1-99-2023	& 1-99-2685 (cons.)					First District

										Nov. 13, 2001

THE PEOPLE OF THE STATE OF ILLINOIS,)	Appeal from the Circuit

							 )	Court of Cook County.

		Plaintiff-Appellee,		 )

							 )

							 )

v.							 )	95 CR 20328

							 )

							 )

							 )	

ROBERTO ABADIA and				 )	

OCTABIO ARIAS,					 )	The Honorable

							 )	John Moran,

		Defendants-Appellants.	 )	Judge Presiding.

	PRESIDING JUSTICE COHEN delivered the opinion of the court:

	On February 25, 1999, after a jury trial, defendants Roberto

Abadia and Octabio Arias were convicted of first degree murder

(720 ILCS 5/9-1(A)(1) (West 2000)), attempted first degree murder

(720 ILCS 5/8-4 (West 2000)), aggravated battery with a firearm

(720 ILCS 5/12-4.2A(1) (West 2000)) and armed violence (720 ILCS

5/33A-2/I/12-4(A) West 2000)).  Defendants were each sentenced to

consecutive prison terms of 90 years for first degree murder and

ten years for attempted first degree murder.  Defendants' appeals

were consolidated.  Arias argues that: (1) there was insufficient

evidence to support his convictions; (2) a new trial is required

because inadvertently the jury was not sworn until the second day

of trial; (3) a new trial is required because of prosecutorial

misconduct during rebuttal argument; and (4) the 90-year sentence

should be reduced because it is excessive and unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).  Abadia was granted leave of court to adopt

the four arguments raised by Arias on appeal.  In addition,

Abadia argues ineffective assistance of counsel predicated on his

attorney's failure to present a defense at Abadia's trial.  We

hold that the evidence was sufficient to convict the defendants

and that the short time the jury was unsworn did not prejudice

the defendants.  However, we find the prosecutor's comments in

rebuttal were improper and resulted in substantial prejudice to

the defendants.  As we cannot confidently state that the trial

was fundamentally fair, we reverse the defendants' convictions

and remand the case for a new trial.  We need not address the

remaining issues raised on appeal. 

BACKGROUND

	The evidence adduced at trial reveals that at 4 a.m. on June

20, 1995, defendants traveled in a white Ford Taurus to an

isolated dirt road in an industrial area.  The area is adjacent

to a freight train railroad crossing at 122nd Street in the City

of Chicago.  Mr. Robert Terry, a locomotive engineer, was seated

in the cab of a train stopped approximately 75 feet north of the

122nd street crossing.  As Terry was preparing to move the train,

he saw the white Ford Taurus containing a driver and passengers

drive over the tracks twice before turning south onto the dirt

road adjacent to the tracks.  The locomotive's lights were set to

"dim," illuminating the area a quarter of a mile ahead of the engine car.  Terry lost sight of the Taurus on a dirt road

because the road was lower than the tracks and surrounded by six-

foot tall marsh reeds.  Within a few minutes, Terry heard both

large and small caliber gunshots.  The police would later find

Luis Arce's body, surrounded by used bullet shell casings, at the

edge of the dirt road near the tall reeds.  When his body was

discovered, there were two bullet holes in the back of Arce's

head and seven other bullet wounds to his body.

	Terry heard yelling from the same area from which the first

sets of gunshots had emanated.  He then heard more gunshots which

sounded as if the shooter was drawing near.  A few seconds later,

Terry saw a young Hispanic man sprint diagonally northeast from

the access road across the tracks to the eastern side of the

train.  Terry then saw the defendants running after the young man

while firing their handguns.  As the defendants crossed 122nd

street and the adjacent set of train tracks, Terry turned all of

his locomotive lights to the "bright" setting, illuminating the

area up to one and three quarters of a mile ahead of the engine

car.  Startled by the bright lights, the defendants stopped,

looked up at the locomotive and then ran back to the white

Taurus, which had backed out of the dirt road and followed the

defendants to the paved railroad crossing.

	Terry observed the driver as defendants scurried into the

car.  Defendants drove toward Torrence Avenue on 122nd street. 

Terry called for help on his radio and spoke to railroad police officer Mark Postma.  Terry told Officer Postma of the gunshots,

described the vehicle, indicated its direction of travel and

described the passengers.  While Officer Postma was responding to

the radio call for help, a young man, who Terry "figured it [sic]

was the guy that had been shot at," approached Terry's locomotive

from the northwestern side of the train after the Taurus

departed.  Terry thought the young man would have had to "crawl

under" his train to approach the cab from the northwest because

the train extended a mile and a half behind Terry's engine car. 

The young man, later identified as Gabrielle Gonzales, told Terry

that he was hurt and that he needed an ambulance.  Terry told

Gonzales to sit down because Gonzales' intestines were protruding

from his body and he was bleeding.  Terry observed Gonzales

turning white as if "he was going into shock."  Both an ambulance

and Chicago police officers arrived at the scene within 15 to 20

minutes.

	Officer Postma drove his unmarked police car to the

intersection of Torrence and 130th street where he saw the white

Ford Taurus described by Terry.  The white Taurus was the only

other car on the road at the intersection.  Officer Postma

observed the three passengers and followed the car onto the Dan

Ryan expressway.  At the same time, he contacted the Illinois

State Police.  Detective Neil Maas of the Chicago police also

responded to Officer Postma's radio communication.  With the

assistance of Officer Postma and Illinois State Trooper Tim Drozd, Detective Mass executed a traffic stop of the car on the

expressway near 86th street.  Detective Maas then transported the

defendants and the driver of the Taurus to the Area 2 police

station.  When arrested, the defendants were wearing the same

clothing described by Terry at the scene of the crime.  Terry

identified the defendants later that same day from a line-up.  

	The defendants were convicted of first degree murder (720

ILCS 5/9-1(A)(1) (West 2000)), attempted first degree murder (720

ILCS 5/8-4 (West 2000)), aggravated battery with a firearm (720

ILCS 5/12-4.2A(1) (West 2000)) and armed violence (720 ILCS

5/33A-2/I/12-4(A) (West 2000)).  Defendants were each sentenced

to consecutive prison terms of 90 years for first degree murder

and ten years for attempted first degree murder.  This appeal

followed.

ANALYSIS

I. Sufficiency of the Evidence

	"When reviewing the sufficiency of the evidence in a

criminal case, the proper standard of review is whether, after

viewing the evidence in the light most favorable to the State,

any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt."  People v. Lamborn, 185 Ill. 2d 585, 590, 708 N.E.2d 350, 353-4 (1999).  The function of this court is not to retry the defendant.  People v. Digirolamo, 179 Ill. 2d 24, 43, 688 N.E.2d 116, 125 (1997).  "Circumstantial evidence is sufficient to sustain a conviction if it satisfies proof beyond a reasonable doubt of the elements of

the crime charged."  People v. Campbell, 146 Ill. 2d 363, 379,  586 N.E.2d 1261, 1268 (1992).  "Determinations of the credibility

of witnesses, the weight to be given their testimony, and the

reasonable inferences to be drawn from the evidence are the

responsibility of the trier of fact."  People v. Emerson, 189 Ill. 2d 436, 475, 727 N.E.2d 302, 324 (2000) citing People v. Nitz, 143 Ill. 2d 82, 95, 572 N.E.2d 895, 900-01 (1991).  The trier of fact may consider inferences which flow naturally from

evidence presented in court; however, the trier of fact is not

required to "search out all possible explanations consistent with

innocence and raise them to a level of reasonable doubt." 

Campbell, 146 Ill. 2d at 379, 586 N.E.2d at 1268.  

	Defendants argue that Terry is unreliable as an eyewitness

because he saw individuals matching the defendants appearance for

only a few seconds from 75 feet away and he testified to events

inconsistent with the physical evidence at the crime scene.  The

defendants argue that the locomotive's lights were on the "dim"

setting and it is improbable under the circumstances for Terry to

have observed sufficient details to make a reliable

identification of the defendants.  However, the record reflects

that Terry turned his locomotive's lights to the "bright" setting

after he had observed the defendants run approximately 50 feet

from the entrance of the dirt road to the railroad crossing in

front of the locomotive.  The defendants stopped running and looked up at the cab where Terry was sitting after Terry had

already activated the bright lights.  The record shows Terry gave

an accurate description of the defendants to the police officers

shortly after he witnessed the events.  Determinations of

credibility by the trier of fact are accorded great deference by

a reviewing court and we will not disturb this determination. 

People v. Wittenmyer, 151 Ill. 2d 175, 191, 601 N.E.2d 735, 743 (1992).

	Defendants attempt to fortify their unreliability argument

by stating that Terry's testimony is inconsistent with the

physical evidence.  Specifically, defendants argue that Terry

testified the defendants were firing their pistols at Gonzales

and that Gonzales returned fire with his pistol while he ran away

from the defendants.  Defendants argue that because the police

failed to recover any weapons or shell casings from the area

between the entrance to the dirt road and the locomotive and also

failed to recover any weapons or casings from the white Taurus,

Terry's testimony is unreliable.  

	The absence of bullet shell casings, except for those

surrounding Luis Arce's body, as well as the absence of any

weapons does not indicate that Terry's testimony is unreliable. 

The record contains testimony that Terry observed Abadia with a

"chrome-plated revolver" and Arias with a "blue steel or black

pistol."  Neither weapon was recovered by the police.  The record

contains no indication whether defendant Arias used a revolver, a  semi-automatic or an automatic weapon.  Police officer Patrick

Moran, who works as an evidence technician with the Crime Scene

Processing Section of the Chicago Police Crime Lab, testified

that shell casings are mechanically ejected from automatic and

semi-automatic type weapons after each bullet is fired and that

shell casings from a revolver must be manually removed.  Without

evidence as to whether automatic or semi-automatic weapons were

used to shoot Gonzales, the defendants have no evidence to

support the conclusion that shell casings should be found near

the railroad crossing.  Similarly, the failure of police to

recover any weapons or shell casings from the white Taurus does

not vitiate the reliability of Terry's eyewitness testimony.  As

the record contains no evidence that the guns were ever fired

inside the car, there is nothing to support an inference that

shell casings or weapons would be found inside the car.  

	Although the defense attempted to impeach Terry with a

police report stating that Terry saw Gonzales turn towards the

defendants with an outreached arm as if he had a weapon, the

record reveals that Terry clarified his testimony by stating at

trial that he did not see a gun in Gonzales' hand.  While

defendants persist in arguing on appeal that Gonzales had a

weapon, whether Gonzales possessed a weapon is a credibility

determination, which we will not disturb here.  Emerson, 189 Ill. 2d at 475, 727 N.E.2d at 324.  

	We find Terry's testimony at trial was consistent with the facts in the record.  Defendants cannot point to any evidence in

the record to support their argument that Terry's testimony is

inconsistent with the physical evidence. Defendants fail to show

Terry's testimony is unreliable.  Thus, after viewing the

evidence in the light most favorable to the State, we are

convinced that a rational trier of fact could have found the

elements of the crimes beyond a reasonable doubt.  Lamborn, 185 Ill. 2d at 590, 708 N.E.2d at 353-4.

 II. Unsworn Jury

	Defendants argue that while the court did timely instruct

members of the jury on the trial process and their duties, the

court inadvertently allowed the jury to hear a full day of

testimony before the court administered the juror's oath to the

jurors.  Defendants seek a new trial based on this one day delay.

	Defendants raise this issue for the first time in this

appeal.  "Issues not raised at trial and not presented in a

written post-trial motion are ordinarily deemed waived on

review."  People v. Hicks, 181 Ill. 2d 541, 544, 693 N.E.2d 373, 375 (1998). However, the issue raised by defendants is unusual

and "the goals of obtaining a just result and maintaining a sound

body of precedent may sometimes override considerations of

waiver."  Hicks, 181 Ill. 2d at 544, 693 N.E.2d at 375.  The principle of waiver "limits the parties' ability to raise an

argument, not this court's right to entertain an argument." 

People v. Heard, 187 Ill. 2d 36, 60, 718 N.E.2d 58, 72 (1999).  We choose to address the merits of the claim as we view this

issue as one of first impression in Illinois and find analysis

appropriate. 

	Defendants argue that the juror's oath is critical to the

administration of justice.1  One cannot disagree that the juror's oath is a solemn vow to serve the rule of law which governs the

social contract of our society.  The juror's oath is essentially

a promise to lay aside one's "impression or opinion and render a

verdict based on the evidence presented in court."  People v. Williams, 40 Ill. 2d 522, 531-32, 240 N.E.2d 645, 651 (1968).  The issue here is whether the failure to administer the juror's

oath until the conclusion of the first day of testimony vitiates

the entire proceeding and entitles defendants to a new trial.  

	The record reveals that defense counsel objected neither to

the failure of the court to administer the juror's oath on the

first day of trial nor to the belated administration of the oath

on the second day of trial.  Defendants do little more before us

than to identify this procedural irregularity and hope for a

favorable ruling.  They offer no argument and give this court no

suggestion as to how they were prejudiced by the delayed swearing

of the jury.  This court cannot engage in speculation; thus, we turn to the record of proceedings for guidance. 

	Jurors are generally instructed and sworn to hear all the

evidence without forming opinions as to guilt or innocence until

the end of the trial.  In the present case, the judge instructed

the jury prior to hearing evidence:

		"Ladies and Gentlemen, I am going to talk with you

for five minutes or so, and then we will excuse you for

today, and we will pick up again tomorrow. 

		* * *

		The hardest thing about being a juror is that you

can't discuss the case with anyone, so I am ordering you

not to discuss the case.  That is in fairness to both

sides.  What you need to do is wait with an open mind

until you hear all the evidence in the case, and then

wait until I read to you what the law is and instruct you

as to the law you are to apply to the case, and then,

when you go back to the jury room, then and only then is

it proper to begin to discuss the case, so do not discuss

the case among each other, with each other when you are

waiting in the morning or lunch, and don't discuss it at

home with anyone else. When you go home, somebody will

say, "Were you picked," and you will say, "Yeah, I don't

believe it."  They will say, "What kind of case is it,"

and you will say, "I can't tell you." I don't want you to

tell them what kind of case it is, and I don't want them to say anything about what they have saw or read.  I want

you to decide the case based on the evidence you will

hear in this courtroom.

		By the same token, for the same reason, I am

ordering you not to watch the TV news tonight or listen

to News Radio 78 or news radio programs or watch any TV,

crime dramas, police dramas, or courtroom dramas.  I

don't expect that this case will be discussed, but I

don't want any other external things to enter into your

consciousness when you are focusing on this case.  Again,

I want you to decide the case on the evidence in the

case, and that is the reason for the order regarding

that.

	* * * 

		Ladies and Gentlemen, with that, if you would go

back to the jury room, she will show you the jury room in

the hallway. *** At the close of the case, I will

instruct you that those of you who took notes may use

your notes during deliberations.  Those of you who do not

take notes should not give undue weight to the

recollection of a juror who did take notes just because

they took notes.  Your recollection of the evidence, even

thought you didn't take notes, may be just as good or

reliable as a juror who did take notes.

		So, with that, Folks, we will see you tomorrow at 10:15 A.M. Thank you."  

	The extensive nature of the Judge's pre-trial instructions

to the jury and the fact that the jury in this case was sworn

before they began deliberations obviate our concern that the

proceeding was tainted.  All the concepts required by our system

of justice to be communicated to a juror were effectively

imparted in these pre-trial instructions.  In this case, it is

clear from the record that the pre-trial instructions preserved

the integrity of the proceeding until the juror's oath was

administered.  While swearing the jury is preferably done prior

to opening statements (as all pre-trial instructions may not be

as thorough as those given in the instant case), the one day

delay in giving the oath did not deprive these defendants of a

fair trial.  We find no prejudice here and conclude that the

delayed swearing of the jury was harmless. 

	We have found multiple cases from other jurisdictions in

which courts have reached similar conclusions.  In United States v. Hopkins, 458 F.2d 1353, 1354 (5th Cir. 1972), the court held that failing to administer the juror's oath until after the close

of the government's case but before deliberation was harmless

error where no prejudice was shown and no objection was made.  In State of Wisconsin v. Block, 170 Wis. 2d 676, 681, 489 N.W.2d 715, 717 (1992), the court held that absent a showing of

prejudice, reversal was not warranted because the jury was not

sworn until six witnesses had testified for the State.  In Hollis v. People of the State of Colorado, 630 P. 2d 68, 70 (1981), the court held that absent an objection or a showing of prejudice

from defendant, it was harmless error to swear the jury until

after the first State's witness had testified.  In People of the State of New York v. Morales, 570 N.Y.S. 2d 831, 833 (1991), the court held that because the jurors were sworn prior to

deliberations and the defendant had failed to show any prejudice,

the delay was harmless.  In State of Vermont v. Roberge, 115 Vt. 121, 582 N.E.2d 142, 143 (1990), the court held that absent an

objection or a showing of prejudice, there is no reversible error

where a jury is sworn before deliberations in a criminal case.  

Further,  we believe that it is incumbent upon the defense to

raise an objection to an unsworn jury at trial or risk waiving

the issue on appeal. See Hicks, 181 Ill. 2d at 544, 693 N.E.2d at 375.

 III. Prosecutorial Misconduct

	Prosecutors are afforded wide latitude in closing argument

and may argue reasonable inferences from the facts in evidence. 

People v. Williams, 192 Ill. 2d 548, 573, 736 N.E.2d 1001, 1015 (2000).  This court will not reverse a trial court's

determination concerning the propriety of a prosecutor's closing

remarks absent an abuse of discretion.  People v. Hudson, 157 Ill. 2d 410, 441, 626 N.E.2d 161, 178 (1993).  Even if found to

be improper, such remarks "generally do not constitute reversible

error unless they result in substantial prejudice to the accused."  People v. Morgan, 112 Ill. 2d 111, 132,  492 N.E.2d 1303, 1311 (1986).

	Courts have consistently held that prosecutorial remarks

invited by defense counsel will not constitute reversible error

absent a showing of substantial prejudice.  People v. Mendez, 318 Ill. App. 3d 1145, 1152, 745 N.E.2d 93, 100 (2001).  We also note

that even prejudicial statements by the prosecutor may be cured

by the court's proper instructions of law.  People v. Simms, 192 Ill. 2d 348, 396, 736 N.E.2d 1092, 1124 (2000). "[T]he act of promptly sustaining the objection and instructing the jury to

disregard such argument has usually been viewed as sufficient to

cure any prejudice." People v. Gonzalez, 142 Ill. 2d 481, 493, 568 N.E.2d 864, 869 (1991).  However, "the prejudicial effect of

an improper argument cannot always be erased from the minds of

the jurors by an admonishment from the court."  People v. Baptist, 76 Ill. 2d 19, 30, 389 N.E.2d 1200, 1205-06 (1979).  

	While a prosecutor may comment on the persuasiveness of the

defense theory of the case as well as any supporting evidence and

reasonable inferences drawn therefrom, "it is blatantly improper

to suggest that the defense is fabricated, as such accusations

serve no purpose other than to prejudice the jury."  People v. Aguirre, 291 Ill. App. 3d 1028, 1035, 684 N.E.2d 1372, 1377 (1997).  While a prosecutor may comment on defense "counsel's

failure to produce evidence promised in opening statement so long

as the comments do not reflect upon defendant's failure to testify" (People v. Huddleston, 176 Ill. App. 3d 18, 30, 530 N.E.2d 1015, 1023 (1988)), "[a]ccusations of deception and

trickery by defense counsel serve no purpose except to prejudice

the jury."  People v. Thompson, 313 Ill. App. 3d 510, 514, 730 N.E.2d 118, 122, (2000).  "[C]omments disparaging the integrity

of defense counsel and implying that the defense presented was

fabricated at the discretion of counsel have consistently been

condemned. [Citations.]" People v. Starks, 116 Ill. App. 3d 384, 394, 451 N.E.2d 1298, 1305 (1983).

	Our supreme court has held that it is improper for a

prosecutor to accuse a defendant's attorney of "lying and ***

attempting to create a reasonable doubt by 'confusion,

indecision, and misrepresentation.'" People v. Weathers, 62 Ill. 2d 114, 120, 338 N.E.2d 880, 883 (1975).  More recently, our

supreme court stated that "'[u]nless based on some evidence, statements made in closing arguments by the prosecution which

suggest that defense counsel fabricated a defense theory,

attempted to free his client through trickery or deception, or

suborned perjury are improper.  [Citations.]'" (Emphasis in

original.)  People v. Kirchner, 194 Ill. 2d 502, 549, 743 N.E.2d 94, 119 (2000), quoting  People v. Jackson, 182 Ill. 2d 30, 81, 695 N.E.2d 391, 416 (1998).  "Moreover, '[w]here a prosecutor's

statements in summation are not relevant to the defendant's guilt

or innocence and can only serve to inflame the jury, the

statements constitute error.' [Citations.]"  People v. Kidd, 147 Ill. 2d 510, 542, 591 N.E.2d 431, 446 (1992).

	The burden of proof in a criminal trial "includes both the

burden of producing evidence and the burden of persuading the

trier of fact."  People v. Ziltz, 98 Ill. 2d 38, 43, 455 N.E.2d 70, 72 (1983).  As the burden of proving defendants' guilt beyond

a reasonable doubt always rests on the prosecution, defendants

are not obliged to offer any proof of innocence.  People v. Armstead, 322 Ill. App. 3d. 1, 15, 748 N.E.2d 691, 703 (2001), citing People v. Weinstein, 35 Ill. 2d 467, 470, 220 N.E.2d 432, 434 (1966) and People v. Swift, 319 Ill. 359, 365-66, 150 N.E. 236, 266 (1925); People v. Millighan, Ill. App. 3d 967, 971, 638 N.E.2d 1150, 1154 (1994); People v. Berry, 264 Ill. App. 3d 773, 780, 642 N.E.2d 1307, 1314 (1994); see also People v. Coulson, 13 Ill. 2d 290, 296, 149 N.E.2d 96, 99 (1958) (holding that a

conviction "must rest on the strength of the People's case and

not the weakness of the defendant's case.").  While defendants are not required to present any evidence of innocence, defendants

may, however, posit alternative theories to explain the evidence

presented by the prosecution.

	In the instant case, after the prosecution concluded its

case in chief, defense counsel opted not to present a defense

case.  Closing arguments commenced with the prosecution's

customary recitation of the evidence presented at trial and

reasonable inferences drawn from the evidence. 

	During closing arguments, the defense presented two hypotheses intended to engender reasonable doubt in the minds of

the jurors.  The first hypothesis suggested that the driver of

the Taurus saw something on the dirt road and that this prompted

him to drive back to the road entrance.  Defense counsel stated:

		"No one can say for sure that there was -- beyond a

reasonable doubt, I should say, that there wasn't another

car down there where the body [Luis Acre's body] was

found."  

This hypothesis was further developed by counsel stating:

		"[w]hether they saw a person down there, whether

they saw headlights, another car down there, the State

hasn't proven it.  Certainly you know and you've heard

that there's another way in and out.  The road continues

on and keeps going through the marsh or whatever is back

there."  

The other hypothesis posited by defense counsel suggested that

because Gabrielle Gonzales was badly wounded and approached Terry

from the west side of the train, Gonzalez could not have been the

man seen running across the tracks from defendants to the east

side of the train.  Counsel argued that the man seen sprinting

was some other individual who then disappeared into the marsh

east of the train.  

	In the State's rebuttal, the prosecutor, Mr. Fabio Valentini

lambasted defense counsel utilizing what the State characterized

as continuous examples of defense attorney misconduct.  Defendants characterize the prosecutor's comments in his rebuttal

as accusations of "defense fabrication," "witness mistreatment"

and "witness intimidation."  Defendants point out the thirty-plus

objections the defense was forced to make during rebuttal alone.  

	The State counters that the prosecutor's comments were

properly based on the evidence, that the trial court did not

abuse its discretion when it overruled objections to allegations

of witness mistreatment and that the alleged witness intimidation

was not reversible error.  

	We first note that the State misstates the law by claiming

that Arias waived all questions of prosecutorial misconduct

because his counsel failed to object at trial.  While this court

notes that the waiver argument is a work horse of the State's

Attorney's office and often is dispositive, waiver cannot be

ubiquitously applied when the record does not support such a

finding.  In order to preserve an issue for appeal, a defendant

must make a contemporaneous objection at trial and raise the

issue in a post-trial motion.  People v. Nieves, 193 Ill. 2d 513, 524, 739 N.E.2d 1277, 1282 (2000).  "However, this rule is not

absolute.  A reviewing court may consider errors which affect

substantial rights (73 Ill. 2d R. 615(a)), or which *** are

sufficiently prejudicial to deny defendant a fair trial."  People v. Whitlow, 89 Ill. 2d 322, 342, 433 N.E.2d 629, 638 (1982).  

	The record reveals that the only issue to which defendant

Arias' counsel did not object was the alleged witness intimidation; however, Abadia did preserve the issue on appeal. 

As we must consider the prejudicial impact of the comment as to

Abadia, we cannot escape the fact that defendants were tried

jointly and "legal responsibility" instructions were given to the

jury.  

	We consider the present case analogous to Whitlow where "the defendants were tried jointly on both conspiracy and substantive

charges, and an 'accountability' instruction was given to the

jury."  Whitlow, 89 Ill. 2d at 342, 433 N.E.2d at 638.  Our supreme court stated that because "the State's theory involved

the responsibility of each defendant for the acts of his

codefendants *** improper remarks directed at one defendant were

likely to be considered by the jury as evidence against all of

them."  Whitlow, 89 Ill. 2d at 342, 433 N.E.2d at 638.  Just as the supreme court considered the cumulative impact of all

prejudicial comments on all defendants in Whitlow (89 Ill. 2d at 342, 433 N.E.2d at 638), we will consider the witness

intimidation comment in weighing the cumulative prejudicial

effect of the other rebuttal comments on both Abadia and Arias.  

	Having disposed of the waiver issue, we turn to the

defendants' contention of prosecutorial misconduct.  Defendants

claim the prosecutor made accusations of fabricating defenses and

witness mistreatment during rebuttal argument.  

	The prosecutor stated:

		"The problem is it takes four years for a case like this to go to trial. * * * During the four years, from

June 20, 1995 and apparently this morning, it gets four

years for two teams of defense lawyers to come up with

and concoct the various theories and ideas of what might

have happened and what they wished the evidence would

show ***  And the night before closing arguments,

apparently they sit around and fantasize and concoct a

whole bunch of theories [sic] impossibilities of what

could have happened and what may have happened and what

probably happened."

	* * *

		"You should ask yourself why lawyers for these

defendants would stand here and make up stories."

	* * *

		"Why in three days they would present distractions

and continue to present distractions and distort things

and misstatements and confuse things and change theory

during the course of the trial."

	* * *

		"As I was saying, you have to ask yourself why the

defense in this case keeps changing."

		* * *

		"Robert Terry is a hard working guy who didn't

deserve the abuse he endured.  The abuse he endured on

the stand when he was mocked and mistreated and things

were misstated to him and things were suggested to him

when he had said that he said he didn't say."

	* * *

		"And at one point Mr. Meczyk said he questioned him

about something he said on direct examination and he said

sir, I took notes, I took notes and he was going to

cross-examine him and suggest that he was saying

something different, but he couldn't prove it up."

	* * *

		"You know, we happily accepted the burden in this

case as we do in every case.  But when things are

misstated, when things are misstated to you, you should

ask yourself why."

	* * *

		"Why are you being told things that are completely

not true"

	* * *

		"And despite what people want to tell you, despite

their misstatements, despite all the baloney, you

remember Robert Terry's testimony."

	* * *

		"What trial are they talking about?  Not this one."

	* * *

		"Why do they keep changing?"

	* * *

		"Why are they misstating the evidence and making

things up as they go along?"

		* * *

		"Don't let them confuse you."

	* * *

		"Not only that, doesn't that deny common sense? 

Isn't that ridiculous?  Isn't that a desperate argument

made by desperate defendants who are clearly, clearly in

a desperate situation now?"

	* * *

		"[I]t defies common sense and it's an insult to your

intelligence."

	* * *

		"That is a complete misstatement of the evidence."

	* * *

		"Don't let them confuse you by misstating the

evidence."

	* * *

		"[I]t's another method to try and get you to think

about something other than the evidence in this case."

	* * *

		"And it is about seeing justice done, and justice

doesn't mean you execute someone and scare off all the

witnesses and you get away with it."

	* * *

		"They mocked him when they testified about his

military experience.  They misstated things he said, they

misquoted him, they made fun of him."

	* * *

		"But you can understand why they don't like Robert

Terry."

	* * *

		"You can understand why they want you to believe

things he said that he didn't say.  You can understand

why they will misquote him and they will mock him"

	We must turn to the record to examine the prosecutor's

comments in the context of the entire arguments of both the

defense and the prosecution.  People v. Morgan, 142 Ill. 2d 410, 453, 568 N.E.2d 755, 770 (1991).  As the defense chose not to

present a case, the record contains only the prosecution's case

in chief.  Consequently, the record does not contain evidence which could support the hypotheses that the defense argued in

closing.  The record also contains no evidence which would

clearly contradict the defense hypotheses.  Lacking such evidence

in the record, we cannot ascertain the truth or falsity of the

defendants' closing arguments from the record.  We are therefore

certain that if we cannot detect any evidence of defense

fabrication, the prosecution had no evidence that the defense was

concocted.  Unless predicated on evidence that defense counsel

behaved unethically, the accusations that defense counsel

attempted to create a reasonable doubt by confusion,

misrepresentation, deception, and fabrication were irrelevant to

the defendants' guilt or innocence, improper and highly

prejudicial.  Weathers, 62 Ill. 2d at 120, 338 N.E.2d at 883; Kidd, 147 Ill. 2d at 542, 591 N.E.2d at 446; People v. Fluker, 318 Ill. App. 3d 193, 202, 742 N.E.2d 799, 806 (2000).   

	After a careful review of the record, we cannot characterize

the prosecutor's rebuttal argument either as based on the

evidence or as invited comment by the defense. Mendez, 318 Ill. App. 3d at 1152, 745 N.E.2d at 100; Kirchner, 194 Ill. 2d at 549, 743 N.E.2d at 119.  Furthermore, we do not believe the court's

instructions of law could cure the substantial prejudice caused

by the prosecutor's comments.  Simms, 192 Ill. 2d at 396, 736 N.E.2d at 1124.  "Where there are numerous instances of improper

prosecutorial remarks, a reviewing court may consider their

cumulative impact rather than assessing them in isolation."  People v. Brown, 113 Ill. App. 3d 625, 630, 447 N.E.2d 1011, 1015 (1983), citing Whitlow, 89 Ill. 2d at 341, 433 N.E.2d at 638.  The prosecution's rebuttal strayed so often from proper lines of

argument that its cumulative effect was to deprive the defendants

of a fair trial by drawing the jury's attention away from the

issues in the case.  Fluker, 318 Ill. App. 3d at 202, 742 N.E.2d at 806; see People v. Blue, 189 Ill. 2d 99, 141, 724 N.E.2d 920, 941 (2000)(holding that reversal was warranted when "the trial

court allowed the guilty verdict to rest on considerations other

than the evidence alone.")  The prosecutor's comments attacking

both defense counsel, served no purpose but to prejudice the

trier of fact against the defense and thus constitute reversible

error.

	Defendants also argue that the prosecutor prejudiced the

jury against defendants during closing argument by accusing

defense counsel of mistreating the State's star eyewitness. 

Specifically, the prosecution stated that the train engineer,

Robert Terry, was "abused," "mocked and mistreated" and that

"things were misstated to him and things were suggested to him

when he had said that he said he didn't say."  We acknowledge

defense counsel's intellectual agility in deciphering the

prosecution's complex sentence and making a timely objection. 

However, we ourselves must once again turn to the record in

resolving this issue. 

	Examining the record in light of the prosecutor's comment, we can ascertain only two instances in which the defense could

have "suggested" a response to Terry.  During cross-examination,

defense counsel asked Terry whether he had told two police

officers he had seen a car drive south on Yates Avenue 15 minutes

before he heard gunshots and saw a man running towards his train,

as reflected in a police report.  Terry testified that he did not

tell the police 15 minutes had lapsed between seeing the car and

hearing the gunshots.  The police report was not entered into

evidence.  Questioning Terry on the time line of events was a

legitimate area of inquiry and certainly not "abuse."  The only

other such instance was when defense counsel cross-examined Terry

about whether he saw Gonzales turn to fire a gun at the

defendants while running.  Terry stated on both cross-examination

and redirect that he told police that he thought the man running

away from defendants had fired a gun at defendants.  Terry then

clarified his testimony by stating that he neither saw a gun in

Gonzales' hands nor saw a muzzle flash. 

	Given the record, we fail to understand how the defense

"abused" the witness in asking questions about potential

inconsistencies in the witness' testimony.  We conclude that the

prosecutor mischaracterized the cross-examination of the State's 

eyewitness in his rebuttal.  The State's mischaracterization was

not relevant to the guilt or innocence of defendants and could

only serve to inflame the jury.  People v. Smith, 141 Ill. 2d 40, 60, 565 N.E.2d 900, 908 (1990).  As such, the prosecutor's false  allegation of witness "abuse" constitutes further error.  Kidd, 147 Ill. 2d at 542, 591 N.E.2d at 446; 

	The final instance of misconduct occurred when the

prosecutor stated "justice doesn't mean you execute someone and

scare off all the witnesses and you get away with it."  Defense

counsel's objection was sustained and the jury was instructed to

disregard the remark.  "Prosecutorial comments which suggest that

witnesses were afraid to testify because defendant had threatened

or intimidated them, when not based upon any evidence in the

record *** are highly prejudicial and inflammatory."  People v. Mullen, 141 Ill. 2d 394, 405, 566 N.E.2d 222, 228 (1990).  Searching the record, we have failed to identify any evidence

which would support the prosecution's accusation of witness

intimidation and further find the harm to defendants could not be

cured by the trial court's sustainment of the objection and

subsequent curative instruction.  People v. Brown, 113 Ill. App. 3d 625, 629, 447 N.E.2d 1011, 1014 (1983).  This outrageous

accusation of witness intimidation yet serves to more throughly 

convince us that the prosecution's rebuttal commentary

constituted a pattern of conduct designed to inflame and arouse

the prejudice of the jury.  Brown, 113 Ill. App. 3d at 447 N.E.2d at 1014.  Such conduct by the prosecution constitutes reversible

error.  Mullen, 141 Ill. 2d at 405, 566 N.E.2d at 228; Kidd, 147 Ill. 2d at 542, 591 N.E.2d at 466.

	As our finding of prosecutorial misconduct requires us to reverse the defendants' convictions, we need not address the

remaining two issues on appeal.  

 CONCLUSION

	We hold that although there was sufficient evidence to

convict the defendants and the unsworn jury had no prejudicial

effect, the prosecutor's comments during rebuttal argument caused

such substantial prejudice to defendants that our confidence in

the verdict has eroded to the point where we cannot confidently

state that the trial was fundamentally fair.  We therefore

reverse defendants convictions and remand the case to the circuit

court for a new trial.  

	Reversed and remanded for new trial.

	TullyULLY, P.p.PJ., concurrs.  COUNSINS, PJ., Sspecially onconcurs.s.  

	Justice Cousins, specially concurring:

	Because I agree that comments made by the prosecutor during

rebuttal argument caused substantial prejudice to the defendants,

I concur specially in the decision to reverse and remand for a

new trial.  However, the opening statement that was made by the

defense counsel for Abadia in this case is a "bombshell".   The

defense counsel made the following opening statement:

		     "At the very outset I want to tell you that

the charge against Roberto Abadia is a false

charge, it's an absolutely false charge.

	* * *

		     Members of the jury, it's true that Roberto Abadia has those legal advantages, the burden of

proof and the presumption of innocence.  But in

this case Mr. Abadia doesn't want it.

		     Mr. Abadia is going to prove to you, we will       

    		competently prove to you, that he did not commit 

          any murder.

			Members of the jury, I 'm going to bring 

		into this courtroom-Let me back up.  Let me tell 

		you this: 

		     I'm going to make full disclosure to you

about Roberto Abadia and I'm going to tell you 

	     at the very outset, at the very beginning of 

		this trial that Mr. Abadia is not an angel and

		that he's not a choir boy.  I want to tell you 

		that from the beginning.

		     Mr. a Babb (sic) I can't was,  in fact,

involved with illegal substances, with

controlled substances.  Yes, he was a drug

dealer and yes, members of the jury, I'm

going to prove to you that he owed people

money and so did the dead person in this

case, the decedent, Mr. Arce.  And but for

the grace of God Roberto Abadia was almost a

victim himself.  And there is another

eyewitness to this case, members of the jury,

besides the engineer of that Norfolk and

Western locomotive facing south down those

tracks, and there is another eyewitness in

this case, and you are going to hear from

that eyewitness as to what really happened

down that embankment that ran parallel down

to those railroad tracks.  And you're going

to hear that Mr. Abadia himself was going to

be a victim of an execution.  And you're

going to hear what actually occurred that

night and what happened to him.               

    You're going to hear things in this case

that the prosecution has in their file and won't disclose, but we will disclose those to

you and we'll bring the light of day into

this courtroom and not hide anything from

you.                                          

    You are going to hear evidence, and when

you -- evidence that will exonerate, if you

will, that at the end you will come to the

conclusion that Roberto Abadia is not a

murderer.  

	* * *

		     Counsel mentioned to you the gunshot 

		residue.  Yes, and he also mentioned to you 

		blood on Mr. Abadia.  I can tell you that 

		there was indeed blood on Mr. Abadia.  And 

		you'll find out the reason soon enough why 

		there was blood on Mr. Abadia.

	* * *

		    Members of the jury, when this case is

over you will come to the conclusion that Mr.

Abadia is not a murderer and this is a false

charge. And our evidence, that is Mr. 

Abadia's evidence, will come in."   

	* * *

		Almost like a movie review.  You often see the

sneak previews with Roger Ebert and when Jean

(sic) Siskell was alive.  They would present movie reviews, and they'd tell you when (sic) they

thought it was going to be a good movie or a bad

movie and they'd give you a clip of the movie. And opening statement is much like that.

	* * *

		    Well, we're here to tell you that the evidence is not going to prove [defendant] guilty here. In fact, the evidence will prove him not guilty." 

	In spite of the promises made by defense counsel, the defense presented no evidence.  Thus, this statement

is a "bombshell."

		During the closing argument, counsel for defendant Abadia

argued:

		     "There is an instruction that the Judge

is going to give to you this morning. 

	* * *	 

		I suppose that saves me because two days ago 

		I came to this courtroom and I promised every 

		one of you folks sincerely that I was going to 

		present the case.     

			          I'm not asking his Honor, Judge Moran to 

          exonerate me or save me or what this instruction

          the law, the law of the State of Illinois to 

          save me.   

			         If you're mad at me, please don't take it 

          out on Roberto Abadia, tell me afterwards, 'you 

          lied to me.'  I didn't lie to you.  I sincerely 

          thought I had to present a case."

	In my view, this is a case where the arguments by both the

state and defense are improper.  Unfortunately, when such occurs,

justice is thwarted.