetheless, defendant asserts that this court, like the courts in People v. McCray (1978), 60 Ill. App. 3d 487, 377 N.E.2d 46, and People v. Harges (1967), 87 Ill. App. 2d 376, 231 N.E.2d 650, must find that Anderson\u2019s statement was so \u201cextremely inflammatory\u201d and \u201cvolatile\u201d that it prevented the jury from dispassionately evaluating the evidence. Neither McCray nor Harges is apposite.\nIn Harges, the defendant\u2019s conviction was reversed because the State committed reversible error when the prosecutor asked the defendant on cross-examination whether he had ever seen the police station before. Finding that the prosecutor\u2019s question was an obvious attempt to bring to the jury\u2019s attention the fact that the defendant had been at the police station on a prior arrest, the court reversed defendant\u2019s conviction. Harges, 87 Ill. App. 2d at 379-80.\nIn McCray, the prosecutor, after establishing that the defendant lived in a poor neighborhood and had a limited education, asked him if he had \u201c[a]ny occupation other than robbing people.\u201d Finding the statement \u201cinexcusable\u201d and noting that such prosecutorial misconduct strongly tended to lessen the credibility of the defendant, the court reversed the defendant\u2019s conviction. McCray, 60 Ill. App. 3d at 489-90.\nUnlike McCray and Harges, the State in the case sub judice did not elicit the response now challenged by defendant. Nonetheless, we note that the prosecutor\u2019s question was broad and open-ended. We recognize that occasionally a witness\u2019 testimony will be volunteered and unresponsive; however, this does not diminish a prosecutor\u2019s responsibility to uphold a court\u2019s evidentiary rulings and orders in limine and, to that end, communicate to State witnesses the importance of not testifying to restricted material. It is axiomatic that prosecutors have a certain amount of control over their witnesses; in the instant case, the State neglected to keep Anderson\u2019s testimony within the bounds delineated by the court.\nWe find, however, that based upon the overwhelming evidence of defendant\u2019s guilt presented at trial, defendant was not denied a fair trial by Anderson\u2019s response to the State\u2019s general question. Notwithstanding defendant\u2019s contention that \u201c[w]hen the jurors heard that \u2018he was in the system for attempted rape already,\u2019 they were given an improper picture of defendant as someone with a history of intentional violence against women,\u201d it was the evidence at trial and not that one stricken statement that gave the jurors the impression that defendant was violent towards women. Anderson\u2019s testimony related the brutal nature of the beating which defendant gave her. Watkins\u2019 testimony that defendant wanted to \u201ckick her ass\u201d and that he stated that \u201cevery woman needs to get their ass kicked\u201d further suggested to the jury that defendant was violent towards women. Accordingly, we find that the one complained-of statement did not so unfairly prejudice defendant that he was denied a fair trial. See Keen, 206 Ill. App. 3d 940, 564 N.E.2d 1314; Thomas, 96 Ill. App. 3d at 455.\nDefendant\u2019s final contention, that the State\u2019s comment in closing that \u201cYou know with friends like that you don\u2019t need enemies because you wouldn\u2019t live very long with a guy like that\u201d magnified the unfair prejudice, has no merit. Here, the State was referring to the brutal nature of defendant\u2019s crime and not in any manner commenting upon his pending sexual assault charge.\nII\nDefendant next contends that he was denied his sixth amendment right to confrontation; specifically, he maintains that the court erred in restricting his cross-examination of Anderson. Defendant argues that he should have been able to examine Anderson on both her alleged current drug use and on the written instructions from the hospital concerning the extent of her injuries.\nA defendant is entitled to cross-examine a witness concerning those matters which would show that witness\u2019 bias or motive or which discredit that witness\u2019 testimony. (People v. Thompkins (1988), 121 Ill. 2d 401, 441-42, 521 N.E.2d 38; In re W.D. (1990), 194 Ill. App. 3d 686, 702, 551 N.E.2d 357.) Wide latitude is afforded a defendant to show bias; however, the court is vested with broad discretion to restrict repetitive or unduly harassing interrogation. (People v. Sanders (1986), 143 Ill. App. 3d 402, 407, 493 N.E.2d 1; People v. Betts (1983), 116 Ill. App. 3d 551, 555, 451 N.E.2d 1028.) Correspondingly, a court may preclude cross-examination where no proof as to competency or relevancy is offered or that offer is unsatisfactory. (People v. Winfield (1983), 113 Ill. App. 3d 818, 831, 447 N.E.2d 1029.) Thus a reviewing court\u2019s \u201csubstantial discretion\u201d will be reversed only where an abuse of that discretion results in manifest prejudice to the defendant. Thompkins, 121 Ill. 2d at 441-42.\nIn the instant case, defendant attempted to cross-examine Anderson regarding any current drug use; Anderson, however, denied any recent drug use and stated that she had been drug-free for at least 18 months. The circuit court, after asking defense counsel whether he could substantiate his suggestion that Anderson\u2019s current drug use prevented her from having custody of her son, limited defense counsel\u2019s questioning, characterizing it as \u201cjust gross character assassination if you have no basis to back it up.\u201d Defense counsel was unable to present any proof that the reason for Anderson not having custody of her son was different from those she provided: she was a full-time student and she was unemployed.\nNevertheless, defendant maintains that, like the defendant in People v. Garrett (1976), 44 Ill. App. 3d 429, 358 N.E.2d 364, he was substantially prejudiced by the court\u2019s restriction of his cross-examination of a witness concerning her recent drug use. Garrett differs, however, on one significant point \u2014 the Garrett defense counsel argued that he could substantiate his claim that a witness was admitted for drug use to a hospital three weeks before trial. The Garrett court found that it was error for the circuit court to restrict the defendant\u2019s cross-examination where \u201c[djefense counsel indicated that he could link up this admission to the hospital with [the witness\u2019] testimony that she had not taken any drugs [for several months].\u201d Garrett, 44 Ill. App. 3d at 438.\nContrary to Garrett, we find untenable defendant\u2019s assertion that Anderson\u2019s testimony that she did not have custody of her son was enough support to suggest that she still used drugs. Similarly, his contention that the routine drug screening requirement of her probation for the Federal charge suggests recent drug use is not borne out by the record; rather, the record indicates that the drug screening requirement was simply an agreed-upon condition of probation in exchange for Anderson\u2019s guilty plea. Accordingly, we find that the circuit court did not abuse its discretion in limiting defendant\u2019s cross-examination of Anderson regarding any current drug use.\nDefendant further argues that the circuit court erred in limiting his examination of Anderson regarding the instructions which she received from the hospital. He maintains that he should have been allowed to show that Anderson\u2019s testimony concerning her injuries and the treatment required differed from the hospital\u2019s discharge instruction sheet. In the case sub judice, the court restricted defendant\u2019s cross-examination of Anderson, finding that the discharge instruction sheet was inadmissible under the business records exception to the hearsay rule. See 134 Ill. 2d R. 236(b).\nWe find that the circuit court did not abuse its discretion in limiting defendant\u2019s cross-examination of Anderson regarding the instructions she received from the hospital. Not only did the court properly restrict the introduction of the discharge instruction sheet, but, as the State correctly argues, defendant failed to establish that the discharge sheet contained all the instructions received by Anderson. Dr. Baig could have given specific instructions to her beyond what was contained in the discharge sheet. Thus, even if the discharge sheet had been admitted into evidence, its efficacy to impeach Anderson is questionable.\nIll\nDefendant next asserts that the court erred in allowing the introduetion of prejudicial hearsay; specifically, he maintains that Anderson\u2019s testimony about a police officer\u2019s statement to her was inadmissible hearsay and that Watkins' testimony regarding what hospital personnel told her about Anderson\u2019s eye was also inadmissible hearsay.\nIn the instant case, defendant attaches error to Anderson\u2019s testimony that, while she was at a preliminary hearing regarding the charge against defendant, he looked at her and \u201che said, \u2018Don\u2019t do this to me\u2019, *** I was a bundle of nerves and I was shaking [so Watkins] did like \u2014 this little thing like hold my hand and she said, \u2018Don\u2019t let him get to you.\u2019 \u201d Defendant\u2019s objection as to what Watkins told Anderson was sustained. Defendant also claims error in Watkins\u2019 testimony that she told defendant, \u201cI had spoke[n] with South Chicago Hospital [and] they had told me that Miss Anderson might lose her eye as a result of the beating.\u201d The court overruled defense counsel\u2019s objection as to what hospital personnel had told Watkins, finding that the statement was not introduced to prove the truth of the matter asserted but rather \u201cto lay the foundation as to the next remark.\u201d That next remark was defendant\u2019s response that he \u201cdid not give a fuck\u201d if Anderson lost her eye.\nHearsay is testimony of an out-of-court statement offered to prove the truth of the matter asserted, the value of which rests on the credibility of the one who made the statement. (People v. Miles (1988), 176 Ill. App. 3d 758, 764, 531 N.E.2d 891.) The reason for excluding hearsay evidence is the absence of an opportunity to determine its veracity. (People v. Rogers (1980), 81 Ill. 2d 571, 577, 411 N.E.2d 223.) The admission of hearsay evidence, although error, is harmless beyond a reasonable doubt where there is no reasonable possibility that the outcome of the trial would have been different had the hearsay been excluded or, as otherwise stated, where there is overwhelming evidence of guilt. (People v. Negron (1991), 220 Ill. App. 3d 754, 769, 580 N.E.2d 1301; Miles, 176 Ill. App. 3d at 764.) Correspondingly, a trial court\u2019s prompt action in sustaining an objection and instructing the jury to disregard the improper testimony serves to cure any prejudice suffered. People v. Paino (1985), 137 Ill. App. 3d 645, 650, 484 N.E.2d 1106.\nIn the instant case, the court properly sustained defendant\u2019s objection as to what Watkins had told Anderson during the preliminary hearing. Nonetheless, contrary to defendant\u2019s assertion that severe prejudice resulted from the statement despite the sustained objection, Anderson\u2019s testimony merely showed that she was nervous and Watkins reassured her. The statement neither harmed nor prejudiced defendant\u2019s right to a fair trial, particularly where there was substantial evidence of his guilt.\nMoreover, although defendant asserts that Watkins\u2019 testimony concerning what hospital personnel told her was hearsay, the circuit court was correct in ruling that it was not offered for the truth of the matter asserted, but was elicited only to show defendant\u2019s remorseless response. Furthermore, contrary to defendant\u2019s assertion, that statement did not prejudice him by exaggerating Anderson\u2019s injuries, but was merely cumulative; the jury heard testimony from Anderson, Lambur, and Dr. Baig concerning the extent of her injuries. (See Miles, 176 Ill. App. 3d at 764.) Accordingly, we find that the complained-of statements did not prejudice defendant.\nIV\nDefendant next contends that he was deprived of his right to a fair trial by numerous instances of prosecutorial misconduct. Specifically, defendant maintains that the prosecutor unfairly aligned himself with the jury; improperly bolstered the testimony of a State witness; improperly aroused the jury\u2019s passions and shifted the burden of proof; and improperly attacked defense counsel.\nDefendant contends that the prosecutor improperly aligned himself with the jury by stating during opening, \u201cWe represent the community. The same community that you represent as jurors *** in this case,\u201d and arguing during closing, \u201cWe represent the People of the State of Illinois. But you are the People of the State of Illinois.\u201d For support defendant relies upon People v. Johnson (1986), 149 Ill. App. 3d 465, 500 N.E.2d 728, where the prosecutor unfairly aligned himself with the jury by referring to \u201cour job\u201d to find the facts, and upon People v. Vasquez (1972), 8 Ill. App. 3d 679, 291 N.E.2d 5, where the prosecutor improperly aligned himself with the jurors by telling them he was \u201cthe thirteenth juror\u201d in the case.\nUnlike those made in the instant case, the statements in Johnson and Vasquez improperly attempted to portray the State as an impartial member of the adversarial system. The State in the case at bar, however, accurately stated that it represented the people of the State of Illinois and did not suggest that it was either a member of the jury or its role was similar to the jury\u2019s. Thus, we find that the State\u2019s remarks were not so flagrant or inflammatory as to substantially prejudice defendant. See People v. Edwards (1991), 218 Ill. App. 3d 184, 195-96, 577 N.E.2d 1250 (State\u2019s remark in closing that \u201c[W]e, the People of the State of Illinois, me and Mr. Burke, who represent the People, we represent you, represent everyone in the courtroom, even in a manner of speaking the defendant, to present reliable, credible, evidence before the court and you are to determine that in the final analysis\u201d held not to be improper alignment with the jury).\nDefendant also contends that the prosecutor improperly bolstered the testimony of a State witness by arguing in closing that the witness should be believed more than others because of her office: \u201cWhere is the motive to lie for any of these persons? *** Is it going to be Assistant State\u2019s Attorney Lambar [sic]? Is she going to lie about the injuries to the defendant\u2019s face? Is she going to risk her 20 years of schooling, her license to practice law in the State of Illinois and elsewhere so she can lie to pin a case to some guy she had never seen before?\u201d\nFor support defendant relies upon People v. Ford (1983), 113 Ill. App. 3d 659, 447 N.E.2d 564, where the State referred to the only two witnesses in the trial as \u201con the one hand you have got Donna Kurlinkus. She is a sworn Warren County Deputy, and on the other you have got Paula Ford who, in the words of her attorney, is a drug addict.\u201d The prosecution in Ford further asked the jury \u201c[w]hy would *** a sworn Warren County Deputy, pull a charade like this and lie and perjure herself for a lousy 15 gram purchase of marijuana?\u201d The court held that the manner in which the prosecutor made repeated references to the witness\u2019 status as a police officer and a sworn deputy was an improper attempt to enhance the credibility of his witness. Ford, 113 Ill. App. 3d at 661-62.\nUnlike Ford, the prosecutor in the instant case did not repeatedly refer to the State\u2019s Attorney\u2019s testimony in order to enhance her credibility, but rather, mentioned the position of the witness only in developing his argument that none of the State\u2019s witnesses had a motive to lie. Nevertheless, though we find that the prosecutor\u2019s comment in the instant case did not rise to the level of error as found in Ford, we must express concern about the danger of a prosecutor\u2019s rash passing comment during closing argument tainting an otherwise fair trial.\nDefendant further asserts that the prosecutor improperly appealed to the jury\u2019s passions and shifted the burden of proof when he remarked about Anderson, \u201cGive her a fair trial. Think of her rights.\u201d Relying upon People v. Beringer (1987), 151 Ill. App. 3d 558, 503 N.E.2d 778, defendant argues that the prosecutor\u2019s comment warrants reversal.\nIn Beringer, the court found the State\u2019s argument in closing that, \u201cWhat about [the victim\u2019s] rights[?] *** What about her right to grow old, to have a family. Her rights are never considered in this case ***. *** I\u2019m not asking you to convict on *** [sympathy], my client who didn\u2019t have a lawyer before she was destroyed; who didn\u2019t have a jury trial before she was taken out,\u201d was designed to arouse the sympathy and passions of the jurors and thus was improper. Beringer, 151 Ill. App. 3d at 562-63.\nWhile attempts to arouse the passions and sympathy of the jury are improper and prejudicial, the remark by the prosecutor here did not rise to the level of prejudice suffered in Beringer; however, we again question the tactics of the prosecutor in the instant case. Though we cannot say that the prosecutor\u2019s comments denied defendant a fair trial given the overwhelming evidence of guilt, we do question the prosecutor\u2019s apparent persistence in walking the fine line between proper comment and prejudicial error.\nDefendant\u2019s further contention that the State\u2019s comment shifted the burden of proof has no merit. Though defendant cites People v. Tyson (1985), 137 Ill. App. 3d 912, 920, 485 N.E.2d 523, for the proposition that shifting the burden of proof is clearly improper and prejudicial, that case involved the prosecutor arguing that the jury was \u201cnot presented with a theory of innocence\u201d and insinuated that the defendant had a burden to present evidence to support his innocence; no such charge has been raised against the State in the instant case.\nDefendant also contends that the State improperly attacked defense counsel by arguing that statements in defense counsel\u2019s closing were \u201ccompletely ridiculous and perverse\u201d and characterized defense counsel\u2019s cross-examination of Anderson as \u201ca witch-hunt and a character assassination.\u201d Defendant also attaches error to the prosecutor\u2019s comment:\n\u201cThis stuff about testimony being slanted? This attorney saying that [Watkins\u2019] testimony is slanted. That\u2019s cheap. If the testimony is slanted then that officer lied. You know, let\u2019s call *** something by what it is. If the testimony was slanted, then that officer lied. No legal or $100 words thrown about by any lawyer up here is going to change anything.\u201d\nDefendant further argues that the prosecutor suggested that defense counsel and defendant had fabricated testimony:\n\u201cThe defendant\u2019s testimony in addition to show that he did not mean to do this, he mentioned the word malice aforethought. Remember when that came out of his mouth up here? *** I don\u2019t think he heard that on L.A. Law or Dragnet. I think maybe he was \u2014 I don\u2019t know where he got it. He seemed to know a lot about it though. Do you think he thought about his testimony before he got up there? Malice aforethought? That\u2019s part of his conjured up lie that he told up there.\u201d\nIt is not improper to call the defendant or a witness a \u201cliar\u201d if conflicts in evidence make such an assertion a fair inference; however, the same cannot be said for assertions that defense counsel is engaging in trickery or misrepresentation in order to win acquittal for his client. (People v. Emerson (1983), 97 Ill. 2d 487, 497, 455 N.E.2d 41.) Correspondingly, comments disparaging the integrity of defense counsel and implying that the defense was fabricated at the direction of counsel are improper. People v. Starks (1983), 116 Ill. App. 3d 384, 394, 451 N.E.2d 1298.\nIn Starks, upon which defendant relies, the prosecutor characterized the defense as a \u201cpack of lies\u201d and \u201clayer upon layer of lies\u201d; the prosecutor farther expressed chagrin that he and the jury had to listen to defense counsel\u2019s argument which was \u201cthe most ridiculous double talk that I have ever heard.\u201d He further stated that he was certain that the jury would not be \u201choodwinked\u201d or \u201cfooled\u201d by \u201cthat defense, that pack of lies you heard.\u201d The court found that these remarks, taken with the general disparaging tone of the State\u2019s argument, resulted in prejudice to defendant. Starks, 116 Ill. App. 3d at 394.\nIn the instant case, unlike Starks, the prosecutor\u2019s statements did not suggest that defense counsel had fabricated a defense, but rather referred to defendant\u2019s \u201cconjured up lie.\u201d Likewise, the prosecutor\u2019s comment that defense counsel\u2019s suggestion of Watkins\u2019 \u201cslanted\u201d testimony was \u201ccheap\u201d merely referred to the manner in which defense counsel attempted to discredit Watkins.\nBecause an attorney is afforded substantial latitude in closing argument and a new trial is not to be granted unless the prosecutor\u2019s remarks are so prejudicial as to materially contribute to a defendant\u2019s conviction, we cannot reverse defendant\u2019s conviction based upon the instances of alleged prosecutorial misconduct. We find, based upon the overwhelming evidence of guilt, that defendant was prejudiced neither by each of the complained-of instances of alleged prosecutorial misconduct nor by the cumulative effect of those remarks. See Keen, 206 Ill. App. 3d at 955.\nV\nDefendant next asserts that the circuit court erred in instructing the jury as to the elements of self-defense over defense counsel\u2019s objection. Specifically, defendant maintains that those instructions ran counter to his theory of the case and thus weakened it in the eyes of the jurors.\nIn the instant case, the defense strategy was that, although defendant had struck Anderson, he did not have the requisite mental state for aggravated battery. The defense attempted to show that defendant did not intentionally or knowingly cause great bodily harm to Anderson, but rather only \u201creactively\u201d and \u201creflexively\u201d hit her in response to her scratching him. Accordingly, when the State tendered a self-defense instruction, the defense objected. The State argued, however, that the testimony of defendant himself put self-defense at issue: defendant testified that he hit Anderson \u201c[i]n defense of myself\u201d and caused Anderson\u2019s injuries \u201c[i]n self-defense.\u201d When defense counsel asked him, \u201c[w]hen you used the term \u2018self-defense\u2019 in describing your actions, by that do you mean that you were protecting yourself?\u201d defendant replied, \u201cI \u2014 yes, in a sense that\u2019s what I mean. I felt that I was being attacked.\u201d Over defense objection, the court instructed the jury on self-defense.\nBoth the State and the defendant are entitled to instructions presenting their theories of the case, if supported by evidence. (People v. Davis (1974), 18 Ill. App. 3d 173, 175, 309 N.E.2d 338.) This court, however, must be \u201cparticularly hesitant to require a court to give an instruction on its own motion where it may well have been part of the defense strategy not to have the instruction given.\u201d (People v. Spataro (1978), 67 Ill. App. 3d 69, 74, 384 N.E.2d 553.) Likewise, where neither the State nor the defense presents a self-defense instruction, it is not error for the trial court to comply with defendant\u2019s desire not to instruct the jury on self-defense. People v. Hughes (1982), 109 Ill. App. 3d 352, 362, 440 N.E.2d 432.\nIn the instant case, although the defense objected to the self-defense instruction, the State was entitled to such an instruction based upon defendant\u2019s testimony at trial, stating that he acted in \u201cself-defense\u201d and was \u201cprotecting\u201d himself when he hit Anderson. Nevertheless, even if the instruction was given in error, the evidence was so overwhelming that defendant did not \u201creactively\u201d hit Anderson that any error was harmless. Anderson specifically testified that defendant began beating her when she would not have sex with him. Further, Watkins testified that defendant told her, \u201cI don\u2019t let no bitch hit me in the face and get away with it\u201d; defendant also told Watkins that he would \u201ckick her ass\u201d if he weren\u2019t handcuffed because \u201cevery woman needs to get their ass kicked.\u201d Likewise, the injuries suffered by Anderson are not consistent with a \u201creflexive\u201d punch, but rather indicate a severe and violent beating. Accordingly, we find that defendant was not denied a fair trial by the court\u2019s instructing the jury on self-defense.\nVI\nDefendant lastly contends that the circuit court improperly sentenced him to an extended term. Specifically, defendant maintains that the circuit court placed undue emphasis on his prior conviction, failed to properly consider mitigating factors, and expressed bias against him.\nA trial court may sentence a defendant to an extended term when that defendant is convicted of any felony, after having been previously convicted of the same or greater class of felony, when such conviction occurred within 10 years after the previous conviction, excluding time spent in custody. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 5\u20143.2(b)(1).) In the instant case, defendant pled guilty to a charge of armed robbery in 1978 and was released from State custody in May or June 1980, slightly less than 10 years prior to the trial at bar. Thus, notwithstanding defendant\u2019s contention, although the court in the instant case partially granted a defense motion in limine regarding the use of defendant\u2019s remote past conviction during trial, it properly considered defendant\u2019s 1978 conviction during sentencing. See Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3.2.\nDefendant also asserts that the court failed to consider mitigating factors, such as his family situation, his college studies, and his rehabilitative potential. Here, however, the court recognized, in mitigation, that for a long period of time \u201cdefendant did not commit any criminal offenses.\u201d The court further noted that \u201c[tjhere is other mitigation here. Defendant\u2019s family situation and other mitigation.\u201d The court, however, found there to be \u201cquite a bit of aggravation here,\u201d and thus sentenced him to the maximum term. Defendant\u2019s argument that the court failed to consider the evidence in mitigation is thus not borne out by the record.\nCorrespondingly, defendant\u2019s further contention that the circuit court was biased against him is not supported by the record. Defendant points to two statements made by the court \u2014 one, the court\u2019s comment that defendant committed \u201cobvious perjury\u201d and two, the court\u2019s misquote of Anderson\u2019s testimony, stating \u201cThis black guy fucked up your pretty face, didn\u2019t I.\u201d (Emphasis added.) Characterizing the court\u2019s sentencing as \u201cvindictive,\u201d defendant contends that the court lashed out at him with a \u201cdesire to punish defendant beyond what Illinois law allowed.\u201d\nDefendant\u2019s sentence, though the maximum, however, is within the limits allowed by Illinois law (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 \u2014 8\u20141(a)(6), 1005 \u2014 8\u20142(a)(5), 1005-5-3.2(b)(l)); a reviewing court may not alter a sentence imposed by a trial court absent an abuse of discretion by the trial court, since the trial court is in a better position to determine an appropriate sentence. (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422; People v. Wyatt (1989), 186 Ill. App. 3d 772, 778-79, 542 N.E.2d 872.) In the instant case, we find that the circuit court heard extensive evidence in aggravation and mitigation and, accordingly, was in a better position to evaluate that evidence.\nBased on the foregoing analysis, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nHARTMAN, P.J., and SCARIANO, J., concur.", "type": "majority", "author": "JUSTICE DiVITO" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Michael Davidson and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Matthew L. Moodhe, and Susan Schierl, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN A. RICE, Defendant-Appellant.\nFirst District (Second Division)\nNo. 1\u201490\u20141433\nOpinion filed August 25, 1992.\nRita A. Fry, Public Defender, of Chicago (Michael Davidson and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Matthew L. Moodhe, and Susan Schierl, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0012-01", "first_page_order": 32, "last_page_order": 49 }