{ "id": 261402, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID CRANE, Defendant-Appellant", "name_abbreviation": "People v. Crane", "decision_date": "1999-11-15", "docket_number": "No. 2-97-0761", "first_page": "675", "last_page": "691", "citations": [ { "type": "official", "cite": "308 Ill. App. 3d 675" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "295 Ill. App. 3d 412", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45710 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "418" }, { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0412-01" ] }, { "cite": "35 Ill. 2d 467", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378433 ], "year": 1966, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0467-01" ] }, { "cite": "144 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592943 ], "year": 1991, "pin_cites": [ { "page": "16-17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0001-01" ] }, { "cite": "172 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5082878 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "13" }, { "page": "13-14" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/172/0001-01" ] }, { "cite": "199 Ill. App. 3d 792", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2467881 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "797" }, { "page": "797" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0792-01" ] }, { "cite": "172 Ill. App. 3d 172", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5081547 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "179" }, { "page": "179" }, { "page": "179-80" }, { "page": "179", "parenthetical": "jury instructions may cure improper prosecutorial remarks" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/172/0172-01" ] }, { "cite": "185 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121963 ], "year": 1998, "pin_cites": [ { "page": "48-49" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0001-01" ] }, { "cite": "185 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 122017 ], "year": 1998, "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0081-01" ] }, { "cite": "25 Ill. App. 3d 992", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2702002 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "994" }, { "page": "994" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0992-01" ] }, { "cite": "32 Ill. 2d 232", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2839836 ], "year": 1965, "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0232-01" ] }, { "cite": "259 Ill. App. 3d 445", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2871346 ], "year": 1994, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0445-01" ] }, { "cite": "179 Ill. App. 3d 198", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2606617 ], "year": 1989, "pin_cites": [ { "page": "201" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/179/0198-01" ] }, { "cite": "171 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57341 ], "year": 1995, "pin_cites": [ { "page": "49", "parenthetical": "defendant's attempt to dispose of victim's body and his subsequent flight from police were evidence of his consciousness of guilt" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0001-01" ] }, { "cite": "161 Ill. App. 3d 945", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3466716 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "949" }, { "page": "949" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0945-01" ] }, { "cite": "225 Ill. App. 3d 1032", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5246026 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "1036" }, { "page": "1036" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/1032-01" ] }, { "cite": "117 Ill. 2d 170", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545360 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "176" }, { "page": "176", "parenthetical": "\"when criminal acts of the defendant have contributed to a person's death, the defendant may be found guilty of murder\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/117/0170-01" ] }, { "cite": "260 Ill. App. 3d 841", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2862991 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "847" }, { "page": "847" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/260/0841-01" ] }, { "cite": "98 Ill. 2d 294", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3123281 ], "year": 1983, "pin_cites": [ { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0294-01" ] }, { "cite": "178 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385522 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "42-43" }, { "page": "43" }, { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/178/0001-01" ] }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "261" }, { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "4 Ill. 2d 155", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2702245 ], "weight": 4, "year": 1954, "pin_cites": [ { "page": "163" }, { "page": "163" }, { "page": "163", "parenthetical": "jury may reject defendant's story if the facts and circumstances contradict defendant's story, or if the story itself is improbable" }, { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/4/0155-01" ] }, { "cite": "251 Ill. App. 3d 720", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2958193 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "724" }, { "page": "724" }, { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/251/0720-01" ] }, { "cite": "145 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596314 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "523" }, { "page": "526-28" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0520-01" ] } ], "analysis": { "cardinality": 1238, "char_count": 35686, "ocr_confidence": 0.76, "pagerank": { "raw": 1.4003391323476193e-07, "percentile": 0.6445734867167932 }, "sha256": "3d5e6b546f2c16f1edffa146207807d1167768a2c858d502d5c66e06ded1bb03", "simhash": "1:0b340abb2b6ef66f", "word_count": 5855 }, "last_updated": "2023-07-14T16:54:33.383803+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. DAVID CRANE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COLWELL\ndelivered the opinion of the court:\nFollowing a February 1997 trial, a jury found defendant, David Crane, guilty of murder. It had been alleged that defendant \u201cbeat and burned\u201d the victim, Robert Gahan, knowing that such acts created a strong probability of Gahan\u2019s death. See Ill. Rev. Stat. 1987, ch. 38, par. 9 \u2014 1(a)(2) (now 720 ILCS 5/9 \u2014 1(a)(2) (West 1996)). Defendant appeals his conviction, contending (a) that the State failed to prove him guilty beyond a reasonable doubt, (b) that the State should have been barred from presenting certain evidence at trial, (c) that double jeopardy prohibited the State from pursuing a death-by-burning theory, (d) that the prosecutor made several improper and prejudicial remarks during closing argument, and (e) that the jury was improperly instructed. We affirm.\nI. FACTUAL AND PROCEDURAL BACKGROUND\nOn April 21, 1986, Gahan\u2019s charred remains were discovered near some railroad tracks in Winnebago County. Defendant was charged in February 1987 with Gahan\u2019s murder. Since then, defendant has been tried and convicted of the charge three times. The first jury trial began in August 1987. The State presented evidence that Gahan had been beaten in the head but had died as a result of being burned. However, our supreme court upheld the appellate court\u2019s decision to reverse defendant\u2019s conviction and remand. People v. Crane, 145 Ill. 2d 520, 523 (1991). The court held that, since there was some evidence that defendant set Gahan\u2019s body on fire under the mistaken belief that Gahan was dead, defendant was entitled to a mistake-of-fact instruction. Crane, 145 Ill. 2d at 526-28.\nIn February 1994, a grand jury returned a five-count \u201cSuperseding Bill of Indictment\u201d against defendant, charging him with murder. Each of the five counts alleged that defendant \u201cbeat and burned\u201d Ga-han without lawful justification. Count I alleged that defendant intended to kill Gahan; count II alleged that defendant intended to do great bodily harm to Gahan; count III alleged that defendant knew his acts created a strong probability of causing Gahan\u2019s death; count IV alleged that defendant knew his acts created a strong probability of great bodily harm to Gahan; and count V alleged that defendant killed Gahan while committing a forcible felony, robbery. The trial court dismissed count V on February 25, 1994.\nThe second trial was held in March 1994. The jury convicted defendant of murder under count III (strong probability of death). However, we reversed the conviction on the basis that the trial court erroneously denied defendant\u2019s request for an aggravated battery instruction. People v. Crane (Crane II), No. 2 \u2014 94\u20140692 (1996) (unpublished order under Supreme Court Rule 23). Again, a new trial was ordered.\nEarly in 1997, the State voluntarily dismissed with prejudice counts I, II, and IV of the superseding indictment. Defendant therefore went to trial under count III only.\nThe third trial began in February 1997. David Swanson, a deputy coroner, testified for the State. He observed Gahan\u2019s remains on April 21, 1986, and stated that 98% of Gahan\u2019s body was burned and that 60% to 70% of it was reduced to ashes. Following a police investigation, defendant was identified as a prime suspect.\nIn January 1987, Detectives Roger Costello and Larry Schultz traveled to Las Cruces, New Mexico, to interview defendant, who was being held on a traffic charge. Detective Schultz testified as to what defendant told them during that interview. Carrying a pair of \u201cnun-chucks\u201d in his pants, defendant was hitchhiking on the night of April 20, 1986. Gahan, a 300-pound homosexual, picked defendant up and drove to a location near Roscoe, Illinois, where he and defendant smoked marijuana. As defendant stood in front of Gahan\u2019s car, Gahan approached him from behind and started to choke him. Defendant grabbed his nunchucks and struck Gahan on the head with them until Gahan fell to the ground. Defendant ran a short distance, turned around, and walked back to where Gahan lay. Defendant told the detectives that, at that point, he thought Gahan was dead. The detectives did not ask defendant if he checked Gahan\u2019s vital signs, nor did defendant tell them that he did. Defendant stated that he then drove Gahan\u2019s car to the home of a friend named Brian Carlson, who suggested burning the body. He and Carlson took a can of gasoline from Carlson\u2019s garage and drove to where the body lay. After pouring gasoline on it, defendant ignited Gahan\u2019s body. Defendant admitting taking Gahan\u2019s wallet, which contained $60 to $70.\nCarlson testified that defendant came to his house early in the morning on April 21, 1986. Defendant, whose pants were stained with blood, explained that he had been in a fight. Defendant changed into a pair of Carlson\u2019s pants and borrowed Carlson\u2019s gas can, which defendant said was for a campfire in Roscoe. In his van, Carlson followed defendant, who was driving Gahan\u2019s car, to an unknown location. There, defendant wiped Gahan\u2019s car clean of fingerprints, abandoned the vehicle, and entered Carlson\u2019s car. Carlson dropped defendant off at some railroad tracks at the \u201cRoscoe trestle area\u201d and observed a large fire soon thereafter. Early in 1987, defendant called Carlson and asked him not to testify.\nThe State called Barry Young, who said he was a friend of defendant\u2019s. Young testified that on April 15, 1986, defendant asked him if he wanted to \u201cgo roll queers\u201d with him. Young laughed off defendant\u2019s suggestion. Sometime prior to April 22, 1986, defendant asked Young questions about how much gasoline it would take to burn a body. On April 22, 1986, Young saw defendant and asked about a newspaper report of a man being burned to death. When asked if he was the perpetrator, defendant \u201cdenied it *** and laughed at it.\u201d\nDr. Larry Blum, a forensic pathologist, also testified for the State. Dr. Blum performed an autopsy on April 22, 1986, and found several lacerations on Gahan\u2019s skull resulting from blunt force trauma. He also found \u201csmall pinpoint hemorrages [sic]\u201d in Gahan\u2019s trachea, caused when Gahan inhaled hot gasses from the fire. Dr. Blum thus believed that Gahan was alive when defendant set him on fire. According to Dr. Blum, although the blows to Gahan\u2019s head could have caused a concussion, they were not severe enough to have caused Gahan\u2019s death. Rather, in Dr. Blum\u2019s opinion, the burning caused Gahan\u2019s death. Dr. Blum opined that the intense heat from the fire caused neu-rologic shock, which in turn caused Gahan\u2019s bodily functions to shut down.\nDefendant called several witnesses in support of his theory, which was twofold: first, he claimed to have struck Gahan with the nun-chucks in self-defense, and second, he claimed to have burned Gahan\u2019s body under the belief that Gahan was dead. Brian Carlson\u2019s wife, \u25a0 Robin, testified that she noticed discolored markings on defendant\u2019s neck between April 22 and April 24, 1986.\nDefendant also testified. His version of events closely resembled the one that he told to the detectives in 1987, except that he added the following details. He stated that he carried the nunchucks with him for protection and that he hit Gahan only in self-defense after Gahan grabbed defendant\u2019s crotch and neck. After initially running away and returning to where Gahan lay, defendant observed no breathing or movement of any kind. He testified that he checked Gahan\u2019s vital signs by placing his hand over Gahan\u2019s mouth and by checking Ga-han\u2019s pulse. As Gahan showed no signs of life, defendant concluded he was dead. Defendant then dragged Gahan\u2019s body into the passenger seat of Gahan\u2019s car and drove toward Carlson\u2019s house. Planning to place the body in the trunk of the car, he stopped at the Roscoe trestle area but was unable to lift the body into the trunk. Defendant therefore left Gahan\u2019s body next to the railroad tracks and drove to Carlson\u2019s house. Although defendant wanted to bury the body, Carlson suggested burning it. Carlson retrieved a gas can from his garage, and the two eventually proceeded to the Roscoe trestle area in Carlson\u2019s van. Defendant exited Carlson\u2019s van, walked to Gahan\u2019s body, and took Gahan\u2019s wallet. He then doused and burned the body. After that, defendant was unable to find Carlson, who was supposed to have been waiting for defendant at the trestle.\nDefendant left Rockford in July 1986 and headed south. He went to several states, including Florida, Texas, and Arizona, until he was arrested in New Mexico following a high-speed chase. Regarding the statement he gave to the detectives in 1987, defendant claimed that the detectives specifically asked him if he had checked Gahan\u2019s vital signs and that he had answered yes. Defendant also claimed to have no prejudice toward homosexuals. On cross-examination, defendant stated that each time he struck Gahan with the nunchucks he intended only to inflict \u201cplain bodily harm\u201d on the victim.\nThe State called Detective Costello and Lance Waters in rebuttal. Detective Costello denied ever asking defendant if he checked Gahan\u2019s vital signs. Waters, a friend of defendant\u2019s, stated that defendant called him on April 21, 1986, and asked to meet with him. Defendant told Waters about many of the facts surrounding Gahan\u2019s death. For instance, defendant told Waters that he killed Gahan in self-defense and that he burned the body believing Gahan to be dead. However, defendant never said that he checked to see if Gahan was breathing.\nThe jury deliberated for approximately five hours before finding defendant guilty of murder. The trial court denied all of defendant\u2019s posttrial motions and sentenced him to a 40-year term of imprisonment. Defendant\u2019s motion to reconsider sentence was denied, and this timely appeal followed.\nII. ANALYSIS\nA. WHETHER THE STATE PROVED DEFENDANT GUILTY BEYOND A REASONABLE DOUBT\nWe now turn to defendant\u2019s contention that the State failed to prove him guilty of murder beyond a reasonable doubt. Defendant maintains first that the State introduced insufficient evidence that he acted with knowledge that his acts of beating Gahan created a strong probability of death. He also claims that the evidence was insufficient to support a finding that the beating caused Gahan\u2019s death. Defendant stresses (a) his own testimony in which he specifically stated that he did not know hitting someone on the head with nunchucks could cause a scalp laceration, break open the skin, or create a strong probability of death and (b) Dr. Blum\u2019s testimony that Gahan did not die from the beating. Citing People v. Bavas, 251 Ill. App. 3d 720, 724 (1993), and People v. Jordan, 4 Ill. 2d 155, 163 (1954), defendant contends that those statements went uncontradicted and therefore could not be disregarded by the jury.\nDefendant further contends that the evidence clearly showed that he thought Gahan was dead after the beating. According to defendant, he therefore could not have known that burning the body created a strong probability of Gahan\u2019s death. Finally, defendant maintains that the State failed to prove that Gahan died as a result of the burning.\nA criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant\u2019s guilt. People v. Collins, 106 Ill. 2d 237, 261 (1985). The relevant inquiry here is whether, after reviewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved beyond a reasonable doubt the elements of first-degree murder. See Collins, 106 Ill. 2d at 261.\nOur supreme court stated in People v. Howery, 178 Ill. 2d 1, 42-43 (1997):\n\u201cIn order to prove murder, it is not necessary to show that the defendant had a specific intent to kill or do great bodily harm or that he knows with certainty that his acts will achieve murderous results. [Citations.] The requisite mental state for murder under section 9 \u2014 1(a)(2) may be inferred from the facts and circumstances of the evidence. [Citations.] It is sufficient to show that the defendant voluntarily and willfully committed an act, the natural tendency of which was to destroy another\u2019s life. [Citations.] A defendant\u2019s intent may be implied from the character of the act. [Citation.]\u201d\nWhether the defendant is guilty of murder because his acts created a strong probability of death is a question for the trier of fact. Howery, 178 Ill. 2d at 43; People v. Bartall, 98 Ill. 2d 294, 307 (1983). The cause of death is also a question for the trier of fact. People v. Krueger, 260 Ill. App. 3d 841, 847 (1994). As long as the defendant\u2019s acts contributed to the death of the victim, the defendant may be found guilty of murder. People v. Brackett, 117 Ill. 2d 170, 176 (1987).\nAfter reviewing all of the evidence, we conclude that the State met its burden and proved defendant guilty of murder beyond a reasonable doubt. Much of defendant\u2019s argument hinges on a reading of count III that would interpret the \u201cbeating\u201d and \u201cburning\u201d as separate, unrelated acts. We, however, do not read count III that way. Count III stated that defendant, \u201cwithout lawful justification[,] beat and burned Robert E Gahan, knowing that such acts created a strong probability of death to Robert E Gahan, thereby causing the death of Robert E Gahan, in violation of [section 9 \u2014 1(a)(2) (Ill. Rev. Stat. 1987, ch. 38, par. 9 \u2014 1(a)(2))].\u201d (Emphasis added.) We agree with the State that the indictment considered the \u201cbeating\u201d and \u201cburning\u201d as conjoined, rather than separate, acts. Thus, even if Gahan did not die as a result of the beating, the beating still would have been a significant factor contributing to Gahan\u2019s death in that it (at the very least) rendered Gahan unconscious and unable to defend himself. Furthermore, based upon our view of the indictment, if the jury rejected the self-defense argument, defendant would be guilty of murder, and the mistake-of-fact issue would become moot.\nThe mental state of knowledge is ordinarily proved by circumstantial evidence rather than by direct proof. People v. Price, 225 Ill. App. 3d 1032, 1036 (1992). Here, the State presented sufficient evidence that defendant knowingly engaged in acts that created a strong probability of Gahan\u2019s death. First, the jury could have determined defendant\u2019s mental state from hearing about the acts of beating and burning themselves. See Howery, 178 Ill. 2d at 43. Defendant admitted striking Gahan on the head with nunchucks approximately four times. Although nunchucks are not per se deadly weapons, they may be used in such a manner that they become deadly weapons. People v. Olsen, 161 Ill. App. 3d 945, 949 (1987). Whether the instant defendant used the nunchucks as deadly weapons was a question of fact for the jury to determine. See Olsen, 161 Ill. App. 3d at 949. If the jury concluded that defendant\u2019s use of the nunchucks created a strong probability of Gahan\u2019s death, it was within its discretion to so find.\nSecond, the testimony of Young, who said he was defendant\u2019s friend, was probative of defendant\u2019s mental state. Less than one week before Gahan\u2019s death, defendant asked Young if he wanted to \u201cgo roll queers.\u201d At some point prior to April 22, 1986, defendant asked Young how much gasoline a person would need to burn a body. In addition, Young testified that defendant laughed when confronted with the facts about the burning incident.\nThird, defendant wiped down Gahan\u2019s car, abandoned it, burned Gahan\u2019s body, and fled the state. The jury could have interpreted defendant\u2019s conduct as evidence of his mental state and of his consciousness of guilt. See People v. Bounds, 171 Ill. 2d 1, 49 (1995) (defendant\u2019s attempt to dispose of victim\u2019s body and his subsequent flight from police were evidence of his consciousness of guilt); Price, 225 Ill. App. 3d at 1036.\nWe therefore hold that there was sufficient evidence from which the jury could have concluded that defendant knowingly engaged in acts that created a strong probability of Gahan\u2019s death.\nWe reject defendant\u2019s reliance on Bavas and Jordan. Those cases stand for the proposition that, where witness testimony is neither contradicted, either by positive testimony or by circumstances, nor inherently improbable, and where the witness has not been impeached, that testimony cannot be disregarded by a jury. Bavas, 251 Ill. App. 3d at 724; see Jordan, 4 Ill. 2d at 163. True, defendant testified that he did not know that hitting someone on the head with nunchucks could cause a scalp laceration, break open the skin, or create a strong probability of death. However, the jury was free to reject that testimony. See Jordan, 4 Ill. 2d at 163 (jury may reject defendant\u2019s story if the facts and circumstances contradict defendant\u2019s story, or if the story itself is improbable). Not only did the State introduce competing, circumstantial evidence of defendant\u2019s mental state, we find unreasonable defendant\u2019s assertion that he did not believe nunchucks could break open the skin or cause a laceration.\nThe jury was also free to reject defendant\u2019s contention that he thought Gahan was dead after the beating. Although defendant testified that he checked Gahan\u2019s vital signs, Waters testified that defendant did not tell him that he checked to see if Gahan was breathing. Furthermore, Detectives Schultz and Costello both testified that defendant did not tell them in January 1987 that he checked Gahan\u2019s vital signs, and the jury was free to find that defendant did not volunteer that information to the detectives during the 1987 interview. Moreover, Carlson stated that when defendant came to his house early in the morning on April 21, 1986, defendant merely told Carlson that he had been in a fight. Interestingly, defendant did not tell Carlson that he had just killed someone in self-defense. Based on these facts, we conclude that the jury, in its discretion, could reject defendant\u2019s contention that he believed Gahan was dead.\nDefendant also maintains that the State failed to prove that Gahan was alive when defendant burned his body. He asserts that the State failed to prove that, between the time of the beating and the burning, Gahan did not die from heart failure, from a concussion, or from defendant\u2019s own mishandling of Gahan\u2019s body. Defendant also attempts to discredit the testimony of Dr. Blum by pointing out several alleged weaknesses in Dr. Blum\u2019s testimony. For example, on cross-examination Dr. Blum stated that, partly because he had failed to find a competing cause, the burning caused Gahan\u2019s death. Dr. Blum also stated that he could not positively rule out heart failure as a cause of death. (Parenthetically, we note that here defendant attacks Dr. Blum\u2019s credibility, whereas in other parts of his argument defendant relies heavily on Dr. Blum\u2019s testimony.)\nWe find no merit in defendant\u2019s argument, which essentially goes to the weight of Dr. Blum\u2019s testimony rather than to the sufficiency of the evidence. The cause of Gahan\u2019s death was a factual issue for the jury to determine. See Krueger, 260 Ill. App. 3d at 847. Dr. Blum, a forensic pathologist, opined that Gahan was alive when his body was burned and that the fire caused his death. Dr. Blum relied on the findings he made from Gahan\u2019s autopsy. If the jury concluded that Gahan was alive immediately before defendant burned him, there was sufficient evidence before the jury to support that conclusion.\nB. WHETHER THE STATE SHOULD HAVE BEEN BARRED FROM ARGUING THAT DEFENDANT DID NOT BELIEVE GAHAN WAS DEAD\nNext, defendant asserts that the State should have been barred from presenting evidence that defendant did not believe that Gahan was dead before burning the body. Judge David Smith presided over the first trial in 1987. At the sentencing hearing, he stated, \u201c[I]t is possible and probably true that the defendant believed that Mr. Gahan was dead when he attempted to burn the body.\u201d Defendant contends that Judge Smith\u2019s statement \u201cwas tantamount to a determination that the evidence was insufficient to warrant a conviction on the theory of murder by burning.\u201d Defendant also contends that during the first trial the State presented evidence that defendant believed Gahan was dead and that there was no contradictory evidence on the matter; therefore, according to defendant, the jury was required to accept that evidence as fact. See Jordan, 4 Ill. 2d at 163; Bavas, 251 Ill. App. 3d at 724. Finally, defendant cites Crane II, in which we stated, \u201cDefendant\u2019s mistaken belief [that Gahan was dead] would negate the requisite mens rea for murder.\u201d Crane II, slip op. at 10. According to defendant, these statements and facts, taken together, prohibited the State from challenging his mistake-of-fact assertion.\nWe are unpersuaded by defendant\u2019s argument. First, the 1987 trial was a jury trial, and Judge Smith was not the trier of fact. He made his remarks during the sentencing hearing. Judge Smith\u2019s remarks therefore did not amount to an acquittal or a judicial determination, and they do not raise double jeopardy concerns. Second, based on the testimony of Carlson, Waters, and the detectives, we have already rejected the argument that the jury was bound to accept defendant\u2019s claim that he believed Gahan was dead. Finally, since the jury was free to accept or reject defendant\u2019s mistake-of-fact argument, the quoted language from Crane II has no application to the instant argument.\nC. WHETHER DOUBLE JEOPARDY BARRED THE STATE FROM PURSUING A \u201cDEATH-BY-BURNING\u201d THEORY\nNext, defendant claims that double jeopardy barred the State from pursuing a \u201cdeath-by-burning\u201d theory. Double jeopardy prevents a person from being twice put in jeopardy for the same offense. U.S. Const., amend. V; Ill. Const. 1970, art. I, \u00a7 10. Normally, jeopardy attaches when, in a jury trial, the jury is selected and then sworn. People v. Yarbrough, 179 Ill. App. 3d 198, 201 (1989). Where the defendant is acquitted of an offense, the bar of double jeopardy descends, and the State becomes barred from reprosecuting the defendant for the same offense. People v. Fisher, 259 Ill. App. 3d 445, 451 (1994).\nDefendant contends that the jury verdict from the second trial operated as an \u201cimplied acquittal\u201d of a death-by-burning theory. The indictment governing the second trial contained four counts, all alleging that defendant \u201cbeat and burned\u201d Gahan: count I alleged that defendant intended to kill Gahan; count II alleged that defendant intended to do great bodily harm to Gahan; count III alleged that defendant knew his acts created a strong probability of causing Gahan\u2019s death; and count IV alleged that defendant knew his acts created a strong probability of great bodily harm to Gahan. The jury was given six verdict forms: one form for each of the four counts, one involuntary manslaughter form, and one not-guilty form. The jury signed and returned only one form, finding defendant guilty under count III (strong probability of death).\nDefendant posits that a jury could have interpreted his burning Gahan\u2019s body in only one of two ways: either as an act committed with a specific intent to kill or as an act committed under the belief that Gahan was dead. Thus, according to defendant, since it did not return the verdict forms for count I (intent to kill) or for count II (intent to do great bodily harm), the jury acquitted him of murder by burning and convicted him only of murder by beating. Defendant contends that, due to the jury\u2019s return of the verdict form for count III only, the State was barred from pursuing a murder-by-burning theory at the third trial.\nAgain, we are unpersuaded by defendant\u2019s argument. First, defendant incorrectly assumes that the indictment stated alternative theories of murder. It did not. As we already discussed, the \u201cbeating\u201d and \u201cburning\u201d were conjoined acts such that if defendant possessed the requisite mens rea at any time prior to or during the beating and burning, and if the beating and burning proximately caused Gahan\u2019s death, then defendant was guilty of murder. Second, defendant overlooks the fact that, prior to the third trial, the State voluntarily dismissed with prejudice counts I, II, and IV As a result, defendant was not subject to the possibility of being convicted under those counts, and therefore no threat of double jeopardy existed.\nDefendant also contends that he should have been afforded an ev-identiary hearing to determine whether the jury unanimously acquitted defendant of counts I and II. Defendant presented the trial court with an affidavit, signed by Thelma Alisen (a juror during the second trial), stating that the jury unanimously found defendant not guilty as charged in count I. He also presented an affidavit, signed by John Truitt (defendant\u2019s standby trial counsel during the second trial), stating that another juror told Truitt that the jury unanimously acquitted defendant as to counts I and II. The trial court refused to consider the affidavits and also denied defendant\u2019s request for an evidentiary hearing.\nWe agree with the trial court\u2019s rulings. It has always been held that the verdict of jurors cannot be impeached even by their own affidavit or testimony. People v. Brinn, 32 Ill. 2d 232, 239 (1965).\n\u201cNeither the defendant nor the court can use the affidavits as a passage into the jury room, the deliberations of the jurors[,] or their several mental attitudes. *** The only manner in which the conclusion of a jury on a verdict may be recognized is by a formal return of its verdict to the court.\u201d People v. Hall, 25 Ill. App. 3d 992, 994 (1975).\nHere, defendant attempted to use affidavits to create a not-guilty verdict as to counts I and II. Alternatively, he requested an opportunity to present juror testimony on the matter. However, since the jury did not return a formal verdict as to either count, defendant cannot create a verdict by presenting the affidavits and testimony of jurors. See Hall, 25 Ill. App. 3d at 994.\nD. WHETHER REMARKS MADE BY THE PROSECUTOR WERE REVERSIBLE ERROR\nNext, defendant contends that the prosecutor made four improper remarks during closing argument that deprived him of his right to a fair trial. Although defendant did not object to any of the four statements, we will review this issue pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)).\nIt is well established that a prosecutor is afforded wide latitude in closing argument and may argue to the jury facts and reasonable inferences drawn from the evidence. People v. Kliner, 185 Ill. 2d 81, 151 (1998). A reviewing court will find reversible error based on improper prosecutorial comments only where those remarks are \u201cclearly prejudicial.\u201d People v. Macri, 185 Ill. 2d 1, 48-49 (1998). In determining whether the remarks were prejudicial, we must take into consideration the content of the language used, its relation to the evidence, and its effect on the rights of the accused to a fair and impartial trial. Maori, 185 Ill. 2d at 49. Prosecutorial remarks are acceptable if invited by the defendant. People v. Thomas, 172 Ill. App. 3d 172, 179 (1988).\nThe first alleged improper comment was made when the prosecutor was reviewing Dr. Blum\u2019s testimony. The prosecutor said: \u201cDoctor Blum gets $150 an hour, and [that fact] was brought out. He needs a raise after subjecting himself to that abuse from this defendant.\u201d Defendant contends that his cross-examination of Dr. Blum was very damaging to the State\u2019s case and that it in no way amounted to \u201cabuse.\u201d However, we find that the prosecutor\u2019s remark was a fair and accurate categorization of defendant\u2019s cross-examination of Dr. Blum, invited by defendant. The trial judge struck comments that he considered argumentative, and defendant misstated some of Dr. Blum\u2019s findings. We therefore assign no error to this remark.\nDefendant\u2019s second complaint is that the prosecutor made comments not based on the evidence. While still reviewing Dr. Blum\u2019s testimony, the prosecutor stated, \u201cIt doesn\u2019t take a rocket scientist to tell you [Gahan] died from fire. He was healthy one minute.\u201d According to defendant, since there was no evidence that Gahan was \u201chealthy\u201d prior to being burned, the prosecutor improperly presented his own testimony. We disagree. We read this passage in context as a statement that Gahan was \u201calive\u201d prior to being burned. As the record supports such a reading, we attribute no error to the prosecutor\u2019s use of the word \u201chealthy.\u201d In any event, we do not believe defendant was prejudiced in any way by this statement.\nThe third complained-of comment was made as the prosecutor attacked defendant\u2019s credibility. The prosecutor stated:\n\u201cMake no mistake about it. You either believe this defendant, you believe this individual convicted of burglary just two years before he burned Mr. Gahan alive, either you believe everything he tells you or he is guilty of murder. *** [Defendant\u2019s] problem is in order to believe him you have to disbelieve everyone else in the case, including Lance Waters, his friend.\u201d\nMaintaining that these comments constituted reversible error, defendant cites People v. Wilson, 199 Ill. App. 3d 792, 797 (1990), and People v. Ferguson, 172 Ill. App. 3d 1, 13 (1988). In each of those cases, the prosecutor argued that in order to acquit the defendant, the jury would have to conclude that all of the State\u2019s witnesses were lying. Both courts held that this type of argument constituted reversible error, entitling the defendants to a new trial. Wilson, 199 Ill. App. 3d at 797; Ferguson, 172 Ill. App. 3d at 13-14.\nWhere the testimony of the defendant and State\u2019s witnesses conflict, remarks that the jury may believe the defendant only if it disbelieves certain State witnesses are not improper. People v. Pecoraro, 144 Ill. 2d 1, 16-17 (1991); Thomas, 172 Ill. App. 3d at 179. Here, the prosecutor\u2019s comments were based on the evidence. The points of contention at trial were whether defendant acted in self-defense and whether he reasonably believed Gahan to be dead, and both the State and defendant presented evidence on those issues. In other words, the prosecutor was simply addressing the fact that the evidence on those issues conflicted. Accordingly, we find no error in the prosecutor\u2019s comments on the evidence and on the inferences arising therefrom. See Thomas, 172 Ill. App. 3d at 179-80.\nThe fourth allegedly improper remark occurred when the prosecutor stated as follows:\n\u201cBut it all boils down to this. It\u2019s very simple. In order for this defendant to get a pass on murder, he has to convince you somehow that this man was dead \u2014 in spite of all the evidence to the contrary.\u201d\nCiting People v. Weinstein, 35 Ill. 2d 467, 471 (1966), defendant contends that the prosecutor improperly shifted the burden of proof to the defense.\nAlthough we do not condone the type of argument employed by the prosecutor, we do not believe that it constituted an error of such magnitude so as to deprive defendant of a fair trial. We agree with Crane II that \u201cthe evidence of defendant\u2019s guilt is overwhelming.\u201d Crane II, slip op. at 13. Furthermore, the jury was instructed, orally and in writing, that closing arguments are not evidence, that any argument not based upon evidence should be disregarded, and that the State shoulders the burden of proving its case beyond a reasonable doubt. See Thomas, 172 Ill. App. 3d at 179 (jury instructions may cure improper prosecutorial remarks). We believe that, had the prosecutor not made his burden-shifting argument, the result of the proceeding would have been the same. Accordingly, we hold that defendant was not substantially prejudiced by this argument.\nWe have concluded that only one of the prosecutor\u2019s alleged improper remarks (the burden-shifting argument) was improper. However, since that argument was not so egregious as to warrant reversal, we reject defendant\u2019s contention that the cumulative effect of the prosecutor\u2019s remarks were substantially prejudicial.\nE. WHETHER THE JURY INSTRUCTIONS WERE PROPER\nNext, defendant asserts that the jury was improperly instructed. Defendant\u2019s argument assumes the following three facts: first, that the jury has rejected defendant\u2019s self-defense argument; second, that the jury has concluded that the burning caused Gahan\u2019s death; and third, that the jury has accepted his mistake-of-fact argument. According to defendant, the instructions given erroneously allowed the jury to convict him of murder by coupling (a) the mental state defendant possessed prior to the beating with (b) burning as the cause of death. Defendant contends that the fatal burning (under a mistaken belief that Gahan was dead) could be considered a cause connected with the beating only if he beat Gahan with the intent to kill. Defendant then cites W. LaFave & A. Scott, Criminal Law, \u00a7 3.12, at 294-95 (2d ed. 1986), and states as follows: \u201cThe explanation has been that where the intent was not to kill, the subsequent disposal of the body could not be viewed as part of one transaction.\u201d Defendant contends that the jury should have been instructed that the State had the burden to prove beyond a reasonable doubt that \u201cdefendant\u2019s own subsequent acts of burning were not an intervening cause of death unconnected with the defendant\u2019s initial acts of beating.\u201d\nWe attribute no error to the instructions tendered in this case. Defendant cites no Illinois case in support of the quoted legal proposition, nor does he present an argument as to why the proposition should be the law in Illinois. Further, our independent research cannot find a case in support of defendant\u2019s argument. In fact, the cases we found defeat his argument. In People v. Rollins, 295 Ill. App. 3d 412, 418 (1998), it was stated:\n\u201cIf an assailant inflicts unjustified wounds to the extent that he reasonably believes he has killed someone, misapprehension of his crime\u2019s effect does not license incineration, drowning, or dismemberment to destroy evidence of what happened. If a defendant attempts to conceal his own criminality by further acts that actually contribute to an end defendant mistakenly thinks he has already produced, he cannot escape criminal responsibility for murder.\u201d\nSee also People v. Brackett, 117 Ill. 2d 170, 176 (1987) (\u201cwhen criminal acts of the defendant have contributed to a person\u2019s death, the defendant may be found guilty of murder\u201d). As we stated earlier, if the jury rejected the self-defense argument, defendant was guilty of murder. Since defendant\u2019s argument assumes that the beating of Gahan was not \u201cjustified conduct\u201d (Rollins, 295 Ill. App. 3d at 418), we conclude that the instructions given were proper and that defendant was not entitled to the instruction he proposes.\nIn a related argument, defendant contends that the jury should have been instructed that it was the State\u2019s burden to prove that defendant beat Gahan with the specific intent to kill. He cites the same portion of LaFave & Scott\u2019s treatise as above and again presupposes that the jury found burning as the cause of death. However, based both on Rollins and on the fact that the proposed instruction is not the law in Illinois, we similarly reject this argument.\nIII. CONCLUSION\nFor the foregoing reasons, defendant\u2019s conviction in the circuit court of Winnebago County is affirmed.\nAffirmed.\nGEIGER and THOMAS, JJ., concur.", "type": "majority", "author": "JUSTICE COLWELL" } ], "attorneys": [ "David Crane, of Hillsboro, appellant pro se.", "Paul A. Logli, State\u2019s Attorney, of Rockford (Martin E Moltz and Lawrence M. Bauer, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID CRANE, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 97\u20140761\nOpinion filed November 15, 1999.\nDavid Crane, of Hillsboro, appellant pro se.\nPaul A. Logli, State\u2019s Attorney, of Rockford (Martin E Moltz and Lawrence M. Bauer, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0675-01", "first_page_order": 693, "last_page_order": 709 }