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A p p e l l a t e C o u r t

People v . Woods , 2011 IL App (1st) 091959

Appellate Court Caption THE PEOPLE OF THE STATE OF IL L INOI S, Plaintiff-Appe l lee, v. ROSCOE W OODS, Def

endant- Appellant.

District & N o. First District, Second D ivision

Docke t No. 1–09–1959

Filed May 31, 2011

Held ( Note : Thi s syl lab us

con st it ute s no par t of the opi nio n of t he

cou rt but has bee n p r e p a r e d b y t h e Repo rt er of Deci si ons for the con ven ie nce of the re ade r. ) Def endant’ s convictions for ag g ravated battery with a firea rm and attempted first deg ree murder arising from a g ang -re lated shooting wer e upheld over his contentions that State violated Supreme Court Rule 412 by failing to disclose alleg ed prior statement of its re buttal witness, that trial court err ed in allowing State to prese n t o t h er crimes evidenc e in rebuttal and by violating Supreme Court Rule 431(b), that he was denied

a fair trial by the prosec utor’s comments in closing arg ument and that his mitti m u s s h o uld be corr ecte d to add seven day s of prese ntence cre dit, since defendant fai l ed to car ry his burden of proving he was prejudice d by State’s failure to disclose rebuttal witness’s prior statement, objection
to other crimes evidenc e woul d not be considere d under plain err or doctrine where there was no err or, defen d an t co ncede d issue of allege d violation of Rule 431(b) in his reply brief, and he was unable to show any substantial prejud i ce in State’s closing and rebuttal closing arg uments, but State conce d ed that defe ndant was entitled to additional seven day s of pre sentenc e cr edit.Dec ision Under

Review Appea l from the Circuit Court of Cook County
, No. 07–CR

– 1130; the Hon. Stanley

J . Sacks, Judge, pr esiding

.

J udg ment Affirmed; mitti mus corre cted.

Counsel on Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Rache l M. Kindstrand, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Ashley A. R omito, and Annette Colli ns, Assistant State’s Att orney s, of counsel), f

or the People.

Panel J USTI CE HARRI S delivered the judgme nt of the court, with opinion. Presiding Justice Cunningham and J ustice Ka rnezis concur

red in the judgme nt and opinion.

OP INION

¶ 1 Fol l o wi n g a j u ry t ri al defe ndant, Roscoe Woods, was convicted of one count of
ag g ravated battery with a firea rm and one count of attempted first deg ree mur d er. He was sentenc ed to 33 y ear s in prison, which included an enhanc eme n t b as ed on his persona l discharg e of a firea

rm causing bodily harm. On app ea l
, h e arg ues that the State violated I llinois Suprem e C o u rt Rule 412 (ef f. Mar. 1, 2001) by not disclosing an alleg ed prior
statement of its rebut t al wi tness, Rosalinda Taufique

. He urg es this court to excuse his
proce du ra l d efault and review, under t he plain err or doctrine: whether the t rial court err ed i n all owing the State to prese nt other crimes evidenc e in rebuttal; whether the trial cour t violated I llinois Supreme Court Rule 431(b) (ef f. May 1, 2007) when instructing the jury ; and whether he was denied a fair trial by sever al comments made by the prosec uting attorney during closing arg umen t

. Ad ditionally
, defe ndant arg ues, and the State ag ree s, that he is entitled to an additional seven day s of prese ntence cre dit. We hold that defen d ant has not

car ried his burden of proving that h e wa s prejudice d by any alleg ed Rule 412 violation. Def endant has also not shown plain err or and there fore we decline t o ex cu se defe ndant’s
proce dural defaults and revie w on the merits whether the trial court err ed in allowing other
acts evidenc e in rebuttal; whether the trial court violat ed R u l e 4 3 1(b); and whether the S t at e’s closing and rebuttal closing arg uments wer e improper. We ag ree with both parties that defe ndant’s mittimus should be corr ecte d to refle ct 854 day s of pre sentenc e cr edit.

¶ 2 J URI SDI CTI ON

-2-¶ 3 The circuit court denied defe ndant’s mot ion to rec onsider his sentenc e on J une 16,

2009. Def endant timely filed his notice of appeal on J uly 15, 2009. Acc ording ly
, this c ourt has jurisdiction pursuant to article VI
, section 6, of the I llin o i s Constit ution and I llinois Supreme Court Rules 603 and 606, g overning appeals f rom a fina l judgment of conviction in a criminal case enter ed below. I ll. Const. 1970, art. VI
, § 6; I ll. S. Ct. R. 603 (ef f. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009)

.

¶ 4 BA CKGROUND ¶ 5 On Dec ember 11, 2006, Chicag o police office r L ee Trevino was shot and injured on Division Street in Chicag o, I llinois
, afte r responding to a disturbance at near by Clemente Hig h School. On the first day of defe ndant’s trial, the State filed a motion in limine seeking
to introduce evidenc e that befor e the shooting, at approxim at el y 8 a.m., and in the same g ener al area of the i ncident, defenda n t approache d Terr ell Durham. Durham would testify that defe ndant had in his waistband a silver-c olored pistol and said to Durham, “What y ou be about Cobra” and Durham responde d that he was not a Cobra, but a member of a differ ent g ang

. Def endant then walked away saying he did not have a problem with Durham. The State
arg ued that this other crimes evidenc e was rele vant to e stablish de fendant’s intent in firing the g un, his moti ve in firing the g un, and def endant’ s state of mind. The State a dditionally
arg ued that the other crimes evidenc e was rele vant to neg ate the defe nses of an innocent frame of mind, mistake, nec essity and self- defe nse. ¶ 6 Def

en d an t ’s co u n s el ar gu ed t h at the incident was not rele vant and that it was prejudicia l. Specifica lly
, defe nse counsel stressed that the shooting and the evidenc e of other crimes were two separ at e i n ci d en ts occur ring at differ ent times of the day and that the evidenc e was prejudicia l beca use, from it, the jury could infer that defe ndant was predisposed to violence on the day of the shooting. I n ruling on the motion, the trial court pointed out t hat defe ndant had raised two possible aff irmative defe nses, self-de fense and

nece ssity

. The trial court barr ed the evidenc e as inadmissable in the State’s case -in-chie f, but cautioned that it may be admis s i b l e d u ri ng rebuttal if the defe ndant opened the door, specific ally

“depe nding on w hat the def ense of fer s or bring s out on his examination of the witnesses.” ¶ 7 Offic er Michae l Komo testified for the State that at about 2:30 p.m. on the day of the shooting, he rec eived an assig nment that there was a disturbance at the bus stop at the intersec tion of Division Street and Western Avenue near Clemente Hig h School. He testified that he and O ffice r L ee T revino we re in uniform and drovea mar ked police c ar to the a

rea

near the bus stop, wher e they parke d. He testified that the primary g ang s operating in the are a

are the Spanish Cobra s and the Maniac L atin Disciples, who “don’t g et along ,” and that he

saw Spanish Cobra g ang signs being “thrown up.” He saw six kids fig hting and then run westbound on Division Street past their marke d police car

. He stated that the kids continued fig hting, shoving ea ch o t her, “throwing up g ang signs,” and shouting g ang words at eac h other. The two office rs approa ched the 6 kids fig hting while 30 ot h er people wer e on the street. He was 15 to 20 fee t from the fig ht and then identified h i m s el f as a C hicag o police office r and shouted “g et out of here
, brea k it up,” wh i l e waving his baton. He identified

-3-defe ndant as one of the kids fig hting and testified that def endant wa s wea

ring a coat about thigh leng th with fur ar ound the collar . When he shouted for the cr owd to disperse, the six kids fig hting looked at him and then ran. Def endant ran away from him on Division Stree t, and as he passed Campbell Street, defendant turned around, reac hed in his waistband, and produce d a g un. As defe ndant was fac ing Offic er Komo, he fired five or six shots in Offic er Komo’s di rec tion. Offic er Trevino was hit in the arm and shouted “I ’m hit.” Both officer s took c over behind a parke d car

. He testified that afte r the shooting, he saw spent cartridg es on the g round whe re de fendant had fire d his gun. ¶ 8 Danate Ba rnes testified for the State that he was in the are a and saw the figh t

. He identified defe ndant, whom he knew as “Nu- Nu,” as a member of the Maniac L atin Disciples
g ang

. Ba rnes did not know defe ndant’s r e al n ame. Ba rnes testified that defe ndant and another Maniac L atin Disciples’s g ang member, “B uckar oo,” walked past members of the Spanish Cobras g ang

. The Spanish Cobras, defe ndant, and Buc karoo wer e verba lly insulti ng eac h other. Def

endant and Buc karoo walked away from the Spanish Cobras, but the Spanish Cobras followed them. Ba rnes testified that at some point the alterc ation turned phy sical, but that he ran away

beca use he he ard g unshots. ¶ 9 Ke n y o n T ay l o r testified for the State that on the day of the incident, he was at his
g irlfriend’ s house, which is approxi m at el y four blocks away from C lemente High School. Taylor testified he knew d ef en d ant beca

use he was friends with defe ndant’s cousin. He testified that both defe ndant and defe ndant’s cousin wer e m em b er s of the Maniac L atin Disciples g ang

. On the day of the incident, defe ndant rang the doorbell and Taylor answe red. Taylor described defe ndant’s appea ranc e as “roug h,” “sca

red,” and “nervous.” De fe n d an t

was we aring a blac k coat with fur on it. Defe ndant stated to Taylor that he wa s “in a jam,” that he might have shot a police offi ce r, and he asked Taylor to stash a black handg un for him. Tay lor ref

used. ¶ 10 The State also called Torre y Davis, who had previously g iven a written statement to t h e p o l i ce and testified before a g rand jury

. At trial, Davis’s testimony was signific antly differ ent from his written statement and his testimony befor e the g rand jury

. At trial, Davis identified de fe n d an t, whom he knew both as R oscoe W oods and as “Nu- Nu.” He t estified that he did not know if defe ndant was a member of the Maniac L atin Disciples g ang

. Davis testified that he saw a Hispanic man fig hting with an Afric an-A merican man in the street and that they were t he only two individuals fig hting in the street. He testified he also saw a Hispanic man with a silver g un in the alley

. Davis testified that the man with the silver g un had a mask over his fac e. Davis denied seeing defe ndant fig hting, running
, or shooting. Davis

was questioned extensively on his earlier statements to the police and the g rand jury
, which

wer e sig nificantly

differ ent than his in-court testimony

. ¶ 11 Assistan t S t at e’ s Attorney (ASA) Sus an J akubiak testified for the State in order to

rea d into evidenc e Torre y Davis’s written statement, which he had provided a few day s afte r the shooting. The rele vant portions of Davis’s statement, as rea d into evidenc e throug h ASA J akubiak, are as follows. Davis was 14 y ear s old at t he ti me of the i ncident and stated that he socialized with the Maniac L atin Disciples g ang , but was not actua lly in the g ang

. Davis knew defe ndant as “Nu- Nu” and knew that he was a member of the Maniac L atin Disciples
g ang

. Davis stated that at the time of the in ci d en t , h e saw defe ndant with “B uckar oo, G-

-4-Money
, and Little Fe asy .” Davis was walking with defe ndant and the other three individuals

when a Spanish Cobra g ang member walked up to them and asked if they wer e Maniac L atin Disciples. The Spanish Cobra then took off his shirt and curle d his index fing er to appea r as though he was pulling the trig g er of a g un. Davis did not see a g un on the Spanish Cobra, but he believed that the Spanish Cobra was signa ling for someone to bring him a g un. Six other Spanish Cobras joined the orig inal Spanish Cobra. He started running with defe ndant and the other three individuals. More Spanish Cobras appea red and defe ndant pulled a black g un out of hi s waistband and held it out like he was going to shoot. He told defe ndant not to shoot beca use there was a littl e g irl prese nt. Def endant then put the g un in his pocket and the g roup

ran about four more steps, befor e Buc karoo said to defe ndant; “Why are y ou running
, don’t
y ou g ot the bange r? ” Defendant then pul led the g un out of his pocket, stopped, and turned

arou n d

. Davis heard five or six shots coming from defe ndant’s direc tion. ASA J akubiak testified that at the time he g ave his statement, Davi s n ev er told her about a Hispanic
g entleman with a silver

handg un on the stree t. ¶ 12 ASA Sabra E b er s o l e testified reg arding Davis’s testimony befor e the g rand jury
, which was substantially simil ar to the written statement he provided to ASA J akubiak. ASA Ebersole testified that Davis ne ver told her about a Hispanic man with a silver g un. ¶ 13 The State also offe red testimony from Detec tive Steven Suveda, who examined the crime scene and presented the expert testimony of Marc P omerance, an e x p er t i n the field of fire arms identification from the I llinois State Police Division of Fore nsic Science s. ¶ 14 T h e S t at e’ s fi n al witness was the victim in this case , Offic er Trevino. Of ficer Trevino’ s t es t i m ony was substantially simil ar to Offic er Komo’s reg arding driving to the

sceneof the fig ht, the number of pe ople fig hting, and the location of the fig ht. He testified that during the incident he wa s fo cu s ed o n a Hispanic man who had his shirt off and was flashing g ang signs. The next thing he reme mbers was that he heard five or si x shots fi red from in front of him in q u i ck succe ssion. He did not see who fired the shots. After he was hit by one of the shots, he and Of fice r Komo re treated for c over be hind a par ked ca r. ¶ 15 Def

endant testified on his own behalf

. He stated that at approximately 2:30 p.m. on the day of the incident, he g ot off the bus at the intersec tion of Division Street and Western Avenue en route to his g randmother ’s hous e, which was three or fou r blocks from the bus stop. H e said that as he g ot of f the bus, there was a crow d of people a sking him if he w as a Maniac L atin Disciple. He told the crow d that he was not a Maniac L atin Disciple and kept walking

. He said that one of the pe ople i n the crowd acc used hi m of being a Maniac L atin Disciple beca

use defe ndant’s cousin was a member of the Maniac L atin Disciples. He knew of t he gang
, but he was not a member of t he gan g. De fendant’s cousin was kil led a month

earlier on his g randmother ’s porch. As defe ndant was walking
, a few of his cousin’s friends, “Li t t l e Fe asy , G-Money
, and Buc karoo,” wer e standing by the bus stop and told him they would walk with him for safe ty

. As defe ndant’s g roup was walking
, another g roup of people
approa ched them from the front an d s ai d
, “y ’all Maniac s.” Def endant testified that Little Fe asy replied and a fig ht ensued. Def endant co n t inued walking despite the ong oing fig ht, until some more Hispanic men stopped him. He saw one of the m signa l for a g un and then

run away

. Def

endant next saw someone coming out of the alley and running toward him with a silver g un. Def

endant r an, but w hen the man with the silver g un aimed at him, def endant

-5-shot his g un. He testified that when he shot the g un, his head was fac ing forwa rd to see wher e he was running and the g un was behind him. He did not look back or see wher e the g un was pointed. He testified that he was scar ed he was g oing to g et shot beca u s e h i s co usin had

rec ently been killed. He denied telling Keny on Taylor that he may have shot a police office r. He also denied participating in the fig ht b ecause he was running away from it. Def endant testified that he was not in the are a on the morning of the incide nt and that he did not have
any contac t with Terre ll Durham. ¶ 16 After the defe nse rested, the State rene wed its motion in limine to call Terr ell Durham in rebuttal to neg ate defe ndant’s claims of self-de fense
, nece ssity
, an d lack of mistake. Def ense counsel arg ued that defe ndant’s testimony was vag ue at best reg arding whether he

was in the are a at that time of the incident. Def ense counsel also arg ued that too much time
separ ated the two incidents. The trial court allowed the State to call Durham, rea soning that the evidenc e was permissible to show defe ndant’s intent and m o t i v e an d the absenc e of mistake. In addition to Durham, the State called Rosalinda Taufique and Detec tive Michae l L andano in rebuttal. The prosec utor informed the court that the detec tive was to testify to a

conver sation he had with defe ndant at the time of his a rre st and that Taufique was g oing to testify that she saw the s hooting. Specifically
, h er testimony would contra dict defe ndant’s testimony as to the position of his body at the time of the shooting. Def ense counsel objected
to Taufique ’s testimony
, arg uing that it would be cumulative to Offic er Komo’s testimony
, that the S tate had an opportunit y to bring Taufique ’s t estimony in during its case -in-chi ef
, and that her testimony would not specific ally rebut defe ndant’s testimony

. Def ense counsel als o ar gu ed that the State violated discovery rules by not tendering Taufique ’s statement reg arding the positioni ng of the shooter to the defe nse. The State arg ued t h at t h e re ports disclosed t hat Taufique obs erve d a male with a gun dis char g ing the wea pon as he ran past her store. The court overr

uled defe ndant’s objection, allowing Taufique to testify
, consistent with the police re port, that she saw the shooting. ¶ 17 Rosalinda Taufique testified that on the day of the incident, she w as in her store on Division Street. She saw, out of her window, people running
, and then one of them stopped, turned, and fired five shots. Taufique indicated that the shooter’s left elbow was bent and his rig ht arm was acr oss the l eft arm. Taufique rec al l ed t h e shooter was an African- Americ an male, but she could not see his fac e. S he could not identifythe shooter, ex cept that he had

on a black long coat. On cross-e x amination, Taufique testified that she did not tell the police the manner in which the shooter shot the g un the first time she was interviewe d, but she g ave them that information during her se cond intervie w. ¶ 18 Terr ell Durham testified that at 8 a.m. on the morning of the in ci d en t , defe ndant, whom he knew as “Sto,” said to him “what y ou be about Cobra ” and show ed him a silvercolore d pistol on his waist. Durham identified defe ndant in open court. Durham testified that he responde d that he was a “G.D.,” and defe ndant responde d, “My prob l em is not his.” Durham interprete d this to m ean that defe ndant did not have a problem with him. ¶ 19 Detec tive L andano was the State’s final rebuttal witness. Detec tive L andano te stified that shortly afte r defe ndant’s arr est, defe ndant denied shooting a g un or even having a g un. Detec tive L andano also testified that defe ndant did not tell him that he saw a Hispanic male with a g un.

-6-¶ 20 Following closing arg uments, the j ury found defendant guilty of attempted murder

and ag g rava

ted battery with a firea

rm. The jury also found defe ndant persona lly discharg ed

a firea rm causing sever e bodily injury

. The sentenc ing court sentenc ed defe ndant to 33 y ear s for attempted first deg reemurder. ¶ 21 Defendant filed a motion for a new trial pursuant to section 116–1 o f t h e C o d e o f Criminal Procedur e of 1963 (725 IL CS 5/116–1 (West 2 0 0 8 ))

. Relevant to this appea l, defe ndant arg ued that the trial court erred in allowing Rosalinda Taufique t o t es t i fy as a rebuttal witness. Def

endant arg ued t h at Taufique ’s testimony did not rebut defe ndant’s testimony but, instead, improperly added additional evidenc e that was available for the State
to use in its case -in-chie f. Def endant arg ued further that Taufique ’s testimony sever ely prejudice d him and denied him a fair trial. The trial court denied defe ndant’s motion, finding Taufique ’s testimony

to be prope r re buttal testimony

.

¶ 22 ANALYSI S ¶ 23 On appeal, defe ndant arg ues that the State violated I llinois Supreme Court Rule 412 (ef f. Mar. 1, 2001) by not disclosing the specific statement as to t h e s u b s t ance of the testimony of its rebuttal witness, Rosalinda Taufique

. Def endant also arg ues that this c ourt shoul d review the following issues under the plain err or doctrine: whether the trial court

err ed in allowing other acts evidenc e throug h the State’s rebuttal witness; whether the State violated I llinois Supreme Court Rule 431(b) (ef f. May 1, 2007) when instructing the jury ; and whether sever al comments made by the prosec ution during closing arg ument denied him his rig ht to a fair trial. Def endant a lso arg ues, and the S tate agr ees, that he is entitled to an additional seven day s of pre sentenc e cr edit.

¶ 24 I llinois Supreme Court Rule 412 ¶ 25 Def

endant arg ues that the State violated I llinois Supreme Court 412 by not disclosing

a specific statement as to the substance of rebuttal witness Rosalinda Taufique ’s testimony

. The State disclos ed Taufique as a potential witness befor e trial and provided the police
reports in which Taufique stated she observe d an Afric an-A merican man shooting a g un in front of her store on the day of the incident. At trial, defe ndant o b j ected, arg uing that the State did not disclose the manner in which the man Taufique observe d shot the g un, specific ally whether the man she observe d stopped, turned, and shot. O n appeal, de fendant arg ues that the State was require d to disclose the specific ity of Taufique ’s statement and that the State’s failure to do so mandates a new tria l. ¶ 26 Rule 412 provides t h at, “If the State has obtained from the defe ndant, pursuant to Rule 413(d), information reg arding defe nses the defe ndant intends to make, it shall provide
to defe ndant *** a specific statement as to the substance of the testimony such witnesses will
g ive at the trial of the cause .” I ll. S. Ct. R. 412(a) (ef f. Mar. 1, 2001). T h u s , under Rule 412(a)
, the S tate must tender to defe ndant the identity of a rebuttal witness and a specific
statement reg arding the substance of that witness’s testimony

. Id. ; People v. McCullum
, 386 I ll. App. 3d 495, 512 (2008) (“the plain lang uag e of the rule require s the State to disclose the identity of rebuttal witnesses and a specific statement as to the substance of the testimony of

-7-the witnesses”) Howeve r, “[c]ase law rec og nizes that the identity o r s p ecific testimony of

rebuttal witnesses may not be known until a defe ndant prese nts his case , and, there fore
, the
proper proce dure is for the State to provide this information when the intention is formed.” McCullum
, 386 I l l

. Ap p. 3d at 512; see also People v. Hood
, 213 I ll. 2d 244, 259 (2004). Although the require ments o f d i s co v ery are mandatory
, reve rsal is not require d unless surprise or undue prejudice has been shown. People v. Robinson
, 157 Ill. 2d 68, 78 (1993). Def endant has the burden of showing prejudice or surprise. Id. Whether rebuttal testimony is admitted into evidenc e is a matter within the di scre tion of t he trial court and will not be

reve rsed unless the trial court abuses that discretion. People v. W hitlock
, 174 I ll. App. 3d 749, 777 (1988). ¶ 27 Our revie w of the rec ord shows the State disclosed to defe ndant police reports stating Taufique saw a man shooting as he ran past her s t o re. Her details of the shooter having stopped, turned, and fired the g un wer e not disc losed and the State claims that such details

wer e not part of the witness’s statement. We need not decide whether the State violated Rule 412 beca use t he record fails to show defe ndant was prejudice d or s u rp ri s ed by the allege d violation. In deciding prejudice
, surprise and whether a discovery violation war rants a new trial for a criminal defe ndant, a revie wing court considers “the closene ss of the evidenc e, the streng th of the undisclosed evidenc e, the likelihood that prior notice could have helped the defe nse discredit the evidenc e, and the willfulness of the State in failing to disclose the new

ev i d en ce.” Robinson
, 157 I ll. 2d at 81. Further, a “def endant’ s failure to reques t a continuance upon learn i n g o f a discovery violation is a rele vant fac tor to consider in determining whether the new evidenc e prejudice d the defe ndant.” People v. Heard
, 187 I ll. 2d 36, 63 (1999). Def

endant did not reque st a continuance to inv es t i g ate Taufique ’s testimony further
, nor is the evidenc e in this case close. Taufique ’s testimony was put forth by the State to rebut and discredit defe ndant’s testimony that in shooting the g un, he did so while runn i n g an d pointing the g un backw ards. Taufique’ s testimony could not have been

a surprise to defe ndant beca use the State had alre ady put forth evidenc e consistent with Taufique ’s testimony that the shooter stopped, turned, and then fired the g un as opposed to defe ndant’s testimony that he held the g un behind his body and fired. Both Offic er Komo’s testimony and Torre y Davis’s written statement, as testified to by ASA J akubiak, had alre ady shown that defe ndant stopped, turned, and then fired the g un. Offic er Komo testified that he

saw defe ndant turn around, rea ch in his waistband, and then produce a g un. He testified that defe ndant was then fac ing him when he fired it. Davis stated to ASA J akubiak that afte r Buc karoo asked defe ndant “Why are y ou running
, don’t y ou g ot the bang er” defe ndant p u ll e d the g un out of his pocket, stopped, and turned around. Taufique ’s testimony could not have surprised defe ndant as the S t at e h ad alre ady offe red evidenc e consistent with Taufique ’s testimony in reg ard to his body position when he fired the g un. Taufique ’s testimony was put forth to impeach defe ndant’s testimony
, not to surprise defe ndant with new evidenc e of the positioni ng of his body

as he f ired the g un. ¶ 28 Def

endant ha d prior notice from the State that Tauf ique was an ey ewitness. B efor e trial the State informed defe ndant that Taufique was in her store and saw the incident and the

s h o o t i n g as it occur

red, but that she could not identify the shooter she observe d. Def ense

co u n s el had the opportunity to impeach Taufique ’s cre dibilit y

. It is unlikely that pri o r

-8-knowledg e co n s i s t i ng of a specific statement that Taufique observe d the shooter stopped,

turned, and shooting would have helped discredit the evidenc e. Finally
, defe ndant has not show n h o w t h e S tate was willful in not disclosing Taufique ’s observation of the shooter stopped, turned, and shooting. The rec ord shows the State disclosed Ta ufique a s a witness and that she saw a person shooting in front of her store. The State did not seek to surprise or trick defen d an t b y calling Taufique to testify

. Def endant has not car

ried his burden of proving prejudice

.

¶ 29 Plain Error Doc trine ¶ 30 Def

endant admits that he did not properly prese rve c e rtain issues for appeal, but urg es this c ourt to e x cuse his proc edura l default and addre ss these claims on the merits. We may revie w defe ndant’s arg uments on their merits only if he sustains his burden of persua sion on either of the t wo prongs of the pl ain error d o ctrine. People v. Herron
, 215 I ll. 2d 167, 187 (2 0 0 5). Our supreme court has described t he plain err or doctrine as a “nar row and li m i t ed exception.” People v. Hillier
, 237 I ll. 2d 539, 545 (2010). The plain err or doctrine allows this

co u rt t o revie w a forf

eited claim of err or that aff ects a substantial rig ht in two inst an ce s : “whe re the evidenc e in a case is so closely balanc ed that the jury ’s g uiltyverdic t may have resulted from the err or and not the evidenc e” or “whe re the erro r i s s o s erious that the defe ndant was denied a substantial rig ht, and thus a fair trial.” People v. Herron
, 215 I ll. 2d 167, 178-79 (2005); see also I ll. S. Ct. R. 615(a) (“A ny err or, defe ct, irreg ularity
, or variance which does not aff

ect substantial rig hts shall be disreg arde d. Plain err ors or defe cts aff ecting substantial rig hts may be noticed althoug h they wer e not broug ht to the attention of the trial court.” ). Be fore we addre ss whether defe ndant’s claims satisfy either prong of the plain err or doctrine, defe ndant “must first show that a clea r or obvious err or occur

red.” Hillier
, 237 I ll. 2d at 545.

¶ 31 Testimony of Rebuttal Witness Terre ll Durham ¶ 32 Def

endant arg ues the trial court abused its discretion by allowing the State to pr esent the rebuttal testimony of Terrell Durham. Def endant contends that Durham’s testimony was irrelev an t beca

use the incident he testified to occur red seven hours earlier than the one in question, there was no commonality betwee n the victims and bec ause it lacke d a threshold simil arity to the later shooting. Def endant arg ues further

that even if it wa s rele vant, it wa s highly prejudicia l. ¶ 33 Evidenc e o f o t h er o ffe nses is not admissible to show a defe ndant’s propensity to commit a crime. People v. Lindgren
, 79 Ill. 2d 129, 137 (1980). Howeve r, if the evidenc e of

o t h er offe nses is rele vant, it can be introduced for any purpose other than to s h o w defe ndant’s propensity to commit criminal acts. People v. Illgen
, 145 I ll. 2d 353, 365 (1991). Evidence of other offe nses is admissible when “re levan t to prove modus operandi
, intent, identity
, motive or absenc e of mistake.” Id. at 364-65. Further, wher e other crimes evidenc e is “admitted to show intent or lack of acc ident, mere g ener al are as of s i m i l ar i ty are

s u fficient.” People v. Y

oung , 381 I ll. App. 3d 595, 601 (2008); People v. LeCour
, 273 I ll

. App. 3d 1003, 1008-09 (1995) (“Where other crimes are offe red to prove a defe ndant’s

-9-criminal intent, they need not posse ss the same level of simil arity to the offe nse at bar as is

require d when of

fer ed to prove modus operandi. ”). ¶ 34 I n deciding whether to allow such evidenc e, the trial court must weig h the probative value of the other offe nse evidenc e ag ainst the prejudicia l eff ect of that evidenc e. Illgen
, 145 I ll. 2d at 365. I f the probative value of the evidence is outweig hed by its prejudicial ef

fec t, the trial court should ex clude the e vidence

. Id. Howeve r, the trial court may admit rebuttal evidenc e “whe re the evidenc e tends to explain, repe l, contra dict or disprove the evidenc e of the defen d an t.” People v. Daugherty
, 43 Ill. 2d 251, 255 (1969). Whether evidenc e is admitted at trial is a matter within the discretion of the trial court, and, there fore
, we will not

reve rse the trial court’s decision absent an abuse of that discretion. Illgen
, 145 Ill. 2d at 364. ¶ 35 I n this case , the testimony of Terrell Durham was admitted in re b u t t al

. Def endant testified that he was not in the are a, nor did he have any contac t with Terr ell Durham, on the

m orning of t he incident. Prior to its admittance, the State arg ued that Durham’s testimo n y would contra dict defe ndant’s testimony on that point. The trial court allowed the evidenc e, ruling the State could bring in the testimony to show motive, intent and absenc e of mistake. The trial court also instructed the jury that Durham’s testimony should be considere d for the limit ed purpose s of intent, motive, and lack of mistake. ¶ 36 We ag ree with the trial court that Durham’s testi m o n y was not broug ht in to show defe ndant’s propensity

to commit criminal acts but, rathe r, wa s properly admitted to show motive, intent and absenc e of mistake. Illgen
, 145 I ll. 2d at 364-65. It is also clea r from the

rec ord that the trial court weig hed the probative value of Durham’s testimony ag ainst its prejudicia l eff

ect befor e allowing it. The trial court found its probative value outweig hed any prejudicia l eff

ect beca use it impeache d defe ndant’s testimony

. Durham’s tes ti mo n y is proper rebuttal te s t i m o n y beca

use i t contra dicts defe ndant’s testi mony that he was not in the area of the incident in the morning and that he did not make contac t with Durham. Daugherty
, 43 I ll. 2d at 255 (trial court may admit rebuttal evidenc e “whe re the evidenc e tends to explain,
repe l, contra dict or disprove the evidenc e of the defe ndant”)

. Ba sed on our revie w of the

rec ord, we cannot say the trial court abused its discretion in admitting the rebuttal testimony of Terr ell Du rh am

. Be cause defe ndant cannot show err or, the plain err or doctrine is not applicable

. Hillier
, 237 I ll. 2d at 545 (bef ore proce eding under either prong of the plain err or doctrine, de fendant “must first show that a cle ar or obvious error

occur red” ).

¶ 37 Closing Arg uments ¶ 38 Def

en d an t n ex t co n t en d s t he State made sever al comments during closing and rebuttal closing arg ument th at we re improper. I nitially
, we note that due to an appar ent

co n flict betwee n two I llinois Supreme Court case s, People v. W heele r , 226 I ll. 2d 9 2
, 1 2 1 (2007), and People v. Blue ,189 I ll. 2d 99, 128 (2000), it is not clea r what the proper standard of revie w is when revie wing improper rema rks made during closing argu m ents. People v. Raymond
, 404 I ll. App. 3d 1028, 1059-60 (2010) (stating that in W heele r, the supreme court utiliz ed a de novo standard of revie w, but that in numerous o t h er s u p re m e court case s, including Blue
, the court applied an abuse of discretion standard)

. Howeve r, as this court found in Raymond
, we need not determine the proper standard of revie w in this case beca use

-10-here the result would be the same under either a de novo or an abuse of discretion standard

of revie w. Raymond
, 404 Ill. App. 3d at 1060 (noting that this was the same approa ch taken by this court in People v. Phillips
, 392 Ill. App. 3d 243, 275 (2009), People v. Johnson
, 385 I ll. App. 3d 585, 603 (2008), and People v . Robinson , 391 I ll. App. 3d 822, 840 (2009)). ¶ 39 First, defe ndant arg ues that the following statement by the prosec utor, during closing
arg uments, was inflammatory

. “T h e evidenc e has proven the defe ndant g uilty bey ond a rea sonable doubt. An d justice demands y ou find defe ndant g uilty

. Not just the evidenc e, but justice. And I ’m not talking about justice for Offic er Trevino. I ’m talking about justice for every high schooler

or child that was out on that street. For every shop owner , for every p at ro n , fo r every motorist on Division Street. For every one, so that we can be fre e and safe from this g ang g arba g e on our c ity

streets. We ar e asking for justice f or all.” ¶ 40 Next, defe ndant ar gu es t h at t h e p ro s ec utor, during rebuttal closing arg uments, improperly arg ued that the cre dibilit y of the witness was enhanc ed beca use he was a police office r. “So let’s continue with the defe ndant’s story

. How can a shot, six shots fired like this, possibly shoot L ee Trevino in the arm. To believe that, y ou will absolutely h ave to believe that Mike Komo came in here and lied to y ou. So let’s thi n k about that for a minute. Why would Mike Komo lie to y ou. Why

. His partne r was shot. To believe Mike Komo would come in here and lie, y ou would have to believe that Mike Komo wants the
wrong person convicted of this offe nse and wants t he correc t person r unning f ree

. The person who a ctually

shot his partne r. W hat l og ic or sense does that make? Whywould Mike Komo do such a thing ? The use of forc e must be nece ssary to preve nt imminent death or g reat bodily harm. T o u n derstand why self defe nse is ridiculous, y ou rea lly have to take it to its logi ca l conclusion. He is in a g ang fig ht with other g ang s. We all know g ang s are bad. Okay

. Nobody ’s g oing to sit here and tell y ou anything different. Most if not all shootings in the city are occur

ring beca use of g ang fig hts. If it is enoug h to simply come in at the day of trial and invent a fictitious person and say someone was out there with a g un, then there

can be absolutely no convictions in any g ang fig ht, any time, any wher e. *** The question is, is there anything that c orrobor ates it.” ¶ 41 Def

endant’ s final contention is that during rebuttal closing arg uments, the following comments made by

the prosec utor distorted the burde n of proof

. “The defe ndant is presumed innocent. The defe ndant is not presumed truthful. When he take s the stand, y ou view his testimony , compar ed to the evidence, in the same w ay

as y ou view all the other testimony

. You compare it, contra st it and y ou com p ar e t he

cre dibilit y .” ¶ 42 I n making a closing arg ument, a prose cutor is g iven a g rea t de al of latitude. People

v. Pasch
, 152 I ll. 2d 133, 184 (1992). The prosec utor “has [t he] rig ht to comment on the evidenc e and draw all leg itimate infere nces deducible there fr o m, e v en if they are unfavor able to the defe ndant.” Id. We must look at the entire arg ument and view any alleg ed err oneous comments within the context that they wer e made. Blue
, 189 I l l

. 2 d at 128. Closing

-11-arg uments are improper if they serve no other purpose except to inflame the jury

. Id. It is also

improper for a prosec utor to arg ue that a poli ce office r’s testim ony is mor e credible based

on the status of being a police office r. People v. Adams
, 403 I ll. App. 3d 995, 1002 (2010). A prosec utor may , howeve r, “comment unfavor ably on the evil eff ects of the crime and urg e the jury to administer the law without fea r, when such arg ument is based upon competent and pertinent evidenc e.” People v. Nicholas
, 218 I ll. 2d 104, 121-22 (2005). Further, “[a]lt houg h the prosec utor’s rema

rks may sometimes exceed the bounds of proper comment, the verdic t must not be disturbed unless it can be said that the rema rks resulted in substantial prejudice
to the acc used, such that absent those rema rks the verdic t would have been differ ent.” People

v. Byron
, 164 I ll. 2d 279, 295 (1995). Improper comments by the prosec utor themselves will
not war rant reversal unless those comments wer e a materia l fac tor in convicting the defe ndant. W

heele r , 226 I ll. 2d at 123. Additionally
, a signific ant fac t o r i n revie wing the impact of a prosec utor’s alleg edly i m p ro p er co m ments on a jury verdic t is whether the
comments wer e isolated and brief within the context of a leng thy closing arg ument. People v. Runge , 234 I ll. 2d 68, 142 (2009). ¶ 43 Our revie w of the entire closing and rebuttal closing arg ument, as well as placing the complained- of comments in their proper context, shows defendant c annot meet his bur den of showing substantial prejudice

. We disag ree with defe nd an t t h at the prosec utor arg ued during rebuttal closing arg ument that Offic er Komo’s status as a police office r entitled him
to g reater cre dibilit y

. Adams
, 403 Ill. App. 3d at 1002. Our revie w of the complained- of
comment in its entirety shows that at no time did the prosec utor arg ue that Offic er Komo was

more c redible be causehe is a police office r. ¶ 44 We also disag reethat the prosec utor during rebuttal c losing a rg ument distorted the burden of proof. Our revie w of the comment in its entirety shows that the State did arg ue the
proper standard of

revie w, that a de fendant is presumed innoce nt. A fter the complained- of

rema rk, the State commented t h at “y ou view [defendant’ s] testimony
, compared to the evidenc e, in the s ame way as y ou view all the ot her testimony

. You compare it
, contra st it and y ou compar e the cre dibilit y .” We disag ree with defe ndant’s contention and do not think the comment is an improper rema rk on the State’s bur den of pr oof in a c riminal matter. ¶ 45 The prosec utor’s comments during closing arg uments reg arding “justice” may have been improper. Howeve r, we need not decide that, as we cannot say that this c omment was a material fac tor in defe ndant’s conviction. W heele r , 226 I ll. 2d at 123. The comment was brief and isolated, made in the context of a leng thy closing arg ument by the State. Runge
, 234 I ll. 2d at 142. The State’s closing arg ument was over 20 pag es of transcript, and this was the

o n l y alleg ed improper rema rk. This is also true as to the complained- of comment during rebuttal closing arg ument reg arding g ang violence acr oss the city

. Although it may not have been proper , it was brief and isolated in the midst of a rebuttal closing arg ument that was also

over 20 pag es of the transcript. Id. at 142. Our revie w of both the closing and rebuttal closing
arg uments shows that we cannot say that defe ndant’s verdic t would have been differ ent had the prosec utor not commented on justice or g ener al g ang violence. Byron
, 164 I ll. 2d at 295. Def endant ha s thus not shown that he wa s substantiallyprejudice d. Id. Def endant f ailed to object to these alleg ed er ro rs and a revie w of his claim under the plain err or doctrine is inapplicable.

-12-¶ 46 I llinois Supreme Court 431(b)

¶ 47 Def

endant next arg u es t h at t he trial court failed to comply with I llinois Supreme Court Rule 431(b) in its voir dire of prospec tive jurors. Ill. S. Ct. R. 431(b) (ef f. May 1, 2007). Def

endant admits that this issue was not properly prese rved for appeal, but in his opening brief urg ed this court to excuse his proce dural default and addre ss his claim on the merits under the second prong of the plain err or doctrine. During the pendenc y of this case , the I llinois Supreme Court decide d People v. Thompson
, 238 I ll. 2d 598 (2010). Thompson held t h at a violation of Rule 431(b) does not automatically constitute a structura l err or subject to reve rsal. Id. at 608. I n Thompson
, our supreme court conclude d the defe ndant had
not car ried his burden of persua sion under the second prong of p l ai n error review because the defe ndant had not pr esente d any evidenc e of a biased jury

. Id. at 614. In his reply brief, defe ndant conce ded the issue, stating “[b] eca use [defendant] is not arg uing that his jury was biased based on the trial court’s noncompliance with Rule 431(b), he does not persist in his plain err or ar g ument under the second pr ong .”

¶ 48 Presentenc e Credit ¶ 49 Def

endant’ s fin al ar gu m en t i s t h at he is entitled to an additional seven day s of
prese ntence cre dit and, thus, this court must instruct the circ uit court to correct the mitti mus to ref lect the proper prese ntence cre dit. T h e trial court order ed defe ndant be cre dited 847 day s o f p re sentenc e cre dit. The State conce des defe ndant is entitled to 854 day s of
prese nt en ce cr ed i t. We ag ree with the parties. Def endant’ s mitti mus shall be corr ecte d to ref lect 854 day s of pre sentenc e cr edit.

¶ 50 CONCLUSI ON ¶ 51 For

the fore g oing reasons, the judg ment of the c ircuit court of Cook County

is aff irmed and the mitti mus corre cted. ¶ 52 Affirmed; mitti mus corre cted.

-13-