{ "id": 5138187, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRES MALDONADO, Defendant-Appellant", "name_abbreviation": "People v. Maldonado", "decision_date": "1992-12-30", "docket_number": "No. 1-88-3151", "first_page": "470", "last_page": "486", "citations": [ { "type": "official", "cite": "240 Ill. App. 3d 470" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "556 N.E.2d 697", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "198 Ill. App. 3d 976", "category": "reporters:state", "reporter": "Ill. 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ANDRES MALDONADO, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE GREIMAN\ndelivered the opinion of the court:\nFollowing a jury trial, defendant, Andres Maldonado, was convicted of first degree murder for the shooting death of 18-year-old Elizabeth Cooley and was sentenced to 40 years\u2019 imprisonment.\nOn appeal, defendant raises five issues as error: (1) the admission of testimony and argument regarding defendant\u2019s gang affiliation; (2) the admission of testimony regarding a rifle, shells, and shoulder holster found in a gym bag which also contained the gun that apparently killed Elizabeth Cooley and allowing such items to be published to the jury; (3) the refusal to give defendant\u2019s tendered instruction on involuntary manslaughter; (4) certain comments made by the State during closing arguments;- and (5) the imposition of the maximum 40-year term of imprisonment.\nFor the reasons which follow, we affirm defendant\u2019s conviction but reduce his sentence to a 20-year term of imprisonment.\nThe occurrence witnesses who testified at trial recounted substantially the same sequence of events which resulted in the fatal shooting of Elizabeth Cooley. Defendant did not testify.\nAbout 7 or 8 p.m. on the evening of December 8, 1986, five individuals were riding in a Chevy station wagon: Stanley Cherry (a back seat passenger), Allen Oliver (a back seat passenger), Elizabeth Cooley (the victim, who was sleeping in the middle of the back seat), Norman Abrams (the front seat passenger), and Lamonte Haywood (the driver).\nStanley Cherry testified that as they drove down the street, they encountered Efrain Nunez standing in the street. Lamonte Haywood, the driver of the car, honked his horn and ordered Efrain to move. Efrain then hit the roof of the car with his hand. Stanley got out of the car and asked Efrain Nunez why he was hitting the car. Stanley testified that Efrain \u201cwent to hollering it\u2019s some Latin Kings or something.\u201d Allen Oliver also exited the car and joined Stanley in the argument against Efrain and two other men who, according to Stanley\u2019s testimony, \u201cshowed up from nowhere\u201d until \u201cthe street was full of what they call Latin Kings or whatever.\u201d The two other men were later identified by Efrain Nunez as his brother Gabriel Nunez and Tony Gonzalez.\nEfrain Nunez testified that the station wagon driven by Haywood almost hit him as he was crossing the street; angered, he banged his fist on the roof of the car. Then \u201ctwo colored guys got out of the car\u201d and exchanged epithets with him.\nAnother car then appeared at the scene, carrying three men identified as defendant, Enrique Rivera, and Felix Lopez, who joined in the altercation on Efrain\u2019s behalf. Stanley estimated that the group which gathered against him and Allen Oliver numbered about 10 and \u201cthey was all hollering Latin Kings and kill them niggers.\u201d\nEnrique Rivera kicked out the window on the driver\u2019s side of the station wagon. Defendant walked up to Stanley Cherry with a pistol, shoved the gun in Stanley\u2019s face, and said \u201cnigger, I kill you.\u201d Stanley backed up a little, and defendant fired a shot toward the station wagon. Stanley and Allen began to run down the sidewalk when Stanley heard defendant say \u201ckill them niggers.\u201d Haywood began to drive away, and defendant then fired more gunshots at the station wagon. Three to seven gunshots were heard by the various occurrence witnesses. According to the witnesses\u2019 testimony, no one except defendant had a gun.\nAt the corner, Haywood stopped for a stoplight and Stanley and Allen entered the car. After noticing that Elizabeth was bleeding, they drove to Walther Memorial Hospital, where she later died.\nAfter the shooting, Efrain and his group (brother Gabriel, Tony Gonzalez, Felix Lopez, and defendant) went to Efrain\u2019s apartment, where Efrain had a rifle and ammunition stored in a blue gym bag. Efrain gave Felix Lopez the gym bag with those items included. Also at Efrain\u2019s apartment, defendant gave his gun to Felix Lopez, who in turn put it into the blue gym bag. Thereafter, the blue gym bag containing defendant\u2019s gun and Efrain\u2019s rifle and ammunition was passed from Felix to his sister Maria Lopez to Gabriel Nunez to Amelia Herrera. The police eventually recovered the blue gym bag and its contents at the residence of Amelia Herrera.\nThe trial court denied defendant\u2019s request for an involuntary manslaughter instruction. Defendant was found guilty of first degree murder and sentenced to 40 years in prison.\nOn appeal, defendant asserts that some, but not all, testimony and argument regarding the Latin Kings street gang was improperly admitted and that such evidence was irrelevant to the issues at trial and was highly prejudicial. Defendant cites four references to the Latin Kings street gang which he believes improper.\nFirst, defendant contests a remark made by the State in its opening statement which identified defendant as a member of the Latin Kings gang.\nAccording to the record, in recounting the events leading to the shooting, the State commented that during the initial confrontation, another car pulled up and\n\u201cthree people got out of that car, a man by the name of Enrique Rivera, a man by the name of Felix Lopez and one other man. That man [referring to defendant] is known on the streets as Polocko, he\u2019s a member of the Latin Kings street gang.\u201d\nDefense counsel\u2019s objection at this point was overruled.\nThe second gang-related reference to which defendant objects occurred during the State\u2019s direct examination of Efrain Nunez where testimony was elicited that although the witness did not know defendant personally, he knew him from \u201cthe streets\u201d because they both belonged to the Latin Kings.\nThe State contends that the reference to defendant\u2019s gang affiliation in the State\u2019s opening remarks and in the direct examination of Efrain Nunez was relevant to the identification of defendant, to placing him at the scene, and to provide a motive as to why he would stop to join Efrain Nunez during the confrontation.\nGang-related evidence may be admitted if it is otherwise relevant and admissible. People v. Gonzalez (1991), 142 Ill. 2d 481, 489, 568 N.E.2d 864.\nEvidence of gang membership is relevant if it tends to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. (People v. Lucas (1992), 151 Ill. 2d 461, 480; Gonzalez, 142 Ill. 2d at 487-88.) However, even relevant evidence may be excluded where its prejudicial impact substantially outweighs its probative value. People v. Eyler (1989), 133 Ill. 2d 173, 218, 549 N.E.2d 268.\nEvidence of gang membership is also admissible to provide a motive for an otherwise inexplicable act where there is sufficient proof that such membership is related to the crime charged. (People v. Smith (1990), 141 Ill. 2d 40, 58, 565 N.E.2d 900.) However, to be deemed competent, such evidence must, at least to a slight degree, tend to establish the existence of the motive relied upon or alleged and it must be shown that the defendant knew of those facts. People v. Easley (1992), 148 Ill. 2d 281, 326, 592 N.E.2d 1036, quoting Smith, 141 Ill. 2d at 56.\nIn the present case, we find that the identification of defendant as a member of the Latin Kings by the State in its opening statement and by Efrain Nunez in his testimony was improper.\nThe State failed to link defendant\u2019s status as a gang member to the offense charged. In fact, the exact opposite conclusion was established when Efrain Nunez testified that the shooting was not gang related.\nCourts have consistently acknowledged that prejudice automatically attaches to the disclosure of an accused\u2019s affiliation with a street gang. Notwithstanding the prejudice, a defendant cannot insulate the jury from his gang membership if such status is relevant to the determination of the case. Gonzalez, 142 Ill. 2d at 489, quoting People v. Rivera (1986), 145 Ill. App. 3d 609, 618, 495 N.E.2d 1088.\nTo be admissible, sufficient proof must exist to show that membership is related to the crime charged, e.g., to show common design or purpose. (People v. Hairston (1970), 46 Ill. 2d 348, 372, 263 N.E.2d 840.) The purpose of this requirement is to insure that the accused is not convicted merely because of his membership in an organization that is unpopular. Hairston, 46 Ill. 2d at 372.\nWe find further support for our holding in two recent supreme court cases which concerned the murder of a superintendent at the Pontiac Correctional Center by two inmates, Roosevelt Lucas and Ike Easley. (Lucas, 151 Ill. 2d 461; Easley, 148 Ill. 2d 281, 592 N.E.2d 1036.) The facts provided in these two cases establish that defendant Easley first stabbed the victim and defendant Lucas then proceeded to beat the victim about his head with a piece of pipe. Both Lucas and Easley were members of the Black Gangster Disciples gang. In their separate trials, the State presented certain evidence of their affiliation with the gang to support its theory that Lucas and Easley murdered the victim in retaliation for the death of another inmate who was a member of the Black Gangster Disciples.\nIn Easley, the supreme court held that the evidence relating to gangs was improperly admitted because it was irrelevant and highly prejudicial. (Easley, 148 Ill. 2d at 324-30.) In contrast, in Lucas, the supreme court found that the gang-related evidence was admissible because defendant Lucas, unlike defendant Easley, admitted he was a member of the gang and testimony established that defendant Lucas was aware of the plan to retaliate against the prison administration. (Lucas, 151 Ill. 2d at 480.) The supreme court distinguished Easley on the grounds that the State had there failed to demonstrate that defendant Easley had participated in and had knowledge of the gang\u2019s plan to kill a prison officer; that the only evidence which identified Easley as a gang member came from the opinion testimony of prison officers; and that the State failed to show that Easley had been present at any gang meetings. Lucas, 151 Ill. 2d at 479.\nSimilarly, in the present case, the only evidence that defendant was a gang member came from the testimony of Efrain Nunez. However, where gang-related evidence has been properly admitted, the factual circumstances of the cases revealed substantial gang-induced involvement in the crime coupled with the accused\u2019s knowledge of those facts. See Lucas, 151 Ill. 2d 461; People v. Carson (1992), 238 Ill. App. 3d 457; Rivera, 145 Ill. App. 3d 609, 495 N.E.2d 1088.\nAlthough we find that the admission of testimony and argument regarding defendant\u2019s membership in a gang was improper, such admission does not warrant reversal because there was little dispute as to the facts and competent evidence established defendant\u2019s guilt beyond a reasonable doubt. Easley, 148 Ill. 2d at 330; People v. Arman (1989), 131 Ill. 2d 115, 124, 545 N.E.2d 658; People v. Dukes (1986), 146 Ill. App. 3d 790, 798, 497 N.E.2d 351.\nMoreover, the record contains numerous gang references which, by defendant\u2019s own admission on appeal, were not objectionable and, in fact, were often elicited by defense counsel. For example, Stanley Cherry testified that Efrain shouted \u201cLatin Kings\u201d when he slammed his fist on the car and that the street then suddenly became \u201cfull of what they call Latin Kings.\u201d In addition, Robert DiTusa testified that he worked as a \u201cGang Crimes Specialist\u201d with the police department, that his duties were to \u201cinvestigate and monitor gang crime activity,\u201d and that he, together with two other gang specialists, received the assignment of investigating the shooting of Elizabeth Cooley. DiTusa\u2019s testimony clearly implied that the victim\u2019s death was originally thought to be a gang-related matter due to the participants involved. We do not believe that a jury myopically views such information.\nThe third gang-related reference to which defendant objects occurred during the State\u2019s redirect examination of Efrain Nunez. After speculation raised on cross-examination as to why the witness was not initially forthcoming, Efrain testified on redirect that he did not initially tell the police about the incident because he was afraid that the Latin Kings would harm him or his family but later changed his mind because the incident \u201cwas not gang-related.\u201d\nAs to this testimony, the State maintains that it was proper to allow Efrain to explain why he delayed talking to the police and to rebut the inference created by defense counsel during cross-examination that Efrain had not come forward to the police sooner because he had something to hide or was lying. Additionally, the State argues that this line of questioning bears on Efrain\u2019s credibility and credibility is always relevant. (Rivera, 145 Ill. App. 3d at 622.) Further, the State argues that the jury clearly understood that the case was not gang related because Efrain so testified.\nWe find that the trial court did not err in admitting Efrain\u2019s testimony during redirect examination that he initially hesitated to cooperate with the police out of fear for his and his family\u2019s safety. Testimony which merely explains why a witness was initially reluctant to speak or provide information to the police is generally permissible. People v. Felder (1992), 224 Ill. App. 3d 744, 757, 586 N.E.2d 729.\nThe fourth instance of gang-related remarks challenged by defendant occurred during the State\u2019s closing argument. However, defendant has waived this argument for failure to specifically raise the issue in a written post-trial motion. The Illinois Supreme Court has repeatedly held and recently reaffirmed that a defendant\u2019s failure to allege the specific ground for review in a post-trial motion operates as a waiver of the right to raise the issue on review. Lucas, 151 Ill. 2d at 481; People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.\nDefendant next asserts that the admission and publication of certain items (a rifle, a shoulder holster, clips and ammunition) found in the blue gym bag were error because this evidence was irrelevant and prejudicial. Defendant argues that the items had no connection to defendant, the police investigation, defendant\u2019s arrest, or the death of the victim.\nThe State responds that the rifle was properly admitted because it was linked to the crime, having been found in the same blue gym bag in which the murder weapon was hidden, and that the items were relevant because they corroborated the testimony of Efrain Nunez, Felix Lopez, Gabriel Nunez and Detective DiTusa.\nA weapon generally may not be admitted into evidence unless there is proof to connect it to the defendant and the crime or unless the defendant possessed the weapon when arrested for the crime. (People v. Howard (1991), 209 Ill. App. 3d 159, 178, 568 N.E.2d 56 (a revolver was held inadmissible because it was not used in the murder charged and was not confiscated from the defendant when he was arrested on the murder charge).) Even a weapon found in a defendant\u2019s possession when arrested may be admitted only if it bears a connection with the charged offense. (People v. Jackson (1990), 195 Ill. App. 3d 104, 112, 551 N.E.2d 1025.) A sufficient nexus exists where the weapon is suitable for the crime charged although it need not have actually been used in committing the crime. People v. Free (1983), 94 Ill. 2d 378, 415-16, 447 N.E.2d 218; Jackson, 195 Ill. App. 3d at 112.\nNo evidence in the present case even suggests that the other contents of the blue gym bag were connected to the murder or that the rifle was similar to the handgun used in the murder. For this reason, the State\u2019s reliance on People v. McClinton (1978), 59 Ill. App. 3d 168, 375 N.E.2d 1342, is misplaced. In McClinton, the court held that a rifle, similar to the shotgun used in the crime, could have been mistaken for a shotgun and thus was suitable for the crime charged.\nHere, however, the rifle and its accessories were not linked to defendant, the shooting of the victim, or to the crime scene. Instead, the testimony revealed that defendant fired a handgun as identified by the occurrence witnesses and that the rifle and its accessories were in Efrain Nunez\u2019s house at the time of the incident.\nAlthough it was error to admit the rifle and its accessories, in light of the overwhelming evidence against defendant, we believe that the error was harmless because his conviction would stand even absent the improper admission of the rifle and its accessories. Howard, 209 Ill. App. 3d at 180 (the improper introduction of a revolver did not constitute reversible error); Jackson, 195 Ill. App. 3d at 113-14 (the erroneous admission of a gun into evidence was held harmless).\nDefendant relies solely on People v. Wade (1977), 51 Ill. App. 3d 721, 366 N.E.2d 528, to further his argument that the admission of these items constitutes reversible error. However, we find Wade distinguishable.\nIn Wade, the fifth district found that testimony elicited from a police officer regarding a gun found on the defendant\u2019s person when he was arrested was extremely prejudicial and objectionable as evidence of other crimes admitted without justification. The gun was fully loaded and concealed in the defendant\u2019s clothing at the time of his arrest with 12 other rounds of ammunition for the gun in his pocket. The State stipulated that this gun was not the murder weapon and the murder weapon was never produced at trial.\nThis court has previously disagreed with the fifth district\u2019s stance in Wade by holding that guns or other physical items seized at the defendant\u2019s arrest are admissible as relevant to the details of arrest. People v. Sui Wing Eng (1985), 138 Ill. App. 3d 281, 287-89, 485 N.E.2d 1222.\nUnlike Wade, the rifle and other contested items in the present case were not in defendant\u2019s possession when he was arrested. Instead, the evidence revealed that defendant was not even aware of the existence of these items. The jury was aware of the trial testimony that the rifle and other contested items belonged to Efrain Nunez and were located in Efrain\u2019s residence during the commission of the crime. Felix Lopez\u2019s testimony established that he put defendant\u2019s gun into the blue gym bag, which already contained Efrain\u2019s rifle and ammunition. Moreover, the occurrence witnesses identified defendant\u2019s handgun as the weapon likely used in the murder. Given the evidence in this case, we believe that defendant could not have been unduly prejudiced by the admission of Efrain\u2019s rifle and shells.\nDefendant next argues that the failure to instruct the jury on the offense of involuntary manslaughter constitutes reversible error because there was sufficient evidence to indicate that he acted recklessly in firing at the station wagon since the street was dark, it was not possible to observe anyone sitting inside the station wagon about 40 feet away, and by discharging the handgun he only intended to scare Stanley Cherry and Allen Oliver.\nThe State contends that the involuntary manslaughter instruction was properly refused because defendant knew the car was occupied when he fired the second and third shots since the station wagon was moving at that time, the evidence indicated the victim was in a sitting position when shot, and the fatal shots could not have been intended to scare anyone away because the two men (Stanley Cherry and Allen Oliver) were already running away. We agree.\nUnless some credible evidence in the record exists which would reduce murder to manslaughter, defendant is not entitled to have an involuntary manslaughter instruction given to the jury (People v. Ward (1984), 101 Ill. 2d 443, 451, 463 N.E.2d 696; People v. Austin (1990), 207 Ill. App. 3d 896, 899, 566 N.E.2d 492; People v. Robinson (1987), 163 Ill. App. 3d 754, 778, 516 N.E.2d 1292; People v. Santiago (1982), 108 Ill. App. 3d 787, 802, 439 N.E.2d 984), although only the \u201cslightest amount of evidence in the record\u201d which justifies the underlying theory is sufficient to warrant the instruction (People v. Garcia (1988), 169 Ill. App. 3d 618, 620, 523 N.E.2d 992).\nThe offenses of murder and involuntary manslaughter are distinguished only in terms of the mental state required. The Criminal Code of 1961 defines \u201cmurder\u201d as follows:\n\u201c(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:\n(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or\n(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another.\u201d (Ill. Rev. Stat. 1985, ch. 38, par. 9 \u2014 1.)\nThe statute distinguishes the offense of involuntary manslaughter:\n\u201c(a) A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts *** are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly ***.\u201d (Ill. Rev. Stat. 1985, ch. 38, par. 9-3(a).)\nAccordingly, murder requires the intent to kill or do great bodily harm or knowledge that the acts create a strong probability of such result while involuntary manslaughter requires only reckless conduct which causes death. Austin, 207 Ill. App. 3d at 898-99.\nThe Criminal Code of 1961 further defines \u201crecklessness\u201d:\n\u201cA person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.\u201d Ill. Rev. Stat. 1985, ch. 38, par. 4 \u2014 6.\nIntentionally and deliberately aiming and firing a gun is not mere recklessness. Robinson, 163 Ill. App. 3d at 779, citing People v. DeMumbree (1981), 98 Ill. App. 3d 22, 25, 424 N.E.2d 73 (the evidence showed that the defendant had intentionally fired three shots in the directions of various people); People v. Burnette (1981), 97 Ill. App. 3d 1015, 1019-20, 423 N.E.2d 1193 (\u201c[i]t cannot be concluded that the act of deliberately firing into a crowd is merely reckless\u201d).\nA defendant\u2019s assertion that he did not intend to kill anyone is not a sufficient basis to warrant an involuntary manslaughter instruction where the defendant intended to fire a gun, pointed it, and shot in the victim\u2019s general direction. (People v. Cannon (1971), 49 Ill. 2d 162, 273 N.E.2d 829.) These acts, \u201cdone voluntarily and wilfully, [are] sufficient evidence of the intent requisite to constitute the offense of murder.\u201d Cannon, 49 Ill. 2d at 166.\nDefendant relies on the Santiago case, which involved an ongoing fight between rival gangs when the defendant fired three shots into an empty car in an attempt to ignite the gas tank, creating a diversion in order to protect his friends who were engaged in the fight. The Santiago court specifically found that there was no evidence that anyone was in or near the car when the defendant fired and the likelihood of injury or death was more remote since the car was unoccupied. Santiago, 108 Ill. App. 3d at 803.\nIn contrast, the testimony in the present case established that after defendant fired the first nonfatal shot, the station wagon began to move away, clearly indicating that it was occupied. Even if we accept defendant\u2019s contention that he first fired to scare Stanley Cherry and Allen Oliver, his purpose was served since Stanley Cherry and Allen Oliver immediately began to run away. The subsequent shots, one of which fatally wounded the victim, were fired into a moving vehicle.\nOn the present record we conclude that the trial court did not err in refusing to instruct the jury on involuntary manslaughter.\nDefendant next asserts that the cumulative effect of certain allegedly improper comments made by the State during closing and rebuttal arguments warrants reversal. Defendant acknowledges that some remarks of which he now complains were not contained in his motion for a new trial, but contends that they should be addressed under the plain error rule.\nIn response, the State contends that the disputed remarks which were not properly preserved in defendant\u2019s motion for a new trial have been waived and that all contested comments were proper.\nTo preserve an issue for appeal, an objection must be made at trial and raised in a post-trial motion. (People v. Turner (1989), 128 Ill. 2d 540, 555, 539 N.E.2d 1196.) Our examination of the record reveals that several remarks contested by defendant in his appellate brief were not properly preserved, and thus, we find these arguments are waived. Accordingly, we address only those comments which are now properly before this court.\nTo constitute reversible error, the remarks by the prosecutor in closing argument must be such that, without their having been made, the jury might have reached a different result. (People v. Lewis (1990), 198 Ill. App. 3d 976, 982, 556 N.E.2d 697.) The substance and style of closing arguments are within the discretion of the trial court and its findings will not be disturbed absent extreme error. People v. Barnes (1983), 117 Ill. App. 3d 965, 978, 453 N.E.2d 1371.\nThe first contested remark was made by the prosecutor during opening closing argument and provides in pertinent part as follows:\n\u201cI am not emphasizing this to you to focus on Mrs. Hawkins\u2019 [mother of the victim] loss, that is her personal loss and she will have to live with it, but to a larger extent, it is our loss as well because if 17-year-old Elizabeth Cooley can be shot down on the streets of Chicago in the manner in which she was shot down, nobody is safe.\u201d\nDefendant asserts that this argument impermissibly focused the jury\u2019s attention on the loss suffered by Elizabeth Cooley\u2019s family.\nWe do not regard these comments as objectionable. Every reference to a deceased\u2019s family does not automatically entitle a defendant to a new trial, particularly, as in the present case, when the death penalty is not imposed. (People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59.) The Illinois Supreme Court has acknowledged that common sense tells us that murder victims do not live in a vacuum and that, in most cases, they leave behind bereaved family members. People v. Pierson (1988), 166 Ill. App. 3d 558, 565, 519 N.E.2d 1185, quoting Free, 94 Ill. 2d at 415.\nThe second contested remark by the prosecutor was also made during opening closing argument.\n\u201cLadies and gentlemen, what I am going to ask you to do by your verdict is to send a message to Mr. Maldonado and others who commit violent crime on our streets, and that message is that we, the law-abiding citizens \u2014 .\u201d\nThe remaining disputed remarks were made by the prosecutor during rebuttal closing argument.\n\u201cIn the meantime, what\u2019s happening, he\u2019s shooting in the direction of the car and we see the back window blown out, but because of that Albert Schweitzer didn\u2019t intend to kill anybody because if he wanted to kill somebody, he would have done it when he first stepped up to them and shoved the gun in their faces. That is the most stupid argument that you have ever heard in your life, he didn\u2019t intend to kill him because when he went right up on them he didn\u2019t have the guts to blow their brains out. We didn\u2019t prove intent only because he shoots as they are fleeing, do you think that is the only way we can really prove intent? It\u2019s ridiculous, that is the most stupid argument I have ever heard in my life \u2014 .\n* * *\nThe fact that he knew Elizabeth Cooley doesn\u2019t even matter, he didn\u2019t know anyone in that car, Cardinal Bernadine could have been in that car \u2014 .\u201d\nDefendant contends that these remarks were designed only to appeal to the sympathy and emotions of the jurors and to evoke their fear.\nWe do not believe that these arguments by the State exceeded the bounds of propriety. A prosecutor may comment unfavorably on the defendant and the evils of crime and advocate the fearless administration of the law. (People v. Jackson (1981), 84 Ill. 2d 350, 360, 418 N.E.2d 739; People v. Evans (1988), 173 Ill. App. 3d 186, 208, 527 N.E.2d 448.) Moreover, parties have the right to comment on the evidence and to draw any legitimate inferences from that evidence even if such inferences are detrimental to the defendant. People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.\nAssuming these comments were improper either when taken individually or in the aggregate, such error would certainly not warrant reversal because we believe the comments were not of substantial magnitude when viewed in the context of the entire record and argument. People v. Graca (1991), 220 Ill. App. 3d 214, 221, 580 N.E.2d 1328.\nLastly, defendant asserts that the trial court abused its discretion in sentencing him to the maximum statutory term of imprisonment when viewed in the context of the nature of the offense, the evidence presented at the sentencing hearing, and defendant\u2019s youth and rehabilitative potential. Defendant was only 20 years old at the time of the offense, the father of two small children, engaged to the children\u2019s mother, had completed three years of high school, and had no prior felony convictions.\nThe State responds that the sentence was appropriate and argues that the sentence was within the statutory guidelines, that the judge considered the mitigating factors, and that defendant had two prior juvenile convictions for possession of a stolen motor vehicle and robbery.\nAbsent an abuse of discretion, a reviewing court will not disturb a sentence which falls within the statutory limits. (People v. Lambrechts (1977), 69 Ill. 2d 544, 372 N.E.2d 641; People v. Abernathy (1989), 189 Ill. App. 3d 292, 315, 545 N.E.2d 201.) The sentencing statute applicable to defendant provided a prison term for first degree murder ranging from 20 to 40 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 \u2014 8\u20141(a)(1).) Thus, defendant received the maximum allowable sentence then in effect.\nAlthough sentencing judges are properly vested with wide discretion to impose the penalty appropriate to the particular circumstances of each case, such discretion is not unfettered. (People v. O\u2019Neal (1988), 125 Ill. 2d 291, 297, 531 N.E.2d 366.) Accordingly, Supreme Court Rule 615(b)(4) authorizes a reviewing court to reduce a sentence imposed by the trial court (107 Ill. 2d R. 615(b)(4)) where the record discloses that the trial court abused its discretion. (O\u2019Neal, 125 Ill. 2d at 298.) Even if the sentence is within the statutory limitations, an abuse of discretion may be found where the sentence greatly varies with the purpose and spirit of the law. People v. Center (1990), 198 Ill. App. 3d 1025, 556 N.E.2d 724 (the defendant\u2019s 15-year sentence for burglary was found excessive).\nA sentence imposed for the offense of murder is as amenable to the scope of an appellate court\u2019s power of reduction as any other offense. (E.g., People v. Crews (1969), 42 Ill. 2d 60, 66, 244 N.E.2d 593 (after noting that society is outraged by the murder of a child, the Illinois Supreme Court reversed the death penalty sentence and imposed a 20- to 35-year term of imprisonment on the defendant); People v. Wilkins (1976), 36 Ill. App. 3d 761, 767, 344 N.E.2d 724 (the court reduced the penalty imposed by the trial court where the defendant was 17 years old, had no prior criminal record, was attending high school, and had the possibility of rehabilitation); People v. Mitchell (1973), 12 Ill. App. 3d 960, 968, 299 N.E.2d 472 (after acknowledging that the defendant\u2019s \u201cshooting the gun into the crowd of people cannot be condoned,\u201d the court reduced the defendant\u2019s sentence where he was 20 years old at the time of the offense and had a minimal prior criminal record); People v. Adams (1972), 8 Ill. App. 3d 8, 13-14, 288 N.E.2d 724 (the sentence of an 18-year-old defendant who had three prior misdemeanor convictions was reduced after the court expressly \u201crecognize[d] the heinous nature of the crime committed\u201d).) In Crews, the supreme court explained that \u201ccare must be taken to insure that the punishment is appropriate and just.\u201d Crews, 42 Ill. 2d at 66.\nOur constitution dictates that \u201cpenalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.\u201d (Ill. Const. 1970, art. I, \u00a711.) The balancing of the retributive and rehabilitative purposes of punishment requires careful consideration of the nature and circumstances of the crime, the defendant\u2019s conduct in the commission of the crime, and the defendant\u2019s personal history, including his age, demeanor, habits, mentality, credibility, criminal history, general moral character, social environment, and education. Center, 198 Ill. App. 3d at 1033.\nBy way of comparison, we note that where the evidence revealed the murder was a planned execution (People v. Dower (1991), 218 Ill. App. 3d 844, 578 N.E.2d 1153; People v. Moore (1989), 189 Ill. App. 3d 957, 546 N.E.2d 232) or committed for money (People v. Escobar (1988), 168 Ill. App. 3d 30, 522 N.E.2d 191), the imposition of the 40-year maximum sentence was found to be justified. In contrast, a 16-year term of imprisonment was upheld following convictions for attempted first degree murder and armed violence where the defendant fired six shots at two police officers in the performance of their duties from a distance of no more than four feet even though the statutory sentencing range provided for a maximum prison term of 30 years. People v. Collier (1992), 228 Ill. App. 3d 159, 592 N.E.2d 444.\nWe conclude that the circumstances revealed in this record do not justify the imposition of the maximum sentence allowed by statute. Consequently, as authorized by Supreme Court Rule 615(b)(4), we reduce defendant\u2019s sentence to 20 years\u2019 imprisonment.\nDefendant raised an additional issue regarding two alleged notes sent to the trial judge by the jury during its deliberations. By order dated December 24, 1991, this court granted the State\u2019s motion to strike this issue and all arguments regarding it.\nAffirmed as modified.\nTULLY and CERDA, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE GREIMAN" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Beth I. Solomon and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Andrea Bonin, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRES MALDONADO, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1 \u2014 88\u20143151\nOpinion filed December 30, 1992.\nRehearings denied February 5, 1993, and February 18, 1993.\nRita A. Fry, Public Defender, of Chicago (Beth I. Solomon and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Andrea Bonin, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0470-01", "first_page_order": 488, "last_page_order": 504 }