{ "id": 2812728, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY ORTIZ, Defendant-Appellant", "name_abbreviation": "People v. Ortiz", "decision_date": "1976-11-18", "docket_number": "No. 62497", "first_page": "124", "last_page": "132", "citations": [ { "type": "official", "cite": "44 Ill. App. 3d 124" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "288 N.E.2d 363", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "52 Ill. 2d 374", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5394202 ], "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0374-01" ] }, { "cite": "60 Ill. 2d 598", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "325 N.E.2d 23", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "26 Ill. App. 3d 67", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2786627 ], "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0067-01" ] }, { "cite": "163 N.E.2d 483", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill. 2d 108", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5328848 ], "weight": 2, "pin_cites": [ { "page": "115" }, { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0108-01" ] }, { "cite": "190 N.E.2d 298", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "27 Ill. 2d 505", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5359233 ], "year": 1959, "pin_cites": [ { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0505-01" ] }, { "cite": "338 N.E.2d 880", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. 2d 114", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2971537 ], "weight": 2, "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/62/0114-01" ] }, { "cite": "331 N.E.2d 311", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "29 Ill. App. 3d 825", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2496344 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0825-01" ] }, { "cite": "193 N.E. 470", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1975, "opinion_index": 0 }, { "cite": "358 Ill. 518", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5280572 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill/358/0518-01" ] }, { "cite": "95 N.E.2d 414", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1934, "opinion_index": 0 }, { "cite": "407 Ill. 337", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2640134 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/ill/407/0337-01" ] }, { "cite": "123 N.E.2d 317", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "4 Ill. 2d 414", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2701566 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/ill-2d/4/0414-01" ] }, { "cite": "265 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2904464 ], "pin_cites": [ { "page": "299-300" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0289-01" ] }, { "cite": "337 N.E.2d 454", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 12", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2869638 ], "pin_cites": [ { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0012-01" ] }, { "cite": "307 N.E.2d 800", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "17 Ill. App. 3d 67", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2515390 ], "year": 1975, "pin_cites": [ { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0067-01" ] }, { "cite": "223 N.E.2d 121", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill. 2d 315", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5377379 ], "pin_cites": [ { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0315-01" ] }, { "cite": "337 N.E.2d 40", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 443", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2873468 ], "year": 1967, "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0443-01" ] }, { "cite": "302 N.E.2d 306", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill. 2d 25", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2937625 ], "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0025-01" ] }, { "cite": "304 N.E.2d 622", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "55 Ill. 2d 570", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2938265 ], "year": 1973, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0570-01" ] }, { "cite": "333 N.E.2d 683", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 976", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2621919 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0976-01" ] }, { "cite": "350 N.E.2d 170", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 182", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5382518 ], "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0182-01" ] }, { "cite": "270 N.E.2d 21", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "48 Ill. 2d 362", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2908107 ], "pin_cites": [ { "page": "367-68" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0362-01" ] }, { "cite": "308 N.E.2d 92", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "17 Ill. App. 3d 24", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2509760 ], "year": 1971, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0024-01" ] }, { "cite": "307 N.E.2d 382", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "56 Ill. 2d 306", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404955 ], "weight": 2, "pin_cites": [ { "page": "309" }, { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0306-01" ] }, { "cite": "259 N.E.2d 8", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2897662 ], "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0326-01" ] }, { "cite": "271 N.E.2d 69", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "132 Ill. App. 2d 859", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2534651 ], "year": 1970, "pin_cites": [ { "page": "861-62" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/132/0859-01" ] }, { "cite": "351 N.E.2d 594", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 635", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2971510 ], "year": 1971, "pin_cites": [ { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0635-01" ] }, { "cite": "197 N.E.2d 436", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill. 2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826177 ], "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0359-01" ] }, { "cite": "308 N.E.2d 590", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "56 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404227 ], "year": 1964, "pin_cites": [ { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0432-01" ] }, { "cite": "102 N.E.2d 160", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "345 Ill. App. 73", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2432348 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app/345/0073-01" ] }, { "cite": "30 N.E.2d 636", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1951, "opinion_index": 0 }, { "cite": "375 Ill. 182", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2536039 ], "weight": 2, "year": 1951, "opinion_index": 0, "case_paths": [ "/ill/375/0182-01" ] }, { "cite": "122 N.E.2d 209", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "4 Ill. 2d 155", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2702245 ], "weight": 2, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/4/0155-01" ] } ], "analysis": { "cardinality": 1060, "char_count": 20746, "ocr_confidence": 0.861, "pagerank": { "raw": 1.0009618787271382e-07, "percentile": 0.5388769769975006 }, "sha256": "35864e2ef378a07c73ce3753f0460e1358d7f4044cd6aa47fc79da31604d9734", "simhash": "1:179cbae47dd665c6", "word_count": 3431 }, "last_updated": "2023-07-14T18:25:08.154218+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. TOMMY ORTIZ, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE GOLDBERG\ndelivered the opinion of the court:\nAfter a jury trial, Tommy Ortiz (defendant) was found guilty of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9\u20141), burglary (par. 19\u20141) and unlawful use of weapons (par. 24\u20141(a\u201410)). He was sentenced to concurrent terms of 50 to 100 years for murder, 5 to 15 years for burglary and 3 to 10 years for unlawful use of weapons. Defendant has appealed.\nIn this court, defendant contends that he was denied a fair trial because the prosecutor, in rebuttal argument, accused defendant and his attorney of fabricating the defense. The State\u2019s Attorney is also claimed to have prejudicially characterized a transaction at which defendant was present as a \u201cnarcotics buy.\u201d Defendant further maintains that he was not proved guilty beyond a reasonable doubt.\nOn April 30, 1974, at 7:30 p.m., Sandra Mellor and George Diaz returned from a shopping trip to the apartment they had been sharing. Miss Mellor testified that the place was in a shambles, with furniture overturned, dresser drawers taken out and clothing strewn about. A man stepped out of the apartment entrance hall into the living room and shot George Diaz fatally in the chest with a revolver. The assailant then ran out of the apartment and down the stairs.\nThe witness described the intruder as having worn a \u201cdark leather-looking jacket, dark pants\u201d and a purple ski mask. She testified that he was wearing dark brown gloves at the time he shot Diaz. The police were then called. Miss Mellor discovered that *300 held by a silver money clip, a necklace, a ring and two wrist watches were missing from the apartment. In the living room, she found a duffle bag that, before the burglary, had been kept folded in a closet. It contained the couple\u2019s stereo receiver and three photographs.\nOfficer Gates testified that he and his partner responded to a \u201cRobbery in progress\u201d radio call for 652 West Waveland at about 7:40 p.m. by driving south on the Inner Drive in Chicago. At the intersection of Waveland Avenue, less than a block from the scene of the burglary, Officer Gates observed a blue Corvette automobile which was also in the southbound lane of the Inner Drive. The defendant, whom the officer recognized, was in the driver\u2019s seat with a black leather jacket draped over his shoulders. After he saw Officer Gates, defendant backed his car north at a high rate of speed, struck two cars, went across the northbound lanes, jumped the curb and crossed the parkway onto the southbound section of Lake Shore Drive. The defendant\u2019s car then sped south for four or five blocks at speeds reaching 90-100 miles per hour, sharply swerved east across the median strip, bounced over the northbound lanes of the expressway, struck a fence and rolled over several times. Officer Gates had been in pursuit in the squad car with the siren and emergency lights in operation. He found defendant lying near the car in a semiconscious state.\nThe officer testified that he observed a .38-caliber revolver, loaded with five live cartridges and one spent shell, on the ground between defendant and the car. Defendant was wearing dark pants. Under the car was a black leather jacket with a flashlight, a pair of handcuffs, two watches, a ring, a locket, a necklace and a black holster in its pocket. A purple ski mask and a pair of brown gloves were found in a sleeve of the jacket. The items of jewelry thus recovered were identified at trial as the articles missing from the scene of the burglary and minder. Miss Mellor testified that the ski mask found by Officer Gates looked like the one worn by the intruder.\nOfficer Donsbach testified that he accompanied defendant to the hospital in the ambulance. In the emergency room, the officer examined defendant\u2019s clothing and found $300 held by a money clip inside a pants pocket. The clip was later identified by Miss Mellor as the one missing after the burglary.\nA police fingerprint expert identified as belonging to defendant a fingerprint taken from a photograph that had been found in the duffie bag. A .38-caliber bullet was recovered from a wall in the Mellor apartment but the State\u2019s firearms expert could not conclusively determine that the bullet had been fired from the gun found with the defendant. During closing argument, however, defendant\u2019s counsel stated that the defense had attempted to stipulate to the fact that \u201cthe bullet recovered from the apartment 000 was probably fired from the gun 000 recovered at the scene of the crash.\u201d\nDefense witness Elton Dorsey testified that he talked with defendant for 15 minutes on the lakefront at Addison Street in Chicago, beginning at 7:15 or 7:30 p.m. on the evening in question. Defendant was driving a blue Corvette at the time.\nDefendant testified that, following guilty pleas, he had been convicted of burglary in 1969 and armed robbery in 1970. Upon his release from jail in 1973 he had been informed that he could neither own nor possess firearms for five years without incurring liability for unlawful use of weapons. Defendant stated that in April 1974, he and a man named Valdez had gone to George Diaz\u2019 apartment on Waveland Avenue where Valdez introduced him to Diaz. Valdez had then purchased marijuana from Diaz who showed them pornographic or salacious photographs of himself and his girl friend. Defendant at that time held and touched the pictures. Defendant had been unable to locate Valdez and he was not called as a defense witness.\nDefendant also testified that on April 30,1974, after talking with friends at the lakefront, he drove south on the Inner Drive to Waveland Avenue where there was a large corner lot containing billboards fronted by bushes. He saw a man run around the corner of Waveland onto the lot, put something in the bushes and go back around the billboards. Defendant double parked, went to the bushes and returned to the car with a leather jacket he had found. Defendant asserted that a gun and some money in a clip were contained in the jacket. He pocketed the money and threw the jacket over the gun on the passenger seat. At that point he saw a squad car stop in front of him with its emergency lights on. Officer Gates jumped out and pointed his gun at defendant\u2019s windshield. Defendant had seen that particular officer earlier in April and knew that Officer Gates was aware that defendant had served time in prison. Defendant further testified, \u201cI got scared, I panicked and I ran.\u201d He said that he then backed his car over the embankment onto Lake Shore Drive and proceeded south at 80-90 miles per hour when the car went out of control and crashed. Defendant testified on direct examination that he had not told Officer Gates at the first opportunity what he had seen regarding the gun and jacket because defendant thought the officer would not believe him. Defendant testified that he had not worn a leather jacket over his shoulders on the night in question. He expressly denied being near the Waveland apartment on the day of the murder and that he shot George Diaz.\nWe will first consider defendant\u2019s argument that he was not proved guilty beyond a reasonable doubt because the evidence against him was wholly circumstantial and the prosecution failed to exclude every reasonable hypothesis of innocence.\nDefendant insists that his own testimony, as corroborated by Elton Dorsey, places him at the lakefront at 7:30 p.m. and thus proved that it was impossible for him to have been the murderer. He urges that since this testimony was neither contradicted nor improbable, the jury was not free to reject it, citing People v. Jordan (1954), 4 Ill. 2d 155, 163, 122 N.E.2d 209. He further claims that his testimony adequately explained his acquisition of the jacket with its contents and his flight from Officer Gates. He concludes that a reasonable hypothesis of innocence was thus established arid the jury was under a duty to resolve all evidence in favor of innocence; citing People v. Bradley (1940), 375 Ill. 182, 30 N.E.2d 636, and People v. Scott (1951), 345 Ill. App. 73, 102 N.E.2d 160.\nUnder applicable principles, to sustain a conviction upon circumstantial evidence, it is \u201cnecessary only that the proof of circumstances * * * be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime.\u201d (People v. Dukett (1974), 56 Ill. 2d 432, 441, 308 N.E.2d 590, quoting People v. Bernette (1964), 30 Ill. 2d 359, 367, 197 N.E.2d 436.) In addition, a jury is not required to accept exculpatory testimony by the defendant but \u201cmay properly consider the surrounding circumstances and the probability or improbability of defendant\u2019s story.\u201d (People v. Heflin (1976), 40 Ill. App. 3d 635, 644, 351 N.E.2d 594. See also People v. Stombaugh (1971), 132 Ill. App. 2d 859, 861-62, 271 N.E.2d 69.) Indeed, when a defendant attempts to explain his presence in the vicinity of a crime in which he denies participation, he must \u201ctell a reasonable story or be judged by its improbabilities.\u201d People v. Morehead (1970), 45 Ill. 2d 326, 330, 259 N.E.2d 8.\nWe conclude that the record contains very substantial evidence of defendant\u2019s guilt. Defendant\u2019s swift and reckless flight from Officer Gates at speeds imperiling defendant\u2019s own fife is strong evidence of guilt. Such extreme conduct is less consistent with defendant\u2019s explanation that he panicked, fearing an unlawful use of weapons charge, than with the inference that he feared apprehension with the evidence of a recent burglary and murder in his possession. If not plausibly explained, defendant\u2019s possession of the gun, leather jacket, ski mask, jewelry and money clip containing $300 is telling evidence of guilt. Defendant\u2019s story of how he obtained possession of these items is inherently improbable. It is difficult to believe that the man defendant claimed he saw would have discarded $300 in unmarked currency along with the more identifiable evidence of the crimes. Further, it is highly improbable that defendant would happen upon a man disposing of the fruits of a burglary in the immediate vicinity of an apartment which defendant also claimed to have previously visited fortuitously with Valdez. The fingerprint on the photograph cannot be overlooked as evidence of defendant\u2019s connection with the crime, especially since the picture had been loaded into the duffle bag with the stereo receiver.\nIn our opinion, defendant\u2019s story was not sufficiently probable to support a reasonable hypothesis of innocence. The requirement that every reasonable hypothesis other than guilt must be excluded when the State\u2019s case is founded on circumstantial evidence (People v. Benedik (1974), 56 Ill. 2d 306, 309, 307 N.E.2d 382), does not compel the prosecutor to prove guilt \u201cbeyond any possibility of a doubt.\u201d (People v. Mackins (1974), 17 Ill. App. 3d 24, 33, 308 N.E.2d 92, quoting People v. Murdock (1971), 48 Ill. 2d 362, 367-68, 270 N.E.2d 21). Further, the trier of fact may disbelieve defendant\u2019s story and is not required to ignore the inferences flowing from the other evidence nor search for potential explanations \u201ccompatible with innocence, and elevate them to the status of a reasonable doubt.\u201d People v. Benedik (1974), 56 Ill. 2d 306, 309, 307 N.E.2d 382; People v. Pitchford (1976), 39 Ill. App. 3d 182, 189, 350 N.E.2d 170.\nThe cases cited by defendant do not require or support reversal in the case before us. In People v. Jordan (1954), 4 Ill. 2d 155, 122 N.E.2d 209, the defendant\u2019s story was neither improbable nor contradicted by the surrounding circumstances. In People v. Holsapple (1975), 30 Ill. App. 3d 976, 333 N.E.2d 683, the evidence demonstrated that at least one person other than defendant was present at the scene of the killing. No evidence is included in the record before us that anyone was present at the time of the killing other than Sandra Mellor, George Diaz and the lone intruder. People v. Bradley (1940), 375 Ill. 182, 30 N.E.2d 636, and People v. Scott (1951), 345 Ill. App. 73, 102 N.E.2d 160, invoke the principle that a court or jury must resolve facts in favor of innocence if it is reasonable to do so. In both cases, unlike the appeal before us, the evidence against defendants was weak and contradictory. The evidence of guilt here presented is convincing beyond reasonable doubt.\nDefendant next urges that he was denied a fair trial because during rebuttal argument, the assistant State\u2019s Attorney accused defendant and his counsel of fabricating the defense. In support of this claim, defendant points to specified portions of the questioned argument and to the rebuttal argument taken as a whole. The record shows that defense counsel made no objection to any of these allegedly prejudicial specific comments or to the argument as a whole.\nThe law of Illinois is clear and definite that allegedly prejudicial remarks made during closing argument are waived when no objection is made. (People v. Moore (1973), 55 Ill. 2d 570, 576, 304 N.E.2d 622; People v. Edwards (1973), 55 Ill. 2d 25, 35, 302 N.E.2d 306.) The same authorities are dispositive of defendant\u2019s additional argument that he was prejudiced by the State\u2019s characterization of the alleged marijuana sale between Valdez and Diaz as a \u201cnarcotics\u201d transaction.\nThe law also provides, however, that the waiver rule must be relaxed when a closing argument, although not objected to, is so inflammatory and prejudicial as to deny a fair trial to defendant and operates as a \u201cmaterial factor in the guilty verdict of the jury.\u201d (People v. Young (1975), 33 Ill. App. 3d 443, 447, 337 N.E.2d 40. See also People v. Romero (1967), 36 Ill. 2d 315, 320, 223 N.E.2d 121.) In determining whether the argument was impermissibly prejudicial, we must \u201cexamine the offending remarks in the context of the entire record.\u201d (People v. Hoggs (1974), 17 Ill. App. 3d 67, 70, 307 N.E.2d 800.) In People v. Witherspoon (1975), 33 Ill. App. 3d 12, 22, 337 N.E.2d 454, we cited a number of authorities illustrating this proposition and demonstrating the modern trend to enforce the doctrine of waiver where no objection is made to allegedly prejudicial final argument aside from situations involving clearly prejudicial examples of plain error. We will, therefore, analyze each of the challenged remarks.\nDefendant first complains that the prosecutor charged defense counsel with attempting to put up \u201ca smokescreen, [a] little confusion.\u201d Examined in its full context, this statement was the assistant State\u2019s Attorney\u2019s response to a portion of the defense closing argument which referred to the positioning of the leather jacket during defendant\u2019s flight from Officer Gates. The prosecutor argued that defense counsel had omitted significant testimony on this factual issue. As such, this argument was based upon the trial evidence and was in no way inflammatory or prejudicial to defendant. People v. Palmer (1970), 47 Ill. 2d 289, 299-300, 265 N.E.2d 627.\nDefendant also challenges the assistant State\u2019s Attorney\u2019s repeated reliance on an analogy between the physical evidence and the slats of a fence. The prosecutor recited each element of the State\u2019s evidence in support of conviction and then charged, in effect, that defendant had manufactured his testimony to counteract the physical evidence and thus to \u201crun around the fence.\u201d Defendant specifically characterizes this tactic as an accusation that defendant and his counsel had combined to fabricate the defense. Defendant cites authorities for the principle that this type of accusation is reversible error. People v. Freedman (1954), 4 Ill. 2d 414, 123 N.E.2d 317; People v. Polenik (1950), 407 Ill. 337, 95 N.E.2d 414; People v. Savage (1934), 358 Ill. 518, 193 N.E. 470, and People v. Martin (1975), 29 Ill. App. 3d 825, 331 N.E.2d 311.\nUpon careful examination of the remarks in question, we do not agree that defense counsel was directly or indirectly accused of fabrication or subornation of perjury. The only significant reference to defense counsel shown by this record was made by the prosecutor as follows:\n\u201cWell, there is a fence in this case, and that fence is composed slat by slat of the physical evidence \u201d *'*. You start out with the question, you are a defendant, I suppose, talk to his lawyer, talk to your lawyer, was there a burglary? Maybe we can say there wasn\u2019t a burglary. But then you have got a bunch of pictures, \u00b0 \u00b0 \u00b0 pictures of an apartment all thrown apart. * * * And you are going to look at those pictures. Suddenly you can\u2019t say that there wasn\u2019t a burglary.\u201d\nThe quoted passage does not, in substance, accuse the attorney of counseling a perjured defense. The remainder of the rebuttal argument, read as a whole, directs all references to the manufacture of a defense at the defendant himself. The cases cited by defendant are therefore distinguishable because all involved prejudicial charges directed against defense counsel.\nPeople v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880, also cited by defendant, is not applicable to this appeal. The prejudice flowing from the People\u2019s argument in the instant case, if any, does not approach the degree resulting from the multiple errors committed by the prosecutor in Weathers. As the court there stated, \u201cEach case of this kind must be decided upon its own facts.\u201d 62 Ill. 2d 114, 120.\nIn substance, the argument under scrutiny amounted to repeated emphasis upon the principal features of the State\u2019s case combined with remarks that defendant had offered false testimony in response thereto. Read in its full context, the rebuttal was a continuation of the People\u2019s initial argument which thoroughly attacked the improbability of defendant\u2019s explanations of his demonstrated connection with the burglary and murder.\nUnder Illinois law, statements in closing argument that defendant gave false testimony are not reversible error when the prosecutor\u2019s conclusion is based on the evidence and inferences that may reasonably be drawn from it. (People v. Sinclair (1963), 27 Ill. 2d 505, 509, 190 N.E.2d 298, and People v. Weaver (1959), 18 Ill. 2d 108, 115, 163 N.E.2d 483.) In gauging the propriety of such statements, a reviewing court may consider the fact that the State has introduced substantial evidence of guilt. (People v. Broadnax (1975), 26 Ill. App. 3d 67, 72, 325 N.E.2d 23, leave to appeal denied, 60 Ill. 2d 598.) In the instant case, given the strength of the State\u2019s evidence and the inherent improbability of defendant\u2019s story, we conclude that an inference could reasonably be drawn that defendant\u2019s story was false and contrived. As the supreme court found in Weaver, the record before us shows \u201cnothing to indicate that the belief of the State\u2019s Attorney [that defendant\u2019s testimony was false] was based on anything other than the circumstantial evidence and the inferences to be drawn from it.\u201d (18 Ill. 2d 108, 115.) Under the foregoing principles, the remarks in question were not so prejudicial as to deny defendant a fair trial and did not operate as a material factor in the verdict rendered.\nDefendant further urges that the prosecution reference to the alleged marijuana sale between Diaz and Valdez as a \u201cnarcotics\u201d sale was unduly prejudicial because it cast inaccurate aspersions upon defendant. We cannot agree. Even assuming that characterizing marijuana as a narcotics was improper, no shadow was cast upon defendant by these remarks. All evidence concerning the transaction was produced by defendant who testified that the sale was between Valdez and Diaz. Defendant disassociated himself from active participation in the sale when he testified, \u201cI didn\u2019t know what was going on when I went with him [Valdez].\u201d Further, defense counsel, in her own closing argument, referred to the sale as a \u201cdope transaction.\u201d The applicable principle is stated in People v. Clark (1972), 52 Ill. 2d 374, 390, 288 N.E.2d 363: * * * Where it appears that improper remarks do not constitute a material factor in the conviction, or that they are of such a minor character that prejudice to defendant is not their probable result, the verdict will not be disturbed.\u2019 [Citations.]\u201d\nThe judgment appealed from is accordingly affirmed.\nJudgment affirmed.\nSIMON and O\u2019CONNOR, JR., JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE GOLDBERG" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Deborah J. Gubin and John Thomas Moran, Assistant Public Defenders, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Michael E. Shabat, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY ORTIZ, Defendant-Appellant.\nFirst District (1st Division)\nNo. 62497\nOpinion filed November 18, 1976.\nJames J. Doherty, Public Defender, of Chicago (Deborah J. Gubin and John Thomas Moran, Assistant Public Defenders, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Michael E. Shabat, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0124-01", "first_page_order": 154, "last_page_order": 162 }