{ "id": 4268032, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GULMARO H. CALDERON, Defendant-Appellant", "name_abbreviation": "People v. Calderon", "decision_date": "2006-12-06", "docket_number": "No. 2\u201405\u20140532", "first_page": "221", "last_page": "237", "citations": [ { "type": "official", "cite": "369 Ill. App. 3d 221" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "342 Ill. App. 3d 1005", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3473724 ], "year": 2003, "pin_cites": [ { "page": "1016", "parenthetical": "prosecutorial comments that are invited and not prejudicial do not constitute error" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/1005-01" ] }, { "cite": "365 Ill. App. 3d 855", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4263561 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "866" }, { "page": "866", "parenthetical": "such an instruction cures any alleged prejudice to the defendant from statements made during closing argument" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/365/0855-01" ] }, { "cite": "364 Ill. App. 3d 847", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4262065 ], "year": 2006, "pin_cites": [ { "page": "859" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/364/0847-01" ] }, { "cite": "365 Ill. App. 3d 109", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4263480 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "123" }, { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/365/0109-01" ] }, { "cite": "363 Ill. App. 3d 971", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5766598 ], "year": 2005, "pin_cites": [ { "page": "987" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/0971-01" ] }, { "cite": "218 Ill. 2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5736047 ], "year": 2005, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0104-01" ] }, { "cite": "261 Ill. App. 3d 1025", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5370536 ], "year": 1994, "pin_cites": [ { "page": "1030" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/1025-01" ] }, { "cite": "327 Ill. App. 3d 685", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 79324 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "693" }, { "page": "692" }, { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/327/0685-01" ] }, { "cite": "364 Ill. App. 3d 680", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4262495 ], "year": 2006, "pin_cites": [ { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/364/0680-01" ] }, { "cite": "147 Ill. 2d 173", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3278448 ], "year": 1991, "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0173-01" ] }, { "cite": "348 Ill. App. 3d 796", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4022867 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "802" }, { "page": "802" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/348/0796-01" ] }, { "cite": "332 Ill. App. 3d 40", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1034130 ], "year": 2002, "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0040-01" ] }, { "cite": "332 Ill. App. 3d 343", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1034086 ], "year": 2002, "pin_cites": [ { "page": "352", "parenthetical": "excluded testimony was cumulative of other evidence, making any \"potentially perceived\" error harmless" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0343-01" ] }, { "cite": "339 Ill. App. 3d 891", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2469200 ], "year": 2003, "pin_cites": [ { "page": "897" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/339/0891-01" ] }, { "cite": "201 Ill. App. 3d 599", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2592673 ], "year": 1990, "pin_cites": [ { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0599-01" ] }, { "cite": "209 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461336 ], "year": 2004, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0194-01" ] }, { "cite": "165 Ill. App. 3d 905", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3615265 ], "year": 1988, "pin_cites": [ { "page": "909-10", "parenthetical": "applying these factors to determine admissibility of in-court identification" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0905-01" ] }, { "cite": "127 Ill. 2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564025 ], "year": 1989, "pin_cites": [ { "page": "307-08", "parenthetical": "noting that such factors are used to assess identification testimony" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0302-01" ] }, { "cite": "88 Ill. App. 3d 168", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3172862 ], "year": 1980, "pin_cites": [ { "page": "176", "parenthetical": "the \"prosecution is not required to fill the courtroom with individuals who resemble the defendant in order to insure a proper identification\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0168-01" ] }, { "cite": "134 Ill. App. 3d 582", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3635584 ], "year": 1985, "pin_cites": [ { "page": "589", "parenthetical": "absent extrajudicial suggestiveness, suggestiveness at trial does not offend due process because the trial itself, especially the ability for cross-examination, affords the defendant adequate protection" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0582-01" ] }, { "cite": "50 Ill. 2d 330", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911586 ], "year": 1972, "pin_cites": [ { "page": "334-35" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/50/0330-01" ] }, { "cite": "205 Ill. 2d 411", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1302603 ], "year": 2002, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/205/0411-01" ] }, { "cite": "361 Ill. App. 3d 1006", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4259539 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "1012-13" }, { "page": "1013-17" }, { "page": "1017-19" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/361/1006-01" ] }, { "cite": "354 Ill. App. 3d 265", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3217750 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "278" }, { "page": "278-79" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/354/0265-01" ] }, { "cite": "336 Ill. App. 3d 62", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599231 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "70" }, { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0062-01" ] }, { "cite": "215 Ill. 2d 308", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4059834 ], "year": 2005, "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0308-01" ] }, { "cite": "314 Ill. App. 3d 268", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140285 ], "year": 2000, "pin_cites": [ { "page": "270-71", "parenthetical": "trial court, which refused to allow evidence of two of the defendant's three prior felony convictions because it found that one conviction was sufficient to impeach the defendant's credibility, acted within its discretion in allowing evidence of the most recent conviction" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0268-01" ] }, { "cite": "186 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243932 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "455-56", "parenthetical": "discussing Montgomery standard" }, { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0450-01" ] }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "year": 1971, "pin_cites": [ { "page": "516-19" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] } ], "analysis": { "cardinality": 1273, "char_count": 39707, "ocr_confidence": 0.761, "pagerank": { "raw": 7.317852702137001e-08, "percentile": 0.43772301010599457 }, "sha256": "f82bb6db24f189921257d2efde1962b6daea68523f2ae04996108ae9a2d2b6cb", "simhash": "1:d32a6aaa56aa0068", "word_count": 6618 }, "last_updated": "2023-07-14T20:04:07.948493+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. GULMARO H. CALDERON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BOWMAN\ndelivered the opinion of the court:\nDefendant, Gulmaro H. Calderon, was convicted of aggravated battery with a firearm (720 ILCS 5/12 \u2014 4.2(a)(1) (West 2004)) and sentenced to 10 years\u2019 imprisonment. On appeal, defendant argues that the trial court erred by: (1) granting the State\u2019s motion in limine to restrict his impeachment of the victim; (2) allowing evidence of the victim\u2019s prior photo identification of defendant even though the victim failed to identify defendant in court; (3) allowing the victim\u2019s brother to make an in-court identification of defendant when the brother had not previously made an identification and had told the police that he could not make an identification; (4) not allowing defendant to call a rebuttal witness because he was not on defendant\u2019s list of witnesses; (5) not allowing defendant to rehabilitate a witness through a prior consistent statement made to the police; (6) allowing an accountability instruction; and (7) allowing improper argument by the State. We affirm.\nI. BACKGROUND\nOn January 7, 2005, defendant was charged with three counts of attempted first-degree murder (720 ILCS 5/8 \u2014 4(a), 9 \u2014 1(a)(1) (West 2004)), one count of aggravated battery with a firearm (720 ILCS 5/12 \u2014 4.2(a)(1) (West 2004)), and one count of aggravated discharge of a firearm (720 ILCS 5/24 \u2014 1.2(a)(2) (West 2004)). On February 22, 2005, the State nol-prossed two counts of attempted first-degree murder and the charge of aggravated discharge of a firearm. Defendant\u2019s trial began the same day.\nChad Conway testified as follows. On September 24, 2004, at about 8 p.m., he went to a party at a friend\u2019s house in Carpentersville. While there, he consumed some beers and a couple of mixed drinks. After about IV2 hours, Chad returned home to get money for cigarettes. His brother, Phillip, and his brother\u2019s girlfriend, Kim, decided to go back with him to the party. They took Chad\u2019s car. Chad sat in the driver\u2019s seat, Phillip sat in the front passenger seat, and Kim sat in the backseat. On the way to the party, Chad saw two girls walking down the street, and he thought that he recognized them from the party. He pulled over and exited the car to talk to them. Phillip and Kim remained in the car. Two young Hispanic men walked up to Chad and the girls. They asked Chad why he was talking to their \u201cgirlfriends or ex-girlfriends, or whatever they were.\u201d Chad responded, \u201cbecause I can.\u201d An argument ensued between Chad and the men. When asked at trial whether he saw \u201cany one of those two Latino gentlemen in court,\u201d Chad replied, \u201cNo, I don\u2019t.\u201d\nChad further testified that he wanted to fight the men, but they did not want to fight. Chad did not take any physical action against the men, nor did he clench his fists or lunge toward them. Chad did not have a gun or any other type of weapon with him. The men went into a house and then came back out. They got into a van, and the van pulled out of the driveway. Chad saw a weapon in \u201chis\u201d hands. Chad was standing in the street by his car, and he heard gunshots. The shots came from the front passenger seat of the van. He heard \u201cthem\u201d say \u201c T ain\u2019t afraid of no gun,\u2019 \u201d and a bullet hit him in the stomach. The van drove away. Phillip helped Chad to the car and drove him to the hospital. Chad remained hospitalized for two weeks and had to undergo many surgeries. While he was in the hospital, the police showed him some photographs. At the time of trial, Chad\u2019s physical condition was still suffering from the shooting. The bullet was never removed from his body because it was too close to his spine.\nChad admitted that he had a 2001 conviction of aggravated battery, for which he was sentenced to boot camp. He did not recall some specifics of the night in question, such as the time or whether he was in the street when he got shot, because of his consumption of alcohol.\nOfficer Timothy Bosshart provided the following testimony. He had been employed by the Carpentersville police department for 19 years, and he had been working as a detective sergeant for the previous three years. Officer Bosshart was involved in investigating the shooting at issue, and he put together a photo lineup.\nAt this point in the testimony, defendant objected. He argued that because Chad had failed to identify defendant as the shooter in open court, the State could not bring in testimony of a previous identification through a photo lineup. The trial court overruled defendant\u2019s objection.\nOfficer Bosshart then identified the photo lineup that he showed to Chad on September 30, 2004. He instructed Chad not to assume that the suspect was among the photographs and that, if he did not recognize anyone, he should say so. The photographs consisted of paper copies that were folded in half because the bottoms of the pages had the subjects\u2019 names. Officer Bosshart laid the photos out on the hospital bed. Chad immediately pointed to a photo of defendant and said, \u201c \u2018That looks like the guy that shot me.\u2019 \u201d Chad signed the photograph that he identified.\nPhillip Rosenbach, Chad\u2019s brother, testified as follows. On September 24, 2004, Chad came home at about 10:30 p.m. He asked Phillip and Kim to accompany him to a party, and they agreed. Chad drove, with Phillip in the passenger seat and Kim in the backseat. As they were driving west on Amarillo Drive, they saw two girls walking on the sidewalk. Chad rolled down the window on Phillip\u2019s side of the car and started talking to them and flirting. They continued walking, and Chad continued driving. After about half a block, the girls stopped. Chad got out of the car and went over to the sidewalk to talk to the girls. It was about 10:30 or 10:40 p.m. It was dark outside, but there was a streetlight. Phillip had to twist around in his seat to see what was going on.\nA Hispanic man came out of a house and confronted Chad, asking who he was. One or two other Hispanic men were also present. Chad and the man argued. The man swore and, in an aggressive manner, asked Chad to leave. Chad swore back at him. The man pulled out a gun, and the other people clustered around him and told him to stop. The man shot once into the air. Over defendant\u2019s objection, Phillip identified defendant as the man who shot the gun. Chad was in the driveway when defendant shot the gun into the air. They continued to argue. Chad said, \u201cyou are not going to shoot me, you are nothing but a punk, put the gun down and let\u2019s fight.\u201d Defendant shot the gun to Chad\u2019s left. Chad continued to argue. The men and the girls got into a van, with defendant entering the front passenger door. Chad walked behind the van and continued to argue and yell. The van backed out and began to pull away, traveling west. Chad was in the middle of the street and began to walk behind the van. At some point while the van was backing out, he also went to his car\u2019s trunk. Chad called the men a bunch of \u201cpussies\u201d because they would not fight him. Defendant reached out of the passenger side and shot at Chad, striking him. At this point, the van was 15 to 20 feet in front of Chad\u2019s car, and Phillip had a \u201cpretty good view\u201d of defendant\u2019s face as the van drove past him. The illumination from a streetlight and the moonlight enabled him to identify defendant. The van then drove away. Chad dropped to the ground, and Phillip picked him up and took him to the hospital. Chad did not appear intoxicated that night, but Phillip had smelled alcohol on him.\nPhillip admitted that six days after the incident, he \u201cpossibly\u201d told a police officer that he would not be able to pick the offender out of a photo lineup because he had been in the car the entire time.\nDetective Todd Shaver testified that on October 1, 2004, he took a statement from Phillip. He did not offer Phillip an opportunity to view individuals in a photo lineup. Phillip told him that he would not be able to pick the offender from a photo lineup because Phillip was in the car the entire time.\nAmber Lavender provided the following testimony. She was in eleventh grade and lived on Amarillo Drive. Amber had dated defendant for four months, beginning in August 2003. On September 24, 2004, she was at her friend Stephanie\u2019s house. Stephanie lived on the same block. They decided to go to defendant\u2019s house because a friend of Stephanie\u2019s had invited them over. As they were walking, they could see defendant in front of a van, which was parked in the driveway. Defendant had driven the van on many occasions. Defendant\u2019s younger brother Fernando and defendant\u2019s friend Eric were also there. As Amber and Stephanie were walking, a car pulled up next to them and the driver started talking to Stephanie. He told Stephanie that he would give her $100 \u201cif she told him where the parties were at.\u201d There were two other people in the car, and Amber recognized Kim from school.\nAmber and Stephanie stopped on the sidewalk in front of defendant\u2019s house, and the driver parked the car a little past the house. The driver got out of the car and talked to Stephanie. Eric approached the man, and they started talking. Amber and Stephanie walked to the side door of the house. The house\u2019s side light was on, and there was also a streetlight four or five houses away from defendant\u2019s house. Amber heard someone say, \u201cGet the strap, get the strap.\u201d \u201cStrap\u201d meant gun. Amber and Stephanie walked back to the sidewalk, behind the van. They saw defendant run to the van\u2019s driver-side door. Defendant walked back toward the man and shot a gun into the air. He then fired a second shot. Amber and Stephanie ran to Stephanie\u2019s house. From the time the man got out of the vehicle to the time defendant fired the shots, about two minutes had passed. Amber never saw anything in the man\u2019s hands, and he did not make any movements toward defendant. She also never saw defendant on the passenger side of the van.\nAmber identified a photograph, taken in an eastern direction, showing the street in front of defendant\u2019s house. She agreed that the photo showed streetlights. She then identified another photograph, taken in a western direction, showing the street in front of defendant\u2019s house. She agreed that the second photograph did not show any streetlights and that no streetlights were actually present there. Amber testified that there were streetlights at both ends of the street, but that there were no streetlights in a western direction from defendant\u2019s house that were visible from his house. There were about nine houses between defendant\u2019s house and the western end of the block. At that end of the block, the streetlight was around the corner, and it did not illuminate the street in front of defendant\u2019s house.\nThe defense moved for a directed verdict, and the trial court denied the motion. The defense then called Javier Huerta to the stand. The State objected because Javier was not included on defendant\u2019s list of witnesses. Defendant argued that he was calling Javier as a rebuttal witness to testify that there were no streetlights on Amarillo Drive. The trial court sustained the State\u2019s objection. It further stated that defendant was not prejudiced because he could elicit that testimony from witnesses on the list.\nFernando Huerta, defendant\u2019s brother, testified as follows. He lived in Michigan, but he was at his uncle\u2019s house in Carpentersville on the night of September 24, 2004. At about 10:30 p.m., he was with defendant and Eric in front of the house. They were going to go to Eric\u2019s house, but a car came into the driveway. Defendant told the driver to move, but instead, the man got out of his car. Fernando did not know the man, but he knew the man was called \u201cCasper D.\u201d The man started arguing with Eric, and defendant told Fernando to grab a stick. Fernando got a bamboo stick and gave it to defendant. He wanted to protect his brother because he thought there was going to be a fight. However, the man never swung at Eric or defendant.\nFernando then testified that defendant had sent him to grab a bat from the back of the garage. He could not find a bat, so Eric came and grabbed the bat and took it. Eric also grabbed a gun from the back of the garage and loaded it with three bullets. Eric pointed the gun at the man. Defendant told him not to shoot the man but to shoot into the air instead. The man went to the trunk of his car and looked for something. He closed the trunk and walked to the side of the car. Defendant told Fernando and Eric that they should go because the man would not leave. The van belonged to defendant, and defendant got into the driver\u2019s side of the vehicle while Eric sat in the passenger seat. Fernando sat in the back. As they were driving away, Eric \u201cgot out of the window\u201d and shot the man.\nFernando admitted that he had initially told the police that he was at Eric\u2019s house between 9:30 p.m. and 1 a.m. He had lied because he was scared. He agreed that he loved defendant and did not want anything bad to happen to him. However, Fernando denied that he would lie again to protect defendant. Fernando admitted that the second time he talked to the police, he told them that Chad said bad words to both defendant and Eric. At trial, he stated that Chad was arguing with Eric and that defendant had asked him to get a stick. Fernando admitted that a statement he signed also stated that Chad argued with both defendant and Eric. The statement additionally said that it was at that point that defendant told Chad to get out of the driveway, and that Fernando then got the bamboo stick. According to the statement, defendant told him to get back into the van, and Fernando lay down in the van and heard two gunshots. At trial, Fernando testified that the statement was not true. However, he admitted that he never told the police that defendant did not shoot Chad.\nDuring the jury instruction conference, defendant objected to an accountability instruction. He argued that the trial court should not allow the instruction because the State had proceeded on a theory that defendant had shot the victim. The trial court allowed the instruction. The jury found defendant not guilty of attempted first-degree murder and guilty of aggravated battery with a firearm. The trial court denied defendant\u2019s motion for a new trial. Defendant was sentenced to 10 years\u2019 imprisonment, and he timely appealed.\nII. ANALYSIS\nA. Evidence of Chad\u2019s Criminal History\nDefendant first argues that the trial court erred by prohibiting him from introducing evidence of all three of Chad\u2019s prior felony convictions for impeachment purposes. Defendant maintains that this impeachment evidence should have been allowed because Chad\u2019s testimony played a critical role in defendant\u2019s conviction. Chad had a 2001 conviction of aggravated battery, a 1999 conviction of unlawful possession of a weapon by a felon, and a 1999 conviction of burglary. He also had several misdemeanor convictions of battery, domestic battery, and resisting arrest. Before trial, the State filed a motion in limine to prevent defendant from using the convictions to impeach Chad. The trial court allowed the admission of only Chad\u2019s most recent felony conviction, ruling that the prejudicial effect of allowing evidence of the other convictions would outweigh its probative value.\nUnder People v. Montgomery, 47 Ill. 2d 510, 516-19 (1971), evidence of a witness\u2019s prior conviction is admissible to attack his credibility only if: (1) the conviction involved a crime punishable by death or imprisonment of over one year, or involved dishonesty or false statement regardless of punishment; (2) not more than 10 years have passed since the date of conviction or the release of the witness from confinement, whichever is later; and (3) the probative value of admitting the conviction outweighs the danger of unfair prejudice. See also People v. Atkinson, 186 Ill. 2d 450, 455-56 (1999) (discussing Montgomery standard). Whether a witness\u2019s prior conviction is admissible for impeachment purposes is within the trial court\u2019s discretion. Atkinson, 186 Ill. 2d at 456.\nIn this case, the trial court allowed evidence of Chad\u2019s most recent felony conviction because it related to \u201chis credibility and reliability.\u201d The trial court also determined that the prejudicial effect of allowing evidence of additional felony convictions would outweigh its probative value. We conclude that the trial court did not abuse its discretion by allowing evidence of only the most recent conviction, as such evidence was sufficient to question Chad\u2019s credibility without overemphasizing his criminal history. See also People v. Sparks, 314 Ill. App. 3d 268, 270-71 (2000) (trial court, which refused to allow evidence of two of the defendant\u2019s three prior felony convictions because it found that one conviction was sufficient to impeach the defendant\u2019s credibility, acted within its discretion in allowing evidence of the most recent conviction).\nB. Chad\u2019s Prior Photo Identification of Defendant\nDefendant next argues that the trial court erred by allowing evidence of Chad\u2019s prior photo identification of defendant after Chad failed to identify defendant in court. Defendant argues that the exception provided for such testimony under section 115 \u2014 12 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115 \u2014 12 (West 2004)) does not apply because Chad was not subjected to cross-examination concerning the prior photo identification. Defendant maintains that it was impossible for him to cross-examine Chad regarding the identification because Chad had been withdrawn from the stand by the State before the identification testimony was presented through Officer Bosshart.\nSection 115 \u2014 12 provides:\n\u201cA statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him.\u201d 725 ILCS 5/115 \u2014 12 (West 2004).\nStatutory interpretation presents a question of law, which we review de novo. People v. Cosenza, 215 Ill. 2d 308, 314 (2005).\nIn People v. Bradley, 336 Ill. App. 3d 62, 70 (2002), the First District held that before a third person is permitted to testify regarding a witness\u2019s out-of-court identification statement, the witness must first testify as to the out-of-court identification. Thus, the Bradley court concluded that a police officer\u2019s testimony regarding the victim\u2019s identification of the defendant through a photo array was inadmissible because the victim had not yet testified about the identification, nor had the victim been subject to cross-examination regarding the identification. Bradley, 336 Ill. App. 3d at 70. Relying on Bradley, the First District stated in People v. Stackhouse, 354 Ill. App. 3d 265, 278 (2004), \u201cThe section [115 \u2014 12] does *** require the declarant to testify and be subject to cross-examination regarding the out-of-court identification statement before a third party may testify to the making of such a prior statement of identification by the declarant.\u201d (Emphasis in original.) The Stackhouse court held that where the victim denied previously identifying the defendant, a police officer\u2019s testimony that the victim had identified both offenders at the scene was inadmissible hearsay. Stackhouse, 354 Ill. App. 3d at 278-79.\nUnder such reasoning, evidence of Chad\u2019s photo identification would not have been admissible because, although he testified that he was shown a photo array, he did not testify regarding his prior identification of defendant and was not subject to cross-examination about this subject before Officer Bosshart testified about the identification. However, the reasoning of Bradley and Stackhouse was strongly criticized by the Fourth District in People v. Lewis, 361 Ill. App. 3d 1006 (2005). The Lewis court noted that the plain language of section 115 \u2014 12 does not require that the declarant testify about the identification before the third party testifies about the subject. Lewis, 361 Ill. App. 3d at 1012-13. It further noted that two of the three cases relied on by the Bradley court were decided before the enactment of section 115 \u2014 12 and that the third case lacked any analysis on the subject. The Lewis court also conducted an in-depth analysis of the authority relied on in Stackhouse and concluded that such analysis was flawed. Lewis, 361 Ill. App. 3d at 1013-17. Finally, the court discussed Federal Rule of Evidence 801(d)(1)(C), which contains requirements that are almost identical to those of section 115 \u2014 12, in support of its interpretation of the statute. Lewis, 361 Ill. App. 3d at 1017-19.\nWe agree with the Lewis court that the plain language of section 115 \u2014 12 does not require that a declarant testify about his out-of-court identification, and be subject to cross-examination regarding this testimony, before a third party may testify about the identification. We also find the court\u2019s in-depth analysis on this subject persuasive. Thus, the fact that Chad did not testify about the photo identification before Officer Bosshart testified about the subject does not automatically render the identification testimony inadmissible. Although defendant contends that it was subsequently \u201cimpossible\u201d to cross-examine Chad on this subject, there is no indication in the record that defendant asked to recall Chad to the stand for this purpose. In fact, as the State points out, in response to defendant\u2019s objection that Officer Bosshart could not testify regarding the instructions on the lineup advisory form because Chad had not testified that he had been shown the form and understood the instructions, the trial court stated, \u201cHe\u2019s here, subject to cross-examination; overruled.\u201d Accordingly, the trial court did not err by allowing Officer Bosshart to testify regarding Chad\u2019s photo identification of defendant.\nC. Phillip\u2019s Identification of Defendant\nThird, defendant argues that the trial court erred by allowing Phillip to identify defendant in court as the person who shot Chad. We will not reverse a trial court\u2019s ruling on the admissibility of evidence absent an abuse of discretion. People v. Tenney, 205 Ill. 2d 411, 436 (2002). Defendant argues that the identification procedure was automatically suggestive because he was seated at the defense table. However, our supreme court has held that an in-court identification of a defendant, on its own, does not violate due process. People ex rel. Blassick v. Callahan, 50 Ill. 2d 330, 334-35 (1972); see also People v. Rodriguez, 134 Ill. App. 3d 582, 589 (1985) (absent extrajudicial suggestiveness, suggestiveness at trial does not offend due process because the trial itself, especially the ability for cross-examination, affords the defendant adequate protection); People v. Patterson, 88 Ill. App. 3d 168, 176 (1980) (the \u201cprosecution is not required to fill the courtroom with individuals who resemble the defendant in order to insure a proper identification\u201d).\nDefendant further maintains that Phillip\u2019s identification of defendant should not have been allowed because Phillip did not see defendant during the five months between the incident and the trial, Phillip told the police that he would not be able to pick the offender from a photo lineup because he was in the car the entire time, and he \u201cfabricated\u201d testimony regarding streetlights that allowed him to identify defendant. Defendant argues that the court should have examined the following factors when determining whether the reliability of the identification testimony allowed its admission: (1) the witness\u2019s opportunity to view the criminal at the time of the crime; (2) the witness\u2019s degree of attention; (3) the accuracy of the witness\u2019s prior description; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and confrontation. See People v. Slim, 127 Ill. 2d 302, 307-08 (1989) (noting that such factors are used to assess identification testimony); see also People v. Smith, 165 Ill. App. 3d 905, 909-10 (1988) (applying these factors to determine admissibility of in-court identification).\nApplying the factors to the instant case, we observe that Phillip testified that he watched the encounter between Chad and defendant while he was seated in Chad\u2019s car. He further testified that as the van drove past him, a streetlight and the moonlight enabled him to get a \u201cpretty good view\u201d of defendant\u2019s face. Although defendant maintains that Phillip made up the testimony regarding a streetlight, it is up to the jury to resolve conflicts in the evidence. People v. Evans, 209 Ill. 2d 194, 212 (2004). About five months passed between the incident and the trial, which, while not a short amount of time, was not extraordinarily long either. Defendant\u2019s main emphasis seems to be on the fact that Phillip initially told the police that he would not be able to identify the shooter. However, this would not automatically render his in-court identification inadmissible because \u201cas a matter of law, a victim\u2019s or witness\u2019 inability to identify a defendant subsequently to, even soon after, the commission of the offense charged does not render incompetent and inadmissible his identification of the defendant at a later lineup or an even later trial.\u201d People v. Maloney, 201 Ill. App. 3d 599, 609 (1990). It is presumptively up to the trier of fact to determine the weight to be given to identification evidence. People v. Ramos, 339 Ill. App. 3d 891, 897 (2003). Defendant was able to cross-examine Phillip regarding his identification, and he also impeached Phillip by calling Detective Shaver, who testified that on October 1, 2004, Phillip told him that he would not be able to pick the offender from a photo lineup because he was in the car the entire time. Accordingly, the trial court did not abuse its discretion by allowing Phillip\u2019s in-court identification of defendant.\nD. Ability to Call Rebuttal Witness\nFourth, defendant argues that the trial court\u2019s refusal to allow him to call Javier Huerta as a witness constituted reversible error. The trial court barred Javier from testifying because he was not disclosed as a witness on defendant\u2019s list of witnesses. Under Supreme Court Rule 413(d)(1) (134 Ill. 2d R. 413(d)(1)), defense counsel must disclose, upon the State\u2019s request, the names and addresses of the people he \u201cintends\u201d to call as witnesses. We believe that this rule does not generally extend to rebuttal witnesses, as a defendant may not be aware of the need to call such witnesses until after the trial commences. Cf. 725 ILCS 5/114 \u2014 9(c) (West 2004) (State not required to disclose names of rebuttal witnesses). Accordingly, the trial court erred by excluding Javier on the ground that he was not previously disclosed as a defense witness.\nDefendant argues that the exclusion was prejudicial because other witnesses from whom he could have elicited testimony regarding the streetlights were limited as to their credibility, interest, and bias. We disagree, as Amber appeared to be a neutral witness. Although she had dated defendant for several months, she testified that she saw him shoot the gun into the air and that she did not see who shot Chad. Defense counsel questioned her extensively about the streetlights on Amarillo Drive, and she agreed that there were no such lights in front of defendant\u2019s house or to the west of the house. Furthermore, photographs of the street were admitted into evidence. The photographs show streetlights at the far end of the eastern side of the block, and no visible streetlights on the western side of the block. As Javier\u2019s testimony would have been cumulative of other admitted evidence, any error in the trial court\u2019s refusal to allow such testimony was harmless. See People v. Hernandez, 332 Ill. App. 3d 343, 352 (2002) (excluded testimony was cumulative of other evidence, making any \u201cpotentially perceived\u201d error harmless).\nE. Fernando\u2019s Prior Consistent Statement\nNext, defendant argues that the trial court erred by not allowing him to rehabilitate Fernando through a prior consistent statement he made to police. On direct examination, Fernando testified that Eric shot Chad from the passenger side of the van and that defendant was driving the vehicle. On cross-examination, Fernando admitted to inconsistencies between his current testimony and what he had previously told the police. In particular, the State questioned him about inconsistencies in a written statement that he had given the police. Fernando admitted to lying in the statement. On redirect, defendant sought to elicit testimony that Fernando\u2019s claim that Eric was seated in the passenger\u2019s side of the van was consistent with the information Fernando had provided in his written statement. The following exchange occurred:\n\u201cQ. Did you make a statement to the police about who got into the driver\u2019s side and who got into the passenger side of the van?\nA. Yes, I did.\nQ. Who got into the driver\u2019s side?\nA. [Defendant.]\nQ. And who got into the passenger side?\nA. Eric.\nQ. And you told the police that when you gave them this written statement?\u201d\nThe State objected on the ground that such testimony would constitute a prior consistent statement, and the trial court sustained the objection.\nThe State contends that defendant waived this argument by failing to make an offer of proof. We disagree, as an offer of proof is not required where the trial court understood the nature and character of the evidence sought to be introduced, or where the question itself and the surrounding circumstances show the purpose and materiality of the evidence. People v. Quinn, 332 Ill. App. 3d 40, 44 (2002). Here, it is clear that defendant sought to elicit testimony that Fernando had previously told the police that defendant drove the van while Eric sat in the front passenger seat. Accordingly, defendant did not have to make an offer of proof.\nA witness\u2019s prior consistent statement is hearsay and inadmissible to bolster the witness\u2019s trial testimony. People v. Richardson, 348 Ill. App. 3d 796, 802 (2004). Where a witness is impeached through a prior inconsistent statement, a consistent statement is not admissible unless it disproves or explains the making of the inconsistent statement. See People v. Williams, 147 Ill. 2d 173, 227 (1991). A consistent statement is also admissible when it is suggested that the witness recently fabricated the testimony or had a motive to testify falsely, and the prior statement was made before the motive to fabricate arose. People v. Ursery, 364 Ill. App. 3d 680, 687 (2006). A prior consistent statement is not admissible merely because a witness was discredited or impeached. Richardson, 348 Ill. App. 3d at 802.\nIn this case, Fernando admitted that his written statement to the police said, among other things, that Chad argued with both defendant and Eric and that Fernando was lying down in the back of the van when he heard two gunshots. Fernando\u2019s prior consistent statement that Eric was seated in the passenger side of the van did not disprove or explain the inconsistent statements. The prior statement was also not made before the motive to fabricate arose, as Fernando himself testified that other parts of the statement were untrue. Accordingly, as the testimony does not fit within the exceptions under which a prior consistent statement is admissible, the trial court did not abuse its discretion in sustaining the State\u2019s objection to the testimony.\nF. Accountability Instruction\nSixth, defendant argues that the trial court erred by giving the State\u2019s jury instructions on accountability. According to defendant, such instructions were improper because all of the evidence offered by the State was directed toward proving that defendant was the shooter.\nA person is legally 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 2004). Evidence of accountability may be circumstantial. People v. Beltran, 327 Ill. App. 3d 685, 693 (2002). Even the slightest evidence supporting an accountability theory justifies providing the jury with an accountability instruction. People v. Testa, 261 Ill. App. 3d 1025, 1030 (1994). Some accountability evidence, along with evidence that the defendant acted as a principal, is sufficient to support an instruction on each theory, even if the State advanced only one theory in its case in chief. Beltran, 327 Ill. App. 3d at 692. We will not reverse a trial court\u2019s decision to issue a jury instruction absent an abuse of discretion. Beltran, 327 Ill. App. 3d at 692.\nHere, Amber testified that she saw defendant go to the driver\u2019s side of the van, walk back toward Chad, and fire two shots into the air. Amber did not see what occurred afterwards. Phillip testified that defendant fired the gun once into the air and once next to Chad, and he also identified defendant as the man who shot Chad from the passenger side of the van. Fernando testified that Eric grabbed the gun from the garage, and, upon defendant\u2019s urging, initially fired the gun into the air rather than at Chad. Fernando further testified that the van belonged to defendant and that Eric shot Chad while defendant was driving away. Based on this evidence, the jury could have concluded that defendant intended to assist Eric in shooting Chad, either by handing him the gun or driving the van. Therefore, the trial court did not abuse its discretion by allowing jury instructions on accountability.\nG. State\u2019s Closing Argument\nLast, defendant argues that the trial court erred by allowing improper argument in the State\u2019s closing remarks. Defendant maintains that the prosecution misstated evidence and argued facts not in evidence. Prosecutors have wide latitude in closing arguments and may comment on the evidence and any reasonable inferences arising from the evidence. People v. Nicholas, 218 Ill. 2d 104, 121 (2005). We consider statements in the context of the closing arguments as a whole. People v. Hopkins, 363 Ill. App. 3d 971, 987 (2005). Even if the prosecutor\u2019s comments exceed the bounds of proper comment, we will not disturb the jury\u2019s verdict unless the remarks resulted in such substantial prejudice that the verdict would otherwise have been different. People v. Ligon, 365 Ill. App. 3d 109, 123 (2006). We examine each of the alleged errors, all of which took place during the State\u2019s rebuttal argument, in turn.\nFirst, defendant takes issue with the State\u2019s comment, referring to Fernando\u2019s testimony, that \u201c[ijt\u2019s only when he hits the stand, here, and he thinks, \u2018Oh God, I better put a gun in someone else\u2019s hand,\u2019 you know, \u2018because I can\u2019t put a gun in my brother\u2019s hand because that\u2019s going to hurt him.\u2019 \u201d The State made this comment in response to defendant\u2019s theory implicating Eric as the shooter. A witness\u2019s credibility is a proper focus of closing argument if it is based on the evidence or reasonable inferences drawn from the evidence. People v. Dresher, 364 Ill. App. 3d 847, 859 (2006). Because Fernando\u2019s trial testimony differed from what he had told the police, the trial court did not err by overruling defendant\u2019s objection.\nNext, defendant argues that the following remark was prejudicial: \u201cNo, if the gun is in the garage, it\u2019s because the Defendant put it there, and the Defendant knows where it is.\u201d As the trial court sustained defendant\u2019s objection to the statement, no prejudice resulted. See People v. Desantiago, 365 Ill. App. 3d 855, 866 (2006).\nThird, defendant argues that the State improperly remarked that, according to Phillip\u2019s markings on a photograph of the scene, \u201cChad Conway\u2019s car is parked right here, the passenger side, the front passenger side window of the car is facing the sidewalk, the shooter is three feet from it.\u201d Defendant objected that the remark was a misstatement of Phillip\u2019s testimony regarding the location of the shooter. The trial court overruled the objection but instructed the jury to \u201cgo over their combined recollection of the facts adduced by all witnesses.\u201d Given that the jury was able to view the photograph on which Phillip had marked the locations of the car and the shooter, we conclude that the trial court\u2019s ruling was not in error.\nFourth, defendant argues that the following comments were improper: \u201cWe do not know if the engine was running in Chad Conway\u2019s car, but it\u2019s dark out. Are the lights on? We certainly know that at some point in time \u2014 .\u201d Defendant objected on the ground that the witnesses were never asked if the car\u2019s lights were on. The trial court overruled the objection, stating that the jury could make inferences from the evidence. We agree that it would be a reasonable inference that, given the time of night, the car\u2019s lights would have been on at some point in time.\nFifth, defendant argues that the State\u2019s argument relating to the lineup procedure was improper. In response to defendant\u2019s closing remark that \u201c[w]e do not know whether [Chad] was shown Eric Unzueta\u2019s photograph or who any of these other people in the lineup were,\u201d the State argued:\n\u201cI urge you to examine this lineup, because as Detective Shaver testified *** the victim was shown the top half, not the bottom half. Why didn\u2019t they show the bottom half? Because their name is on the bottom half.\u201d\nDefendant objected. The parties presented arguments on this issue outside of the jury\u2019s presence. The trial court ruled that because the full pages of the photographs had been admitted into evidence, and defendant had opened the door by saying that there was no information regarding whether Chad had seen Eric\u2019s picture, the State\u2019s comments were proper. The State then proceeded to argue to the jury that Fernando\u2019s picture was also included in the lineup. We agree with the trial court\u2019s reasoning that the State\u2019s comments were proper in light of the fact that the named pictures had been admitted into evidence and the fact that defendant had invited such a response when he stated that the identities of the people in the lineup were unknown. See People v. Soto, 342 Ill. App. 3d 1005, 1016 (2003) (prosecutorial comments that are invited and not prejudicial do not constitute error).\nFinally, defendant argues that the cumulative effect of the trial court\u2019s rulings was to deny him the right to a fair and impartial trial. However, where the individual alleged errors do not amount to reversible error, there is generally no cumulative error. Ligon, 365 Ill. App. 3d at 125. Furthermore, following closing arguments, the trial court instructed the jury that neither opening statements nor closing arguments were evidence, and that it should disregard any statement or argument made by the attorneys that was not based upon the evidence. See Desantiago, 365 Ill. App. 3d at 866 (such an instruction cures any alleged prejudice to the defendant from statements made during closing argument).\nIII. CONCLUSION\nFor the foregoing reasons, we affirm the judgment of the Kane County circuit court.\nAffirmed.\nGEOMETER, EJ., and O\u2019MALLEY, J., concur.", "type": "majority", "author": "JUSTICE BOWMAN" } ], "attorneys": [ "Richard C. Kelly, of Kelly & Kelly, Ltd., of Hebron, for appellant.", "John A. Barsanti, State\u2019s Attorney, of St. Charles (Robert J. Biderman and Charles F. Mansfield, 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. GULMARO H. CALDERON, Defendant-Appellant.\nSecond District\nNo. 2\u201405\u20140532\nOpinion filed December 6, 2006.\nRehearing denied January 18, 2007.\nRichard C. Kelly, of Kelly & Kelly, Ltd., of Hebron, for appellant.\nJohn A. Barsanti, State\u2019s Attorney, of St. Charles (Robert J. Biderman and Charles F. Mansfield, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0221-01", "first_page_order": 237, "last_page_order": 253 }