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    "judges": [
      "CAHILL and HOFFMAN, JJ., concur."
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    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LORNE GRAY et al., Defendants-Appellants."
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      {
        "text": "JUSTICE JOHNSON\ndelivered the opinion of the court:\nAfter a trial in the circuit court of Cook County, defendants, Lome Gray and Steven Anderson, were convicted of first degree murder (111. Rev. Stat. 1985, ch. 38, par. 9 \u2014 1(a)(3)), armed robbery (HI. Rev. Stat. 1985, ch. 38, par. 18 \u2014 2(a)), and aggravated kidnapping (111. Rev. Stat. 1985, ch. 38, par. 10 \u2014 2(aX3)). Defendants were tried separately but simultaneously before two juries.\nDefendant Gray was sentenced to a 70-year term of imprisonment for the murder conviction, a 30-year term for the armed robbery conviction, and a 15-year term for the aggravated kidnapping conviction, all to be served concurrently in the Illinois Department of Corrections. Defendant Anderson was sentenced to a term of natural life imprisonment for the murder conviction, a 30-year term of imprisonment for the armed robbery conviction, and a 15-year term for the aggravated kidnapping conviction. The armed robbery term was to run consecutively to the murder sentence and the aggravated kidnapping term was to run concurrently with the armed robbery sentence.\nOn appeal, defendants collectively argue that (1) the State\u2019s display of an evidence cart with the word \u201cgangs\u201d written on it, a notebook embossed with the words \u201cGang Prosecutions Unit\u201d and the State\u2019s eliciting defendants\u2019 gang membership from a witness all violated a court order which prohibited the introduction of gang evidence; and (2) the trial court erroneously permitted a witness to testify that he refused to share his knowledge of the crime with police because he feared for his life, although there was no evidence that his life was threatened.\nDefendant Gray individually asserts that the prosecutor made improper remarks during closing argument and to defense counsel, and that the trial court erroneously granted the State\u2019s motion in limine excluding eyewitness testimony that made no identification of defendant Anderson in a lineup.\nDefendant Anderson separately maintains that Detective Patrick Harrington\u2019s testimony that defendant Gray identified him as the offender violated his rights under the confrontation clause because defendant Gray was unavailable for cross-examination; that the natural life sentence for murder is excessive in view of his age and lack of criminal history; and that the case should be remanded for a Batson hearing due to the State's discriminatory use of its peremptory challenges to exclude two African-American venire members from the jury and the trial court\u2019s erroneous failure to require the State to provide race-neutral reasons for the exclusions.\nWe affirm.\nThe following pertinent facts were adduced at trial. Defendant Gray gave a signed, court-reported statement to an assistant State\u2019s Attorney at the Area 4 police station on October 23, 1987, which was read into the record at trial.\nThe statement revealed that on June 13, 1986, while defendants Gray and Anderson were driving in a stolen Buick Electra, they saw the victim exiting a Pontiac Grand Am. Defendant Anderson jumped out of the car and attempted to force the victim into the Buick. Defendant Gray saw that defendant Anderson was having difficulty forcing the victim into the car, so he got out and wrestled with the victim. Defendant Anderson then pulled out a gun and forced the victim into the back seat of the Grand Am. Defendant Anderson took the car keys from the victim and drove to Roosevelt Road and Sacramento Avenue, where he stopped and picked up his friend, Vincent Brumley. Brumley got into the back seat with the victim.\nThey then went to a currency exchange on Kedzie and Ogden Avenues. Defendant Anderson and the victim walked up to a window to receive service while defendant Gray remained at the door. Defendant Gray stated that the victim gave something to the woman at the window in exchange for money, which he gave to defendant Anderson. The three men got back into the car and defendant Anderson gave defendant Gray $50 of the money obtained at the currency exchange.\nDefendant Gray, defendant Anderson, and Vincent Brumley then drove the victim to an alley where defendants Gray and Anderson got out of the car with the victim. Defendant Gray stood by the door of the car while defendant Anderson walked to a nearby lot with the victim. Defendant Anderson told the victim to lie down on his stomach and, as the victim tried to escape, defendant Anderson shot him in the back of the head.\nSergeant Patrick Garrity testified that defendant Anderson told him he shot the victim in the head in a vacant lot near Fillmore Street and Pulaski Road. Defendant Anderson stated that he, defendant Gray and Brumley saw a man approach a white car and either defendant Gray or Brumley said \u201clet\u2019s get him.\u201d The three men forced the victim into his car and they left the area.\nThey then searched the victim, found some cash and a paycheck in his pocket, and drove to a currency exchange on California Avenue and Roosevelt Road. As they were unable to obtain any money at that location, they proceeded to a pay telephone where the victim was forced to phone a currency exchange at Ogden and Kedzie Avenues to ensure their ability to cash the check there. They went to that currency exchange. Defendant Anderson stated that defendant Gray and Brumley went into the currency exchange with the victim where they succeeded in cashing the check.\nThey proceeded to Four Star Cleaners, where they took the money from the victim and divided it amongst themselves. They then drove to an alley which runs parallel to Fillmore Street and stopped near a vacant lot where defendant Gray ordered the victim out of the car. Defendant Gray passed a handgun to Brumley who, in turn, passed it to defendant Anderson. Defendant Anderson approached the victim, stood over him, and shot him once in the head. The three men then returned to the Four Star Cleaners lot, abandoned the car and separated. Defendant Anderson subsequently recounted the same sequence of events to Detective Harrington.\nAfter a trial separately but simultaneously by two juries, both defendants were convicted of first degree murder, armed robbery and aggravated kidnapping. They were sentenced to terms in the Illinois Department of Corrections relative to these convictions.\nOn appeal, defendants collectively contend that the State violated a court order prohibiting the introduction of gang evidence when, in the courtroom, it displayed both an evidence cart with the word \u201cgangs\u201d written on it and a notebook embossed with the words \u201cGang Prosecutions Unit.\u201d\nDuring opening argument before defendant Gray\u2019s jury, the evidence cart and notebook with the objectionable words were visible in the courtroom. After defense counsel was made aware of the gang references on both the cart and the notebook, she made a motion for a mistrial. The trial court denied the motion stating, \u201cIt is not all that obvious. The book is side by side with several other books and binders and folders and the word \u2018gangs\u2019 on the cart is written with a magic marker ***.\u201d Subsequently, the prosecutor covered the notebook and the side of the cart.\nWe believe that although the display of the cart and the notebook may constitute error, defendant Gray has not demonstrated that the jury actually saw the complained-of references and, consequently, cannot establish prejudice. The record is completely devoid of evidence that the jury was erroneously influenced by such information. We believe the trial court was correct in its assessment of this issue and hold the error to be harmless. People v. Bass (1991), 220 Ill. App. 3d 230, 251.\nDefendant Anderson similarly argues prejudice resulting from the same gang references. This is a curious proposition especially in light of the fact that his jury was never exposed to these references. The record evinces that, by the time defendant Anderson\u2019s jury entered the courtroom, the situation had been cured as the prosecutor covered the objectionable words. Surely, this defendant\u2019s jury\u2019s lack of exposure to the gang references precludes any possibility of prejudice.\nRelatedly, both defendants contend that Willie McCoy\u2019s testimony regarding his presence at the gang crimes section of Area 4 police station violated a court order barring the introduction of gang evidence. Each defendant\u2019s failure to include this issue in his post-trial motion waives its review on appeal. Preservation of an issue on appeal mandates both an objection at trial and the inclusion of such issue in the post-trial motion. People v. Enoch (1988), 122 Ill. 2d 176, 186; see People v. Arsberry (1993), 242 Ill. App. 3d 1034, 1041.\nAdditionally, regarding this issue, defendants maintain that Willie McCoy\u2019s identification of them as gang members was prejudicial. In explaining why he did not want the police to attach his name to his statement, McCoy stated at trial: \"I feared for my life because like I know the guys was in the gang and I had to live in the neighborhood.\u201d Defendants point to this statement in support of their claim of error.\nUpon examination of this statement on its face, it is unclear to whom McCoy refers when he says \u201cguys.\u201d This statement does not absolutely identify defendants as gang members, rather, in its context, it could reasonably be construed to make reference to individuals in McCoy\u2019s community who are gang members. Its relation to defendant Anderson is suspect because McCoy was unaware that he was involved in the crime. His knowledge pertained solely to defendant Gray. We believe any connection between this statement and defendants is at best tenuous.\nMoreover, defendants have given detailed statements to police implicating themselves in the crime, which were corroborated by additional witnesses and physical evidence. We believe, due to the overwhelming evidence of defendants\u2019 guilt and the statement\u2019s ambiguous nature, any error attributable to this issue is harmless.\nNext, defendants collectively opine that Willie McCoy\u2019s testimony was improper and prejudicial. McCoy testified that he hesitated to come forward because he feared for his life and that he only agreed to testify because the State promised to relocate him anonymously. Defendants base their contention of error on the fact that there were no specific threats against McCoy.\nIn detailing why he did not reveal any information to police regarding the crime until lVz years later, McCoy stated: \u201cI was scared *** like I was scared for my life ***. I didn\u2019t want to be talking to the police in front of peoples, *** because I was just afraid of my life *** like I didn\u2019t want everybody to say *** this guy pointed out a murderer.\u201d\nThis testimony explains McCoy\u2019s lengthy delay in sharing his knowledge with police. Evidently, he did not want to be known in the community as one who helped the police locate a murderer. At no time did McCoy state or imply that defendants were in a gang or that they threatened him. His comments were, conversely, confined to the conditions on the west side of Chicago and the reasons behind his reluctance to come forward.\nWe do not believe that the trial judge abused his discretion in allowing Willie McCoy to testify as to his fear for his life, and further conclude that as his testimony was general in character, it was not reasonably attributable to defendants. Hence, we deem it nonprejudicial. Further, the record does not support any threats or intimidation of McCoy at the hands of defendants and any references to his fears were thus harmless.\nNext, defendant Gray solely claims that he was prejudiced by both the prosecutor\u2019s improper comments during closing argument and his personal attack against defense counsel.\nSpecifically, defendant Gray proffers that the prosecutor\u2019s characterization of Ids theory of the case, calling it \u201cso ridiculous that it isn\u2019t even worthy of comment\u201d and stating that \u201cthey [defense counsel] point to minutia, minute things in the case,\u201d was improper and prejudicial. Defense counsel made an objection to these statements which was overruled by the trial court.\nIt is well settled that attorneys are afforded wide latitude in making closing argument. \u201c \u2018The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial judge *** properly exercised the discretion vested in him.\u2019 \u201d (People v. Morgan (1986), 112 Ill. 2d 111, 131, quoting People v. Smothers (1973), 55 Ill. 2d 172, 176.) After a careful review of the prosecutor\u2019s remarks in context (People v. Bryant (1983), 94 Ill. 2d 514), they fail to constitute reversible error. In fact, the record indicates that the prosecutor\u2019s comments related to aspects of defendant Gray's case based on properly presented evidence which is surely permissible. We do not believe the trial court abused its discretion in allowing such argument.\nRelatedly, defendant Gray contends that comments made by the prosecutor during closing argument were intended to inflame the passions and prejudice of the jury. In closing, the prosecutor stated that a witness had to be moved because \u201cwe don\u2019t want him to be dead\u201d and alluded to the fact that there are family and friends of defendants who might inflict harm upon the witness. The trial court sustained defense counsel\u2019s objection to the allusion.\nAlthough the comment was improper, bearing no relevance to defendant Gray\u2019s guilt or innocence, its impropriety does not automatically trigger reversible error. \u201c[C]omments constitute reversible error only when they engender substantial prejudice against a defendant (see, e.g., People v. Tiller (1982), 94 Ill. 2d 303, 321), such that it is impossible to say whether or not a verdict of guilt resulted from those comments.\u201d (People v. Henderson (1990), 142 Ill. 2d 258, 323.) We believe that the trial court\u2019s sustaining of defense counsel\u2019s objection and its admonition to the jury, \u201c[n]either opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which is not based on the evidence should be disregarded,\u201d were sufficient to neutralize any potential prejudice against defendant Gray.\nAdditionally, defendant Gray asserts that the prosecutor\u2019s statement during rebuttal argument, \u201cyou [the jury] get to decide whether you\u2019re going to protect yourselves and your families and your community from Lome Gray and Steven Anderson and his kind,\u201d prejudiced him. The trial court overruled defense counsel\u2019s objection to this statement. Applying the substantial prejudice standard outlined above, we cannot say that the complained-of remarks were of such extreme magnitude as to have denied him a fair trial.\nDefendant Gray cites other comments which he argues prejudiced him, but we will not review such remarks as they are waived on appeal. Preservation of an issue for review requires both an objection at trial and the inclusion of the issue in the post-trial motion. The failure to complete these necessary steps results in waiver of these issues. People v. Enoch (1988), 122 Ill. 2d 176, 186; see People v. Arsberry (1993), 242 Ill. App. 3d 1034, 1041.\nNext, defendant Gray maintains that the trial court\u2019s grant of the State\u2019s motion in limine, erroneously excluding eyewitness testimony which failed to identify defendant Anderson in a lineup, prejudiced him. Defendant Gray posits that the testimony of two eyewitnesses, Derrick Hendrix and Stephanie Morgan, was crucial to the establishment of his confession\u2019s falsity. The trial court prohibited this testimony, characterizing it as both hearsay and irrelevant.\n\u201c \u2018The test for admissibility of evidence is whether it fairly tends to prove the particular offense charged\u2019 (People v. Peter (1973), 55 Ill. 2d 443, 459), and whether what is offered as evidence will be admitted or excluded depends upon whether it tends to make the question of guilt more or less probable ***.\u201d (People v. Ward (1984), 101 Ill. 2d 443, 455; see People v. Rodgers (1972), 53 Ill. 2d 207, 214-15.) It is the province of the trial court to determine the relevancy of evidence, and this determination will not be disturbed absent an abuse of discretion. {Ward, 101 Ill. 2d at 455-56.) Application of the preceding standards leads us to conclude that the excluded nonidentification testimony bears no relationship whatsoever to defendant Gray\u2019s guilt. Further, defendant Gray\u2019s description of the nexus between his confession and the nonidentification of defendant Anderson is extremely remote and we will not attempt to fill in any gaps here.\nNext, defendant Anderson solely argues Detective Patrick Harrington\u2019s testimony \u2014 that defendant Gray implicated him in the robbery and murder of the victim \u2014 violated his rights under the confrontation clause because defendant Gray did not testify at trial and was thus unavailable for cross-examination. Specifically, Detective Harrington stated that, while in an interview room at the police station, defendant Gray identified defendant Anderson as the individual involved in the crime he previously recounted to police.\n\u201cConfrontation errors *** do not automatically warrant reversal [citations], and the defendant\u2019s convictions may therefore be affirmed if we are able to conclude that the error was harmless beyond a reasonable doubt [citation].\u201d (People v. Johnson (1987), 116 Ill. 2d 13, 28; see People v. Miller (1992), 225 Ill. App. 3d 92, 103.) We do not believe that defendant Anderson was substantially prejudiced by any testimony given by Detective Harrington, particularly in view of the overwhelming and incontrovertible evidence of defendant Anderson\u2019s guilt. As the outcome of the trial was unaffected by contended error, we find the error to be harmless beyond a reasonable doubt.\nNext, defendant Anderson asserts that the natural life sentence he received was excessive in light of his age and lack of criminal history. We disagree.\nIn sentencing defendant Anderson, the trial court determined that aggravating factors were present to justify the imposition of a life sentence. The relevant statute provides:\n\u201c[I]f the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9 \u2014 1 of the Criminal Code of 1961 are present, the court may sentence defendant to a term of natural life imprisonment ***.\u201d (111. Rev. Stat. 1985, ch. 38, par. 1005 \u2014 8\u2014 l(lXb).)\nThe trial cotut explicitly found the presence of aggravating factors under section 9 \u2014 1(b) which were sufficient to justify the natural life term imposed. Therefore, there is no error respecting the consistency of defendant Anderson\u2019s sentence.\nHowever, defendant Anderson claims that this statutorily permissible sentence was excessive. \u201c[T]he trial court is *** the proper forum in which a suitable sentence is to be determined and the trial judge\u2019s decisions in regard to sentencing are entitled to great deference and weight\u201d and absent an abuse of discretion such a determination will not be overturned. (People v. Perruquet (1977), 68 Ill. 2d 149, 154.) The trial court found a \u201cminimal amount of mitigation\u201d and determined defendant Anderson\u2019s acts to be \u201cthe type of heinous behavior that was contemplated by the Legislature when they passed the statute.\u201d We find defendant Anderson\u2019s sentence to be proportionate to the offense committed and accordingly find no abuse of discretion in the trial court\u2019s sentencing of him.\nFinally, defendant Anderson opines that this case be remanded for a Batson hearing, which would require the State to articulate race-neutral reasons for its use of peremptory challenges to exclude two African-American women from the jury.\nIn Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the United States Supreme Court prohibited the use of peremptory challenges to exclude potential jurors solely based on race. Before a Batson violation can be established, however, it is incumbent upon defendant to demonstrate a prima facie case of racial discrimination in view of all the relevant circumstances. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723; see People v. Evans (1988), 125 Ill. 2d 50, 63.\nAs defendant Anderson has failed to preserve the record, we are unable to discern the race of either the jury or the other excluded venire members. We know of no rule of law that requires us to guess or speculate as to the racial composition of the jury in determining a Batson violation. Yet, this is what defendant Anderson proposes we do although any determination made here would be entirely based on speculation and conjecture. We decline to undertake this expedition as it certainly is not in accordance with the intent of Batson. Defendant Anderson has simply established that the State used two of its peremptory challenges to exclude African-American women from the jury.\nThe challenge of African-American venirepersons alone does not raise an inference of discrimination. (Batson, 476 U.S. at 101, 90 L. Ed. 2d at 91, 106 S. Ct. at 1725.) Defendant Anderson\u2019s failure to satisfy his onus of preserving the record waives substantive review of this contention.\nFor the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nCAHILL and HOFFMAN, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE JOHNSON"
      }
    ],
    "attorneys": [
      "Marv Raidbard, of Chicago, for appellant Lome Gray.",
      "Michael J. Pelletier and Maria A. Harrigan, both of State Appellate Defender\u2019s Office, of Chicago, for appellant Steven Anderson.",
      "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Donald T. Lyman, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LORNE GRAY et al., Defendants-Appellants.\nFirst District (4th Division)\nNos. 1\u201490\u20141153, 1\u201490\u20143200 cons.\nOpinion filed August 12, 1993.\nMarv Raidbard, of Chicago, for appellant Lome Gray.\nMichael J. Pelletier and Maria A. Harrigan, both of State Appellate Defender\u2019s Office, of Chicago, for appellant Steven Anderson.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Donald T. Lyman, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0362-01",
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}
