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  "id": 456202,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONNELL NOLAN, Defendant-Appellant",
  "name_abbreviation": "People v. Nolan",
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    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONNELL NOLAN, Defendant-Appellant."
    ],
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      {
        "text": "PRESIDING JUSTICE WOLFSON\ndelivered the opinion of the court:\nOn the morning of December 8, 1989, Donnell Nolan (Nolan) entered the Pershing Food and Liquor Store at 857 East 39th Street, to purchase a bottle of pop. The proprietor, Zaki Fakhoury (Fakhoury), accused Nolan of shoplifting. During an altercation, Nolan pulled a loaded gun from his pocket, then shot and killed Fakhoury. The question for the jury to resolve was whether Nolan\u2019s actions constituted first degree murder, second degree murder, involuntary manslaughter, or no crime at all.\nIn his first jury trial, Nolan was found guilty of first degree murder and sentenced to 40 years\u2019 imprisonment. That conviction was overturned, because of an instructions error, in a Rule 23 (134 Ill. 2d R. 23) order issued on December 24, 1992. In his second jury trial, Nolan was found guilty of second degree murder and sentenced to 30 years\u2019 imprisonment. It is from this judgment that he now appeals. We affirm the defendant\u2019s conviction, but we reduce his sentence to 15 years.\nFACTS\nTwo months after the shooting, on February 8, 1990, Nolan turned himself in to the police. He gave a signed statement to the assistant State\u2019s Attorney in which he admitted shooting Fakhoury. Nolan was positively identified in a lineup and at trial by an occurrence witness, Mrs. Willingham. The gun used to shoot Fakhoury was recovered from the home of Nolan\u2019s friend, Calvin Brown, who testified at trial.\nAt trial, the controversy was not whether Nolan shot Fakhoury, but how the shooting occurred.\nMrs. Ann Willingham testified that she was standing in the checkout line in Fakhoury\u2019s store at 8:30 a.m. on December 8, 1989, waiting to make her purchases. Nolan entered the store and walked to the back, where the coolers are located. While Nolan was walking down the aisle and looking at the merchandise, Fakhoury watched Nolan in a mirror. Fakhoury spoke to another worker in Arabic and gestured toward Nolan. It was Mrs. Willingham\u2019s perception that Fakhoury thought Nolan was shoplifting.\nNolan came to the front of the store and stood in line with a bottle of pop in his hand. Fakhoury came around from behind the counter and began to shout at Nolan, demanding that he \"give me what you got.\u201d Nolan replied, \"I don\u2019t have anything.\u201d Fakhoury kept advancing toward Nolan while Nolan kept backing up, telling Fakhoury \"back off\u201d and \"don\u2019t keep walking up on me because I don\u2019t have nothing.\u201d\nFakhoury was not about to give up. He continued to shout at Nolan and grabbed his wrist, trying to draw him toward the front of the store. Nolan tried to pull away from Fakhoury\u2019s grasp and said, \"Let go of me, let go of me, I told you I didn\u2019t have anything.\u201d\nMrs. Willingham said she turned away from this confrontation and attempted to finish her transaction. While her back was turned she heard a gunshot. She turned back to see Fakhoury falling to the floor and Nolan walking backwards.\nThe other store clerk had locked the front door. But, after the shooting, Nolan \"jogged to the door\u201d and shook it until it opened. Nolan left the store with the gun still in his hand.\nOn cross-examination, Mrs. Willingham said she never saw Fakhoury try to reach into Nolan\u2019s pockets. She said that Fakhoury was just \"grabbing\u2014snatching, tugging\u201d at Nolan while Nolan was trying to get loose.\nIn a written statement given to Assistant State\u2019s Attorney (ASA) Holmes, Nolan said he entered the store with two loaded handguns in his jacket pockets. He got a bottle of pop out of the cooler in the back of the store and then came to the front checkout. Fakhoury came up to him, grabbed his left arm, and started to shout at him, \"Give it back.\u201d Nolan said Fakhoury would not let go of his arm and was trying to search his pockets. Nolan pulled a .38-caliber snub nose out of his right pocket and shot the man one time in the chest. Nolan also told ASA Holmes he \"wanted the man to let go because the Arabs are always grabbing on black men in the store, and he did not want to be searched because he did not steal anything.\u201d\nWhen ASA Holmes testified about interviewing the defendant and taking this statement, she did not recall Nolan saying that there had been a struggle over the gun. Her recollection was that Nolan said Fakhoury grabbed Nolan while accusing Nolan of shoplifting. Nolan\u2019s pockets were bulging due to the guns. Nolan pulled out a gun to show Fakhoury that he had guns, not merchandise. When Fakhoury would not let go of Nolan, Nolan stepped back and shot Fakhoury.\nASA Holmes also testified that while she wrote out Nolan\u2019s statement, he was looking at the paper and making corrections or changes. After she finished the written statement, Nolan read it out loud, made some corrections, then signed it.\nDetective Redmond testified that he was present at Area 1 headquarters when Nolan turned himself in. He arrested Nolan and handcuffed him to the wall of an interview room. Although Nolan turned himself in because he knew the police were looking for him in connection with the shooting, Detective Redmond testified that Nolan initially denied being involved in the shooting.\nMrs. Willingham was brought to headquarters and identified Nolan in a lineup. Detective Redmond then informed Nolan that he had been identified. After receiving this information, Nolan agreed to speak to the assistant State\u2019s Attorney and admitted his part in the shooting.\nNolan\u2019s trial testimony about the occurrence was similar to his written statement, with one major exception. He said at trial that Fakhoury came around the counter and demanded that he \"give it back.\u201d Fakhoury then grabbed Nolan\u2019s arm and tried to reach into his pockets where he had the guns concealed. Nolan said he pulled one gun out to show Fakhoury that he had a gun and not merchandise in his pocket. Then, he said, he \"cocked\u201d the gun and \"in the tussle\u201d with Fakhoury \"[his] hand was on the trigger and it just went off.\u201d Nolan described the \"tussle\u201d as Fakhoury trying to grab at him, reaching into his pockets, and grabbing at the gun. He said he did not intend for the gun to go off. Nolan\u2019s written statement did not include his claim that the gun went off when Fakhoury grabbed at the gun.\nOn cross-examination, Nolan admitted that Fakhoury was unarmed and Fakhoury did not threaten or hit him. Nolan said he pulled out the gun and showed it to Fakhoury, thinking that it would \"make him let me go.\u201d He admitted that he deliberately cocked the gun and held the gun with his finger on the trigger, but he contended that the trigger was pulled and the gun went off accidentally because Fakhoury came at him, trying to take the gun away.\nWhen asked whether he ever told ASA Holmes that the gun went off accidentally because Fakhoury was grabbing for it, Nolan said, \"I don\u2019t recall.\u201d The prosecutor then asked whether Nolan told ASA Holmes, as it said in the statement, that he just pulled out the gun and shot Fakhoury in the chest. Nolan said, \"I don\u2019t recall that. It\u2019s been almost 5 years.\u201d\nHaving heard all of the evidence, the jury was instructed on the elements of first degree murder, second degree murder, and involuntary manslaughter. The jury found Nolan guilty of second degree murder. Nolan later was sentenced to an extended term of 30 years.\nDECISION\nIn his first issue on appeal, defendant claims he was denied the right to fully present a defense because he was prohibited from eliciting testimony from Detective Redmond concerning what he characterizes as a \"prior consistent statement.\u201d\nThe trial court ruled, on hearsay grounds (see People v. Barnwell, 285 Ill. App. 3d 981, 675 N.E.2d 148 (1996); People v. Young, 206 Ill. App. 3d 789, 811, 564 N.E.2d 1254 (1990)), that Nolan could not ask Detective Redmond about oral statements Nolan may have made in the presence of Redmond and ASA Holmes that were not contained in Nolan\u2019s signed, written statement. The trial court also ruled, however, that if Nolan testified that he made such statements, Detective Redmond could be called to corroborate Nolan\u2019s testimony.\nNolan now contends that he should have been allowed to question Detective Redmond to determine whether the detective recalled Nolan saying that Fakhoury was shot in a struggle over the gun. The detective\u2019s testimony, says defendant, was admissible to counter the State\u2019s argument of recent fabrication and admissible under the completeness doctrine.\nThough defense counsel did not raise these specific claims in his posttrial motion, Nolan now contends the court\u2019s restriction on the cross-examination of Detective Redmond was plain error. We disagree.\nIf we ignore the fact that this issue was not properly preserved (People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988)), the issue fails on its merits.\nWhen the defendant is the declarant of an out-of-court statement and available to testify in his own behalf, the self-serving or exculpatory statement made to police while in custody is considered unreliable and may be excluded on hearsay grounds (People v. Barnwell, 285 Ill. App. 3d 981, 675 N.E.2d 148 (1996)), unless one of the exceptions to the general rule against admission of hearsay applies.\nIn this case, the trial court should have allowed defense counsel to question Detective Redmond about oral statements Nolan may have made. Detective Redmond was present while ASA Holmes prepared Nolan\u2019s written statement. Under the completeness doctrine (see People v. Hosty, 146 Ill. App. 3d 876, 884, 497 N.E.2d 334 (1986)), Nolan should have been able to test the accuracy of the written statement. The trial court allowed Nolan to question ASA Holmes about matters that she may have left out of the written statement. We see no reason why a different standard should have applied to Detective Redmond.\nThere was no reason to condition asking Detective Redmond the pertinent question on Nolan first testifying to the sought-after statement. The purpose of the rule of completeness is to correctly convey the true meaning of a statement to the triers of fact. People v. Weaver, 92 Ill. 2d 545, 556, 442 N.E.2d 255 (1982). Completeness may be accomplished through cross-examination of witnesses who were present at the time of the statement. People v. Williams, 109 Ill. 2d 327, 334, 487 N.E.2d 613 (1985). The testimony sought from Redmond was limited to the same subject at the same time and at the same place. The question should have been allowed.\nBut there is an inherent problem with defendant\u2019s contention that this constitutes reversible error: defendant failed to establish that a \"prior consistent statement\u201d existed.\nASA Holmes testified that she did not recall being told that Fakhoury was shot in a struggle over the gun. ASA Holmes recalled being told that Nolan was trying to get away from Fakhoury and kept backing up. Nolan shot Fakhoury because he would not let go. This is what was reported in the written statement she prepared and which, Nolan admitted, he reviewed and signed after making corrections.\nIt is clear that Nolan did not establish he ever told Detective Redmond or ASA Holmes about a struggle over the gun. In his own trial testimony, Nolan said he could \"not recall\u201d if he said this. No offer of proof was made to show that Detective Redmond would have recalled such a statement. For this reason, it is mere speculation that Detective Redmond would have been able to testify to a \"prior consistent statement\u201d by Nolan. We will not reverse Nolan\u2019s conviction for reasons based on speculation.\nIn his second issue, Nolan contends that his conviction should be reversed because of comments made by the prosecutor in closing argument. He claims that the prosecutor vouched for his witnesses\u2019 credibility, misstated facts, and misstated law.\nDefendant objected to only two of these errors at trial and failed to specify the objectionable remarks in the posttrial motion. The issue is not preserved for review. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988). Though defendant raised a generic claim of improper closing argument, no specific examples of misconduct were illustrated. This constitutes a waiver of the issue on appeal. People v. Robinson, 238 Ill. App. 3d 48, 606 N.E.2d 122 (1992).\nNor does plain error defeat the waiver here. Prosecutors are afforded substantial latitude in closing argument. People v. Pecoraro, 144 Ill. 2d 1, 16, 578 N.E.2d 942 (1991). Even when improper, prosecutorial remarks will not warrant reversal unless they result in substantial prejudice to the defendant. People v. Sims, 285 Ill. App. 3d 598, 673 N.E.2d 1119 (1996).\nAs required, we have reviewed each of the complained-of comments in context of the closing remarks as a whole. People v. Alvine, 173 Ill. 2d 273, 671 N.E.2d 713 (1996); People v. Thompkins, 121 Ill. 2d 401, 445, 521 N.E.2d 38 (1988).\nNolan claims the prosecution vouched for the veracity of its key witness, ASA Holmes. But the transcript reveals what the prosecutor said:\n\"And you know that\u2019s not what he said from the testimony of Detective Redmond and the testimony of Pat Holmes. And you can judge their demeanor and their testimony and what they saw and what they heard from the defendant. He didn\u2019t say that once. Pat Holmes was telling the truth to what he said. His own statements tell you the truth.\u201d\nIt is clear to us the prosecutor was not expressing his personal belief in the witness\u2019s veracity, but was asking the jury to judge the witness\u2019s veracity based on demeanor and the other evidence presented. See People v. Wheeler, 216 Ill. App. 3d 609, 575 N.E.2d 1326 (1991). It is fair comment on the evidence to argue that witnesses are believable because of their demeanor and because they have been corroborated. People v. Nitz, 143 Ill. 2d 82, 572 N.E.2d 895 (1991).\nThe remaining remarks are equally inoffensive and need not be discussed. Most of the complained-of comments were made in rebuttal argument and were either provoked or invited by the defense. As such, they were permissible comments directly related to the evidence or reasonable inferences drawn from the evidence. There was no error.\nThe final claim on appeal is that the trial court abused its discretion when it imposed the maximum extended-term sentence of 30 years\u2019 imprisonment on Nolan. Although Nolan did not object to the sentence imposed at the sentencing hearing, and did not file a written motion for review of the sentence within 30 days in accord with the statutory provision (730 ILCS 5/5\u20148\u20141(c) (West 1996)), we are not compelled to apply the waiver rule when we see plain error. People v. McCleary, 278 Ill, App. 3d 498, 663 N.E.2d 22 (1996).\nDefendant acknowledges his eligibility for an extended-term sentence based on his two prior felony convictions: residential burglary and possession of a stolen motor vehicle. However, a defendant\u2019s eligibility for an extended term does not require that result. People v. Taylor, 278 Ill. App. 3d 696, 663 N.E.2d 1126 (1996). It is left to the trial court\u2019s sound discretion to determine whether an extended term sentence should be imposed.\nNolan complains that his 30-year sentence, which is the maximum extended sentence that could be imposed, is excessively harsh, motivated by vindictiveness, and an abuse of discretion. He has a point.\nAs the defendant contends, the \"factual matrix surrounding the shooting\u201d does not warrant a 30-year prison term. It is clear that Fakhoury was the aggressor in the encounter with Nolan. The evidence consistently showed that Nolan was attempting to back away from the encounter and extract himself from the situation. The shooting was not an act of plan or premeditation. Although Nolan was unable to prove Fakhoury reached for the gun and the gun went off accidentally, this was a close case and Nolan carried his burden of proving mitigating factors that reduced the offense to second degree murder.\nThough Nolan\u2019s two prior felonies make him eligible for an extended term, neither one of the two prior felonies indicates that Nolan is a dangerously aggressive criminal.\nAfter his first trial in which he was found guilty of first degree murder, Nolan was sentenced to 40 years\u2019 imprisonment. This was not the maximum sentence available. No extended-term sentence was given, although Nolan was eligible. Yet, when defendant was retried and found guilty of second degree murder, which carries a maximum penalty of 15 years, an extended-term sentence of 30 years was imposed\u2014just 10 years less than the sentence imposed earlier.\nUnder these circumstances, the sentence amounts to an abuse of discretion. See People v. Andrews, 132 Ill. 2d 451, 548 N.E.2d 1025 (1989). On the authority granted us by Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)), we reduce the defendant\u2019s sentence to 15 years.\nCONCLUSION\nFor the reasons stated, the defendant\u2019s conviction is affirmed. His sentence is reduced to 15 years.\nAffirmed as modified.\nCERDA and BURKE, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE WOLFSON"
      }
    ],
    "attorneys": [
      "Michael J. Pelletier and Manuel S. Serritos, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.",
      "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Elizabeth A. McDevitt, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONNELL NOLAN, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201495\u20144390\nOpinion filed August 14, 1997.\nMichael J. Pelletier and Manuel S. Serritos, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Elizabeth A. McDevitt, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0879-01",
  "first_page_order": 897,
  "last_page_order": 906
}
