Fourth Division June 30, 2010

No. 1-07-2101
THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) 04 CR 26287 ) RODERICK SMITH , ) Honorab le ) Wi ll ia m G . La cy, Defend ant-App ellant. ) Judge Presi ding.
JUSTICE NEVILL E deliver ed the opi nion of the

court: Roderick Smith, the defendant, was found guilty by a jury of the attempted murder of a peace officer and of aggrava

ted battery of

a peace officer. On appe al , defendant ch allenges only the attempted murder conviction. He argues: (1) prosecutorial comments in closing argument deprived him of a fai r tr ial; ( 2) the court should have instructed the jury on the lesser-included offense of reckle ss conduct; and (3) the prosecution did not prove intent to murder. We reverse the attempted murder conviction because the State violated the defendant's right to a fair tr ial when the prosecutor shifted the burden of proof, during her closing argument, by

making repeated comments about the defenda nt's dec ision not to t

estify at his tria l. BACKGROUND Inthe course of an ongoing investig ation into d

efenda nt’s acti vities, police prepar

ed to arr est him. When polic e offic ers loca ted defe ndant' s car on t

he south side of Chicago on October 5, 2004,1-07-2101

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unmarked cars converge d on the area around 79th and King Drive and the police officers secreted their unmarked police cars near the defendant's ca r. Once defendant

returned to his car, an officer drove up next to defendant’s car and boxed the car into its parking spot. Marked p olice ca rs, with sirens wailin g and li ghts fla shing, c ame to the scene. O fficer

Dway ne Johnson got out of hi s unmarked car and approached defe

ndant’s car. Officer Johnson stood on the sidewalk about 20 feet in front of defendant’s car, held out his badg e and identified himself as a police officer. Defendant

drove his car onto the sidewalk, hitting Officer Johnson’s side as the offic er dove outof the way. Seve

ral civilians on the sidewalk s curried aw ay from de fendant's car. The ca r knocked down a store’s awning befor e turning back to the street, where it cr ashed head on into an unmarked police car. Police officers arre sted the defendant as he got out of the car, and they found
a gun on the floor of the car. Offic er 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 ag gravated b attery an d attempted murder of Officer Johnson. At trial, the prosecution called Officer Johnson, who testified that he was dressed in civilian clothes on the day of def

endant’s arrest. Officer Johnson testified that defendant looked dow n at the floor in his car , and th en the defendant stared at Office r Johnson before the defendant gunned the engine and drovestraight at Officer Johnson. Other police officers estimated that, after the police officers identified themselves, defendant sat in his car for about 15 sec onds before driving his car onto the sidewalk. Defens e counsel called no witnesses to testify for the defendant. However, while the1-07-2101

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defendant was puttin

g on his c ase , the parties entered into a stipulation that officers at the scene ticketed defendant for driving on the sidewa lk and for eluding the police. During the instruction conference, defendant soug ht an instruction on the lesser-included offense of reckless conduct. The c ourt refused to give a reckless c onduct instruction. Inclosing, defense counsel arg ued that the State's evidence showed that the defenda nt had
anintent toescape, but did not show that def endant ha d an inten t to kill Off

icer Johns on. Defe

nse counsel also argued that when defenda nt looked down at the floor in his car, he looked at his gun and made a c onscious d

ecision not to use it. In re buttal, the

prosecu tor made the follow

ing arg ument: “H av e y ou hea rd an y ev ide nc e t ha t he did n’ t know the y we rethe pol ic e?” The court overruled defense counse l’s objection. The rebuttal continued: “You didn’t hear any

thing from that witness stand. You didn’t hea r a ny e vidence that he didn’t know they we re the police. [Defense counsel]: Objection. THE CO URT: Okay. Mov e alon g. [Prose cuto r]: Similarly y

ou didn’t hear any

evidence that he wasn’t try ing to kill anyone. [Defense counsel]: Objection. THE COURT: Overruled.” The jury found de fendant guilty of the attempted murder of a peace officer and

aggravated battery of a pea ce offi cer. Th e trial c ourt sent e nced defend ant to 35 years in prison for attempted1-07-2101

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murder and to a 5-ye ar term for aggr avated bat

tery, w ith the sen

tences t o run concurren

tly. 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 agg ravated battery

conviction. See In re V.M. , 352 Ill. App. 3d 3 91, 397 (2004 ); People v. Fitzger ald , 25 Ill. App. 3d 973, 975 (1975). ANA LYSIS Fair Trial First, defendant contends that the prosecutor’s rebuttal argument deprived him of a fair tri al. Trial courts allow prosecutors a great dea l of latitude in closing argument. People v. Cisewski , 118 Ill. 2d 163, 175 (1987). We view clos ing arg

uments in their entirety a

nd examine the prosecutor’s remarks in context. People v. Blue , 189 Ill. 2d 99, 128 (2000 ); People v. Stock , 56 I ll. 2d 461, 467 (1974); Peoplev. Neumann , 148 Ill. App. 3d 362, 373-74 (1986). “Misconduct in closing argument is subs tan tial and warrants reversal and a ne w trial if the improper remarks constituted a material factor in a de fendan t's conviction. [Citation.] If the jury could have reached a contra ry verdict had the improper remarks not be en mad e, or t he revi ewing c ourt c annot say that t he pro secut or's improper remark s did not contribute to the defendant's conviction, a new trial should be granted.” People v. Wheeler , 226 Ill. 2d 92, 123 (2 007), citi ng People v. Linsc ott , 142 Ill. 2d 22, 28 (1991). Our supreme court ha s applied

both abuse

of discr etion ana lys i s and de no vo review to alleged prose cutorial misconduct in closing argument. Compare Blue , 189 Ill. 2d at 128 (the trial court ' s determination

of the propriety o f the re

mark will not be dist

urbed ab sent an a

buse of di scretion

), with Wheeler , 226 Ill. 2d at 121 (whether statements made by a prosec

utor at closing argument

were so1-07-2101

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egreg ious that they

warran t a new tr ial is a le gal issue this cou rt revie ws de novo ). We reviewthe remarks here for abuse of discretion because the trial court overruled the defenda nt's obje ctions to the prosecutor's remarks, but we note that we would reach the same re sult with de novo review. See People v. Johnson , 385 Ill. App. 3d 585, 603 (2008). Here, defenda

nt object s specif

ically to three closely related remarks. The prosecutor made the follow

ing stat ements du

ring he r rebutta l argument: “Have y ou heard any

evidence that he didn’t know they were the police? * * *

*** You didn’t hear any

thing from that witness stand. You didn’t hear any evidence that he didn’t know they were the police. * * * Similarly you didn’t

hear an y e vidence that he wa sn’t try

ing to kil l anyone.” Our review of

the rec ord reve aled tha

t the tria l court did

not sustain defendant’s objections to the prosecutor's three remar ks. Defendant contends that the prosecutor' s remarks shifted the burden of proof and imper

missibly drew attention to his decision not to testify. “An a ccused has a constitutional right

notto testify as a witness in his own behalf. [Citations.] The prosecution may not directly or indirectly comment

on t he defendant's failure to take the stand in his own defense.” Peoplev. Herret

t , 137 Ill. 2d 195, 210-11 (1990), citi ng Griffin v. California , 38 0 U. S. 609 , 14 L. Ed. 2d 106, 85 S. Ct. 1229(1965); People v. Arman , 131 I ll. 2d 115, 1 27 (1989) ; People v. Ly les , 106 Ill. 2 d 373, 390 ( 1985); People v. Burton , 44 Ill. 2d 53, 56-57 (1969); and People v. Wollenberg , 37 Ill. 2d 480, 488 (1967).1-07-2101

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Our supreme court explained

the test th is court must use to determ ine wh ether a prose cutor 's argume nt violate d a defe

ndant' s right to

remain si lent as fo llows: “The ap propria te test for determining whether

a defen dant's r ight to r emain silenthas been

violated is whethe

r ‘the re ferenc e [was] inte nded or c alculate d to direct the attentionof the jury to the def endant's neglect

to avail himself of his legal right to testify.’ [Citations.] The prosecutor may comment on the unco nt radicted
na ture of the State's case [citations], and, where motivated by a purpose of demonstrating the absen ce of any evidentiary ba sis for defense counsel's arg ument rather than a purpose of calling attention to the fact that defendant

had not testified, suchargument is permissible [citation]. Moreover, a d ef endant c annot ord

inarily claim error where the pros ecut or's remarks are in reply to and may be said to have been invited by defense

counsel's argument.” People v. Dixon , 91 Ill. 2d 346, 350-51 (1982), quot ing People v. Hopkins , 52 Ill. 2d 1, 6 (1972 ), and citi ng People v. Mentola , 47 Ill . 2d 579, 58 2 (1971); People v. Mills , 40 Ill. 2d 4, 8 (1968) ; Wollenberg , 37 Ill . 2d at 488 ; People v. Skorusa , 55 I ll. 2d 577, 5 84 (1973) ; People
v. Norman , 28 I ll. 2d 77, 81 (1963); People v. Jones , 47 Ill. 2d 66, 67-70 (1970) ; Peoplev. Vriner , 74 Ill. 2d 329, 344 (1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858 (1979); Peoplev. Zuni ga , 53 Ill. 2d 550, 558 (1973); and People v. Bey , 51 Ill. 2d 262, 266 (1972). The State cla

ims that de fense c ounsel inv ited the prosecut

or’s re marks, butthe State does not cite any pag e of the record or quote an arg ument or comment

made by def

ense counsel that invited1-07-2101

1 "No person *** shall be com pelled in an y criminal case to be a w itness agains t himself ." U.S. Const., amend V.

2 "No person shal l be compell ed in a crimi nal case to give evidence against himself** *." Ill. Const. 1970, art. I, §10. - 7 - or would justify the prosecutor’ s remarks concerning defe ndant’s failure to present evidence that he did not know John son was a

police of ficer. Defens e counsel in his closing argument never suggested that defenda nt did not kn

ow Johnso n was a po lic e officer. More importantly , “a defendant in a criminal case can never ‘open the door ’ to shift the burden of proof.” People v. Beasley , 384 Ill. App. 3d 1039, 1048 (2008). Therefore, we find t hat defense counsel did not invite the prosecutor’s remark s. Inthis case , becau se defe nse coun sel's c losing a

rgume nt did not invite the prosecutor’s
r ebuttal remark s, we see no purpos e for the

prosecu tor's r emarks o ther tha

n to draw th e j ur y’ s attentionto defen

dant’s de cision toexercise his federal 1 and state 2 constitutional right not to testify and be a witness against himself. By overruling defense counsel' s objections, the trial court in effect permitte d the jury

to infer d efenda nt's g uilt from his f

ailure to present evidenc e in

his own behalf. The trial court' s ruling s on defe ndant' s objections “[were ] ineffect sanctioning an errone ous burden of proof before the ey

es of the jury.” Beasley , 384 Ill. App . 3d at 1048. Here, t he pro secut or's remarks violated

defendant’s 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 prosec utor's remarks also shifted the burden o f proof t

o the defendant. See People v. Giangrande , 101 Ill. App. 3d 397, 402 (1981);1-07-2101

3 Section 11-204 of the Illinois Vehicle Code provides that " [a]ny driver or opera tor of a motor vehicle who, having been given a visual or audible signal by a peace officer direc

ting 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 a ttempts to elude the officer" commits the offense of fleeing or eluding the police. 625 IL CS 5/11-204 (West 2004). - 8 - Peoplev. Fluker , 318 Ill. App. 3d 193, 203 (2000). Accordingly , we hold that the trial court abused its discre tion when it overru led defe ndant’s o bjection s to the pr

osecutor ’s remar

ks. Although the prosecu

tor violat ed the de fendant's fede

ral and s tate constitutional rights and shifted the burden of proof, the prose cutor' s imprope r closing remark s do not wa

rrant re versal u nless they could have affected the jury ’s verdict. As we discuss below, the prosecution produced sufficient evidence to support

the convi ctions. However, the evid ence tha t defendant received tickets for driving on the sidewalk and eluding police 3 could als o 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’s life. A per son acts with a reckl ess menta

l state wh en he consciously disreg ards a substantial and unjust

ifiable r isk that a r

esult will follow, and such disreg ard constitutes a g ross deviationfrom the standard of care a reasona ble pers on would exercise in the situa

tion. 720 I

LCS 5/4-6 (West 2004). Here, the police cars blocked def endant's 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 g un in his ca

r, and if he had intended to kill the officer, he could have, but he did notshootOfficer Johnson. The trier of fact could infer from defendant' s driving on the sidewalk that1-07-2101

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defendant had either a specific intent to kill or a

reckle ss state of mind while attempting to flee or elude police. Because the defenda nt had a gun but did not

use the gun, a trier of fact could also infer that the defendant did not have a specific intent to kill the officer. Therefore, we cannot say that the prose cutor 's impro per rem arks d id no t cont ribut e to th e find ing of gu ilt o n the c harge of attempted murder. Accord ingly, by dir ectin g the ju ry's atten tion to def endan t's election not to testify and thus shifting the burde

n of proof

, the pros ecutor' s remarks deniedthe defendant a fair trial on the attempted murder charge. Jury I nstructions Next, de fen dant argues that the trial court should have instructed the jury on the lesserincluded offence of reckless conduct. 720 I LCS 5/12-5 (West 2004). Defendant admits that he forfeited th e argu ment by

failing to raise i t in his postt

rial motion. We addr

ess the iss ue solely to provide guidance for

the trial court on remand, because the lesser- included

-offen se instruc

tion will likely be an issue. See People v. Hanson , 8 3 Ill. App. 3 d 1108, 111 3 (1980). “A defe ndant is entitled to a lesse r-includ ed offe nse instru ction only if anexamination of the evidence reveals that it would permit a jury to rationally find the defendant guilty of the lesser offens e y et acqui t the defendant of the greater offense.” People v. Hamilton , 179 Ill. 2d 319, 324 (1997 ), cit ing People v. Jones , 175 Ill. 2d 126, 135 (1 99 7); People v. Landwer , 166 Ill. 2d 475, 486 (1995). Even slight evidence may warr

ant an instructionon a lesser-included offense. Inre Matthe w M. , 335 Ill. App. 3d 276, 2 84 (20 02), c itin g Jones , 175 Ill. 2d at 131-32. The evidentiary requirement “ ‘may

be satisfied if the conclusion a s to the les ser off ense may fairly be in ferre d from the evidence presented.’ ” People v. Garcia , 188 Ill . 2d 26 5, 284 (1999 ), quo ting Peoplev. Novak , 163 Ill. 2d 93,1-07-2101

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108 (1994). “Where some evidence supports the instructi o n, the circuit court's failure to give the instruction constitutes an abuse of discretion.” People v. Castillo , 188 Ill. 2d 536, 540 (1999), citing Peopl e v. D iVinc enzo , 183 Ill. 2d 239, 249 (1998). The menta

l state re quir ed f

or reckless conduct distinguishes that offense fr om attempted murder. See People v. Upton , 230 Ill. App. 3d 365, 375 (1992). I n Upton , the defendant fired two shots in the direction of a truck towing away his car. One shot injured the truck’s driver. At the trial
ona charg e of atte

mpted murd

er, the d efenda nt testifie d that he a

imed at th e t ruck’s t

ires bec ause he believed the truck driver was stealing the defendant’s car. The trial court denie d the defendant’s request for an instruction on reckless conduct. The Uptoncourt held:

“From the evide

nce in its e

ntir et y, the jury

could hav e conclu

ded that i n shooting a gun while running after a movi ng vehi cle occ

upied by two perso

ns, defendant consciously disreg arded

the substa

ntial risk that one or both

of the persons would be struck by the bullets; and that his disregard of th

is risk con stituted a

gross deviationfromthe car

e which a reasona ble person, e

ven one w

ho believ ed that hi s car was being stolen, would exercise in the same situation.

*** *** The crux of the issues raised by t he defe ndant on a

ppeal is that the jury
was improperly prec luded from hearing evidence supporting , and from considering the law applicable to, his theory of defense. From its verdict, it is clear that the jury be lieved that defendant was guilty of somet hing; bu t it was not provided with that ‘important third option’ of finding1-07-2101

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defendant guilty of a

lesse r off ense than those char ged . [Cita tion. ] In a

jury trial, it is the p rovince of the jury to determine w hether defendant is guilty of the greater offense charged or of a lesser

-included offense; and an instruct ion on the lesser offense must be given if there is any evidence which tends to prove the lesser crime.” Upton , 230 Ill. App. 3d at 376-77, quoting People v. Bryant , 113 Ill. 2d 497, 502 (1986 ), and citi ng People v. Perry , 19 Ill. App. 3d 254, 258 (1974). Here, as in Upton , defense counsel argued tha t the defendant’s conduct

showed reckle ssness, not an intent

to kill. The evidenc e - - the defenda nt's dri ving an d his deci sion not to u se the g un in his car, co

upled with

the fac t that he r

eceive d a ticket for driv

ing on the sidewalk and for fleeing or eluding the police - - could support an inference that defendant consc iously disrega rded a substantial and unjustifia ble risk to Office r Johnson, a

nd his disregard of that risk constituted a gross de viation fromthe stand

ard of c are tha

t a reas onable pe

rson woul d exercis e while driving a car. See 720 I LCS 5/4-6 (West 2004). The police officer's tickets for dr iving a car on a sidewalk and for fleeing provide
some evidenc e for g iving an other ins tructi on. T he trial court should not have usurped the jury ’s functionof weighing the evidence to d ecide if the pr os ec ut io n p ro ve d t ha t d ef en da nt ac te d r ec kl es sl y,
or if he acted with the spec if ic intent to kill Officer Johnson. The trial court's refusal to give the lesser- included

-offen se instruction denied the jury the important

option of f

inding de fendant

guilty of a lesser charge. Therefor

e, because we find

the evide nce cou ld be rat ionally used by the jury to find the defe ndant g uilty of the lesser-included

offense, we direct the trial court on rema nd to instruct the jury on the les ser-inc luded off ense of r eckless conduct.1-07-2101

- 12 - Sufficiency of

the Evidence Fi na ll y, defendant argues that the evidenc e did not pr

ove bey ond a rea sonable

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 “so unre asonable, improbable or uns atisfact ory as to create a reasonable doubt of the de fendant's guilt.” People v. Rowell , 229 Ill. 2d 82, 98 (2008), citing People v. McDonal d , 168 Ill. 2d 420, 444 (1995). We must decide “whether, 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 bey ond a reasonable doubt.” Rowell , 229 Ill. 2d at 98, citing McDonal d , 168 Ill. 2d at 443-44. To prove defendant

guilty of attempted mur

der, the prosecution must prove that defendant intended to kill and he took a substantial step toward killing his int ended victim. See People v. Parker , 311 I ll. App. 3d 80, 89 (1999). Defendant here cha llenges only the

State's evidence of

intent. “Beca use intent is a state of mind, it can rarely be proved by dir

ect evidenc e. As a

result, this court has rec ognized t

hat wher e intent is not admitte d by

the defe ndant, it can be shown by

surrounding circumstances [citation], including the character of the assault and the nature and seriousness of the injury [citation].” Peoplev. Williams , 165 Ill . 2d 51 , 64 (1 995), citi ng Peoplev. Koshiol , 45 Ill. 2d 573, 578 (1970), and Pe op le v. Ma ys , 230 Ill. App. 3d 748, 756 (1992). Our supreme court has held:

" 'Since every

san e m an is pre sumed to in tend all the natura

l and prob able consequences flowing

from hisown delib erate a ct, it follows that if one wilfully does
anact, the dire ct and na

tural ten dency of which is to destroy another' s life, the natural and irresistible conclusion, inthe absence of qualify ing facts, is that the destruction1-07-2101

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of such other p erson's life was intended.' " Koshiol , 45 Ill. 2d at 5 78, qu otin g People v. Co olid ge , 26 Ill. 2d 533, 537 (1963). Defendant looked at

Officer Johnson for 15 seconds, then pressed the gas pedal and drove his car, a deadly

weapon (see Peop le v. Be lk , 203 Ill. 2d 187 , 196 ( 2003) ), in O fficer John son's direction. The car headed straight a t Officer Johnson. Defendant did not slow down or swerve. The natural consequence of the defendant' s act would be to cause Of ficer Johnson harm or to destroy Officer Johnson’s life had he not dived out of the way. While jurors mig hthave inferred from the evidence, if give

n the rec kless con duct instr uction, that defe

ndant wa s only

try in g t o flee or elude police and acted with reckless indifference for Officer Johnson’s life, the jurors, instea d, inferred fromthe evidence th at de fe nd an t p os se ss ed th e r eq ui si te in te nt to ki ll Of fi ce r J oh ns on . A cc or di ng ly, viewing the evidence in the light most fav orable to the prose cution, th e eviden ce suff iciently
su pport s the jury’s finding

that defendant attempted to murder Officer Johnson. See Rowell , 229 Ill. 2d a t 98, citi ng McDonal d , 168 Ill. 2d at 443-44
. CONCLUSIO

N Inconclusion, we find the evidence sufficient to support the defe ndant's conviction for attempted murder. However, we ag ree with defendant that the prosecutor' s improper comments t

o the jury violated his feder

al and state constitutional right not to testify and shifted the burden of proof fromthe State to the defendant. Because the e vidence regarding

defenda nt's dri ving co uld estab lish
a specific intent to ki ll or a re ckle ss state of mind, we cannot say that the prosecutor’s improper
com ment s did not influence the jury' s verdict on the charge of attempted murde r. The trial court invaded the provi nce of the jury

by only giving the instru

ction for the gre ater of

fense of attempted1-07-2101

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murder and by failing

to give the instruction for th e lesser offense of reckless c onduct. While we find the evidence was sufficient to convict the defe ndant, a new trial is required o n th e charge of attempted murder because the defendant did not receive a fair trial. People v. Davis , 377 Ill. App. 3d 735 , 747 ( 2007) , citi ng People v. Taylor , 76 Ill. 2d 289, 309 (1979). Therefore, we reverse the attem p ted murder conviction and remand for a new tr ial on that charge and direct the trial court to instruct the jury onthe lesser- included

offense of reck less cond uct. Becau se defend ant do es not chall enge the conviction and sentence for agg ravated battery , that part of the judgment will stand. Finally, in the e vent the trial court finds defendant guilty of attempted murder on reman d, it must vacate the judg ment on the

lesser- included

offense of aggravated ba

ttery (see People v. Bowens , 307 Ill. Ap p. 3d 484, 494 (1999) (aggrava ted battery a

lesser-included
o ffense of attempted murde

r); People v. Lopez , 245 I ll. App. 3d 41, 47 (19 93) (same); People v. Johnson , 219 Ill. App. 3d 460, 464-65 (1991) (same)) because the conviction for ag gr av at ed ba tt er y, 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). Petition for Rehearing Ina petitionfor rehearing, the State contends that the de cisions in Peoplev. Glasper , 234 I ll. 2d 173 (2009 ), and People v. Echols , 382 I ll. Ap p. 3d 3 09 (2 008) , dem and affir manc e her

e. We di sag ree . In both of tho se case s, the pro secutor s’ commen ts responded to the absence of evidence supporting the arg

uments de fense c ounsels a ctually made in th eir

closings. See Glasper , 234 Ill. 2d at 212; Echols , 382 I ll. App. 3d at 318-19. Here, we face a factually diff

erent case. The prosecutor commented

that defendant

failed to present evidence that he did not know that Johnson was a police1-07-2101

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officer, when defense counsel’s closing ar gument–-that

the State’s evidence failed to show that the defendant had an int

ent to kill Joh

nson-- ne ver suggested

that the d

efenda nt did no t know that Johnson was a

police officer. Only the d efenda nt cou ld pro vide e viden ce conc ernin g his k nowle dge of Johnson’s status. Thus, the prosecu tor’s co mment dire cted atte ntion to the

defenda nt’s fail ure to te st if y, without responding to defen se coun sel’s closing argument. Glasper and Echols did not involve similar pr

osecutor ial miscon

duct. Ac cordingly, given the facts of this case, those cases do not demand affirmance here. Affirme d in part a

nd rever sed in par t; cause remande d with dire ctions. O'MARA FROSSARD, P.J., and GALL AGHER, J., concur.