{ "id": 222573, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL MODROWSKI, Defendant-Appellant", "name_abbreviation": "People v. Modrowski", "decision_date": "1998-05-19", "docket_number": "No. 1\u201495\u20141993", "first_page": "735", "last_page": "751", "citations": [ { "type": "official", "cite": "296 Ill. App. 3d 735" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "121 Ill. 2d 55", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201694 ], "year": 1988, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0055-01" ] }, { "cite": "145 Ill. 2d 43", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596222 ], "year": 1991, "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0043-01" ] }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "154" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "82 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476013 ], "year": 1980, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0268-01" ] }, { "cite": "112 Ill. 2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5538496 ], "year": 1986, "pin_cites": [ { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0111-01" ] }, { "cite": "152 Ill. 2d 133", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602879 ], "year": 1992, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0133-01" ] }, { "cite": "106 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3139219 ], "year": 1985, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0201-01" ] }, { "cite": "121 Ill. 2d 537", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3202119 ], "year": 1988, "pin_cites": [ { "page": "548", "parenthetical": "\"Mistakes in trial strategy or tactics or in judgment do not of themselves render the representation incompetent\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0537-01" ] }, { "cite": "166 Ill. 2d 381", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198905 ], "year": 1995, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0381-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "686" }, { "page": "692-93" }, { "page": "2064" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "525" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "169 Ill. 2d 355", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909170 ], "year": 1996, "pin_cites": [ { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0355-01" ] }, { "cite": "614 N.E.2d 108", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "243 Ill. App. 3d 1038", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5110460 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/1038-01" ] }, { "cite": "573 N.E.2d 1297", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1303-04" } ], "opinion_index": 0 }, { "cite": "214 Ill. App. 3d 587", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5296799 ], "year": 1991, "pin_cites": [ { "page": "596-97" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0587-01" ] }, { "cite": "607 N.E.2d 645", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "239 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5149831 ], "year": 1993, "pin_cites": [ { "page": "841-43" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/239/0830-01" ] }, { "cite": "406 N.E.2d 49", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "52" } ], "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 822", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3202327 ], "year": 1980, "pin_cites": [ { "page": "826" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0822-01" ] }, { "cite": "173 Ill. 2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147596 ], "year": 1996, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/173/0048-01" ] }, { "cite": "612 N.E.2d 922", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "924" } ], "opinion_index": 0 }, { "cite": "243 Ill. App. 3d 745", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5109902 ], "year": 1993, "pin_cites": [ { "page": "749" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/0745-01" ] }, { "cite": "666 N.E.2d 839", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "281 Ill. App. 3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150218 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0695-01" ] }, { "cite": "128 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229038 ], "weight": 3, "year": 1989, "pin_cites": [ { "parenthetical": "witness' testimony claiming no memory of facts surrounding alleged offense held to be \"inconsistent,\" making detailed grand jury testimony admissible" }, { "page": "93" }, { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0066-01" ] }, { "cite": "92 Ill. 2d 545", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3097208 ], "weight": 4, "year": 1982, "pin_cites": [ { "page": "563-64" }, { "page": "563-65" }, { "page": "564-65" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0545-01" ] }, { "cite": "35 Ill. 2d 467", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378433 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-2d/35/0467-01" ] }, { "cite": "594 N.E.2d 1252", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1264-66" } ], "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 377", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5210819 ], "year": 1992, "pin_cites": [ { "page": "395-97" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0377-01" ] }, { "cite": "121 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201150 ], "year": 1988, "pin_cites": [ { "page": "445", "parenthetical": "prosecutors are afforded great latitude in closing argument, and improper remarks merit reversal only when they cause substantial prejudice to defendant" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0401-01" ] }, { "cite": "181 Ill. 2d 87", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821413 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "101" }, { "page": "102", "parenthetical": "commission of armed robbery ends when force and taking, the elements that constitute the offense, have ceased" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0087-01" ] }, { "cite": "581 N.E.2d 118", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "122" }, { "page": "128" } ], "opinion_index": 0 }, { "cite": "220 Ill. App. 3d 550", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5276257 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "555" }, { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0550-01" ] }, { "cite": "556 N.E.2d 1214", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "1219" }, { "page": "1219" } ], "opinion_index": 0 }, { "cite": "198 Ill. App. 3d 986", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2474002 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "993" }, { "page": "993" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0986-01" ] }, { "cite": "94 Ill. 2d 245", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106043 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "257" }, { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0245-01" ] }, { "cite": "139 Ill. 2d 89", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573939 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "143" }, { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0089-01" ] } ], "analysis": { "cardinality": 1342, "char_count": 37334, "ocr_confidence": 0.728, "pagerank": { "raw": 9.814965127594754e-08, "percentile": 0.5331243250089098 }, "sha256": "7123f9e094f567fc4adfb16e81b6dc4974c2813cadfdd5714c4a34238670b74f", "simhash": "1:c73dbd7676201cf9", "word_count": 5915 }, "last_updated": "2023-07-14T20:46:46.961592+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. PAUL MODROWSKI, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COUSINS\ndelivered the opinion of the court:\nDefendant, Paul Modrowski, and codefendant, Robert Faraci, were charged with first-degree murder for the shooting death of Dean Fawcett. Following simultaneous dual jury trials, codefendant was acquitted while defendant was convicted. On appeal, defendant argues that reversible error occurred where: (1) the trial court refused to give curative jury instructions following the prosecution\u2019s misstatement of accountability law; (2) the State introduced improper prior inconsistent statements as substantive evidence and for impeachment purposes; (3) the trial judge abused his discretion in refusing the jury\u2019s request for transcripts of a key witness\u2019 testimony; (4) defendant received ineffective assistance when counsel failed to request that the jury be given counsel\u2019s copy of a key witness\u2019 testimony and failed to offer a written prior inconsistent statement as substantive evidence; (5) prosecutorial misconduct deprived defendant of a fair trial; and (6) the sentence imposed, life imprisonment, was unfairly disparate and excessive.\nBACKGROUND\nOn January 18, 1993, a woman and her daughter were walking along railroad tracks near their home in Barrington, Illinois, when they discovered a human body in the snow near the tracks. The woman immediately called law enforcement authorities to the scene, where Barrington police and Illinois State Police found the body in a frozen state with its head, left arm, and right hand missing. No identification was found on the body, but the police found two phone numbers on a note in clothing on the body. The phone numbers led the police to Nadine Lenarczak (Lenarczak), who provided information that led police to determine that the body was that of 22-year-old Dean Fawcett (Fawcett). A missing persons report, DNA testing, and records showing that Fawcett purchased the shoes and eyeglasses found near the body confirmed that the victim was Fawcett.\nThe evidence in the instant case established that, on December 1, 1992, Fawcett had opened a checking account with a $100 deposit at a bank in Berwyn, Illinois. From December 22 through December 27, 1992, Fawcett wrote over 40 bad checks against that account. During that period, he was frequently accompanied by his friends, Briente Palazaeno (known as Brian Palasz), Mr. and Mrs. Robert and Rose Faraci, Paul Modrowski (Modrowski), and Lenarczak. Each person in this group enjoyed benefits from the proceeds of Fawcett\u2019s check-writing spree.\nAt trial, Lenarczak testified that, on December 27, 1992, after purchasing goods with bad checks along with Robert Faraci (Faraci), Modrowski, Fawcett, and Palasz, the group returned to Lenarczak\u2019s motel room and ordered food. Faraci and Fawcett left to pick up the food, while Palasz and Modrowski remained at the motel room, speaking in low voices away from Lenarczak. After Faraci and Fawcett returned with the food, Lenarczak spoke with Fawcett privately. She warned him that he would likely get caught for writing the bad checks. Fawcett replied that he intended to move to California and that, if he was apprehended by authorities, he would tell the police everything about the check-writing scheme. Faraci then interrupted the conversation between Lenarczak and Fawcett and took Fawcett aside. Lenarczak subsequently warned Faraci that he should arrange for Fawcett to go to California to help ensure that Fawcett would not implicate everyone else in the check-writing scheme.\nLenarczak also testified that, the following morning, Fawcett telephoned her from a hotel where he had been staying and complained that his wallet, identification, and checks were missing. Fawcett stated to her that Faraci and Modrowski were supposed to pick him up from his hotel and that he suspected the two men of stealing the aforementioned items. Lenarczak then went to pick up Fawcett and drove him back to her motel, where he tried to telephone Faraci. When Fawcett and Lenarczak prepared to leave the motel soon thereafter, Faraci and Modrowski arrived in Faraci\u2019s car. According to Lenarczak, Modrowski jumped out of the car, opened the passenger door of Lenarczak\u2019s car, and told Fawcett to get out. Modrowski and Fawcett argued for a short time about the missing wallet and checks, and then Modrowski pushed Fawcett into the back seat of Faraci\u2019s car as Fawcett demanded to be taken home. Lenarczak stated that that was the last time she saw Fawcett.\nPalasz also testified at trial, stating that he, Modrowski, Faraci, and Fawcett were friends. Palasz\u2019 testimony largely corroborated that of Lenarczak, with some exceptions. He denied, for instance, that Lenarczak told him that Fawcett might inform the police of the group\u2019s illegal activities. He also denied that there was any discussion about killing Fawcett on December 27, 1992. Palasz did admit, however, that on December 23, he was present during a conversation with Faraci and Modrowski in which the killing of Fawcett was proposed. Palasz testified at trial that, while he could not recall certain details, Modrowski did not state during that conversation that he wanted Fawcett killed. The State then confronted Palasz with his prior testimony given before a grand jury in which he gave a detailed account of statements made by Modrowski that evinced his intent to kill Fawcett. Palasz acknowledged his grand jury testimony, but argued that the incriminating statements of the conversation were made by Faraci and that Modrowski was merely relating Farad\u2019s statements to Palasz at a point in the conversation when Faraci left Palasz and Modrowski alone. However, Palasz did admit that, upon Faraci\u2019s return to the conversation, there was a mention of killing Fawcett. Once again, Palasz was confronted with additional prior grand jury testimony in which he described that Modrowski desired to kill Fawcett.\nRose Faraci (Mrs. Faraci) testified that she married Robert Faraci in April 1992. She stated that Palasz lived with the couple until she ejected him. Sometime later, Modrowski moved in to live with the Faracis. Mrs. Faraci stated that she never knew Modrowski by his true name, but only by the name Viktor Himmler. Mrs. Faraci acknowledged being a party to the fraudulent check-writing scheme and admitted that she knew that Fawcett was already dead when she forged one of his checks on January 6, 1993. Soon thereafter, the Faracis moved to Florida, followed immediately by defendant. Mrs. Faraci testified that she and Modrowski rented an apartment there as husband and wife under the names Rosalie Rugo and Viktor Himmler. All three lived in the apartment, but Robert Faraci did not sign the lease. Mrs. Faraci testified that the three stayed in Florida for approximately three months and that the Faracis subsequently returned to Chicago after Modrowski had returned.\nDeputy Chief Investigator John Robertson was one of over 40 witnesses who testified in the case. Robertson testified that defendant admitted in a statement while in police custody that he offered Faraci the use of his car to effectuate the killing of Fawcett and that, before and after the shooting, he had concealed the 9 millimeter gun that Faraci used to kill Fawcett. At the close of the proceedings, the jury found Modrowski guilty of first-degree murder under a theory of accountability. The trial court found that defendant was eligible for the death penalty, but sentenced him to life imprisonment without the possibility of parole due to the trial judge\u2019s belief that Modrowski may not have been present during Fawcett\u2019s murder. Defendant brings the present appeal from that judgment.\nWe affirm.\nANALYSIS\nDefendant first contends that the trial court erred by refusing to declare a mistrial or give a curative instruction after the prosecution misstated the law of accountability to the jury during rebuttal argument. We note that defendant failed to make a timely objection following the remarks in question and waited until rebuttal argument was complete and the jury was instructed on the law and excused to deliberate before making its motion for a mistrial. Consequently, defendant waived this issue on appeal, and this court, therefore, may only review the issue under the standard of plain error. People v. Hayes, 139 Ill. 2d 89, 143 (1990). The plain error rule is not a blanket savings provision, however, and is invoked only in exceptional cases where the evidence is closely balanced or where the alleged error was so prejudicial that it denied the defendant a fair trial. Hayes, 139 Ill. 2d at 143.\nOne is accountable for the conduct of another when \u201c[ejither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.\u201d 720 ILCS 5/5 \u2014 2(c) (West 1992). Although accountability requires that the assistance of an accused occur prior to or during the commission of the unlawful act, such assistance may be inferred from activities occurring after the offense. People v. Ruiz, 94 Ill. 2d 245, 257 (1982); People v. Foster, 198 Ill. App. 3d 986, 993, 556 N.E.2d 1214, 1219 (1990). For instance, the subsequent concealment or destruction of evidence is a factor that may be considered by the fact finder in determining whether the accused aided in the commission of the offense. People v. Johnson, 220 Ill. App. 3d 550, 555, 581 N.E.2d 118, 122 (1991).\nIn the case sub judice, the prosecutor summarized the evidence supporting a guilty verdict under the theory of accountability. This evidence essentially consisted of defendant\u2019s discussions of killing Fawcett, defendant\u2019s offering Faraci the use of a gun and his car to facilitate the murder, and defendant\u2019s subsequent concealment of the gun. The prosecution followed this summation with a verbatim recitation of Illinois Pattern Jury Instructions, Criminal, No. 5.03 (3d ed. 1992) regarding accountability.\nDefense counsel\u2019s subsequent closing argument at one point focused upon the language of the accountability statute requiring that defendant\u2019s assistance must have been \u201cbefore or during\u201d the commission of the offense. Defense counsel then argued that defendant\u2019s concealment of the gun occurred after the offense and implied that defendant, therefore, should not be found guilty under the charge of accountability, since his involvement at most implicated him as an accessory after the fact. \u25a0\nIn rebuttal closing argument, the prosecution responded as follows:\n\u201cNow, counsel says, \u2018Well, wait a second. Accountability happens if its [sic] before or during the commission of the crime. Hiding the gun after Dean is killed is after.\u2019 Wrong. Folks, the crime is still happening until they get caught. Hiding the gun in Florida and taking it with them wherever he went is part and partial [sic] of the commission of the crime. It\u2019s still happening. *** So the concealment of evidence of the murder weapon is part of the commission of the offense.\u201d\nDefendant claims that the State\u2019s remarks prejudiced defendant by leading jurors to believe that one could be found guilty under the theory of accountability under facts showing that defendant was only an accessory after the fact. Defendant argues that the prejudice was compounded by the fact that the prosecution\u2019s misstatement occurred during rebuttal closing argument without a subsequent curative instruction by the trial court or an opportunity for the defense to respond to the jury. Initially, we agree with defendant that the above rebuttal remarks concerning accountability and the completion of the crime of murder'were incorrect statements of the law. Our supreme court recently clarified this issue in People v. Dennis, 181 Ill. 2d 87 (1998), when it stated:\n\u201cBased upon the plain language in our accountability statute, we conclude that, for purposes of accountability, the duration of the commission of an offense is defined by the elements of the offense. *** Consistent with our accountability statute, a defendant may be held accountable for the commission of [an offense] if, either before or during the commission of the offense, he aided or abetted [the offender] in \u2018conduct which is an element of [the] offense.\u2019 \u201d (Emphasis added.) Dennis, 181 Ill. 2d at 101.\nTherefore, in the context of criminal accountability, analysis of when the crime of first-degree murder is complete is determined by the elements of first-degree murder. In light of this rule, it was patently incorrect for the prosecution to state that the applicable law deems concealment of a murder weapon an element of the crime of murder and that the crime is not complete until the perpetrator is finally apprehended. The commission of an offense is completed when the elements of that offense are satisfied. See Dennis, 181 Ill. 2d at 102 (commission of armed robbery ends when force and taking, the elements that constitute the offense, have ceased). The State\u2019s rebuttal to defense counsel\u2019s attempt at convincing the jury that defendant\u2019s conduct was that of an accessory after the fact would have been correct if it had stated that factors such as postoffense concealment may be considered to infer defendant\u2019s involvement in the homicide. Ruiz, 94 Ill. 2d at 257; Foster, 198 Ill. App. 3d at 993, 556 N.E.2d at 1219.\nNevertheless, we disagree with defendant that the prosecution\u2019s incorrect statement of the law \u201cdeflected\u201d the jury from its ability to follow the correct accountability instructions that were given. We note that the defense read the correct jury instruction on accountability to the jury prior to the State\u2019s rebuttal argument. Additionally, the jurors were given correct instructions after closing arguments. Moreover, the trial court made repeated admonishments to the jury about the nature of closing arguments and the fact that jurors were to rely only on the statements that were based on the evidence. See People v. Thompkins, 121 Ill. 2d 401, 445 (1988) (prosecutors are afforded great latitude in closing argument, and improper remarks merit reversal only when they cause substantial prejudice to defendant). These factors militate in favor of a determination that defendant was not prejudiced by the State\u2019s incorrect closing argument. See People v. Walker, 230 Ill. App. 3d 377, 395-97, 594 N.E.2d 1252, 1264-66 (1992); Johnson, 220 Ill. App. 3d at 563, 581 N.E.2d at 128. Considering that the jury was presumed to understand the correct instructions given and that the jury here raised no questions with respect to the accountability instructions, we conclude that neither curative jury instructions nor the granting of defendant\u2019s motion for a mistrial was justified.\nDefendant relies on People v. Weinstein, 35 Ill. 2d 467 (1966), a case where the supreme court held that repeated, prejudicial prosecutorial comments impeded the jury\u2019s ability to fairly consider evidence and warranted reversal. However, Weinstein is inapposite because, in the instant case, the prosecution uttered a single misstatement of law. Here the prosecutor did err in argument. Nevertheless, the prosecutor\u2019s error was harmless, since the State introduced substantial evidence against defendant and, in our view, the evidence against defendant was not close.\nNext, defendant contends that the admission of Palasz\u2019 grand jury testimony as substantive evidence and his similar oral statements to police as impeachment was improper. Defendant argues that it was error to admit Palasz\u2019 prior inconsistent statements, since Palasz\u2019 testimony at trial was not damaging to the State\u2019s case. We disagree.\nIn People v. Weaver, 92 Ill. 2d 545 (1982), the Illinois Supreme Court explained the circumstances under which a party may introduce a prior inconsistent statement:\n\u201cA court\u2019s witness, or any other witness for that matter, cannot be impeached by prior inconsistent statements unless his testimony has damaged, rather than failed to support!,] the position of the impeaching party. The reason for this is simple: No possible reason exists to impeach a witness who has not contradicted any of the impeaching party\u2019s evidence, except to bring inadmissible hearsay to the attention of the jury. Impeachment is supposed to cancel out the witness\u2019 testimony. It is only when the witness\u2019 testimony is more damaging than his complete failure to testify would have been that impeachment is useful.\u201d Weaver, 92 Ill. 2d at 563-64.\nWe note that, two years after Weaver was decided, our legislature enacted section 115 \u2014 10.1 of the Illinois Code of Criminal Procedure of 1963, which provides in pertinent part:\n\u201cIn all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if\n(a) the statement is inconsistent with his testimony at the hearing or trial, and\n(b) the witness is subject to cross-examination concerning the statement, and\n(c) the statement\u2014\n(1) was made under oath at a trial, hearing, or other proceeding, or\n(2) narrates, describes or explains an event or condition of which the witness had personal knowledge, and\n(A) the statement is proved to have been written or signed by the witness, or\n(B) the witness acknowledged under oath the making of the statement either in his testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought, or at a trial, hearing, or other proceeding ***.\u201d 725 ILCS 5/115 \u2014 10.1 (West 1992).\nIn the instant case, the State called Palasz as a witness. Palasz gave testimony favorable to the State\u2019s case, including statements corroborating many details of the check-writing scheme and defendant\u2019s presence with Fawcett during the accompanying shopping sprees. Nevertheless, during direct examination, Palasz denied that defendant had told him, during the December 23,1992, conversation, that he wanted Fawcett killed. The State then confronted Palasz with his prior grand jury testimony, in which Palasz stated:\n\u201cWe are in Schiller Park outside of Faraci\u2019s residence, inside of Faraci\u2019s car. Paul [Modrowski] is in the front seat. I was in the back seat. Bob [Faraci] went in and get [sic] something from the apartment. Paul is planning to run from the warrant out of Du [P] age County. Then he starts saying that he thinks he should kill Dean Fawcett because of the checks. I tell him right away, no, that is stupid. *** I said there is no way this is going to happen. He says, well I think it should. *** He looks at me and said I really don\u2019t like Dean that much.\u201d\nPalasz then admitted making the above statements, but claimed that defendant had simply been repeating remarks made earlier by Faraci and that the \u201che\u201d to whom Palasz was referring was Faraci, not defendant.\nPalasz then testified that, following the aforementioned conversation with defendant, Faraci returned to the car and resumed a discussion in which there was a mention of killing Fawcett without any elaboration. The State once again confronted Palasz with his grand jury testimony wherein the following colloquy occurred:\n\u201cQ. Did he refer or tell people that he should kill Dean Fawcett? A. Yes. He basically tried. Paul said he wanted to. Then I basically talked to Paul, and he said he considered running with Dean and not doing nothing [sic] to Dean. And Bob was basically trying to persuade him to kill him.\u201d\nIn addition, when Palasz was unable to recall defendant telling him that he would make Fawcett \u201cdisappear,\u201d Palasz was confronted with his grand jury testimony in which he stated that defendant, indeed, told Palasz that \u201che\u2019s going to disappear.\u201d Again, Palasz claimed that the \u201che\u201d to whom he had been referring could have been either defendant or Fawcett.\nAs to the above statements and inquiries, defendant argues that it was error to permit the prosecution to use Palasz\u2019 grand jury testimony as substantive evidence under section 115 \u2014 10.1. In support of his position, defendant cites Weaver, wherein the prosecution impeached its own witness with a minor discrepancy in the witness\u2019 prior grand jury testimony. The supreme court in that case held that the grand jury testimony could not be used as substantive evidence, as there was no existing exception to the hearsay rule permitting such a use, and that the use also constituted improper impeachment, since the witness\u2019 in-court testimony did not damage the State\u2019s case. Weaver, 92 Ill. 2d at 563-65.\nIn light of the subsequent enactment of section 115 \u2014 10.1 and subsequent case law applying that provision, we find defendant\u2019s reliance on Weaver to be misplaced. See People v. Flores, 128 Ill. 2d 66 (1989) (witness\u2019 testimony claiming no memory of facts surrounding alleged offense held to be \u201cinconsistent,\u201d making detailed grand jury testimony admissible); People v. Morales, 281 Ill. App. 3d 695, 666 N.E.2d 839 (1996).\nFurthermore, we are of the opinion that Palasz\u2019 testimony at trial can be properly characterized as inconsistent with his grand jury testimony. His in-court denials were not merely disappointing to the State\u2019s case, since the State very likely would have been damaged to the extent that the jury believed Palasz\u2019 trial testimony on the issue of defendant\u2019s knowledge and involvement in the planning of Fawcett\u2019s murder. Our determination that Palasz\u2019 prior statements were inconsistent is supported by case law holding that, to be inconsistent and, therefore, admissible as substantive evidence under section 115 \u2014 10.1, a witness\u2019 prior statement need not directly contradict his or her testimony, but need only have a tendency to contradict it. People v. Lee, 243 Ill. App. 3d 745, 749, 612 N.E.2d 922, 924 (1993). Weaver is inapplicable to this issue by virtue of its focus on limiting prior inconsistent statements for impeachment purposes. Indeed, the supreme court in Weaver recognized that case\u2019s limitations by stating that inconsistent grand jury testimony could not be used as substantive evidence \u201cunless and until we decide that in this State such prior statements can be used against a defendant as substantive evidence.\u201d Weaver, 92 Ill. 2d at 564-65. Since the complained-of statements used by the State satisfied all of the requirements of section 115 \u2014 10.1, we conclude that their use as substantive evidence was proper.\nWe are similarly unpersuaded by defendant\u2019s contention that he suffered reversible prejudice from the State\u2019s improper impeachment by means of prior inconsistent oral statements made by Palasz to a detective. During the State\u2019s direct examination of Palasz, the prosecution questioned the witness with respect to the conversation that allegedly occurred between Palasz and defendant in Lenarczak\u2019s motel room on the night of December 27, 1992, while Faraci and Fawcett left to pick up carry-out food. Specifically, Palasz denied that there was any discussion of killing Fawcett during that conversation. The State also questioned Palasz about which road Palasz had earlier claimed he had dropped Fawcett off at the following morning. Palasz testified that he believed that he dropped Fawcett off at River Road.\nThe State then confronted Palasz with his own prior handwritten statements given to a detective in the case. The prosecution impeached Palasz with a statement given to the detective in which Palasz stated that defendant had told him on the night in question that they had \u201cto get rid of Dean\u201d and that they \u201cshould whack Dean Fawcett.\u201d Palasz was also confronted with his own prior statement wherein he claimed that he dropped Fawcett off the next morning at Mannheim Road and Lawrence Court.\nDefendant once again invokes Weaver in support of his contention that the above impeachment was improper in light of the non-damaging nature of Palasz\u2019 testimony preceding impeachment. Upon review of the record, we conclude that the above prior statements were sufficiently contradictory to justify the State\u2019s impeachment. In our view, Palasz\u2019 contradictory statements to the detective did not constitute minor discrepancies compared to his trial testimony, and, thus, the prosecution\u2019s impeachment was not improper. Assuming, arguendo, that there was any impropriety in the above impeachment, we deem it harmless error in light of the fact that the key impeachment here involved the issue of discussions establishing defendant\u2019s intent to have Fawcett killed \u2014 testimony that we have concluded was already properly admissible as substantive evidence. Moreover, considering that defendant failed to make timely objections and a posttrial motion regarding the use of the above prior inconsistent statements, this issue may only be reviewed under the plain error standard. In our opinion, however, the above impeachment did not deprive defendant of a fair trial in the instant case.\nDefendant also argues that the trial court abused its discretion in refusing the jury\u2019s request for transcripts of Palasz\u2019 testimony. As a rule, the issue of whether to grant or deny a jury\u2019s request to review evidence or transcripts of witnesses\u2019 testimony lies within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. People v. Williams, 173 Ill. 2d 48, 87 (1996). Transcripts of testimony may be made available to the jury if the jury makes such a request and if the trial court, in its discretion, believes that the transcripts will be helpful to jurors. Flores, 128 Ill. 2d at 93. Where the jury itself requests the opportunity to examine transcripts of the testimony, the trial court must assume that the jury believes that such review would be helpful. People v. Martin, 84 Ill. App. 3d 822, 826, 406 N.E.2d 49, 52 (1980).\nIn the instant case, shortly after deliberations commenced, the jury requested transcripts of Palasz\u2019 grand jury testimony as well as the entire transcript of defendant\u2019s trial. The court initially denied the jury\u2019s request, reasoning that the trial had lasted one month, that daily transcripts had not been ordered, that granting the jury\u2019s request would have been too burdensome on the court reporter\u2019s office, and that there would have been significant delay in the deliberation process. The trial court then noted that the transcript of Palasz\u2019 grand jury testimony had been received as an exhibit and that portions thereof had been admitted as substantive evidence. Accordingly, the trial court allowed the jury to inspect a redacted copy of that portion of Palasz\u2019 grand jury testimony received as substantive evidence, reasoning that, becaus\u00e9 the jurors had lacked the opportunity to observe Palasz before the grand jury, the jurors had no recollection of that testimony upon which to rely. The trial court denied the jury\u2019s subsequent requests for a copy of Palasz\u2019 handwritten statement based on the fact that it had not been admitted into evidence. The court also denied its request for Palasz\u2019 entire grand jury testimony.\nWe find no error in the trial court\u2019s rulings as to the foregoing jury requests. We do not believe that it was an abuse of discretion for the trial court to provide a redacted version of Palasz\u2019 grand jury testimony reflecting only that portion submitted as substantive evidence. The same is true of the trial court\u2019s decision not to allow the jury to review Palasz\u2019 handwritten statement, as it was not admitted into evidence. Furthermore, the court acted within its sound discretion in denying the jury\u2019s request to examine the entire transcript of the trial proceedings. See People v. Blalock, 239 Ill. App. 3d 830, 841-43, 607 N.E.2d 645, 653 (1993); People v. Creque, 214 Ill. App. 3d 587, 596-97, 573 N.E.2d 1297, 1303-04 (1991). Despite defendant\u2019s concern that providing the jury with a redacted version of Palasz\u2019 testimony overemphasized statements that were unfavorable to defendant, we note that the trial court was not obligated to balance its ruling by providing evidence not admitted. As this court decided in People v. Lee, 243 Ill. App. 3d 1038, 614 N.E.2d 108 (1993), a trial court does hot abuse its discretion by allowing jurors to review a witness\u2019 prior inconsistent statements admitted as substantive evidence while refusing to furnish them a copy of the witness\u2019 contradicted in-court testimony. Therefore, we hold that the trial court committed no abuse of discretion in its rulings with respect to the jury\u2019s requests for transcripts.\nNext, defendant contends that his attorneys provided ineffective assistance of counsel by failing to request that their copy of Palasz\u2019 trial testimony be sent to the jury in response to its requests, by failing to preserve for the record the court\u2019s erroneous response to the jury\u2019s request for transcripts, and by failing to offer Palasz\u2019 handwritten statement as substantive evidence pursuant to section 115 \u2014 10.1 (725 ILCS 5/115 \u2014 10.1 (West 1992)).\nIn order to establish that one was denied effective assistance of counsel, a defendant must show that counsel\u2019s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, \u201cwere it not for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d People v. Whitehead, 169 Ill. 2d 355, 380 (1996), citing People v. Albanese, 104 Ill. 2d 504, 525 (1984). In emphasizing defendant\u2019s duty to show prejudice, Illinois courts have noted that the standard for judging a claim of ineffectiveness must be whether counsel\u2019s conduct so undermined the operation of the adversarial process that the trial cannot be relied upon as having achieved justice. Albanese, 104 Ill. 2d at 525, quoting Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2064 (1984). Defendant argues that the facts alleged satisfy the aforementioned tests for a claim of ineffective assistance of counsel. We disagree.\nFirst, there is no evidence that defense counsel actually had in his possession available copies of the entire trial transcript as alleged by defendant. Defendant argues that his postsentencing motion, which stated that such transcripts, were \u201ccurrently available,\u201d proves that defense counsel could have satisfied the jury\u2019s requests. However, the fact that a copy of trial testimony may have been available after sentencing does not show that it was available at the time the jury requested such transcripts.\nAlso, even if the defense was able to provide the transcripts, we are not persuaded that this would have changed the trial court\u2019s decision to deny the jury access to all but Palasz\u2019 redacted grand jury testimony. The trial court\u2019s reasoning behind its denials was not limited to its observation that the court lacked a copy of the trial transcripts. On the contrary, the court cited a number of factors as the basis for its denials, including its desire that the jurors rely upon their own recollections of the evidence and trial testimony during deliberations.\nAdditionally, we agree with the State that defense counsel\u2019s decision to forego requesting that Palasz\u2019 trial testimony be furnished to the jury was justifiable as an exercise of trial strategy. Simply put, much of Palasz\u2019 testimony was damaging to defendant, as it corroborated a great deal of Lenarczak\u2019s incriminating testimony. Although defendant may question the strategic value of electing not to offer the defense\u2019s copy of Palasz\u2019 trial testimony, we hold that defense counsel\u2019s inaction in this regard fell within the wide spectrum of defense tactics that Illinois courts have long considered to be an improper basis for supporting a claim of ineffective assistance of counsel. People v. Guest, 166 Ill. 2d 381, 394 (1995); Flores, 128 Ill. 2d at 106; People v. Hillenbrand, 121 Ill. 2d 537, 548 (1988) (\u201cMistakes in trial strategy or tactics or in judgment do not of themselves render the representation incompetent\u201d); People v. Madej, 106 Ill. 2d 201, 214 (1985). Therefore, we conclude that it cannot be said that defense counsel\u2019s representation fell below an objective standard of reasonableness and that the result of the trial proceedings would have been any different had they offered to furnish copies of the transcripts to the jury.\nMoreover, we find no merit to defendant\u2019s claim of ineffectiveness based on his attorneys\u2019 failure to offer Palasz\u2019 handwritten statement as substantive evidence. Defendant asserts that Palasz\u2019 handwritten statement, which contained no mention of defendant\u2019s desire to kill Fawcett, was inconsistent with an oral statement attributed to Palasz by a detective who testified that Palasz had told him about defendant\u2019s desire to kill Fawcett. We note, however, that \u201cinconsistency\u201d for purposes of section 115 \u2014 10.1 refers to the contradiction of a witness\u2019 prior statements with that witness\u2019 own in-court testimony. 725 ILCS 5/115 \u2014 10.1 (West 1992). Here, Palasz\u2019 testimony at trial was that he did not hear defendant express a desire to kill Fawcett. This was consistent with Palasz\u2019 handwritten statement provided to a detective. The fact that the detective later contradicted Palasz\u2019 testimony by referring to Palasz\u2019 prior oral statement claiming that defendant did express a desire to kill Fawcett does not render Palasz\u2019 handwritten statement inconsistent under section 115 \u2014 10.1. The reason is that it is the detective\u2019s testimony only that contradicts that of Palasz on the issue of defendant\u2019s intent; Palasz\u2019 handwritten statement and in-court testimony remain consistent. Since Palasz\u2019 handwritten statement, therefore, was inadmissible as substantive evidence under section 115 \u2014 10.1, defendant\u2019s claim of ineffectiveness based thereon lacks merit.\nDefendant also contends that three types of prejudicial prosecutorial misconduct deprived him of a fair trial. These include: (1) the use of defendant\u2019s aliases at trial and in closing argument; (2) the prosecution\u2019s reference during closing argument to defendant\u2019s refusal to reveal the location of the murder weapon to authorities; and (3) the prosecution\u2019s argument cautioning jurors not to look into defendant\u2019s eyes or touch him.\nWe believe that the trial court acted within its sound discretion in determining that evidence regarding defendant\u2019s liberal use of aliases was relevant to and probative of the issues of defendant\u2019s flight from Illinois authorities as well as his consciousness of guilt. With respect to the propriety of the State\u2019s closing arguments, we note that the prosecution is afforded considerable latitude and has the right to make uncharitable comments and draw unfavorable inferences based upon the evidence. People v. Pasch, 152 Ill. 2d 133, 184 (1992). Furthermore, a jury\u2019s verdict will not be disturbed absent a showing that the prosecution\u2019s improper remarks resulted in substantial prejudice to the defendant and that, without those remarks, the verdict would have been different. People v. Morgan, 112 Ill. 2d 111, 132 (1986).\nWe disagree with defendant\u2019s contention that the prosecution erred because of references to defendant\u2019s aliases during the trial and argument, reference to defendant\u2019s refusal to reveal the location of the murder weapon during argument, and cautioning jurors during closing argument not to look into defendant\u2019s eyes or touch him. In particular, we are not convinced after a review of the entire record that the prosecution\u2019s closing arguments, taken as a whole, substantially prejudiced defendant.\nLastly, defendant argues that his life sentence is both excessive and unfairly disparate to the acquittal of his codefendant. The standard of review as to the issue of an excessive sentence is whether the trial court abused its discretion. People v. Cox, 82 Ill. 2d 268, 275 (1980), citing People v. Perruquet, 68 Ill. 2d 149, 154 (1977). Additionally, we recognize that the trial court is in the best position to determine the appropriate punishment, and its decision is entitled to great weight and deference. Perruquet, 68 Ill. 2d at 154. The general rule as to the question of whether defendant\u2019s sentence was unfairly disparate is that arbitrary and unreasonable disparities between the sentences of similarly situated codefendants are prohibited. People v. Jackson, 145 Ill. 2d 43, 119 (1991); People v. Ashford, 121 Ill. 2d 55, 88 (1988). We note, however, that this general rule applies only to cases in which both defendants are found guilty.\nIn the present case, only defendant was found guilty. Faraci\u2019s acquittal, therefore, effectively precludes defendant from invoking the rule against unreasonably disparate sentencing. We do not find adequate grounds for reducing defendant\u2019s sentence. Based upon the evidence at trial, which, in our opinion, amply supports defendant\u2019s conviction of first-degree murder under the theory of accountability, we conclude that the trial court did not abuse its discretion in sentencing defendant to life imprisonment.\nAccordingly, the decision of the trial court is affirmed.\nAffirmed.\nMcNULTY, P.J., and BAKOWSKI, J., concur.", "type": "majority", "author": "JUSTICE COUSINS" } ], "attorneys": [ "Richard E. Cunningham, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth McCurry, and James Beligratis, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL MODROWSKI, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201495\u20141993\nOpinion filed May 19, 1998.\n\u2014 Rehearing denied June 18, 1998.\nRichard E. Cunningham, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth McCurry, and James Beligratis, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0735-01", "first_page_order": 753, "last_page_order": 769 }