{ "id": 5768960, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODERICK SMITH, Defendant-Appellant", "name_abbreviation": "People v. Smith", "decision_date": "2010-06-30", "docket_number": "No. 1\u201407\u20142101", "first_page": "538", "last_page": "549", "citations": [ { "type": "official", "cite": "402 Ill. App. 3d 538" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "382 Ill. App. 3d 309", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4277621 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "318-19" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/382/0309-01" ] }, { "cite": "234 Ill. 2d 173", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3623714 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/234/0173-01" ] }, { "cite": "365 Ill. App. 3d 991", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4264836 ], "year": 2006, "pin_cites": [ { "page": "994" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/365/0991-01" ] }, { "cite": "219 Ill. App. 3d 460", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5797071 ], "year": 1991, "pin_cites": [ { "page": "464-65", "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0460-01" ] }, { "cite": "245 Ill. App. 3d 41", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5387139 ], "year": 1993, "pin_cites": [ { "page": "47", "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/0041-01" ] }, { "cite": "307 Ill. App. 3d 484", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173501 ], "year": 1999, "pin_cites": [ { "page": "494", "parenthetical": "aggravated battery a lesser-included offense of attempted murder" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0484-01" ] }, { "cite": "76 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2982988 ], "year": 1979, "pin_cites": [ { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0289-01" ] }, { "cite": "377 Ill. App. 3d 735", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4274351 ], "year": 2007, "pin_cites": [ { "page": "747" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/377/0735-01" ] }, { "cite": "203 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799392 ], "year": 2003, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0187-01" ] }, { "cite": "26 Ill. 2d 533", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5356307 ], "year": 1963, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0533-01" ] }, { "cite": "230 Ill. App. 3d 748", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5209745 ], "year": 1992, "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0748-01" ] }, { "cite": "45 Ill. 2d 573", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2896442 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "578" }, { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0573-01" ] }, { "cite": "165 Ill. 2d 51", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483552 ], "year": 1995, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0051-01" ] }, { "cite": "311 Ill. App. 3d 80", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415323 ], "year": 1999, "pin_cites": [ { "page": "89" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0080-01" ] }, { "cite": "168 Ill. 2d 420", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307268 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "444" }, { "page": "443-44" }, { "page": "443-44" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0420-01" ] }, { "cite": "229 Ill. 2d 82", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3614983 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "98" }, { "page": "98" }, { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/229/0082-01" ] }, { "cite": "19 Ill. App. 3d 254", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2699114 ], "year": 1974, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0254-01" ] }, { "cite": "113 Ill. 2d 497", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3172942 ], "year": 1986, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0497-01" ] }, { "cite": "230 Ill. App. 3d 365", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5211705 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "375" }, { "page": "376-77" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0365-01" ] }, { "cite": "183 Ill. 2d 239", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209960 ], "year": 1998, "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0239-01" ] }, { "cite": "188 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536004 ], "year": 1999, "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0536-01" ] }, { "cite": "163 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477642 ], "year": 1994, "pin_cites": [ { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0093-01" ] }, { "cite": "188 Ill. 2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536137 ], "year": 1999, "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0265-01" ] }, { "cite": "335 Ill. App. 3d 276", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637125 ], "year": 2002, "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/335/0276-01" ] }, { "cite": "166 Ill. 2d 475", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198908 ], "year": 1995, "pin_cites": [ { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0475-01" ] }, { "cite": "175 Ill. 2d 126", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295771 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "135" }, { "page": "131-32" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0126-01" ] }, { "cite": "179 Ill. 2d 319", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801345 ], "year": 1997, "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0319-01" ] }, { "cite": "83 Ill. App. 3d 1108", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5552821 ], "year": 1980, "pin_cites": [ { "page": "1113" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/1108-01" ] }, { "cite": "318 Ill. App. 3d 193", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279605 ], "year": 2000, "pin_cites": [ { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0193-01" ] }, { "cite": "101 Ill. App. 3d 397", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3081254 ], "year": 1981, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0397-01" ] }, { "cite": "12 Ill. App. 3d 551", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850705 ], "year": 1973, "pin_cites": [ { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0551-01" ] }, { "cite": "317 Ill. App. 3d 615", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026066 ], "year": 2000, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0615-01" ] }, { "cite": "384 Ill. App. 3d 1039", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4279281 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "1048" }, { "page": "1048" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/384/1039-01" ] }, { "cite": "51 Ill. 2d 262", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5390901 ], "year": 1972, "pin_cites": [ { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0262-01" ] }, { "cite": "53 Ill. 2d 550", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2927327 ], "year": 1973, "pin_cites": [ { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0550-01" ] }, { "cite": "99 S. Ct. 2858", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1979, "opinion_index": 0 }, { "cite": "61 L. Ed. 2d 296", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "442 U.S. 929", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531938, 1532133, 1531912, 1532170, 1532010, 1532202, 1532021, 1531990, 1532122, 1532092, 1531806 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/442/0929-02", "/us/442/0929-01", "/us/442/0929-10", "/us/442/0929-08", "/us/442/0929-11", "/us/442/0929-03", "/us/442/0929-04", "/us/442/0929-09", "/us/442/0929-05", "/us/442/0929-06", "/us/442/0929-07" ] }, { "cite": "74 Ill. 2d 329", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994485 ], "year": 1978, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0329-01" ] }, { "cite": "47 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2904394 ], "year": 1970, "pin_cites": [ { "page": "67-70" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0066-01" ] }, { "cite": "28 Ill. 2d 77", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5362346 ], "year": 1963, "pin_cites": [ { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0077-01" ] }, { "cite": "55 Ill. 2d 577", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2937034 ], "year": 1973, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0577-01" ] }, { "cite": "40 Ill. 2d 4", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857846 ], "year": 1968, "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0004-01" ] }, { "cite": "47 Ill. 2d 579", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2902592 ], "year": 1971, "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0579-01" ] }, { "cite": "52 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395924 ], "year": 1972, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0001-01" ] }, { "cite": "91 Ill. 2d 346", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092628 ], "year": 1982, "pin_cites": [ { "page": "350-51" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0346-01" ] }, { "cite": "37 Ill. 2d 480", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2865248 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "488" }, { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0480-01" ] }, { "cite": "44 Ill. 2d 53", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2888258 ], "year": 1969, "pin_cites": [ { "page": "56-57" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0053-01" ] }, { "cite": "106 Ill. 2d 373", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3139376 ], "year": 1985, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0373-01" ] }, { "cite": "131 Ill. 2d 115", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5570265 ], "year": 1989, "pin_cites": [ { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0115-01" ] }, { "cite": "380 U.S. 609", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524757 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0609-01" ] }, { "cite": "137 Ill. 2d 195", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251719 ], "year": 1990, "pin_cites": [ { "page": "210-11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0195-01" ] }, { "cite": "385 Ill. App. 3d 585", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4280308 ], "year": 2008, "pin_cites": [ { "page": "603" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/385/0585-01" ] }, { "cite": "142 Ill. 2d 22", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236611 ], "year": 1991, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0022-01" ] }, { "cite": "226 Ill. 2d 92", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610581 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "123" }, { "page": "121", "parenthetical": "whether statements made by a prosecutor at closing argument were so egregious that they warrant a new trial is a legal issue this court reviews de novo" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0092-01" ] }, { "cite": "148 Ill. App. 3d 362", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3644062 ], "year": 1986, "pin_cites": [ { "page": "373-74" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0362-01" ] }, { "cite": "56 Ill. 2d 461", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405143 ], "year": 1974, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0461-01" ] }, { "cite": "189 Ill. 2d 99", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224818 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "128" }, { "page": "128", "parenthetical": "the trial court's determination of the propriety of the remark will not be disturbed absent an abuse of discretion" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0099-01" ] }, { "cite": "118 Ill. 2d 163", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188484 ], "year": 1987, "pin_cites": [ { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0163-01" ] }, { "cite": "25 Ill. App. 3d 973", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2706392 ], "year": 1975, "pin_cites": [ { "page": "975" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0973-01" ] }, { "cite": "352 Ill. App. 3d 391", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5454841 ], "year": 2004, "pin_cites": [ { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/352/0391-01" ] } ], "analysis": { "cardinality": 1062, "char_count": 25372, "ocr_confidence": 0.764, "pagerank": { "raw": 6.74349489208707e-08, "percentile": 0.40873464051379055 }, "sha256": "f6aebceb41e482bfe85b4a95424b43d438de0d722326d41a28b0188688ebdd92", "simhash": "1:93b2dc2aff9d1de1", "word_count": 4169 }, "last_updated": "2023-07-14T19:46:34.233681+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. RODERICK SMITH, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE NEVILLE\ndelivered the opinion of the court:\nRoderick Smith, the defendant, was found guilty by a jury of the attempted murder of a peace officer and of aggravated battery of a peace officer. On appeal, defendant challenges only the attempted murder conviction. He argues: (1) prosecutorial comments in closing argument deprived him of a fair trial; (2) the court should have instructed the jury on the lesser-included offense of reckless conduct; and (3) the prosecution did not prove intent to murder. We reverse the attempted murder conviction because the State violated the defendant\u2019s right to a fair trial when the prosecutor shifted the burden of proof, during her closing argument, by making repeated comments about the defendant\u2019s decision not to testify at his trial.\nBACKGROUND\nIn the course of an ongoing investigation into defendant\u2019s activities, police prepared to arrest him. When police officers located defendant\u2019s car on the south side of Chicago on October 5, 2004, unmarked cars converged on the area around 79th and King Drive and the police officers secreted their unmarked police cars near the defendant\u2019s car. Once defendant returned to his car, an officer drove up next to defendant\u2019s car and boxed the car into its parking spot. Marked police cars, with sirens wailing and lights flashing, came to the scene. Officer Dwayne Johnson got out of his unmarked car and approached defendant\u2019s car. Officer Johnson stood on the sidewalk about 20 feet in front of defendant\u2019s car, held out his badge and identified himself as a police officer.\nDefendant drove his car onto the sidewalk, hitting Officer Johnson\u2019s side as the officer dove out of the way. Several civilians on the sidewalk scurried away from defendant\u2019s car. The car knocked down a store\u2019s awning before turning back to the street, where it crashed head-on into an unmarked police car. Police officers arrested the defendant as he got out of the car, and they found a gun on the floor of the car. Officer Johnson was taken to a hospital, where he received treatment for a contusion to his head, but he had no broken bones and lost no time from work. Finally, the defendant was indicted and charged with aggravated battery and attempted murder of Officer Johnson.\nAt trial, the prosecution called Officer Johnson, who testified that he was dressed in civilian clothes on the day of defendant\u2019s arrest. Officer Johnson testified that defendant looked down at the floor in his car, and then the defendant stared at Officer Johnson before the defendant gunned the engine and drove straight at Officer Johnson. Other police officers estimated that, after the police officers identified themselves, defendant sat in his car for about 15 seconds before driving his car onto the sidewalk.\nDefense counsel called no witnesses to testify for the defendant. However, while the defendant was putting on his case, the parties entered into a stipulation that officers at the scene ticketed defendant for driving on the sidewalk and for eluding the police.\nDuring the instruction conference, defendant sought an instruction on the lesser-included offense of reckless conduct. The court refused to give a reckless conduct instruction.\nIn closing, defense counsel argued that the State\u2019s evidence showed that the defendant had an intent to escape, but did not show that defendant had an intent to kill Officer Johnson. Defense counsel also argued that when defendant looked down at the floor in his car, he looked at his gun and made a conscious decision not to use it.\nIn rebuttal, the prosecutor made the following argument:\n\u201cHave you heard any evidence that he didn\u2019t know they were the police?\u201d\nThe court overruled defense counsel\u2019s objection. The rebuttal continued:\n\u201cYou didn\u2019t hear anything from that witness stand. You didn\u2019t hear any evidence that he didn\u2019t know they were the police.\n[Defense counsel]: Objection.\nTHE COURT: Okay. Move along.\n[Prosecutor]: Similarly you didn\u2019t hear any evidence that he wasn\u2019t trying to kill anyone.\n[Defense counsel]: Objection.\nTHE COURT: Overruled.\u201d\nThe jury found defendant guilty of the attempted murder of a peace officer and aggravated batteiy of a peace officer. The trial court sentenced defendant to 35 years in prison for attempted murder and to a 5-year term for aggravated battery, with the sentences to run concurrently. In his notice of appeal, defendant lists only the attempted murder conviction as the conviction from which he takes this appeal. Therefore, we have no jurisdiction to review the aggravated battery conviction. See In re V.M., 352 Ill. App. 3d 391, 397 (2004); People v. Fitzgerald, 25 Ill. App. 3d 973, 975 (1975).\nANALYSIS\nFair Trial\nFirst, defendant contends that the prosecutor\u2019s rebuttal argument deprived him of a fair trial. Trial courts allow prosecutors a great deal of latitude in closing argument. People v. Cisewski, 118 Ill. 2d 163, 175 (1987). We view closing arguments in their entirety and examine the prosecutor\u2019s remarks in context. People v. Blue, 189 Ill. 2d 99, 128 (2000); People v. Stock, 56 Ill. 2d 461, 467 (1974); People v. Neumann, 148 Ill. App. 3d 362, 373-74 (1986). \u201cMisconduct in closing argument is substantial and warrants reversal and a new trial if the improper remarks constituted a material factor in a defendant\u2019s conviction. [Citation.] If the jury could have reached a contrary verdict had the improper remarks not been made, or the reviewing court cannot say that the prosecutor\u2019s improper remarks did not contribute to the defendant\u2019s conviction, a new trial should be granted.\u201d People v. Wheeler, 226 Ill. 2d 92, 123 (2007), citing People v. Linscott, 142 Ill. 2d 22, 28 (1991). Our supreme court has applied both an abuse of discretion analysis and de novo review to alleged prosecutorial misconduct in closing argument. Compare Blue, 189 Ill. 2d at 128 (the trial court\u2019s determination of the propriety of the remark will not be disturbed absent an abuse of discretion), with Wheeler, 226 Ill. 2d at 121 (whether statements made by a prosecutor at closing argument were so egregious that they warrant a new trial is a legal issue this court reviews de novo). We review the remarks here for abuse of discretion because the trial court overruled the defendant\u2019s objections to the prosecutor\u2019s remarks, but we note that we would reach the same result with de novo review. See People v. Johnson, 385 Ill. App. 3d 585, 603 (2008).\nHere, defendant objects specifically to three closely related remarks. The prosecutor made the following statements during her rebuttal argument:\n\u201cHave you heard any evidence that he didn\u2019t know they were the police?\n* * *\n*** You didn\u2019t hear anything from that witness stand. You didn\u2019t hear any evidence that he didn\u2019t know they were the police.\n5\u00a1c * *\nSimilarly you didn\u2019t hear any evidence that he wasn\u2019t trying to kill anyone.\u201d\nOur review of the record revealed that the trial court did not sustain defendant\u2019s objections to the prosecutor\u2019s three remarks. Defendant contends that the prosecutor\u2019s remarks shifted the burden of proof and impermissibly drew attention to his decision not to testify. \u201cAn accused has a constitutional right not to testify as a witness in his own behalf. [Citations.] The prosecution may not directly or indirectly comment on the defendant\u2019s failure to take the stand in his own defense.\u201d People v. Herrett, 137 Ill. 2d 195, 210-11 (1990), citing Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965); People v. Arman, 131 Ill. 2d 115, 127 (1989); People v. Lyles, 106 Ill. 2d 373, 390 (1985); People v. Burton, 44 Ill. 2d 53, 56-57 (1969); and People v. Wollenberg, 37 Ill. 2d 480, 488 (1967).\nOur supreme court explained the test this court must use to determine whether a prosecutor\u2019s argument violated a defendant\u2019s right to remain silent as follows:\n\u201cThe appropriate test for determining whether a defendant\u2019s right to remain silent has been violated is whether \u2018the reference [was] intended or calculated to direct the attention of the jury to the defendant\u2019s neglect to avail himself of his legal right to testify.\u2019 [Citations.] The prosecutor may comment on the uncontradicted nature of the State\u2019s case [citations], and, where motivated by a purpose of demonstrating the absence of any evidentiary basis for defense counsel\u2019s argument rather than a purpose of calling attention to the fact that defendant had not testified, such argument is permissible [citation]. Moreover, a defendant cannot ordinarily claim error where the prosecutor\u2019s remarks are in reply to and may be said to have been invited by defense counsel\u2019s argument.\u201d People v. Dixon, 91 Ill. 2d 346, 350-51 (1982), quoting People v. Hopkins, 52 Ill. 2d 1, 6 (1972), and citing People v. Mentola, 47 Ill. 2d 579, 582 (1971); People v. Mills, 40 Ill. 2d 4, 8 (1968); Wollenberg, 37 Ill. 2d at 488; People v. Skorusa, 55 Ill. 2d 577, 584 (1973); People v. Norman, 28 Ill. 2d 77, 81 (1963); People v. Jones, 47 Ill. 2d 66, 67-70 (1970); People v. Vriner, 74 Ill. 2d 329, 344 (1978), cert, denied, 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858 (1979); People v. Zuniga, 53 Ill. 2d 550, 558 (1973); and People v. Bey, 51 Ill. 2d 262, 266 (1972).\nThe State claims that defense counsel invited the prosecutor\u2019s remarks, but the State does not cite any page of the record or quote an argument or comment made by defense counsel that invited or would justify the prosecutor\u2019s remarks concerning defendant\u2019s failure to present evidence that he did not know Johnson was a police officer. Defense counsel in his closing argument never suggested that defendant did not know Johnson was a police officer. More importantly, \u201ca defendant in a criminal case can never \u2018open the door\u2019 to shift the burden of proof.\u201d People v. Beasley, 384 Ill. App. 3d 1039, 1048 (2008). Therefore, we find that defense counsel did not invite the prosecutor\u2019s remarks.\nIn this case, because defense counsel\u2019s closing argument did not invite the prosecutor\u2019s rebuttal remarks, we see no purpose for the prosecutor\u2019s remarks other than to draw the jury\u2019s attention to defendant\u2019s decision to exercise his federal and state constitutional right not to testify and be a witness against himself. By overruling defense counsel\u2019s objections, the trial court in effect permitted the jury to infer defendant\u2019s guilt from his failure to present evidence in his own behalf. The trial court\u2019s rulings on defendant\u2019s objections \u201c[were] in effect sanctioning an erroneous burden of proof before the eyes of the jury.\u201d Beasley, 384 Ill. App. 3d at 1048. Here, the prosecutor\u2019s remarks violated defendant\u2019s right to remain silent. See People v. Edgecombe, 317 Ill. App. 3d 615, 621 (2000); People v. Blissitt, 12 Ill. App. 3d 551, 555 (1973). The prosecutor\u2019s remarks also shifted the burden of proof to the defendant. See People v. Giangrande, 101 Ill. App. 3d 397, 402 (1981); People v. Fluker, 318 Ill. App. 3d 193, 203 (2000). Accordingly, we hold that the trial court abused its discretion when it overruled defendant\u2019s objections to the prosecutor\u2019s remarks.\nAlthough the prosecutor violated the defendant\u2019s federal and state constitutional rights and shifted the burden of proof, the prosecutor\u2019s improper closing remarks do not warrant reversal unless they could have affected the jury\u2019s verdict. As we discuss below, the prosecution produced sufficient evidence to support the convictions. However, the evidence that defendant received tickets for driving on the sidewalk and eluding police could also support an inference that defendant intended only to flee or elude police and, while fleeing, that he acted with a reckless indifference for Officer Johnson\u2019s life. A person acts with a reckless mental state when he consciously disregards a substantial and unjustifiable risk that a result will follow, and such disregard constitutes a gross deviation from the standard of care a reasonable person would exercise in the situation. 720 ILCS 5/4 \u2014 6 (West 2004). Here, the police cars blocked defendant\u2019s car and prevented him from leaving the scene or fleeing by any means other than driving on the sidewalk. We also note that the defendant had a gun in his car, and if he had intended to kill the officer, he could have, but he did not shoot Officer Johnson. The trier of fact could infer from defendant\u2019s driving on the sidewalk that defendant had either a specific intent to kill or a reckless state of mind while attempting to flee or elude police. Because the defendant had a gun but did not use the gun, a trier of fact could also infer that the defendant did not have\na specific intent to kill the officer. Therefore, we cannot say that the prosecutor\u2019s improper remarks did not contribute to the finding of guilt on the charge of attempted murder. Accordingly, by directing the jury\u2019s attention to defendant\u2019s election not to testify and thus shifting the burden of proof, the prosecutor\u2019s remarks denied the defendant a fair trial on the attempted murder charge.\nJury Instructions\nNext, defendant argues that the trial court should have instructed the jury on the lesser-included offense of reckless conduct. 720 ILCS 5/12 \u2014 5 (West 2004). Defendant admits that he forfeited the argument by failing to raise it in his posttrial motion. We address the issue solely to provide guidance for the trial court on remand, because the lesser-included-offense instruction will likely be an issue. See People v. Hanson, 83 Ill. App. 3d 1108, 1113 (1980). \u201cA defendant is entitled to a lesser included offense instruction only if an examination of the evidence reveals that it would permit a jury to rationally find the defendant guilty of the lesser offense yet acquit the defendant of the greater offense.\u201d People v. Hamilton, 179 Ill. 2d 319, 324 (1997), citing People v. Jones, 175 Ill. 2d 126, 135 (1997); People v. Landwer, 166 Ill. 2d 475, 486 (1995). Even slight evidence may warrant an instruction on a lesser-included offense. In re Matthew M., 335 Ill. App. 3d 276, 284 (2002), citing Jones, 175 Ill. 2d at 131-32. The evidentiary requirement \u201c \u2018may be satisfied if the conclusion as to the lesser offense may fairly be inferred from the evidence presented.\u2019 \u201d People v. Garcia, 188 Ill. 2d 265, 284 (1999), quoting People v. Novak, 163 Ill. 2d 93, 108 (1994). \u201cWhere some evidence supports the instruction, the circuit court\u2019s failure to give the instruction constitutes an abuse of discretion.\u201d People v. Castillo, 188 Ill. 2d 536, 540 (1999), citing People v. DiVincenzo, 183 Ill. 2d 239, 249 (1998).\nThe mental state required for reckless conduct distinguishes that offense from attempted murder. See People v. Upton, 230 Ill. App. 3d 365, 375 (1992). In Upton, the defendant fired two shots in the direction of a truck towing away his car. One shot injured the truck\u2019s driver. At the trial on a charge of attempted murder, the defendant testified that he aimed at the truck\u2019s tires because he believed the truck driver was stealing the defendant\u2019s car. The trial court denied the defendant\u2019s request for an instruction on reckless conduct. The Upton court held:\n\u201cFrom the evidence in its entirety, the jury could have concluded that in shooting a gun while running after a moving vehicle occupied by two persons, defendant consciously disregarded the substantial risk that one or both of the persons would be struck by the bullets; and that his disregard of this risk constituted a gross deviation from the care which a reasonable person, even one who\nbelieved that his car was being stolen, would exercise in the same situation. ***\n*** The crux of the issues raised by the defendant on appeal is that the jury was improperly precluded from hearing evidence supporting, and from considering the law applicable to, his theory of defense.\nFrom its verdict, it is clear that the jury believed that defendant was guilty of something; but it was not provided with that \u2018important third option\u2019 of finding defendant guilty of a lesser offense than those charged. [Citation.] In a jury trial, it is the province of the jury to determine whether defendant is guilty of the greater offense charged or of a lesser-included offense; and an instruction on the lesser offense must be given if there is any evidence which tends to prove the lesser crime.\u201d Upton, 230 Ill. App. 3d at 376-77, quoting People v. Bryant, 113 Ill. 2d 497, 502 (1986), and citing People v. Perry, 19 Ill. App. 3d 254, 258 (1974).\nHere, as in Upton, defense counsel argued that the defendant\u2019s conduct showed recklessness, not an intent to kill. The evidence \u2014 the defendant\u2019s driving and his decision not to use the gun in his car, coupled with the fact that he received a ticket for driving on the sidewalk and for fleeing or eluding the police \u2014 could support an inference that defendant consciously disregarded a substantial and unjustifiable risk to Officer Johnson, and his disregard of that risk constituted a gross deviation from the standard of care that a reasonable person would exercise while driving a car. See 720 ILCS 5/4 \u2014 6 (West 2004). The police officer\u2019s tickets for driving a car on a sidewalk and for fleeing provide some evidence for giving another instruction. The trial court should not have usurped the jury\u2019s function of weighing the evidence to decide if the prosecution proved that defendant acted recklessly, or if he acted with the specific intent to kill Officer Johnson. The trial court\u2019s refusal to give the lesser-included-offense instruction denied the jury the important option of finding defendant guilty of a lesser charge. Therefore, because we find the evidence could be rationally used by the jury to find the defendant guilty of the lesser-included offense, we direct the trial court on remand to instruct the jury on the lesser-included offense of reckless conduct.\nSufficiency of the Evidence\nFinally, defendant argues that the evidence did not prove beyond a reasonable doubt that he had the mental state, a specific intent, to murder Officer Johnson. We will not reverse a conviction for insufficient evidence unless the evidence is \u201cso unreasonable, improbable or unsatisfactory as to create a reasonable doubt of the defendant\u2019s guilt.\u201d People v. Rowell, 229 Ill. 2d 82, 98 (2008), citing People v. McDonald, 168 Ill. 2d 420, 444 (1995). We must decide \u201cwhether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u201d Rowell, 229 Ill. 2d at 98, citing McDonald, 168 Ill. 2d at 443-44.\nTo prove defendant guilty of attempted murder, the prosecution must prove that defendant intended to kill and he took a substantial step toward killing his intended victim. See People v. Parker, 311 Ill. App. 3d 80, 89 (1999). Defendant here challenges only the State\u2019s evidence of intent. \u201cBecause intent is a state of mind, it can rarely be proved by direct evidence. As a result, this court has recognized that where intent is not admitted by the defendant, it can be shown by surrounding circumstances [citation], including the character of the assault and the nature and seriousness of the injury [citation].\u201d People v. Williams, 165 Ill. 2d 51, 64 (1995), citing People v. Koshiol, 45 Ill. 2d 573, 578 (1970), and People v. Mays, 230 Ill. App. 3d 748, 756 (1992). Our supreme court has held:\n\u201c \u2018Since every sane man is presumed to intend all the natural and probable consequences flowing from his own deliberate act, it follows that if one wilfully does an act, the direct and natural tendency of which is to destroy another\u2019s life, the natural and irresistible conclusion, in the absence of qualifying facts, is that the destruction of such other person\u2019s life was intended.\u2019 \u201d Koshiol, 45 Ill. 2d at 578, quoting People v. Coolidge, 26 Ill. 2d 533, 537 (1963).\nDefendant looked at Officer Johnson for 15 seconds, then pressed the gas pedal and drove his car, a deadly weapon (see People v. Belk, 203 Ill. 2d 187, 196 (2003)), in Officer Johnson\u2019s direction. The car headed straight at Officer Johnson. Defendant did not slow down or swerve. The natural consequence of the defendant\u2019s act would have been to cause Officer Johnson harm or to destroy Officer Johnson\u2019s life had he not dived out of the way. While jurors might have inferred from the evidence, if given the reckless conduct instruction, that defendant was only trying to flee or elude police and acted with reckless indifference for Officer Johnson\u2019s life, the jurors, instead, inferred from the evidence that defendant possessed the requisite intent to kill Officer Johnson. Accordingly, viewing the evidence in the light most favorable to the prosecution, the evidence sufficiently supports the jury\u2019s finding that defendant attempted to murder Officer Johnson. See Rowell, 229 Ill. 2d at 98, citing McDonald, 168 Ill. 2d at 443-44.\nCONCLUSION\nIn conclusion, we find the evidence sufficient to support the defendant\u2019s conviction for attempted murder. However, we agree with defendant that the prosecutor\u2019s improper comments to the jury violated his federal and state constitutional right not to testify and shifted the burden of proof from the State to the defendant. Because the evidence regarding defendant\u2019s driving could establish a specific intent to kill or a reckless state of mind, we cannot say that the prosecutor\u2019s improper comments did not influence the jury\u2019s verdict on the charge of attempted murder. The trial court invaded the province of the jury by only giving the instruction for the greater offense of attempted murder and by failing to give the instruction for the lesser offense of reckless conduct. While we find the evidence was sufficient to convict the defendant, a new trial is required on the charge of attempted murder because the defendant did not receive a fair trial. People v. Davis, 377 Ill. App. 3d 735, 747 (2007), citing People v. Taylor, 76 Ill. 2d 289, 309 (1979).\nTherefore, we reverse the attempted murder conviction and remand for a new trial on that charge and direct the trial court to instruct the jury on the lesser-included offense of reckless conduct. Because defendant does not challenge the conviction and sentence for aggravated battery, that part of the judgment will stand. Finally, in the event the trial court finds defendant guilty of attempted murder on remand, it must vacate the judgment on the lesser-included offense of aggravated battery (see People v. Bowens, 307 Ill. App. 3d 484, 494 (1999) (aggravated battery a lesser-included offense of attempted murder); People v. Lopez, 245 Ill. App. 3d 41, 47 (1993) (same); People v. Johnson, 219 Ill. App. 3d 460, 464-65 (1991) (same)) because the conviction for aggravated battery, the lesser-included offense, will merge into the conviction for attempted murder, the greater offense. People v. Cunningham, 365 Ill. App. 3d 991, 994 (2006).\nPetition for Rehearing\nIn a petition for rehearing, the State contends that the decisions in People v. Glasper, 234 Ill. 2d 173 (2009), and People v. Echols, 382 Ill. App. 3d 309 (2008), demand affirmance here. We disagree. In both of those cases, the prosecutors\u2019 comments responded to the absence of evidence supporting the arguments defense counsels actually made in their closings. See Glasper, 234 Ill. 2d at 212; Echols, 382 Ill. App. 3d at 318-19. Here, we face a factually different case. The prosecutor commented that defendant failed to present evidence that he did not know that Johnson was a police officer, when defense counsel\u2019s closing argument \u2014 that the State\u2019s evidence failed to show that the defendant had an intent to kill Johnson \u2014 never suggested that the defendant did not know that Johnson was a police officer. Only the defendant could provide evidence concerning his knowledge of Johnson\u2019s status. Thus, the prosecutor\u2019s comment directed attention to the defendant\u2019s failure to testify, without responding to defense counsel\u2019s closing argument. Glasper and Echols did not involve similar prosecutorial misconduct. Accordingly, given the facts of this case, those cases do not demand affirmance here.\nAffirmed in part and reversed in part; cause remanded with directions.\nO\u2019MARA FROSSARD, EJ., and GALLAGHER, J., concur.\n\u201cNo person *** shall be compelled in any criminal case to be a witness against himself.\u201d U.S. Const., amend. V.\n\u201cNo person shall be compelled in a criminal case to give evidence against himself ***.\u201d Ill. Const. 1970, art. I, \u00a710.\nSection 11 \u2014 204 of the Illinois Vehicle Code provides that \u201c[a]ny driver or operator of a motor vehicle who, having been given a visual or audible signal by a peace officer directing such driver or operator to bring his vehicle to a stop, wilfully fails or refuses to obey such direction, increases his speed, extinguishes his lights, or otherwise flees or attempts to elude the officer\u201d commits the offense of fleeing or eluding the police. 625 ILCS 5/11 \u2014 204 (West 2004).", "type": "majority", "author": "JUSTICE NEVILLE" } ], "attorneys": [ "Frank J. Himel, of Chicago (Frank J. Himel, of counsel), for appellant.", "Anita M. Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Michelle Katz, and Hareena Meghani-Wakely, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODERICK SMITH, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201407\u20142101\nOpinion filed June 30, 2010.\nRehearing denied June 9, 2010.\nFrank J. Himel, of Chicago (Frank J. Himel, of counsel), for appellant.\nAnita M. Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Michelle Katz, and Hareena Meghani-Wakely, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0538-01", "first_page_order": 556, "last_page_order": 567 }