SIXTH DI VISI ON February 9, 2007

No. 1-04-2469

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) No. 03 CR 16293 ) JORGE GOROSTEATA, ) Honorab le ) James M. Obbish, Defend ant-App ellant. ) Judge Presi ding.

JUSTICE JOSEPH GORDO

N deliver ed the opi nion of the

court: Defendant, Jorge Gorosteata, appea ls after a jury

trial from his convictions of possession of cannabis with intent to deliver and possession of a controlled substance with intent to deliver. On appeal, he contends that the circuit court err ed when it denied his motion for a hearing pursuant to Franks v. Delaware , 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978); permitted the State to make improper c losing a rgumen t; imposed i

napplica ble fine s and fee s in his sentence; ordered the extraction and storag e of his DNA; and identified the wrong offe nses of conviction in his mittimus. For the following reasons, we affirm in part, reve rse in part, and

correct the mittimu s. FACTUAL BACKGROU ND On June 25, 2003, Chicago police officer Richard Sanchez made a complaint to the circuit court for the issuance of a sear ch warrant. In the

complaint, Sanchez averred: "I had the occ asion to have a conversation with a concerne d citizen1-04-2469

-2- who will be known for the purpose of this search warr ant as John Doe. During the course of this c onversa tion John Doe

stated the

following

facts to me. John Doe stated that on the evening of 24-June-03 John Doe went to the location of 4849 So. Honore St. and knocked on the front door that leads to the second floor apartment at this location. At this time, the door was opened by

a M/WH [male, white Hispanic] subject know to John Doe as Gordo. John Doe describes Gordo as a M/WH 35 y oa [years of a

ge] 6'0" 250 lbs. short black hair medium complexion and a mustache. John Doe was admitted entry

to this 2nd floor apartment by Gordo. Once inside of this apartment, John Doe states that John Doe observed Gordo remove (3) large gre en plant brick shaped objects wrapped in clear plastic wrap from a brown cardboard box and place these items on the kitche n table. John Doe states that Gordo then unwrapped one of these bricks of g reen plant substance and removed a large chunk. While inside of this location John Doe had the occasion to ingest (smoke) some of the gr een plant substance that Gordo removed from the unwrapped br ick of green plant substance. John Doe states that after ingesting this substance John Doe experienced the same sensation as in the past when smoking marijuana (cannabis). John doe [ sic ] states that John Doe has smoked marijuana for over (5) years and could distinguish marijuana (cannabis) f rom a similar1-04-2469

-3- substance. John Doe states that John Doe has purchased marijuana in the past fro m Gordo, a

nd that Gordo sells m

ultiple pou

nds of mar

ijuana a t a time. While

inside of this locat ion John Doe

states tha t Gordo of

fered t o sell John Doe marijuana for $600.00 a pound. John Doe estimates that when John Doe left this location ion 24-June-03, Gordo possessed inside of 4849 So. Honore 2nd floor apt. Chicago, Ill. Cook County at least 30 pounds of marijuana. John Doe

also state s that Gor

do reside s at this sa

me location of 4849 So. Honore Ch

icago, Ill. 2 nd floor a

partmen t and that this is the onl y apartment located o n the second f loor at thi s location ." The parties do not dispute that John Doe accompanied Officer Sanchez when he presented the complain t to the cir

cuit cour t and testi fied to the

statemen ts in the complaint be fore the court. The circ uit court a

pproved a searc h warra nt for the second- floor ap artment a t 4849 S. Honore, and a team of police executed the war rant on June 26, 2003. In a small, back bedroom in th e apart ment, poli ce recov ered tw o gray duffe l bags c ontai ning cl ear pla stic b ags con taini ng a crushed green plant. L ater, in

the course of the

search , police a

lso reco vered bottles of in ositol, an agent used to dilute cocaine, as we ll as three bags of "rock like" white powder. Testing revealed the crushed gr

een plant to be marijuana, weighing 51,635 g rams, and the white powder to be cocaine, weighing 90 g rams. Defendant was charg ed with one count of possession of cannabis with intent to deliver and one count of possession of a controlled substance w ith intent to deliver. Prior to trial, defendant challenged the sea rch warrant, filing a "Motion for a ' Franks '1-04-2469

-4-

Hearing in Order to Quash the Sear ch Warrant and Suppress Evidence I llegally Seized." In that motion, defendant denied John Doe's account of the events alleged to have occurred on June 24 and ass ert ed t hat Off

ice r Sa nch ez rel ied on D oe' s ac cou nt in rec kl ess di sre gar d of th e tr ut h. In support of his motion, defendant attached a number of affida vits, including his own, plus that of Carmen Guzman, and those of Massiel and Dulce Gorosteata. I n his own affidavit, defendant repeat ed his bla nket deni al of Doe 's alle gations , and asse rted tha t he actu ally resided at 4612 S. Talman. In her affida

vit, Carmen Guzman swore that defendant, with whom she had a child, picked them up at 4612 S. Talman around 10 a.m. on the morning of June 24, 2003. The three of them proc eeded to

the second-floor

apartme nt at 4849 S. Honore, arriving at appro ximately 10:15. At 10:30, Carmen and two other women, Massiel and Dulce, left to gr ocery shop f

or dinner, including ingredients for a ca ke. Carmen left defendant in charg e of the children in the apartment. By

12:30, Carmen, Massiel, and Dulce returned to the apartment a nd found defendant playing w ith the children, as well as watching television, with his uncle, Fructuoso. From that point on, defendant remained in the apartment with his family ; no other person came to the apartment to be shown, or to smoke, marijuana. Dulce Goroteata swore that she was def endant's sister and that she was present in the second- floor ap artment a

t 4849 S. Hon

ore on June

24, 2003, a

long with other fa mily members, from 12:30 p.m. onward, preparing dinner. She ave rred that defendant did not invite any person into the apartment to show or smoke marijuana. Massiel Gorosteata averred in her af fidavit that she was defendant's sister-in-law. A s of1-04-2469

-5-

June 24, 2003, she resided in the second-floor of 4849 S. Honore. Massiel confirmed that defendant, Carmen, and their daughte r arrived at the second floor apartment a round 10:15 on June 24. Massiel, likewise, corroborated that she, Carmen, and Dulce lef t the apartment around 10:30 and did not return until 1 2:30. L ike the ot her aff iants, she denied that defe

ndant met with any person, w

hile she was present at the apartment, to show marijuana. Nearly three months later, defend ant filed suppleme

ntal aff idavits fr om the same

affian ts in support

of his Franks motion. I

n his own su

pplement al affid avit, def endant a verred that his family got tog ether at 4849 S. Honore on June 24, 2003, to celebrate his daughter 's birthday . He admitted t hat he " occasionally

resided " at tha

t addres s and that

he "use [d] [the] resid

ence qu ite often." He stored items in the garage, had key s to the apartment, and did "not need to ask for permission to enter or exit." He averred that he was c onstantly in the company of family during his time in the apartment on June 24. In her supplemental affida vit, Massiel stated that there was never any smell of marijuana in the apartment on June 24. The family 's children did not tell of any strang ers coming to visit during the women's g rocery trip. Likewise, there wer e no visitors during the remainder of that day , during which time defendant remained in the apa rtment. Massiel corroborated defendant' s averment that he occasionally resided at the apartment and had his own set of keys. Carme n's supplemental affidavit largely mirrored that of Massiel. However, she al so ave rred t hat de fendan t slep t wit h her o n a cou ch in t he apar tment after t heir d aughte r's party, that she wa s a light sleeper, and that she would have noticed if a nyone had knoc

ked at the apartment door or if defendant had left her side. The circ uit court heard de fendant's Franks motion on June 2, 2004. At the hearing, the1-04-2469

-6-

court sta ted that it failed to see how O fficer

Sanchez c ould have

reckle ssly

disreg arded the truth of Doe's statements, since Sanchez brought Doe before the magistrate. I

n the circuit court's view, by doing so, the de

termination of the credibility of D oe became the burden of the magistrate and not of Sanchez. The State argued that defenda nt had failed to demonstrate his entitlement to a Franks hearing because all of his aff idavits were from biased persons, whose accounts of the events of the day had shift ed betwe en their

origina l and suppl emental a

ffidavit s, and whi ch did not positively rule out the occurr ence of the transaction described by Doe. The circuit court ruled on the motion as follows:

"As has been pointed out by the State there seems to [ sic ] inherent contradictions in the affidavits. The affidavits do not, even as prese nted[,] exclude the possibility of someone being a ble to go into that apartment of [defendant] on that date and observe what he allege s he observed.

*** In this case y

ou have family membe

rs who in different parts of the affidavits allege different thing s, whether or not they lived there, whether or not they stay

ed there, they

are contradictory

on their face. I don't think the affidavits are sufficient to go to the next step for the F rank's hearing and your motion will be denied." The cau se then pr

oceede d to trial. The primary disputes a

t trial surrounded whether defendant controlled the r oom in which the narcotics were found so that his constructive possession of those drug s could be inferred.1-04-2469

-7-

The State introduced a medical bill recovered fr om the room by the police listing 4849 S. Honore as defendant's home address. The State f urther presented an officer' s testimony that defendant admitted the drugs were his and that the rest of his family had no knowledge of their presenc e. Defendant, Carmen, Maciel, and L azaro Corona-Cruz, another family member living at the Honore apartment, all testified that, at all pertinent times, defendant lived with Carme n at 4612 S. Talman. Each conceded, however, that de fendant worked next door to 4849 S. Honore as a self-employ

ed mechanic and that he would occasionally sleep over in the apartment's living room. Moreover, on cross-examination, the State inquired of Carmen if defe ndant received any mail at the Talman address and she admitted that defendant re ceived "one or tow [ sic ] letters but none," and testified that she did not have any of that mail. But, defendant and various members of his family further

testified that the room where the drugs were discovered was never used by defenda nt but was, rather , the room of defe ndant' s uncle, Fructuoso , who had s ince returned to Mexico. Defendant further averred that the me dical bill the police discovered only contained the 4849 S. Honore addr

ess beca use he tho

ught he might be moving f rom wher e he was actually living a t the time a

nd that he did not know

how the r

eceipt would have

reache d the room

where it was found. Defend ant noted that, of the many

office rs prese nt for the search , only

one testif ied to his alleged admission of possession, which he explicitly de nied making. He further challeng ed the officers' credibility

by presenting

testimony disputing the manner of their entry into the apa

rtment and the subsequent search. For example, defe ndant presented testimony that he only possessed keys to the back door

of the apartment, whereas the police cla imed to have used his keys to ente r1-04-2469

-8-

through the front door. Defendant likewise pre sented testimony that there wa s a dog in the apartment that the police threatened to shoot if not restrained, while the police testified either that th er e w as no do g o r t ha t i t w as al re ad y ou ts id e w he n t he y co nd uc te d t he ir se ar ch . F in al ly, defendant's witnesses described the police as entering the apartment with weapons dra wn, wherea s the polic e all test ified tha t their g uns were holstere d at all time s. The State , in summati on, arg ued that, since the

office rs testif ied that they

never ha d come into conta ct with de fendant

before , the "of

ficers d idn't ha ve a personal ven

detta ag ainst [defendant]" and, therefore, that the office r testifying to de fendant's admission of possessing the drugs should be believed. The State also attacked Car men's testimony as to def endant's residence away from t he Sou th Hon ore apa rtmen t, ob servi ng:

"[S]he told you that the defendant ra rely re ceived mail at the Talman address but that he did receive some mail there. Well, ladies and gentlemen, we haven't se en anything regarding that, any ty

pe of mail the defendant possibly received at the Talman address. And we haven't seen a nything bec ause nothing exist[s], ladies and gentlemen." In the defense' s closing argument, defense c ounsel repeated his attack on the credibility of the arresting officers. Def ense counsel, again, emphasized the vary ing accounts surrounding the presence of a dog at the a partment, the officers' ability to open the front door of the apartment with keys from def

endant, and whether the officers' guns were drawn. Defe

nse counsel, likewise, again, suggested tha

t the drugs recovered belong ed to Fructuoso, not defendant.1-04-2469

-9-

In re buttal, the

State ar gued: "Members of the jury , counsel did a fantastic job of summing up the evidence y

ou heard ye sterday. And in one day y esterday you heard two totally differe nt stories , two stori es that we re almost diametri cally opposed. And so what you' re left with today in orde

r to find your ver

dict is your ability

to apply the facts and your common sense to the la w and your ability

to differentiate fact from fiction. The State's witnesses told y ou that only the defenda

nt walked out of the fr ont door of

that addr ess, only the defe ndant. De fense' s witness tells you 'No. Thr

ee people walked out of that door, Fructoso Villasenor and the defendant.' Officers on the State's case tell y ou they walk upstairs only with the defendant. The defense tell[s] y ou, 'No. Three people walked ba ck upstairs with those officers Villasenor, the defendant and Fructoso.' Officers tell y

ou there is no dog in the apartment. But every body else on the defense side says 'No, there was a dog in the a partment. They made us take it outside.' Officers tell y ou no guns were drawn, and they weren't drawn b ecause

they conducte d that sur

veillanc e waiting

for their sergeant. They

didn't need their guns drawn. But the defendant's witnesses say , 'No. All of them had their guns drawn.' Ladi es and g entlemen , counse l wants y ou to focu s on those1-04-2469

-10- differe nces in min

or detai ls becau se he wa

nt to try and cre ate a re asonable doubt in your mind but it shouldn't. I t shouldn't because those minor details, smoke and m

irrors, l adies an

d gentle men, look over her

e at thes e minor differences in details, so y ou don't think about the real issues in the

case. And the r

eal issue s *** was [

sic ] that [defe

ndant] was

in possession of cann

abis and c ocaine a

nd that he had inten t to delive r those controlled substances. And, ladies and gentlemen, those issues have been resolved. The real issues have been re solved. They' ve [ sic ] been resolved by the c redible testimony of offic ers with y ears of experience and the less an d believa ble testimony

of those defense's witnesses." The State , furthe

r, reite rated its summation a

rgumen t that the p olice ha

d no motive

to falsel y testify, stating: " What interest did those police officers have on [pinning] it on this guy?"; and "Why would they

pin it on him[?] He's [defendant] never been arrested before. He never met him befor e which me an[s] he ha

d no beef with them b efore a

nd they had [no] bee f with him. So why pin it on him[?] This is just some huge conspiracy to pin a 50 thousand g ram on him"; and "Why would office

rs attempt to pin 50 thousand grams of pot on this man–on a man they never met, never had a problem wi th?" The State also laun ched its own attack on the cr edibility of the de fense witnesses, arguin g:1-04-2469

-11- "But the story you heard f rom the de fendant

and the de fense wit ne sse s, t ha t st or y ne ve r e xi[s ]te d un

til tod ay . H ow do we k now tha t? Becau se they

had an op

portunity during t hat inter view with the Spanish speaking officer to tell them 'He y, y ou know what. The drugs that y ou found in that back room, I don' t know whose it is.' Uncle Fructuoso lives in that bedroom and that's an important piece of information. But whe n asked whose are these, they seen them coming from that back room. No one says a word. They ha d a whole ye ar to think about between the sisterin-law– *** Carmen Guzman to think of a way out ***." Defense counsel objected to the comment about "ha ving a whole y

ear to think about," but the objection was overruled by the circuit court. Shortly af ter these comments, and after deriding the defense theory

that the drugs would actually have belonged to Fructuoso as " convenient," "[q]uite e asy ," and " [v]ery courag eous," t

he State a rgued : "L adies an

d gentle men, I sugge st to you this is not a television show. This isn't 'The Practice' where lawy

ers can get away

with a Plan B defense." The jury returne d a verdi ct of gu

ilty on both co

unts, one f

or posses sion of ca

nnabis wit

h intent to deliver, and the other for possession of a controlled substance with intent to deliver, addressing the cocaine. Def endant filed a posttrial motion challenging the sufficie ncy of the evidence and also questioning the circuit court' s refusal to grant a mistrial when, in the context of attemptin g to impe ach def

endant with an af

fidavit in support of

his pretr ial Franks motion, the State revealed to the jury

that defendant had been held in custody . The court found any error,1-04-2469

-12-

from what it found to be an inadvertent disclosure of that information, not to be signific ant enough to warrant a new trial, howe ver. The trial court went on to sentence defe ndant to eight ye ars in pr

ison and or

dered the extrac tion of de fendant's DNA f or stora ge in the Illinois State Police' s databa

nk. Defe ndant app eals. ANA LYSIS

I. Franks On appea l, defen dant firs t argue s that the c ircuit co urt erre d by

declinin g to gr ant him a hearing pursuant to Franks v. Delaware . Defendant contends that the circuit court inappropriately f

actored inconsistencies in the affidavits that were immateria l to the question of whether Doe could have taken part in the tra nsaction and viewed what he alleged, a nd that the court "mist akenl y believe d that any affida vits origin ating w ith m embers of Mr. Goros teata 's family were per se

insufficient to require a Franks hearing." The State first counters that defendant has waived review of this issue by failing to raise it in his posttrial motion. We agree with the Sta

te. Fail ing to ra

ise the de nial of a pretria l motion in a

posttrial motion res

ults in waiver. See People v. Owens , 99 Ill. App. 3d 730, 736 (1981). Defendant asks us, nevertheless, to review the c ircuit court's decision for plain error. An otherwis e waive d content ion may be revie wed for plain er ror "when eithe

r (1) the evidenc e is close, regardless of the seriousness of the error, or (2) the error is ser ious, regardless of the closeness o f the evidence. " People v. Herron , 215 Ill. 2d 167, 187 (2005). However, to succ eed under a plain error analy

sis, the appellant must still demonstrate error, which we find that defendant cannot do in this case. See People v. Johnson , 2 18 Ill . 2 d 1 25 , 1 39 (2 00 5) (" Cl ea rl y,1-04-2469

-13-

there can be no plain error if there is no error"). In Franks , the Supreme Court held that defendants must be permitted to attack the veracity of

the statements made by governmental affiants in applications for search wa rrants at an evidentiary he aring if they made a "substantial preliminary showing," including a counteroff er of proof, that the af

fiant de liberate ly in

cluded f alsehood s or inclu

ded alle gations

with a "r eckless disregard for th e truth." Franks v. Delaware , 438 U.S. 154, 170-71, 57 L. Ed. 2d 667, 681-82, 98 S. Ct. 2674, 2684 (1978). See also People v. Luce nte , 116 Ill. 2d 133, 151-52 (1987) (" Franks demands something more than a request, and eve n more than a defendant's unsubstantiated denial. *** [T]he precise standard lies somewhere between me re denials on the one hand and proof by a pr

eponderance on the other"). T he purpose of permitting attacks on search warrant affidavits is to deter police misconduct. See Franks , 438 U.S. a t 172, 57 L . Ed. 2d at

682, 98 S. Ct. at 2685 ("The deliberate falsity or reckless disregard whose impea chment is permitted today is only that of the

affian t, not of a ny n ongove rnmenta l informa nt"); United States v. Owens , 882 F.2d 1493, 1499 (10th Cir. 1989) ("I t is not enough to show that the informant lied to an unsuspecting af

fiant, or that an affiant' s neglig ence or innocent mistake r esulted in false statements in the affidavit"). Here, to begin w ith, defe ndant has not shown t

hat the c ircuit co

urt abuse d its discr

etion in determin ing that he faile d to make t

he “subst antial pr eliminar y showing”

necessa ry to warra nt a hearing. See People v. Castro , 190 Ill. App. 3d 227, 237 (1989) (holding that the de termination of whether a defendant made the ne cessary showing to warrant a Franks hearing is within the discretion of the circuit court).1-04-2469

-14-

In the case at ba

r, defendant provided two sets of affidavits in support of his contention that he never met and sold marijuana to Doe. These af fidavits are suspect to begin with, since they all derive f

rom family members. See People v. Tovar , 169 Ill. App. 3d 986, 992 (1988); People v. McCoy , 295 Ill. App. 3d 988, 990 (1998). More importantly, they do not preclude the possibility that defendant executed a na rcotics transaction with Doe as he recounted to Off icer Sanchez. Each af

fiant for defenda nt avers that he or

she left d efenda nt at the home for a

time while he or she went out to obtain groceries. See Tovar , 169 Ill. App. 3d at 992 (affirming the denial of a Franks hearing where, inter alia , "the affidavits did not establish an impossibility of the infor mant havi ng acc ess to the

apartme nt"); McCoy , 295 Ill. App. 3d at 999-1000 ("We find that the affidavit s were not suffic ient to est ablish tha t the tria l court a bused its d

iscretion in denying defendant's motion for a Franks hearing. Not only were the affidavits executed by interested parties, but there were times when def endant was in his apartment *** during which time the informant could have purchased narcotics fr om him"). Finally, the a

ffidavits do nothing to show how

Sanchez necessa

rily , deliber

ately included false sta tements in

his affid avit in support of the warrant or included averments with rec kless disregard for the truth. Even had defenda nt’s aff idavits, ta ken as tr ue, shown

that he wa s constan

tly i n the comp any

of his fa mily for his daughter’s birthday on the date Doe alleged the narc otics transaction, so that the transaction could

not have o ccurre d, that wo uld not hav e shown D oe’s alle gations to be so contradictory

or outrageous that Sanchez would have eng aged in misconduct merely by believing Doe. More overridingly , there appears to be no dispute that John Doe personally testified1-04-2469

1 None of the parties have allege d that John Doe was anything othe r than a private citizen as

averre d in Offic er Sanchez's af fidavit.

-15- before the mag istrate a

t the time O fficer

Sanchez a

pplied for the sea

rch war rant. We a

gree w ith the circ uit court t hat the po lice's

employ ment of thi s proced

ure, ra ther tha n the off icer mer ely presenting and vouching for his informant' s claims in the officer's complaint, without presenting the informant to the court for interrogation, remove d this case from the ambit of Franks

. A number of courts have recognized, as did the circuit court, that, when a nongover nmental informant i s persona lly brought b efore t

he magi strate to

testify to the fa cts that will establish probable cause in a warrant, the burde n of determining the reliability of the informant then shif ts to the co

urt and a way from law enforc ement pe

rsonnel. 1 As the Supreme Court of Kansas stated in State v. Jensen , 259 Kan. 781, 788, 915 P.2d 109, 115 (1996): "Although the Franks Co ur t d id no t e xp re ss ly l im it [a ve ra ci ty c ha ll en ge ] t o a n a ff id av it sw or n t o b y a govern ment a gent, w e agree wi th th e Stat e that it is intri nsic t o the d ecisi on." Th us, ev en tho ugh the Jensen court fo

und that its

magistr ate fail ed to ade quately

probe the reliabil ity o f its informant, it, nonetheless, held that its defendant was not entitled to a Franks hearing. The Jensen court explained:

"In this case , [the infor

mant's] r eliability was an un

known qua

ntity to police, who avoided the issue by making no representations about it and having [the infor

mant] testif

y be fore the

magistr ate. The magistr ate coul d and should

have que stioned [the

informan t] and the o fficers in order to satisfy the intertwined re quirement of the informant's reliability . Here,1-04-2469

-16- however, the issuing judge ignor ed the opportunity to elicit information on which an opinion of the informant's reliability could have been based. The few minutes in which [the informant] appeared to testify may have permitted the judge to form an initial impression of the informant as credible or not, but an impression based on appearanc e and demeanor cannot replace an opinion formed on facts. That failure lies with the issuing magistrate and not with the law enforcement officers. The district court correctly

interpreted *** Franks *** an d did not er r in de nying a hearing." (Emphasis added). Jensen , 259 Kan. at 790; 915 P.2d at 116. See also State v. Moore , 54 Wash App. 211, 215, 773 P.2d 96, 98 (1989) ("If, howe ver, a nongove rnmenta l affian t provide s testimony

upon which a warr

ant is bas ed and tha

t testimony

is later shown to have been intentionally false or gathered by

means that would constitute a constitutional violation if done by a gove rnmental agent, Franks , n on et he le ss , d oe s n ot ap pl y. [Citat ions. ] Franks does not apply in such instances be cause there exists no governmental misconduct that could be detected or deterred by a Franks hearing"). In fact, this court also essentially so held in People v. Phillips , 265 Ill. App. 3d 438, 448 (1994 ). In tha t case, in add itio n to a m otio n inv okin g Franks , the def endant f iled a moti on to suppress the evidence gathere d by exercise of that wa rrant asserting that probable cause had not been established to support the warrant application beca use there was no showing of the credibility of the informa nt. In addressing the motion to suppress, the Phillips court sta ted: "[C]ases which concern the credibility of hearsay

informants have1-04-2469

-17- no relevance to a case such as tha t presented here, where the informa nt appears before the issuing judg e. [Citation.] When the informant appears before the judg e issuing

the sear ch warr ant, the i nforman t is under oath and any stateme

nt which he makes is subject to that oath; moreover, the judge has the opportunity to personally observe

the demeanor of the informant a nd to asses s the inform ant's credibi lity." Phillips , 265 Ill. App. at 448. The Phillips court we

nt on to hold

that, whe n the informant ap

pears be fore the

magistr ate, it is not even necessary

for the police to corroborate the informant' s account since "the judge issuing the sear ch warr ant ha[s] an

opportuni

ty to *** deter mine the b asis of [the

informan t's] knowledge." Phillips , 265 Ill. App. at 448. Thus, since John Doe appeared before the mag istrate to testify surrounding the allegations containe d in the complaint for the sea rch war rant of the second

-floor a partmen t at 4849 S. Honore, this case falls outside the scope of Franks . Therefore, there was no er ror on the part of the circuit court in deny

ing defendant a Franks evidentiary he aring.

II . Closing

Argume nts Defendant next contends that the circuit court erred by permitting improper and prejudic ial closin

g arg uments. De fendant

argue s that the S tate eng aged in impermiss ible bolstering of its witnesses by sug gesting that they

were inherently

credible because they

were police officers. Defendant further contends that the prosecution improperly shifted the burden of proof to him when it emphasized that Carmen admitted on cross-examination that she had no1-04-2469

-18-

mail addressed to defendant at 4612 S. Talman, to support her claim that he lived there and not at 4849 S. Honore. Finally, de fendant argues that the State impermissibly denigrated his defense by de sc ri bi ng it as "s mo ke an d m ir ro rs " a nd su gge st in g t ha t h e, hi s w it ne ss es , a nd hi s a tt or ne ys concocted a defense. As the Stat

e points ou

t, as with h

is Franks claim, defendant has waived review of the closing arguments by

failing to make contemporaneous objections and by failing to raise them as errors in his posttrial motion. But, defendant, again, contends that he is entitled to analysis and relief under the plain error doctrine. As pr eviously discussed, "[T]he plain-error doctrine by passes normal forfeiture principles and allows a reviewing court to consider unpre served error when either (1) the evidence is close, regardle ss of the seriousness of the error, or (2) the er ror is serious, regardless of the closeness of the e vidence. In the first instance , the defendant must prove 'prejudicial err or.' *** In the sec ond instance, the defe ndant must

prove the re was p lain err

or and tha t the err or was so serious that it affected the fairness of the def endant's trial and challenge d the integrit y of the judicial pr ocess." People v. Herron , 215 Ill. 2d 167, 186-87 (2005). See also People v. Nitz , 219 Ill. 2d 400, 415 (2006) (" Herron 's two prongs establish two categ ories of

plain er ror: pre judicial e rrors, w hich may have af fected the outcome in a clo sely balanced case, and presumptively prejudicial errors, which must be remedied althoug h they may not have a

ffecte d the outc ome"); People v. Edgecombe , 317 Ill. App. 3d 615, 620 (2000)1-04-2469

-19-

("Improper

remarks are reversible er ror only when the

y result in substantial prejudice to the defenda nt, give n the cont ent and c ontext of the

langua ge, its r elationsh ip to the e vidence , and its effect on the defendant's r ight to a fair and impartial trial"). Defendant contends that the prosecu tion's imp roper a rgumen ts tipped the balanc e in what he chara cterizes as a clos ely balance d case si

nce it re quired th e assess ment of wi tnesses' credibi lity . Defen

dant, how ever, a

lso contends that the c umulative effec t of the e

rroneou s arguments unde rmined the

fairne ss of his trial. We, however, disagree since we do not find the evidence to be close; and, otherwise, find that the fairness of defendant's trial a nd integrity of

the proceedings were not under mined. We first address defendant's contention that the State' s argument improperly shifted the burden of proof to him. See People v. Weinstein , 35 Ill. 2d 467, 470 (1966) ("the prose cution has the bu

rden of proving b eyond a rea sonable d oubt all the

materia l and esse ntial fac ts constituting the crime. [Citations.] The burden of such proof never shifts to the accused, but remains t he responsibility

of the pr osecution throug

hout the tr

ial"); People v. Carroll , 278 I ll. App. 3d 464, 467 (1996) ("I t is improper *** to suggest to the jury that the State had no burden of proof or to attempt to shift the burden to the defendant"). De fendant takes particular exception to the prosecutor's comment "Well, ladies and ge ntlemen, we haven't seen any thing regarding *** any ty

pe of mail defendant possibly received at the Talman address. And we haven't seen anything be cause nothing exist[s] ***." The State responds that this situation is akin to where a prosecutor comments on the absence of alibi witness testimony after a defendant identifies such potentia l witnesse s, commen

ts that cou

rts have found to be

proper i n cases s uch as People v. Blakes , 63 Ill. 2d 354 (1976), and People v. Anderson , 250 Ill. App. 3d 439 (1993). Defenda nt1-04-2469

-20-

replies that the holdings of these cases are inapplicable, however, because, first, he ne ver raised an alibi defense, and, second, because he never raised the issue of mail as a form of pr oof of address in his direct examination of Carmen. He asserts that the lack of mail addr essed to him at his claimed address of 4612 S. Talman only came into evidence through the State' s improper cross-examination of Carmen. We agree with the State. To begin, People v. Williams , 40 I ll. 2d 522, 5 24-26 (19 68), esta blishes tha

t State comment on the absence of exculpatory evidence available to a defendant is not limited to the particular context of unproduced alibi witnesses. I n Williams our supreme court addressed a prosecutor's statements, after the State produc ed evidence that bullets recovered fr om two murder victims we

re of the same cla ss as a g

un known to

have be longed

to the def

endant, t hat the bu llets could only be matche d to defendant's gun if that gun were to be tested, and the defendant elicited that many of defe ndant' s friend s also ca

rried g uns of the same cla ss. The pr

osecutor remark ed in his opening statement: " 'The evidenc e in this case will show further that the gun purchase d on March 1st [the defendant's gun] has never be en found and has never been produce d or brought forward by this defend ant.' " Williams , 40 Ill. 2d at 526. I n closing argument, the prosecutor state d: " 'I don't belie ve for a secon d that this man's gu n wil l ever t urn up . It can't . He can 't afford to have that gun e

ver turn up. And we

all know w

hy he can' t do that. We

know why

it hasn't t urned up . We know w

hy [the ballisti cs expert

] has not be en allowe d to look at it to compare slugs f

ired from it with slugs i n these plas tic bags before you.' " Williams , 40 Ill. 2d at 527. The defendant asserted that the prosecutor 's comments undercut the presumption of innocence and his right aga inst self-incrimination. Williams , 40 Ill. 2d at 527. Reviewing the1-04-2469

-21-

prosecutor's statements, the Williams court observed: "A careful a nalysis of the privileg e and the reason f or the pr ohibition r

eveals t hat their purpose i s to preve

nt prejud ice to an accuse d from his failure to testify, but not to pr event pr ejudice to his case

from his fai lure to pro duce evidence t o establish h is defens e ." (Emphasis added.) Williams , 40 Ill. 2d at 527. The Williams court went on to hold: "[T]hough the failure to call a witness or produce evide nce may not be relied on as substantial proof of the charge , nonetheless, if other evidence tends to prove the guilt of a defendant and he f ails to bring in evidence within his c ontrol in explanation or refu tation, his omission to d

o so is a circumstance entitled to some weight in the minds of the jury, and, as such, is a legitima te subject of comme

nt by the prose cution. I

n the cas e before us there may

have been some reason for failing to produce the gun in question, the gun which defendant had acquire d the day bef ore the murders and which by

other evidence was so closely linked to the crime, but none w as give

n and con sequentl

y de fendant's nonpr

oduction was a subject for c onsiderati on and also f or comment. " Williams , 40 Ill. 2d at 529. The facts in this case are analog ous to those presented in Williams . The State presented evidenc e, in the f

orm of a me dical bill

address ed to def

endant a s 4849 S. Honore, to d emonstra te that that was his true residence for purposes of esta blishing constructive possession of the narcoti cs found t

herein. Defend

ant and hi s witnesse s testifie d that he d id not live t

here but ,1-04-2469

2 Defendant argues that Carmen' s testimony that he rece ived "[o]ne or two letters but none" means that he received no mail addr essed to him. However, we see this reading to be speculative. In fac

t, none of her testimony pre ceding or following that statement sugg ests such a restr icti ve read ing.

-22- instead, at 4612 S. Talman. Carmen testified on cross-examination that defendant did rece ive some mail a

t the Talma

n addres s. 2 We think it would naturally and properly have been in the jury's mind w

hy neither d

efenda nt nor Car

men would

produce mail addr

essed to h im at 4612 S. Talman, where they

both claimed he resided. Most significantly, the State' s argument and examination did not suggest that defenda nt was unde r a general dut

y to produce evidenc e; rathe

r, the exa mination a

nd arg ument only reflected on the

quality and cre dibility

of the ev idence t hat defe ndant' s witness presente d. In this respect, this cas e diffe

rs from People v. Clark , 186 Ill. App. 3d 109 (1989), People v. Lopez , 152 Ill. App. 3d 667 (1987), and People v. Giangrande , 101 Ill. App. 3d 397 (1981), on which defendant relies. I

n Giagrande , the prosecutor inquired " 'Now whe re's the evidence that the defendant didn't do it?' " (Emphasis omitted.) Giagrande , 101 Ill. app. 3d at 402. I n Lopez , the prosecutor as ked " 'Where are tho se people th at can clear the d efendant? ' " Lopez , 152 Ill. App. 3d at 678. The prosecutor in Clark inquired why the defe ndant had not produc ed taxi and

train receipts to support his witness's account that he traveled to Chicago from Palatine wearing a coat in the pocket of which, unbeknownst to the defendant, the witness had place d a gun. Clark , 186 Ill. A pp. 3d at 1 15. I

n each c ase, the

reviewi ng cour t recog nized that i

ts prosec utor's s tatement , rather than commenting on any evidence presented, instead sugg ested that the defendant had a1-04-2469

-23-

duty to produce evide

nce in support of his innocence. See Giangrande , 101 Ill. app. 3d at 402 ("we r ecogn ize that a prosecut

or may comment on the uncontradic ted natur e of the St

ate's c ase ***. *** [The comment] is more than a comment that evidence is uncontradicted. The comment may well have

improperly sug gested to the jury that defendant had a burden to introduce evidenc e"); Lopez , 152 I ll. App. 3d at 679 (" here the

re was no founda

tion for the State' s remarks; defenda nt did not name any specif ic people in his opening argument, and the na mes read off by the State appeared in various pretrial discovery documents not in evidence. The first mention of these pe ople occ

urred w hen the Sta

te introdu ced them in closing

rebutta l argument" (e

mphasis in origina l)); Clark , 186 Ill. App. 3d at 115 ("We rejec t the State's assertion that the prosecutor was prope rly comme ntin g on th e evid ence an d defen se wit ness H orn's c redib ilit y. The pro secut or's preliminary comment, " '[L]et me say by my commenting on any

thing [the witness] has said or anything that the defense has suggested (emphasis added),' clearl y emphasi zed t he defe nse's failure to produce certain evidence "). Since here, the State merely sought to undercut the testimony of Carmen, a de fense witness , it did not su gges t that def

endant w as requi

red to abandon his right to silence genera lly or that he was unde

r a duty to prese

nt evidence in support of his innocence. Thus, we perceive no burde n shifting in this argument by the State. Finally, defe

ndant contends that Carmen's testimony , surrounding his receipt of mail at the Talman address and her nonproduction of such mail, could not have opened the door to later comment by th e State on

the gro unds that t

he predi cate te stimony

was elic ited on cr

ossexamination, and that it was improper cross-examination no less. We reject that contention. Our research reveals the law to be c ontrary to def endant's position. See People v. Outlaw , 75 Ill. App.1-04-2469

-24-

3d 626, 645 (1979) ("The State maintains that it is proper for a prosec utor, on cross-examination, to inquire into the circumstances of an alibi [citation], and to inquire of witnesses as to whether they had told th e same story

previous ly in

order to determine whethe

r the test imony was rec ently fabricated [citation]. We agree. We fail to see how such que stioning shifted the burden upon defendant to prove his innocence since it was not his silence which was being tested but rather an examination of alibi w

itnesses w

hich was being p ursued" ); People v. Woods , 292 Ill. App. 3d 172, 176-77 (1997) (holding that it is proper for the prosecution to comment on the fa ilure of a defendant to produce alibi witnesses when those witnesses are identified in the defense's opening statement, or by def

ense witnesses, whether on direct or cross-e xamination). Furthermore, we note that defendant cited to no contrary authority and that he made no objection to the introduction of the evidence at trial. We next analyze defendant' s contention that the State improperly bolstere d its witnesses. It "is well established that a prose cutor may not ar gue that a witness is more credible beca use of his statu s as a police o fficer." People v. Fields , 258 Ill. App. 3d 912, 921 (1994). This court has recognized various permutations of arg uments extolling an officer's experience, or asse rting that an officer would not lie merely to convict a particular defendant, as falling afoul of the aforementioned rule. See Fields , 258 Ill. App. 3d at 920-21 (where a prosecutor argued, " 'The pol ic e? A

rethe y go ing to c ome in h ere a nd r isk pe rju ry , a pe rju ry ch ar ge fo r Ronni e F ie lds ? The y 'r e n ot goin g t o do tha t for h im. *** Wou

ld t he y risk th ei r jo

bs, the ir c aree rs , th ei r p en sio ns? Would they risk their reputation as police of ficers to lie for Ronnie Fields? Of course not' "); People v. Clark , 186 Ill. App. 3d 109, 115-16 (1989) (similarly asserting that the officers1-04-2469

-25-

testifying in that ca se would not risk their careers, pensions, and potential perjury charges by testify ing fal sely

); People v. Rogers , 172 Ill. App. 3d 471, 476-77 (1988) (wher e a prosecutor observe d that the

detectiv es were

" 'sea soned veterans on the polic e force . Credibil ity unto uchab le' " and furth er argue d " 'they won 't get on the st and an d lie a nd mak e up so methi ng' "); People v. Ford , 113 I ll. App. 3d 659, 661- 62 (1983)(where a prosec utor rep eatedly

refer red to the testifying of

ficer as a " 'sworn'

" officer, also mentioned her " ' eight ye ars of integrity serving in this comm

unity ,' " a nd inquire d " 'Why

would Dep

uty Kurlinkus , a sworn

Warren Co

unty Deputy, pull a cha

rade like this and lie and perjure herself for a lousy 15 gr

am purchase of marijuana?' "). In its closing arg

ument in this case, the State argued that the "re al issues have been resolved. They've [ sic ] been resolved by the c redible testimony of offic ers with yea rs of experien ce and the less be lievable testimony

of those d

efense 's witne sses [ sic .]," and twice inquired what motivation the police would have had to falsely "pin" criminal charge s on defendant, with whom they had no prior contact or "beef." Although not as egregious an example as in the previously cited ca ses, the prosecutor's statements here questioning why the officers would "pin" an offe nse on defendant and extolling their "y ears of experience" nevertheless suggests that they were incapable, as a result of their c hosen profession, from lying and probably should have been avoided. We turn, then, to defendant's claim that the State improperly denigrated his witnesses as well as his trial counsel. Specifically , defendant objects to two statements by the State. In the fi rst, a fter ad dress ing th e disp arity in t he tes timo ny of the p olice offic ers and defend ant's1-04-2469

-26-

witnesses as to how many pe ople were in front of the apartment at the time the police moved in, whether or not a dog was present, a nd whether or not the police had their guns draw n, the prosecutor argued:

"La dies and g entlemen , counse l wants y ou to focu s on those d

iffere nces in minor details because he wants to try and create a reasonable doubt in y our mind but it shouldn't. It shouldn't because those minor deta ils, smoke and mirrors, ladies a

nd gent lemen, lo ok over h ere at these minor differe nces in details, so you don't think about the re al issues in this case." We note that prosecutorial references to a de fense as "smoke and mirrors," a "smokescreen," or other statements to that effect, have usually been held to be improper (see, e.g. , People v. Kidd , 147 Ill. 2d 510, 542 (1992) ("I t is abundantly clear

that the prosecutor's comments comparing or analogizing the defense counsel' s argument to a 'smoke scree n' were improper. This court and our appellate court have on numerous occa sions condemned such comments. [Citation.]")). Although the comments surrounding smoke and mirrors can be construed, as suggested by the State, as reflecting only

on the trivial and collateral nature of the impeachment off ered by the defense witnesse s, it could

also be vi ewed as

an improp er state

ment on the

integr ity o f defen se counsel (see People v. Rodriguez , 312 Ill. App. 3d 920, 931 (2000)), and should thus, ag ain, have been excluded from the prosecution's arg ument. See also People v. Emerson , 97 Ill. 2d 487, 497 (1983) ("Unless based on some evidence, sta tements made in closing arguments by the prosecu tion which

sugge st that def

ense cou nsel fabricated

a defen se theor

y, a ttempted t

o free h is client through trickery

or deception, or suborned perjury are improper").1-04-2469

-27-

Later, in her re

buttal, the prosecutor attacked the credibility of the defense, stating: "But the story you heard f rom the de fendant

and the de fense witnesses, that story never exi[s]ted until today. *** They

had a whole year to think about *** to think of a way out." We note that the prosecutor then went on to observe "this is not a television show. This isn't 'The Practice' where lawyers c an get away

with a Plan B defense." These comments, too, while not direc tly charging the defense with suborning perjury or fabricating a defense , nevertheless, echo such charg es and skirt the edge of propriety . See People v. Weathers , 62 I ll. 2d 114, 1 20 (1975) (includin g in its li st of pr os ec ut or ia l e rr or s t ha t " th e A ss is ta nt St at e' s A tt or ne y ch ar ge d t he de fe nd an t' s a tt or ne ys with lying and with attempting to create a reasonable doubt by 'confusion indecision, and misrepre sentation' " an

d "char ged re peatedl y that the de fendant

lied"); Peopl e v. Sl abaugh , 323 Ill. A pp. 3d 723, 730 (2001 ) ("We a re not pe rsuaded that the r emarks w ere pro

per mer ely because in rebuttal the prosecutor specifically exempted defense counsel from complicity , contending instead that he was 'in a cloud of dust' while the de fense witnesses independently 'concocted' the defense. In People v. Harris , 228 Ill. App. 3d 204, 208 (1992), this court condemned an argument that defendant herself subor ned perjury

by forcing

her daughter to testify

falsely. He

re, the tenor of the argument was clea rly that the defe

nse was fabricated, reg ardless of who was at fault"). The State

would con

tend, how ever, that even i f any of its comments wer

e facia lly improper, such impropriety would have been cured by the fact that it only made r esponses called for by invitations made in the def ense's summation. But, we would reject this contention since the State has not shown any initial impropriety in defense counsel's arg

ument from which the1-04-2469

-28-

invitation could emanate. The invited response doctrine allows a party who is provoked by his opponent' s improper argument to right the scale by fighting fire with fire. See, e.g. , United States v. Young , 470 U.S. 1, 12-13, 84 L. Ed. 2d 1, 11, 105 S. Ct. 1038, 1045 (1985) ("if the prose cutor's remarks were 'invite d' and d

id no more

than res pond substa

ntially in order to 'rig ht the sca le,' suc h comment s would not warrant reversing a convic tion"); 75A Am. Jur. 2d Trial § 564 (1991) ("if counsel for a party litigant or for th e defen

dant in a c

riminal pr osecution pursues

an improp er line o f argu

ment, he thereby

invites a reply, and state

ments made by opposing

counsel or the prosecuting attorney by way of retaliation thereto have often been consider ed proper which would otherwise be objectionable"). See also B. Gershman, T rial Error and Misconduct § 5-1(c)(1), a t 305 (1997) ("Thus, when one party

succeeds in introducing evidence that is inadmissible, misleading, or otherwise improper, the other side may be allowed to 'fight fire with fire' by making a

n appropr iate evid entiary response . *** Refe

rence by one party

to matter s that the other par ty would be barred from mentioning may invite an appropriate response"). Courts have he ld that when the origina l party opens the

door, thr ough ma king his own imprope

r argu ment, he i s precluded from objecting to the response he invited either through waiver or estoppel. See People v. Enoch , 189 I ll. App. 3d 535, 548 ( 1989) (" A defen dant shoul d not be al lowed to b enefit from his own counsel's misconduct which invited the State's response) ; B. Gershman, Trial Error and Misconduct, § 6-2(g), at 398 (1997) (" If an appellate c ourt concludes that an error was invited by counsel, it usually will not review the issue on the ground that counsel waived the claim"); 88 C.J.S. Trial § 297, at 335 (2001) ("Generally , the party whose

counsel pursues an1-04-2469

-29-

improper argument and invites a reply is estopped to complain of the reply argument"). It must be emphasized that the invitation or provocation must be in the form of an improper argument from the other side. See Enoch , 189 I ll. App. 3d at 548; People v. Starks , 169 Ill. App. 3d 588, 600 (1988) (citing to United States v. Young , 470 U.S. at 12-13, 84 L. Ed. 2d at 10-1 1, 105 S. Ct. a

t 1045, for

the propo sition that

the " ' invited re sponse'rule [is] limit ed to instance s of improp

riety in [the] initia

l argument"). Where " the improp er arg ument is no t, in fact, a retalia tory argume nt, but inste ad, is the

first impr

oper ar gument made, re

versal is warranted." 88 C.J.S. Trial § 297, at 335 (2001). See also Gallag her v. Pe ople , 211 Ill. 158, 169 (1904) ( holding t hat a con viction ma

y be revers ed when a

n "unprovoked" improper argume nt is made); People v. Harbold , 124 I ll. App. 3d 363, 372 ( 1984) (r

ejecting the State 's invite d respons e claim when it found its defendant's argume nt to have been proper). Further, the r esponse must be proportionate to the initial error. See, e.g. , People v. Montgomery , 254 Ill. App. 3d 782, 795 (1993) ("The invited error doctrine doe s not go so far 'as to insulate any related remarks the prosecutor may

choose to make' in response to defense a rguments [citation]"); B. Gershman, Trial Error and Misconduct, § 5-1(c)(1), a t 306 (1997) ([regarding cura tive admissibility] "when the defense presents a prosecutor with such a n opening, a prosecutor may attempt to exploit the oppor tuni ty by introd ucing i nadmi ssib le evi dence, or engagi ng in gra tuit ous ov erkil l. The judge on such occasions must be alert to the potential for misconduct"). In particular, with respe ct to its comments on the experience of the police officers, the State app ears to c ontend tha t the def ense' s question

ing of the offic ers' c

redibilit y ne cessar

ily would hav e even o

pened the door for gener al arg uments in su

pport of p olice of

ficers' credibi lity1-04-2469

-30-

as a class of people. The State draws our attention to defe ndant's closing argument in which he derided two offic er's c laims of e

ntering the second-floor

apartme nt without g

uns draw n, in contrast to defendant's witnesses' testimony , as being illogical since the office rs would not have known wha

t to expect on enteri

ng. The State fur ther hig hlights d efense counsel' s stateme

nt, "[Y]ou saw every

single officer testify

*** you decide w

ho is telling the truth." We fail to see how this defense argument was improper, howe ver. "The credibility

of a witness is a proper subject for c losing argument if it is ba sed on the evi dence or inferen ces drawn from i t." People v. Hudson , 157 Ill. 2d 401, 445 (1993). Here, the a rguments that the State contends opened the door were based on the trial evidence. Thus, in our vie w, the door would have remained closed to any otherwise imprope r bolstering arguments by the State. The cases of People v. Williams , 289 Ill. App. 3d 24 (1997), and People v. Davis , 228 I ll. App. 3d 835 (1992), on which the State relies, do not mandate a contrar y finding. Contrar

y to the State's understanding of the case, Davis never he ld that a d efenda nt's cha llenge to the cr edibility of pol ice off

icers necess arily ope ned th e door to ot herwi se imp roper b olst ering i n the S tate's argument. Rather, instead of fully considering the application of the invited response doctrine, Davis resolved its defendant's challeng e to the State's argument on the g round that the defendant was not prejudiced since the State's comments did not deprive him of a f air trial, an issue that we will yet address in this case. See Davis , 228 I ll. App. 3d at 841 (" We acknow

ledge t hat cour ts have generally

held that these types of c omments concerning police officers' testimony are improper. [Citation.] Here, however, [citation] we believe that the question is not whether the argument was proper, but whether it re ached the level of impropriety which deprived defendant1-04-2469

-31-

of a fair trial"). Williams , on the other hand, while purporting to rely on Davis , failed

to recogni ze th is di stin ction in reac hing i ts con clusi on th at "def endan t inv ited t he pro secut ion's comments [about the police risking their lives every day to protect the public a nd, therefore, deserving the p ublic's gratit ude] by making poli ce credibili ty the central issu e in the case." Williams , 289 Ill. App. 3d at 36. The Williams dissent, however , observe d that the challen ge to the officers' credibility

in that case was properly done and therefore could not invite an improper argumen t from the S tate, stati ng:

"Althoug h defens e counse l questioned the cr edibility of the pol ice off

icers, counsel did so through use of the evidence pre sented at trial. While the prosecutor, in turn, was entitled to discuss why the police officers were more credible than defendant, he should have done so by discussing the evidence at trial, not by

arguing that the officers should be believed because they put thei r lives in d anger to protect people." Williams , 289 I ll. App. 3d at 39 (McNulty, J., dissenting). Thus, we do not see Davis and Williams as supporting the State's interpretation of the invited error d octrine in this con

text. The St ate fur ther ar gues th at it s comm ents s urrou ndin g the de fense w itnes ses ha ving a year to " find a way out" could only have be en proper because those comments merely argued the evidence and logical infere nces to be drawn therefrom. The State conte nds that, since there was no testimon

y that any of the wit

nesses di sclaimed

that the d rugs dis covere d belong ed to defenda nt or informed the

police th at the ro om in which they were fo und actua lly b elonge d to1-04-2469

-32-

defendant's uncle, that the later re citation of those facts by the witnesses was incredible. However, there is a significant diffe rence between properly

highlighting a prior inconsistent statement by omission, inferred throug h silence when it would have been natural to speak, and accusing witnesses of actively conspiring to commit perjury , as the State did in this case. Although there might have been some c ircumstantial support for the conclusion, it would not have justified an impassioned argument that the defense witnesses were, in fact, committing perjury. 70 C.J.S. Perjury § 12, at 318 (2005) ("Mere contradictions or inconsistenc ies in a witness' testimony ar

e not, of themselves, generally enough to support a charge of perjury" ); Commonwealth v. Gilman , 470 Pa. 17 9, 188, 368 A.2d 253, 257 (1977 ) ("the prosecu tor is a quasi-ju dicial of ficer r eprese nting the Commonwea

lth. His dut

y is to seek ju stice, no t just convictions. [Citations.] *** During closing argument, the pr osecutor has an obligation to ‘. . . present the facts so that the jury can dispassionately a

nd objectively eva

luate the testimony in a sober and reflective frame of mind that will produce judgment warranted by

the evidence and not inspi red by e motio n or p assion.' [ Citat ion.] The prosecutor's position as both an administrator of justice and an advocate ‘gives him a re sponsibility not to be vindictive or attempt in any manner to influen ce the ju ry by a rousing their pre judices. ’ [Citations .] In pa rticular , the pros ecutor m ust limit his argument to the facts in evidence and legitimate infe rences therefrom"). However, notwithstanding the State's overre aching errors in its arguments, we are still left to determine whether those arguments would have amounted to "plain error." See People v. Keene , 169 I ll. 2d 1, 17 ( 1996) (" while all plain er rors ar e reversible one s, not all r eversib le errors are also 'plain'

***. [Citation.] *** to determine whether a purported error is 'plain'1-04-2469

-33-

requires a substantive look at it"). I n our view, defendant cannot demonstrate that the er rors here were "plain." As previously noted, we do not pe rceive the evidence in this case to be closely balanced. See Herron , 215 Ill . 2d at 187 ("In t he fir st in stanc e, the defend ant mu st pro ve 'prej udici al erro r.' That is, th e defen

dant must sh

ow both tha

t there w as plain e

rror an d that the evidenc e was so closely balance d that the

error a lone seve rely threate ned to tip the scale s of justic e aga inst him. The State, of course, can respond by arguing that the evidence was not closely balanc ed, but rather strongly

weighted against the defe ndant"); see also People v. Green , 74 Ill. 2d 444, 454 (1979) (Rya

n, J., conc

urring) ("the

court wil l look at the

record only to see if t he evide nce is 'close ly b alance d.' I f it is not, t he reas on for considerin

g the er ror in the absence of its preser vation is not prese

nt"); Green , 74 Ill. 2d at 454 (Ry an, J., concurring) ("the streng th or weakness of the evidence ag ainst [a defendant] is relevant [in determining the applicability of the plain er ror doct rine]") ; People v. Alexander , 212 Ill. App. 3d 1091, 1101-02 (1991) ("When 'examin[in

g] the str ength or weakness of the

evidenc e aga

inst [the de fendant , in order to determine whether] *** the evidence is close [and whether] there is a possibility that an innocent person may ha

ve been convicted due to some error which is obvious from the r ecord, but not properly pre served' [citation], courts have tended to review claims as plain er ror when the conviction relied upon the conflicting testimony of eyew itnesses [citation], physical evidence was ambiguous [citation], the testimony of witnesses measure d short of credibility [citation], or improprieties raised judicial suspicion as to the accuracy of the verdict [citation]. It has not been applied, however, even when phy sical evidence was inconclusive, if there we re several witnesses1-04-2469

-34-

connecting the defendant to the crime" ). In this case, the phy

sical and testimonial evidence strongly weighed against defe

ndant. According to police, they opened the door of the apartment building using de fendant’s key s. Mail of an important nature, a medical bill, was addressed to defe ndant at the address where the drugs were found. Further , that mail was found in the very room where the narcotics were

recove red. E ven mo re over ridin gly, at th e tim e of hi s arres t, def endan t admi tted t hat th e drugs were his and stated that his family was unconnected to them. None of the officers testifying against defendant were e ffectively impeached; while defendant attempted to contradict aspe cts of the officers' testimony

through his own witnesses, the contradictions largely focused on secondary matters, such as the presence and exact location of a dog, or whether the officers ha d their g uns draw n upon the ir entry

into the a partmen t. On the other han

d, all of the eviden

ce in defendant's favor came

only from himself or his family , who are persons with an inherent bias. See People v. Phillips , 265 I ll. App. 3d 438, 445 ( 1994) (" An affid avit of a n intere sted par

ty tends to be weaker support for a motion to quash the warra nt"); 2 J. Wigmore, Evidence, § 949, at 332-33 (2d ed. 1923) ("The rang e of external circumstances *** from which probabl[e] bias may be infer red is inf inite. *** Among th e commone r sorts of circumst ances a re all tho se involving some intimate fa mily rela tionship to one of th e parties by blood o r marriage") (emphasis in the original). Considering this balance of the evidence, we cannot find that the erroneous arguments "alone severely threatened to tip the scales of justice against him." See Herron , 215 Ill. 2d at 187. Moreover, the bulk of the prosecution’s arg ument analyzed and pe

rsuasively addr

essed1-04-2469

-35-

the evidence. The comments we have addr essed above were minor and transitory . See People v. Hall , 195 I ll. 2d 1, 26 (2000) (" Considere d in the context of the State's entire c losing a

rgumen t, these brief reference s did not deny defenda nt a fair sentencing hearing , or threaten deterioration of the jud icial pro cess. Con sequentl y, we find no p lain err

or"); People v. Terrel l , 185 Ill. 2d 467, 514 (1998 ) ("the

prosecu tor's br ief comme

nts about t

he victim were not s o inflamma tory as to deny defenda nt a fair sentenc ing hea

ring" ); People v. McCann , 348 Ill. App. 3d 328, 338-39 (2004) (holding that a prosecutor's r eference to defense c ounsel as "an octopus releasing inky fluid" and as "throwing dust on the road to justice" did not deny the defe ndant a fair trial and amount to plain error where "the complained- of comments, when viewed in the context and totality of the closing a

rguments, were brief and isolated" ). Unlike in cases where courts have

revers ed, the Sta

te did not ma

ke the improper ma

tter and refer ences a centra l or rec urring theme in its argument. See Kidd , 147 Ill. 2d at 543-44 (" the assist ant State 's Attor

ney did not mak

e just one fleeting, inadvertent remark ***. Rathe r, he commented eight times that defense counsel was 'raising a smoke screen,'

or 'filling this courtroom with smoke today ,' or 'hoping that the smoke he raises in this room today will strang le the truth like it strangled the life of the ten children,' etc. Thus, this case is unlike other cases in which the prosecutor made only a passing reference

to a 'smoke s creen'

theme, a nd it was he ld not to be

revers ible err

or" (e mphasis in o

rigina l) ). Further, since the State's arguments were focused upon credibility the y did not distract the jurors from confronting the appropriate question of cre dibility in this case. See Davis , 228 Ill. App. 3d at 841 ("def endant a rgues t hat the c omments [tha

t the polic e would no t risk thei r care ers and p ensions to frame the defendant] unfairly played upon the jury

's sympathies. We disag

ree. The record shows1-04-2469

-36-

that it was precisely de fendant's strategy to make the credibility of the officers the dispositive issue; defendant expressly a ttacked the credibility of

the officers throughout the trial. Theref ore, the prosecution's comments, in response to defendant' s trial strategy , focused the jury's attention on the disp ositive iss

ue; the c omments did

not unfai rly play upon the ju

ry's sy mpathies a

nd did not deny defenda nt a fair trial") . Thus, we

cannot f ind that a ny o f the above-desc

ribed er rors, individually or in combination could have denied de fendant a fair trial or undermined the integrity of

the judicial process. Hence, we must affirm def endant's conviction. III. Fines and Fe es We will next a

ddress de fendant's cha

llenge to the impos ition of va

rious fine s and fee s in his sentence. Defendant first contends that the circuit court could not impose assessments without considering his ability to pay . We disagree. I n People v. Fort , 362 Ill. App. 3d 1 (2005), the court observed that, although "the [controlled substance] assessment is a kind of f ine, we see no need to remand for an inqui ry into defendant's abi lity to pay it. The assess ment is man datory." Fort , 362 Ill. App. 3d at 8. The assessments levied ag ainst defendant are also mandatory

. Therefore, the circuit court did not err by not considering defendant's ability to pay. Defendant further arg

ues that under section 110-14 of the Code of Criminal Procedure of 1963 (725 IL CS 5/110-14 (West 2004 )), whic

h provide s defend

ants with a

$5-per- day

credit toward f ines for each da y of pretria l incarc eration , he is ent

itled to a c

redit of $ 2,660 ag ainst his $6,000 controlled substance assessment under section 411.2 of the I llinois Controlled Substances Act (720 IL CS 570/411.2 (West 2004)). The State counters that the credit under the Code of1-04-2469

-37-

Criminal Procedure is inapplicable, however, because it only applies to "fines" while the other charge here is descr ibed in th e statute creat ing it as an "ass essment." Our supreme court recently resolved this issue in favor of defendant in People v. Jones , No. 101996 (December 21, 2006). In reaching its result, Jones specifically a pproved of the reasoning of Fort

. Jones , No. 101996, slip op. at 15-17. The Fort court observed that senators debating the assessments provision of the I llinois Controlled Substances Act referred to them as "fines." Fort , 362 Ill. App. 3d at 7. The Fort court further took as evidence that the legislature intended for the credit to be applicable from the fa ct that, in spite of the numerous appellate court decisions to that effect (see People v. Hayc raft , 349 I ll. App. 3d

416 (2004 ); People v. Littlejohn , 338 I ll. App. 3d

281 (2003 ); People v. Rodriguez , 276 I ll. App. 3d 33 (1995) ; People v. Otero , 263 I ll. App. 3d

282 (1994 ); People v. Gathing , 334 I ll. App. 3d 617 (2002 ); People v. Reed , 255 Ill. A pp. 3d 949 ( 1994); People v. Brown , 242 Ill. App. 3d 465 (1993)), the legislature had declined to legislatively

overrule those holdings, even though it had otherwise amended the statute three times following such decisions. Fort , 362 Ill. App. 3d at 8. Hence, def endant's drug assessment should have been reduced by his pretrial incarceration credits. We next address defendant's contention that requiring him to contribute to the Spinal Cord Injury

Paralysis Cure Resea

rch Trust Fund, pursuant to section 5-9-1.1(c) of the U nified Code of Cor

rection s (730 I

LCS 5/5 -9-1.1( c) (West 2 004)) wo uld violate

his due pr

ocess ri ghts because there is no rational relationship between the offense of possession of controlled substance with intent to deliver and the public interest that induced the legislature to create the spinal cord fund. On this issue, our supreme court's decision in Jones diverges from the holding1-04-2469

-38-

in Fort

. Fort , relying

on the on point holding of another recent case, People v. Rodriguez , 362 I ll. App. 3d 44 (2005), concurred with its defendant' s position that no rational relationship existed between controlled substance offenses not involving motor ve hicles and spinal cord research and that, therefore, imposition of the fee violated a defenda nt's substantive due process rights. See Fort , 362 Ill. App. 3d at 8. However, the Jones court disagreed with Fort . After i nitially determining that the $5 imposed for the Spinal Cord Injur y Researc h Fund by statute, in spite of its label a s a "fee," was, in fact , substant ively, a "criminal pen alty" or "fine" ( Jones , No. 101996, slip op. at 24-25), the Jones court held:

"A defendant has no basis for protesting the usage to which his criminal fines ar e put. The

sole inqui

ry is whethe

r the amo unt of the fine is excessive when compared to the criminal conduct in which the defe ndant is found to have engaged. So far as the propriety of

inflicting a pecuniary punishment on a defendant is concerned, it makes no differ ence whether the fine s are de signate d for dep osit in the Sp inal Cord I njury Paraly sis Cure Research T rust Fund or t he general state t reasury" ( Jones , No. 101996, slip op. at 26). "There can be no serious ar gument that a $5 fine is so disproportionate to the offense of a possessi on of a contro lled subs tance so as to violate defe ndant's subs tantive du e process right s." Jones , No. 101996, slip op. at 26. Thus, this fine was validly imposed on defe ndant. Finally , we addr ess defe ndant' s content

ion that a $20 asses sment for

the Viole nt Crime Victim Ass istance

Fund cou

ld not lawf

ully be applie d under the terms of the Viole nt Crime1-04-2469

-39-

Victims Assistance Act (725 ILCS 240/1 et seq . (West 2004)). The parties agree tha t the

assessme nt is provid

ed for by the follow

ing lang uage f rom secti on 10(c) (2) of th e Act: "When any pe

rson is convicted in Illinois on or after Aug ust 28, 1986, of an offense listed below, or placed on supervision for such a n offense on or after September 18, 1986, and no other fine is imposed , the following penalty shall be collec

ted by the Circuit Court Clerk:

*** (2) $20, for any

other felony or

misdemeanor, excluding any conservation offense ." (Emphasis adde d). 725 I LCS 240 /10(c)(2) (West 2004) Defendant contends that since controlled substance a ssessments were imposed as a part of his sente nce, an d the Act only

provides for the $ 20 to be imp osed whe n "no othe

r fine is imposed," then, under the plain languag e of the Act, he could not be subject to this additional charg e. We ag

ree. B ased on o

ur analy sis above , derive d from our supreme court' s holding

in Jones , defend

ant is alr eady subject to

multiple, o ther "f

ines." T herefore, the Act does no t apply to him by its own pla

in terms. IV. DNA Extraction We next address defendant's challenge to the constitutionality of section 5-4-3(a- 5) of the Unified C ode of Cor

rection s (Code) ( 730 I LCS 5/5 -4-3(a -5) (West 2004)) a s an unre asonable search and seizure under the fourth amendment of the federal constitution. Section 5- 4-3(a- 5) of the

Code prov

ides:1-04-2469

-40- "Any pe rson who was otherwise convicted of or rec eived a disposition of court supervision for any other offense under the Criminal Code of 1961 or who was found guilty or given supervision for such a violation under the Juvenile Court Act of 1987, may, re gardless of the sentenc e imposed , be requ ired by an order of the co urt to submi

t specime ns of blood , saliva, or tissue t o the I llinois De

partmen t of State Police in accordance with the provision of this Section." 730 I LCS 5/5-4- 3(a-5) (West 2004). Defendant asks us to find the search provided for to be unreasonable because it serves no spec ial need aside from genera

l law enforcement. I

n the alternative, he asks us to find that any special need presented by

the State is outweighed by defendant's privacy

interests. Our supreme court has recently , directly addr essed defendant's contentions in People v. Garvin , 219 Ill. 2d 104 (2006) and rejected his arguments. The Garvin court held that the "main purpose" for the collection of DNA was "to absolve innocents, identify the guilty, dete

r recidivism by identify

ing those at a high risk of reoffending , or bring closure to victims," which it found distinct from "traditional law enforcement practices designed to gather evidenc e in a particular case to solve a specific crim e that ha[d ] already been commi tted." Garvin , 219 Ill. 2d at 122. The Garvin court further held that , on balan

ce, the s pecial need of the State ou tweigh ed the pr

ivacy interest s of its defendant both because of the minimal intrusion presented by a blood draw ( Garvin , 219 Ill. 2d at 123) and because of the re duced pr

ivacy expectat ions of convicted f

elons ( Garvin , 219 Ill. 2d at 123-24). Therefore, the circuit cour t's order requiring extraction and storag e of defendant's DNA1-04-2469

-41-

was proper. V. Mittimus Finally, defe

ndant contends that his mittimus incorrectly ref lects his conviction for manufacture or delivery

of a controlled substance and manufacture or delivery of

cannabis when, in fact, he was convicted of possession of a controlled substance with intent to deliver and possession of cannabis with intent to deliver. The State concedes the err or. We have the authority to corre ct the mittimus. See People v. McCray , 273 Ill. App. 3d 396, 403 (1995). We, therefore, instruct the clerk of the circ uit court to correct defendant’s mittimus to reflect convictions of possession of a controlled substance with intent to deliver and possession of cannabis with intent to deliver. CONCLUSIO N For all the foregoing r

easons, we affirm the judgment of the circ uit court, the order mandating the extraction and storage of de fendant’s DNA, and the imposition of a fine directed to the Spinal Cord Injury

Research Fund. However, we reverse the imposition of the Violent Crime Victim Assistance Fund fee in his sentence, and rema nd for recalculation of the drug assessments to factor in his pretrial incarceration cr edits. Finally, we or

der correction of the mittimus. Affirme d in part, revers ed in par t, and mitti

mus corr ected, a nd cause remande d with instructi ons. McBRIDE, P.J., and CAHI LL , J., concur.1-04-2469

-42-