{ "id": 365877, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY COLTS, Defendant-Appellant", "name_abbreviation": "People v. Colts", "decision_date": "1993-08-17", "docket_number": "No. 1\u201491\u20140933", "first_page": "679", "last_page": "697", "citations": [ { "type": "official", "cite": "269 Ill. App. 3d 679" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "532 N.E.2d 531", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "177 Ill. App. 3d 593", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3620494 ], "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0593-01" ] }, { "cite": "513 N.E.2d 921", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "160 Ill. 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App. 3d", "case_ids": [ 3648812 ], "year": 1991, "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0099-01" ] }, { "cite": "561 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "137 Ill. 2d 195", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251719 ], "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0195-01" ] }, { "cite": "480 N.E.2d 128", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 1073", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3529092 ], "pin_cites": [ { "page": "1085" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/1073-01" ] }, { "cite": "522 N.E.2d 1317", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "168 Ill. App. 3d 873", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3513449 ], "pin_cites": [ { "page": "878" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0873-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "545 N.E.2d 1005", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "190 Ill. App. 3d 35", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2642919 ], "year": 1990, "pin_cites": [ { "page": "735" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0731-01" ] }, { "cite": "561 N.E.2d 633", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "138 Ill. 2d 131", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576392 ], "weight": 3, "pin_cites": [ { "page": "141" }, { "page": "142" }, { "page": "142-43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0131-01" ] }, { "cite": "539 N.E.2d 1196", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "128 Ill. 2d 540", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228677 ], "pin_cites": [ { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0540-01" ] }, { "cite": "520 N.E.2d 901", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "165 Ill. App. 3d 1038", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3614754 ], "year": 1989, "pin_cites": [ { "page": "1041" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/1038-01" ] } ], "analysis": { "cardinality": 1360, "char_count": 39407, "ocr_confidence": 0.763, "pagerank": { "raw": 6.918052397707445e-08, "percentile": 0.420117350471012 }, "sha256": "0c9c78de9fb5ec1c1df68a2b0e72f8b893aaf6d343ebee8f8bc5b723b2f500fd", "simhash": "1:afbc50bc7b457fdd", "word_count": 6562 }, "last_updated": "2023-07-14T19:11:33.308788+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. LARRY COLTS, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE McCORMICK\ndelivered the opinion of the court:\nA jury found defendant, Larry Colts, guilty of attempted murder, and the trial court sentenced him to a term of 25 years\u2019 imprisonment. On appeal, defendant argues that the trial court erred by (1) denying his motion for discharge on speedy trial grounds; (2) admitting hearsay testimony; (3) overruling defense counsel\u2019s objection to defendant\u2019s volunteered alibi testimony; (4) permitting cross-examination concerning the alibi and defendant\u2019s lifestyle; (5) overruling objections to cross-examination of a defense witness; and (6) permitting improper closing argument. Defendant also asks this court to reverse because he did not receive effective assistance of counsel. We affirm.\nHenry Sims grew up in the area of Grenshaw and Pulaski Streets in Chicago, where he became friends with defendant. Sims moved out of the neighborhood in 1980, but he visited the area almost every day. On September 21, 1989, Sims drove to that area with Amanda Simmons, his fiancee. Sims saw defendant with two other men. After speaking with one of the men, Sims verbally confronted defendant, then drove away.\nSims and Simmons returned to the area the next day. While they were talking to Herbert Gleason, a man carrying guns walked up behind Sims\u2019 car and fired several shots into the car, hitting Sims.\nSimmons drove the car, from the passenger side, for several blocks to get away from the area. Once she felt safe enough, she moved to the driver\u2019s side and drove to Cook County Hospital, where Sims received treatment and answered police questions. The bullet wound has rendered Sims a paraplegic. Police arrested defendant on November 10, 1989, and charged him with attempted murder for shooting Sims.\nI\nThe assistant public defender representing defendant filed a written demand for trial on November 13, 1989, but the trial court continued the case to January 17, 1990. On that date, defendant agreed to a continuance to February 7. The State filed charges against defendant for a separate offense unrelated to this case, and the trial court set the new charge for status hearing on February 7. The record of the hearing shows that defendant demanded trial on the new charge, but it shows no discussion of the attempted murder charge. The trial court indicated that the new case was continued, on the State\u2019s motion, to February 27, 1990, but the record for this case indicates that defense counsel agreed to a continuance to February 27 on the attempted murder charge. Defendant did not appear in court on February 7.\nDefense counsel agreed to further continuances to April 25 at a series of hearings for which defendant was not present in court. The April 25 transcript again indicates that defendant demanded trial on the newer charge, but it shows no discussion of the attempted murder charge. The half-sheet on the attempted murder charge shows a continuance by agreement to May 1, 1990. On May 1, the State dismissed the newer charge and defense counsel agreed to a continuance to May 4 on the charge of attempted murder.\nOn May 4, 1990, defense counsel demanded trial and said defendant \"wanted to demand [trial]\u201d at the May 1 hearing. The trial court granted the State\u2019s motion for a continuance. The trial court granted the State further continuances to June 25, 1990. Defendant petitioned for discharge due to violation of his right to a speedy trial. The trial court denied the motion and set the attempted murder charge for trial on June 26, 1990.\nDefendant argues on appeal that the trial court should have granted his motion for discharge. The State must bring a defendant in custody to trial within 120 days of the date on which he is taken into custody unless the defendant causes the delay. (Ill. Rev. Stat. 1989, ch. 38, par. 103 \u2014 5(a).) \"A defendant is considered to have occasioned a delay when he requests a continuance, agrees to a continuance, or when his actions otherwise cause or contribute to a delay.\u201d (People v. Grayson (1988), 165 Ill. App. 3d 1038, 1041, 520 N.E.2d 901.) Defendant has the burden of establishing a violation of the statute. People v. Turner (1989), 128 Ill. 2d 540, 550, 539 N.E.2d 1196.\nClients are generally bound by the acts of their attorneys. People v. Bowman (1990), 138 Ill. 2d 131, 141, 561 N.E.2d 633.\n\"[T]he record need not always affirmatively show that when an attorney requests or agrees to a continuance, he has consulted with and received the advice of the accused, because such a rule would intolerably burden the trial courts.\u201d (Bowman, 138 Ill. 2d at 142.)\nTherefore, a defendant is bound by his counsel\u2019s request for a continuance, even if the request is made in the accused\u2019s absence, unless defendant overcomes the presumption that defense counsel acted on defendant\u2019s authorization. Bowman, 138 Ill. 2d at 142-43.\nDefendant here has not presented any facts showing that counsel\u2019s agreements to continuances were unauthorized. Defendant has presented no facts concerning any of the continuances by agreement in this case apart from the continuance from May 1 to May 4. Counsel\u2019s single statement at the May 4 hearing that defendant wanted to demand trial on May 1 is insufficient to show that the original agreement to a continuance was unauthorized. Therefore, all of the continuances to which defense counsel agreed must be charged to defendant despite defendant\u2019s absence from court.\nDefendant next maintains that the continuances granted on February 7 and May 1 were results of the State\u2019s motions. \"While the records of those hearings show that the State moved for continuances in proceedings on the unrelated charge against defendant, the record contains no discussion of proceedings on the attempted murder charge. The half-sheet indicates that defendant agreed to the continuances. Again, defendant has failed to meet his burden of establishing that he did not agree to those continuances.\nDefendant\u2019s trial began 228 days after police arrested him. Defense counsel agreed to continuances from January 17, 1990, until May 4, 1990, for a total of 107 days. Defendant moved for discharge on June 25, 1990, which was the 120th day chargeable to the State. Time required for disposition of defendant\u2019s motions is delay caused by the defendant. (People v. Smith (1976), 42 Ill. App. 3d 731, 735, 356 N.E.2d 656.) Not all motions cause delays. \"Whether a motion in fact causes delay depends on the facts and circumstances of each case, and the trial court must appraise the timeliness and complexity of the motion.\u201d People v. Montenegro (1990), 203 Ill. App. 3d 314, 317, 560 N.E.2d 934.\nBefore defendant brought his motion for discharge, prosecutors told the trial court they were prepared for trial. At the end of hearing on the motion, the trial court denied the motion and set trial for the next day. Although the motion for discharge was fairly straightforward, requiring only a relatively brief hearing, we find that the motion caused the one-day delay in the start of trial. Therefore we hold that the trial court did not violate defendant\u2019s right to a speedy trial.\nII\nDefendant raises several issues related to evidence presented at trial. We review all of the evidence presented before discussing each evidentiary issue separately.\nSims testified that when he visited his old neighborhood the day before the shooting, after talking with one of the men he had seen with defendant, Sims asked defendant why Sims could no longer visit the neighborhood. Defendant said things were changing and since Sims \"wasn\u2019t a New Breed [he] could no longer come around in the neighborhood,\u201d and if Sims returned to the neighborhood the gang \"would deal with [him] severely.\u201d Amanda Simmons testified that she, too, heard defendant make this threat.\nSims testified that he had been a member of the Vice Lords, but he left the gang in 1986. Sims said that the New Breed was part of the Black Gangsters, which was a rival of the Vice Lords. Sims testified that defendant \"is supposed to be[ ] the chief in that area\u201d for the New Breed. On cross-examination, Sims admitted that Vice Lords and Black Gangsters cooperated at times, and he could not say whether they were operating on a friendly basis in 1989, because he was not then in either gang. Sims also said that Vice Lords chiefs often told other gang members to do jobs they wanted done, and he again admitted that he had heard defendant was a chief of the New Breed. Sims said on redirect that defendant\u2019s new position was the reason he wanted Sims out of the neighborhood. Defense counsel objected, then withdrew the objection. On re-cross-examination Sims admitted that he saw defendant a number of times between August 1989, when he was supposed to have become a chief, and September 21, when Sims said defendant first told him to leave the neighborhood.\nDefendant\u2019s testimony concerning the confrontation on September 21 largely contradicted Sims\u2019 testimony. Defendant admitted at trial that he had been a member of the Black Gangsters in 1976, but he stopped all affiliations with gangs in 1980. Defendant testified that when he spoke with Sims on September 21, 1989, six or seven people were present, but Simmons was not there. Sims told defendant that the man he just spoke to told Sims he could no longer sell drugs in the neighborhood. Defendant told Sims he did not know anything about that. Sims pulled a gun on defendant then left the area.\nSims testified that on September 22 he returned to the area because he thought his brother had gone there, and he feared for his brother\u2019s safety. Sims saw his brother\u2019s friend, Herbert Gleason, driving in the area. Sims stopped his car and asked Gleason if he had seen his brother. Gleason said \"no\u201d and asked Sims what he was doing. Sims testified that Gleason spoke with hesitation and shifted his eyes back and forth, looking behind Sims\u2019 car.\nSims looked in his rearview mirror and saw defendant and another man about 20 feet behind the car coming toward him, carrying guns. They came up within 5 or 10 feet of Sims on the driver\u2019s side of the car and shot Sims. Simmons confirmed that defendant was the man who shot Sims.\nSims testified that while he was in the hospital, two detectives asked him who shot him. Since he could not speak, he wrote down defendant\u2019s name. He believed he was dying.\nChicago police detective Loretta Prasad identified a photograph of Sims\u2019 car, and she noted the three bullet holes on the driver\u2019s side of the car which indicated shots fired at that side of the car. When Prasad visited defendant in the hospital, he was barely audible and had difficulty breathing. She told Sims that the doctors told her he had a 50% chance of survival and that he was partially paralyzed. She corroborated Sims\u2019 testimony that he wrote the name of the person who shot him for her. Another officer testified that after Sims identified defendant as the shooter, police obtained an arrest warrant.\nHerbert Gleason testified that while he was talking with Sims and Simmons he saw a man he did not know standing on the sidewalk. The man stood behind Sims\u2019 car when he shot Sims. Gleason did not get a good look at the man, so he could not describe him in significant detail, but he was sure the man was not defendant. Gleason admitted that he did not warn Sims about the shooter even though he saw the man approach. After the shooting, Gleason drove to Bellwood. He did not call the police or emergency services, nor did he check on Sims\u2019 condition.\nGleason admitted that he was a former member of the Disciples, a street gang. He stated that the Disciples are enemies of the Vice Lords, but he had friends in the Disciples, New Breed and Vice Lords gangs. Gleason testified that the New Breed was the dominant gang in the area where Sims was shot.\nGleason admitted on direct examination that at the time of trial, he was on probation for a burglary conviction. The prosecutor again elicited this information, then asked whether other criminal charges were pending against Gleason. The trial court sustained defendant\u2019s objection. After a sidebar, the prosecutor elicited, yet again, the fact that Gleason was on probation for burglary.\nDuring Gleason\u2019s cross-examination, the trial court called counsel into chambers to let them know he saw someone in the courtroom making gestures which appeared to be signals to Gleason. The two men were brought into the judge\u2019s chambers. One admitted that he knew defendant, admitted shaking his head, but denied that he was directing his gestures to the witness. The trial court excluded him from the remainder of the trial. The trial court admonished the other man and told him that he was not to make any kind of signals in the courtroom. The prosecutor then asked Gleason, in open court, if anyone in the courtroom gallery had given him signals concerning his answers to cross-examination. Gleason said, \"No.\u201d\nDefendant testified on his own behalf. His attorney asked him whether he shot Sims. Defendant answered: \"No, sir. I was over [at] my girlfriend\u2019s house.\u201d The trial court denied defense counsel\u2019s motion to strike everything after \"No.\u201d The prosecutor asked defendant, \"When was the first time you told anyone that you were at your girlfriend\u2019s at 4:20 p.m. on September 22nd?\u201d Defendant answered, \"I told my counselor that the other day when he asked.\u201d\nDefendant testified that after the encounter with Sims on September 21, defendant went to a female friend\u2019s house for a while, then he went to another female friend\u2019s house, where he spent the night. He did not get much sleep that night, so he slept all afternoon when he came to his girl friend\u2019s house on September 22. He left his girl friend\u2019s house around 7 p.m. on September 22 and went to the home he shared with another woman. Defendant did not remember where he was on September 20, 24 or 25. Although he had been Sims\u2019 friend for 20 years, and he heard on September 23 that Sims had been shot, defendant never visited Sims in the hospital or in rehabilitation.\nDefendant admitted on cross-examination that he was unemployed and living off the income of the woman he lived with in a place she owned. The prosecutor asked: \"So you are a pimp?\u201d The trial court sustained defense counsel\u2019s objection, instructed the jury to disregard and admonished the prosecutor.\nA\nDefendant argues that the trial court improperly allowed Sims and Detective Prasad to give hearsay testimony about Sims\u2019 responses, in the hospital, to Prasad\u2019s questions. Defendant admits that his attorney did not object at trial, but he argues that this failure shows that he did not receive effective assistance of counsel.\nUnder section 115 \u2014 12 of the Code of Criminal Procedure of 1963:\n\"A statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him.\u201d (Ill. Rev. Stat. 1989, ch. 38, par. 115\u201412.)\nOur supreme court clarified that under this statute, \"a witness\u2019 prior statement of identification is admissible as substantive evidence *** when testified to by the witness or by a third person, such as a police officer, who was present when the witness made the identification.\u201d People v. Hayes (1990), 139 Ill. 2d 89, 140, 564 N.E.2d 803.\nHere, Sims testified at trial, and defense counsel extensively cross-examined him, with no limitation preventing exploration of his hospital statement. The statement Sims made in the hospital identified defendant as the person who shot Sims, and Sims made the statement shortly after the shooting. Under the statute, both Sims and Prasad could testify concerning the out-of-court identification. (See People v. Wehrwein (1989), 190 Ill. App. 3d 35, 40-41, 545 N.E.2d 1005.) Defense counsel\u2019s failure to object to admissible testimony did not bring his representation below an objective standard of reasonableness.\nDefendant next argues that the trial court improperly admitted hearsay concerning gangs into evidence. Sims testified that Vice Lords were rivals of the Black Gangsters, including the New Breed, but he admitted on cross-examination that he did not know whether Vice Lords and Black Gangsters were on friendly terms in 1989. Sims said that he heard that defendant moved up to be chief of .the New Breed in that area, and Sims said that was why defendant shot him.\nDefendant did not object to any of this testimony at trial; in fact, defense counsel brought out much of this evidence on cross-examination of Sims. By failing to object, defendant waived this issue. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) He asks this court to review the admission of this hearsay as plain error.\nPlain error is an error which deprives defendant of a fair and impartial trial or any substantial error which occurs in a case where the evidence is closely balanced. (People v. Schmidt (1988), 168 Ill. App. 3d 873, 878, 522 N.E.2d 1317.) Defendant maintains that the evidence here is closely balanced. Sims testified that he saw the man who shot him come from behind his car to within 5 or 10 feet of the driver\u2019s side of his car before shooting him in broad daylight. Sims had known defendant for 20 years, and he unequivocally identified defendant as the shooter, both at trial and immediately after the shooting. Simmons, a second eyewitness, corroborated the identification. An eyewitness\u2019 positive identification of the offender, when the witness had ample opportunity to observe the offender, has been found to be sufficient to preclude application of the plain error doctrine. People v. Dixon (1985), 133 Ill. App. 3d 1073, 1085, 480 N.E.2d 128.\nDefense witness Gleason said the shooter shot from behind the car; the photograph of the car showed bullet holes in the side of the car. Although Gleason considered Sims\u2019 brother a friend, and although he knew members of several gangs in the area, Gleason made no effort to find out who the shooter was. He could not describe the shooter, although he watched him come to the car, and he drove past him while leaving the scene. Defendant testified that he was with several women in the 24-hour period between his encounter with Sims and the shooting, but he could not remember where he was any other day around that time. Since Gleason\u2019s testimony and defendant\u2019s alibi were effectively impeached by their own conduct, physical evidence and the inherent implausibility of the testimony, defendant\u2019s evidence does not closely balance the unequivocal eyewitness identifications. See People v. Herrett (1990), 137 Ill. 2d 195, 210, 561 N.E.2d 1.\nDefendant concedes that the trial court properly admitted into evidence Sims\u2019 testimony that he knew that the New Breed was a gang in the neighborhood and defendant said to him he could not come around the neighborhood because he was not a member of the New Breed. Even if the admission of further evidence of gang affiliation was error, the evidence was largely cumulative of properly admitted evidence of gang motivation. (See People v. Davidson (1987), 160 Ill. App. 3d 99, 119, 514 N.E.2d 17.) Since the evidence was not closely balanced and any error was not of such magnitude as to deny defendant a fair trial, we will not address the issue under the plain error doctrine. See People v. Morgan (1991), 142 Ill. 2d 410, 446, 568 N.E.2d 755.\nDefendant does not advance counsel\u2019s failure to object to gang-related hearsay as grounds for finding counsel incompetent. The record shows that counsel made a strategic decision not to object, so that he could use the evidence to impeach Sims. Sims, on cross-examination, admitted that gang chiefs generally delegated jobs; the jury could infer that if defendant, a gang chief, wanted Sims shot, he would have sent someone else in the gang to do it. Since the failure to object was part of a reasonable strategic decision, it cannot provide grounds for finding counsel incompetent. See People v. Williams (1990), 139 Ill. 2d 1, 20, 563 N.E.2d 431.\nDefendant also asserts that the trial court erred by permitting a detective to testify that after Sims identified his attacker, the detective obtained a warrant for defendant\u2019s arrest. \"[A]n officer may properly testify concerning investigatory procedures.\u201d (People v. Buckner (1984), 121 Ill. App. 3d 391, 397, 459 N.E.2d 1102.) Defendant contends that the testimony was improper evidence of flight, but the prosecutor did not, either in questioning or in closing argument, attempt to persuade the jury that the warrant showed that defendant tried to flee. Since the warrant is not, in itself, evidence of flight (see People v. Wilson (1987), 116 Ill. 2d 29, 52, 506 N.E.2d 571), we see no basis in this record for believing that the jury might have treated the warrant as evidence of flight. The trial court properly allowed the detective to testify that she obtained a warrant as part of the investigation procedures, prior to arresting defendant. (People v. Chambers (1989), 179 Ill. App. 3d 565, 583-84, 534 N.E.2d 554.) Defendant has not shown reversible error in the admission of hearsay testimony or testimony regarding the warrant.\nB\nDefendant\u2019s next argument is that the trial court improperly allowed defendant to introduce an alibi defense, which led to the State\u2019s damaging cross-examination and closing argument concerning the alibi. During direct examination, in response to the question of whether he shot Sims, defendant volunteered that he was at his girl friend\u2019s house when the shooting occurred. Defense counsel moved to strike the volunteered part of the answer, but the trial court denied the motion.\nThe court generally must strike nonresponsive answers upon an appropriate motion by the party asking the question. (People v. Fritz (1981), 84 Ill. 2d 72, 80, 417 N.E.2d 612.) The general rule is designed \"to allow the examining counsel to control the interrogation.\u201d 81 Am. Jur. 2d Witnesses \u00a7 761 (1992).\n\"[I]t is an obvious requisite of orderly procedure that each side have a voice in determining the order in which the truth shall be told. *** But to deny the questioning attorney the privilege of having non-responsive answers stricken would make the course of direct examination infinitely more difficult and render cross examination virtually useless.\u201d (United States v. Schneiderman (S.D. Cal. 1952), 106 F. Supp. 892, 905.)\nThus, the right to object to nonresponsive answers is one facet of a party\u2019s right to present his case.\nDefense counsel is defendant\u2019s agent for presentation of his case. (People v. Wilkerson (1984), 123 Ill. App. 3d 527, 532, 463 N.E.2d 139.) Strategic decisions involving counsel\u2019s specialized abilities are generally left to counsel\u2019s discretion, but \"an accused represented by counsel retains a right to make decisions involving 'fundamental rights.\u2019 \u201d (People v. Campbell (1984), 129 Ill. App. 3d 819, 821, 473 N.E.2d 129.) Defendant has a fundamental right to decide whether to testify in his own behalf. (Campbell, 129 Ill. App. 3d at 821.) \"The ultimate decision on whether to testify should be made by the defendant, with the advice of counsel.\u201d People v. Knox (1978), 58 Ill. App. 3d 761, 767, 374 N.E.2d 957.\nDefendant\u2019s right to testify entails his right to convey his version of the facts to the jury, even if counsel advises him to the contrary. (Knox, 58 Ill. App. 3d at 766; see United States ex rel. Wilcox v. Johnson (3d Cir. 1977), 555 F.2d 115, 119.) Here, counsel sought to preclude defendant from testifying to his alibi. Defense counsel, as defendant\u2019s agent, does not have the right to object to defendant\u2019s testimony, because defendant cannot object to his own conduct. Accordingly, the trial court appropriately found defense counsel\u2019s objection to his principal\u2019s testimony \"ludicrous.\u201d\nDefendant relies on Fritz to support the argument that the trial court should have stricken part of his testimony. In Fritz the defendant\u2019s wife, on direct examination, volunteered testimony that her husband told her he was going to work on the day of the offense. The trial court overruled defense counsel\u2019s objection to the testimony as nonresponsive. Our supreme court found that the trial court committed reversible error because the defendant \"did not intend to produce evidence that he was at work.\u201d Fritz, 84 Ill. 2d at 80.\nHere, on the contrary, defendant showed his intent to produce evidence that he was at his girl friend\u2019s house by producing that evidence in his testimony. While defense counsel did not intend to produce this evidence, the decision of whether to testify to an alibi is not a matter for defense counsel\u2019s sole discretion. Defendant has a fundamental right to testify, and counsel\u2019s failure to ask for such testimony cannot preclude him from testifying to an alibi. The trial court properly overruled defense counsel\u2019s objection to defendant\u2019s volunteered testimony.\nC\nDefendant also contends that he did not present an alibi defense, so the trial court should have sustained objections to the State\u2019s cross-examination of defendant concerning the alibi. A defendant presents an alibi when he presents competent evidence that he was at a specified place other than the crime scene at the time of the offense. (Fritz, 84 Ill. 2d at 76-78.) When counsel asked if defendant was at the crime scene at the time of the offense, defendant responded that he was at his girl friend\u2019s house. Defendant is competent to testify to his whereabouts at any time. (Cf. Fritz, 84 Ill. 2d at 78.) Therefore, defendant presented an alibi. The trial court properly allowed the prosecution to question defendant in an attempt to discredit the alibi. People v. Madden (1978), 57 Ill. App. 3d 107, 112, 372 N.E.2d 851.\nDefendant specifically objects to the prosecutor\u2019s question concerning when he first told anyone of his alibi, contending that the question draws attention to defendant\u2019s post-arrest silence. Under Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, the prosecution may not use a defendant\u2019s exercise of his constitutional right to remain silent, following Miranda warnings, against him. The rule does not apply to a defendant\u2019s failure to give statements to private parties. (People v. Heidorn (1983), 114 Ill. App. 3d 933, 938, 449 N.E.2d 568.) Such silence impeaches a witness\u2019 testimony if the witness had an opportunity to make a statement, and \"under the circumstances, a person would normally have made the statement.\u201d People v. Conley (1989), 187 Ill. App. 3d 234, 244, 543 N.E.2d 138.\nHere the prosecutor asked defendant when he first told anyone about his alibi, and defendant answered that he told counsel \"the other day,\u201d apparently referring to a consultation a few days before trial. The prosecutor did not ask about defendant\u2019s silence during police questioning; instead, the prosecutor\u2019s question covered many conversations with private parties over an extended period of time. In the months prior to trial, defendant had ample opportunity to discuss his case with counsel and others, under circumstances in which a person would normally mention where he had been, if he had not been at the crime scene. The trial court properly overruled defendant\u2019s objection to the question.\n\u20228 Defendant further objects to cross-examination which elicited the fact that defendant was unemployed and living off the income of the woman he lived with in September 1989. Defendant did not object to the questions at trial, waiving the issue for review. Since the evidence is not closely balanced, and the questions were not sufficiently prejudicial to deny defendant a fair trial, we will not address the issue under the plain error doctrine.\nThe prosecutor asked: \"So you are a pimp?\u201d The trial court immediately sustained defendant\u2019s objection, admonished the jury to disregard and reprimanded the prosecutor in open court. The question was a highly improper attempt to highlight defendant\u2019s immorality. (See People v. Scaggs (1982), 111 Ill. App. 3d 633, 636, 444 N.E.2d 674.) However, timely admonition to disregard may prevent error or render it harmless. {People v. Gleash (1991), 209 Ill. App. 3d 598, 608, 568 N.E.2d 348.) We find that the trial court\u2019s admonition and reprimand here were sufficient to cure any prejudice from the improper question.\nD\nOn direct examination Gleason admitted that he had been convicted of burglary, and he was on probation for the offense at the time of trial. On cross, the prosecutor again elicited testimony that Gleason had been convicted of burglary, and then asked if there were other charges pending against him. The trial court immediately sustained defendant\u2019s objection. The prosecutor next asked if Gleason was on probation for burglary. Defendant now claims the entire line of questioning deprived him of a fair trial. Contrary to defendant\u2019s assertions, the prosecutor never asked about the details of the burglary, and he immediately dropped questioning about the pending cases when the trial court sustained an appropriate objection. (See People v. Mason (1963), 28 Ill. 2d 396, 400, 192 N.E.2d 835; People v. Johnson (1988), 170 Ill. App. 3d 828, 833-35, 525 N.E.2d 546.) Although the question concerning pending cases was improper, we find that the trial court, by promptly sustaining the objection, cured any error. See Gleash, 209 Ill. App. 3d at 608.\nDuring Gleason\u2019s testimony, the trial court excluded one person from the courtroom because the court saw him making gestures which could have been signals to Gleason. The prosecutor asked Gleason, in open court, if anyone in the courtroom gallery had given him signals concerning his answers to cross-examination. Gleason said \"no.\u201d Defendant now contends that the question was improper because the prosecutor was not prepared to prove the denial false.\nWhen a spectator\u2019s actions in court could influence the jury, the court must assert control to guard against possible prejudice. (See People v. Reed (1929), 333 Ill. 397, 421, 164 N.E. 847.) Here, since the trial court saw gestures which it took to be signals, the jury may also have seen the same conduct. The subsequent question and Gleason\u2019s unchallenged denial should have alleviated any possible problem arising from jury observation of the gestures. The prosecutor\u2019s question did not insinuate that he had evidence the jury had not heard (cf. People v. Nuccio (1969), 43 Ill. 2d 375, 253 N.E.2d 353); instead, it addressed conduct in the court the jury could already have seen (see People v. Hahn (1976), 39 Ill. App. 3d 969, 974-75, 350 N.E.2d 839). The trial court properly allowed the question and answer to stand to guard against possible prejudice. See People v. Minnis (1983), 118 Ill. App. 3d 345, 359, 455 N.E.2d 209.\nIll\nDefendant argues that the prosecutor in closing argument committed prejudicial misconduct. In closing argument, the prosecutor emphasized that Sims\u2019 identification of defendant was highly credible because Sims believed he was dying when he first identified defendant as the shooter. The prosecutor also argued that defendant, as a New Breed chief, had a motive to shoot Sims. The prosecutor then attacked the credibility of defense witnesses:\n\"What is a reasonable person going to do when they hear gunfire going off? They may take off, of course, but they are going to call the police ***. [Gleason] never went to the police to say you have the wrong guy, I was there, I was a witness, I saw this guy shoot. Not at all.\nHerbert Gleason\u2019s actions back on September 22nd of 1989 are the most telling thing of all because when he saw the man with the gun he knew it was Larry Colts and he is from that area and he knows that Larry Colts is a big chief in the New Breed and that is the gang that controls that particular area. So when he saw Larry Colts with the gun come up and shoot what did he do, he took off because he is afraid of him and he didn\u2019t come forward he said until two or three days ago when he was asked to come to testify in this matter.\nIs that reasonable? Is that logical? He knows someone is sitting in jail who didn\u2019t commit the offense but he is not going to come forward for months and months and months. He is going to wait until a couple of days before the trial when someone asks him and then he gets on the witness stand and lies to you about what happened on that evening.\nYou further heard the testimony of this defendant from the witness stand. The defendant stated to you that he knew where he was on September 22nd of 1989, the date this happened. He also told you the first time he told anybody about it was a few days ago.\u201d\nIn rebuttal the prosecutor continued to attack defendant\u2019s credibility:\n\"[Defendant] told you that he was with his girlfriend. Did his girlfriend come in to tell you that he was with her at that time? No.\nMR. BUCHHOLZ [Defense counsel]: Objection, Judge.\n* * *\nTHE COURT: Overruled.\nMS. PERKINS [Prosecutor]: He also told you that he was with another girlfriend that evening. Did that girlfriend come in to tell you that she was with him? No.\n* * *\nThe defendant, Larry Colts, would have you believe that on the day in question and the day before he can recall every single act that he did.\nAnd, by the way, he must be some superman. He spends all night with \u2014 all evening with two women and then he goes and he spends the whole next day with another woman.\nMR. BUCHHOLZ: Objection.\nTHE COURT: Overruled.\nMS. PERKINS: And he would have you grown people believe this story, that he was just the lover of the west side and he was spending those two days loving but he never told you about any other days. He couldn\u2019t remember what he did on the 18th. He couldn\u2019t remember what he did on the 19th. He couldn\u2019t remember what he did on the 20th. He couldn\u2019t remember what he did on the 25th. He couldn\u2019t' remember what he did on the 26th.\nIf he is such a great lover, he should have remembered what he did on those other days; but all the other days he just rode around, he just rode around.\nOnly on the 22nd, the evening of the 21st and the 22nd was he the great lover that he would have you believe he was.\u201d\nProsecutors have \"wide latitude during closing argument to comment on the evidence presented, and the trial court\u2019s determination regarding the propriety of the closing argument will not be reversed on appeal absent a clear abuse of discretion.\u201d People v. Williams (1990), 205 Ill. App. 3d 715, 726, 564 N.E.2d 507.\nFirst, defendant argues that the prosecutor impermissibly argued that, when he spoke to police in the hospital, Sims thought he was dying. Sims testified that he thought he was dying, so the argument is a permissible argument based on the evidence.\nSims also testified that defendant said to him, the day before the shooting, that Sims could no longer come to the neighborhood because Sims was not in the New Breed. The prosecutor could argue, on that basis, that defendant had a motive to shoot Sims because of defendant\u2019s gang affiliations. Similarly, the statement is admissible evidence that defendant was in the New Breed, and that evidence, together with Gleason\u2019s testimony that the New Breed controlled much of that territory, provides some basis for the prosecutor\u2019s inference that Gleason may fear defendant.\nThe prosecutor argued that defendant did not tell anyone about his alibi until a few days before trial, based on defendant\u2019s admissible response to the cross-examination question. The prosecutor made no reference to defendant\u2019s silence following arrest. The record here does not describe defendant\u2019s conduct following arrest. The record does not indicate whether defendant answered any questions, or even whether police ever asked him about this crime. The prosecutor here confined herself to inferences from the admissible evidence, and her remarks did not violate Doyle.\nThe prosecutor argued, over defendant\u2019s objection, that defendant failed to present the girl friends he was with on September 22 as alibi witnesses. ' -\u2022\n\"If a defendant injects into a case his activities with potential witnesses during a particular period of time ostensibly for the purpose of establishing an alibi, his failure to produce such witnesses is a proper subject of comment on the part of the prosecution.\u201d (People v. Pressley (1987), 160 Ill. App. 3d 858, 866, 513 N.E.2d 921.)\nProsecution comments here did not exceed proper bounds of response to the alibi defense defendant interjected in his testimony.\nDefendant objects to the prosecutorial remarks referring to defendant as \"some superman,\u201d \"the lover of the west side\u201d and \"a great lover.\u201d If these comments had been an attack upon defendant\u2019s sexual morality, they would have been improper. (See Scaggs, 111 Ill. App. 3d at 636.) However, the context of the remarks shows that they do not address his sexual morality. Instead, the remarks were part of an attack on defendant\u2019s credibility, as the prosecutor commented that defendant characterized himself, implausibly, as a great lover. The prosecutor intended to persuade the jurors that they should not believe that defendant was \"the lover of the west side,\u201d and accordingly they should not believe defendant\u2019s other testimony either. The prosecutor is entitled to comment on the credibility of the accused. (People v. Carter (1989), 177 Ill. App. 3d 593, 601, 532 N.E.2d 531.) We find that the trial court did not abuse its discretion by overruling defendant\u2019s objections to the closing argument.\nIV\nDefendant finally contends that his counsel was ineffective because he did not use Sims\u2019 medical records to impeach Detective Prasad\u2019s testimony that she told Sims the doctor told her that Sims had a 50% chance of survival. We do not see how defendant could have suffered any significant prejudice from defense counsel\u2019s failure to impeach. Sims\u2019 hospital identification of defendant as the shooter was admissible irrespective of his medical condition. (See Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 12.) The prosecutor could as convincingly argue Sims\u2019 motive for an honest identification, based on his dire medical condition, even if Prasad had been impeached, because Sims testified that he believed he was dying. Also, we do not understand how medical records could impeach Prasad\u2019s testimony concerning what she told Sims. Prasad\u2019s statement to Sims was admissible only for its effect on Sims\u2019 state of mind; the statement would have that effect even if medical records proved Prasad misled Sims about the severity of his condition. Since defense counsel\u2019s alleged failure had no prejudicial effect on defendant\u2019s case, we reject this claim for ineffective assistance of counsel. We have already rejected defendant\u2019s other claim that counsel gave ineffective assistance by failing to object to Sims\u2019 testimony that, while he was in the hospital, he identified defendant as the man who shot him.\nFor the reasons stated above, the judgment of the trial court is affirmed.\nAffirmed.\nHARTMAN and SCARIANO, JJ\u201e concur.", "type": "majority", "author": "PRESIDING JUSTICE McCORMICK" } ], "attorneys": [ "Daniel J. Stohr, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Theodore F. Burtzos, Barbara Jones, and Joseph Alesia, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY COLTS, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201491\u20140933\nOpinion filed August 17, 1993.\nDaniel J. Stohr, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Theodore F. Burtzos, Barbara Jones, and Joseph Alesia, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0679-01", "first_page_order": 699, "last_page_order": 717 }