                                                                        SECOND DIVISION
                                                                            April 22, 2008




No. 1-05-3293



THE PEOPLE OF THE STATE OF ILLINOIS,                        )   Appeal from the
                                                            )   Circuit Court of
                     Plaintiff-Appellee,                    )   Cook County
                                                            )
v.                                                          )
                                                            )   No. 04 CR 11671
                                                            )
MACK ECHOLS,                                                )
                                                            )   Honorable
                     Defendant-Appellant.                   )   Thomas R. Sumner,
                                                            )   Judge Presiding.




       JUSTICE KARNEZIS delivered the opinion of the court:

       Following a jury trial, defendant Mack Echols was found guilty of residential

burglary and was sentenced to a term of seven years' imprisonment. On appeal,

defendant contends: (1) his trial counsel was ineffective for failing to object to the

search of his home; (2) the trial court erred in refusing to instruct the jury on the lesser-

included offense of theft; (3) he was denied a fair trial because the jury instruction
1-05-3293


regarding his alleged oral statement was erroneous; and (4) the State's rebuttal closing

argument was improper. We affirm.

                                     BACKGROUND

       On April 11, 2004, James Rauch and Eric Metz resided in an apartment located

at 1530 North Hudson Avenue in Chicago. Both had been out of town for the weekend.

When they returned, they found the back door to their apartment damaged. Rauch

noticed that items had been taken from a jewelry box in his bedroom. The items mostly

consisted of rings he had won in swimming competitions in college, an Olympic silver

medal pin, watches and cuff links. Rauch also noticed that a cup that had contained

loose change, a digital camera and a small tool kit were missing from his bedroom.

Rauch's bicycle was also missing.

       On April 12, parole officers Michael Davey and Tim Blair went to defendant's

house to conduct a parole check. Defendant had previously been in the custody of the

Illinois Department of Corrections and was on mandatory supervised release (MSR),

commonly referred to as parole. Officer Davey testified at trial that his duties as a

parole agent were to supervise and monitor individuals that had been released from

correctional centers to make sure they were in compliance with the terms of their MSR

agreements. Specifically, he stated that officers test individuals for drugs, verify their

employment status and conduct searches of their person and property. Officer Davey

also testified that he believed that as part of the MSR agreement, individuals agreed to

submit to searches of their homes. He stated that when he and his partner arrived at

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defendant's house, another officer was already present as well as defendant's wife.

The other officer had responded to a domestic disturbance call and was speaking with

defendant's wife. Defendant was not present. Officer Davey and his partner left to

attempt to locate defendant. After being unable to locate defendant, the officers

returned to his house. They spoke with defendant's wife, who Officer Davey described

as crying, fearful and distraught. Defendant's wife informed the officers that defendant

had not returned home. Officer Davey asked her for permission to go through

defendant's property and she directed them upstairs to a bedroom and more

specifically to a dresser. Inside the dresser was mostly male clothing as well as a bag

containing numerous gold rings, an Olympic silver medal pin, several watches and

some cuff links. The officers recovered the items and brought them to the police

station. They later returned to defendant's house and recovered a bicycle from the

stairway leading up to the bedrooms. Rauch identified the items recovered from

defendant's house as belonging to him.

      Defendant was arrested later that month and interviewed by Detective Blase

Foria. Detective Foria read defendant his Miranda warnings, and then asked him about

the burglary at 1530 North Hudson. According to Detective Foria, defendant

responded that he was "sick of his lifestyle of doing drugs" and wanted to "clean

himself up." Defendant then told the officer that on the morning of April 11, 2004, he

used a small pry tool and broke open the back door of the apartment. Defendant went

to a bedroom and took items from a jewelry box. Defendant returned home, showed

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the items to his wife and put them in his dresser drawer. Defendant indicated the items

from the jewelry box consisted of rings, watches, tie clips and cuff links. Defendant

further stated that he was going to sell the items to purchase drugs. Detective Foria

admitted on cross-examination that he did not have defendant memoralize the

statement in writing or on videotape.

                                        ANALYSIS

                              Search of Defendant's Home

      On appeal, defendant first contends that his trial counsel was ineffective for

failing to file a motion to suppress evidence. Defendant argues that the search of his

home was unconstitutional because it was not based on "reasonable suspicion." He

maintains that had defense counsel filed a motion to suppress evidence, the motion

would have been granted.

      Claims of ineffective assistance of counsel are analyzed under the two-prong

test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct.

2052 (1984), as adopted by the Illinois Supreme Court in People v. Albanese, 104 Ill.

2d 504, 525 (1984). First, a defendant must prove that counsel's representation fell

below an objective standard of reasonableness. Albanese, 104 Ill. 2d at 525. Second,

a defendant must establish that, absent counsel's unprofessional errors, the result of

the proceeding would probably have been different. Albanese, 104 Ill. 2d at 525. A

court need not determine whether counsel's performance was deficient before

examining the prejudice suffered by the defendant as a result of the alleged

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deficiencies. Albanese, 104 Ill. 2d at 527. If it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, that course should be followed.

Albanese, 104 Ill. 2d at 527.

       Defendant primarily relies on People v. Wilson, 364 Ill. App. 3d 762 (2006), for

support. This court's decision in Wilson determined that a search of the defendant's

home pursuant to the conditions of his MSR agreement was reasonable under the

fourth amendment if the search was supported by reasonable suspicion. Wilson, 364

Ill. App. 3d at 772. However, during the pendency of this appeal, our supreme court

reversed this court's holding in Wilson. People v. Wilson, No. 102562 (February 7,

2008). Our supreme court determined instead that the "'Fourth Amendment does not

prohibit a police officer from conducting a suspicionless search of a parolee [Citation.]'"

Wilson, slip op. at 14. The supreme court reasoned that any fourth amendment special

protection afforded to the defendant's residence was lost when he became a parolee

and agreed to consent to a search of his residence in his MSR agreement. Wilson, slip

op. at 14. Therefore, Wilson no longer supports defendant's contention. Had defense

counsel filed a motion to suppress evidence on the basis that the search violated

defendant's constitutional rights, it would not have been granted, and the outcome of

the proceedings would not have been different. We find no ineffective assistance of

counsel.

                            Lesser Included Offense of Theft

       Defendant next contends that the trial court erred in refusing to instruct the jury

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on the lesser included offense of theft. Defendant maintains that a jury instruction for

theft was proper because the offense of theft was mentioned in the indictment and a

rational jury could have convicted him of theft while acquitting him of residential

burglary.

       Generally, a defendant may not be convicted of an offense for which he has not

been charged. People v. Hamilton, 179 Ill. 2d 319, 323 (1997). However, a defendant

is entitled to have the jury instructed on a less serious offense if that offense is included

in the charged offense. Hamilton, 179 Ill. 2d at 323. In determining whether a

particular offense is included in a charged offense, the proper approach is to first

examine the charging instrument and then the evidence adduced at trial. Hamilton, 179

Ill. 2d at 324. This approach is referred to as the charging instrument approach. See

People v. Kolton, 219 Ill. 2d 353, 359-60 (2006) (reaffirming use of charging instrument

approach with less stringent application).

       We first consider whether the charging instrument identified the lesser included

offense. A lesser included offense will be included in the charged offense if the factual

description of the charged offense describes a "broad foundation" or "main outline" of

the lesser offense. Kolton, 219 Ill. App. 3d at 364. An offense may be deemed a lesser

included offense even though every element of the lesser offense is not explicitly

contained in the indictment, as long as the missing element can be reasonably inferred.

Kolton, 219 Ill. App. 3d at 364. Whether a particular offense is lesser included is a

decision that must be made on a case-by-case basis using the factual description of

                                             6
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the charged offense in the indictment. Kolton, 219 Ill. App. 3d at at 367. Whether a

charged offense encompasses another as a lesser included offense is a question of

law, which this court reviews de novo. Kolton, 219 Ill. App. 3d at 361.

       Here, the indictment charged defendant with committing "the offense of

residential burglary in that he knowingly and without authority, entered the dwelling

place of James Rauch, located at 1530 N. Hudson, in Chicago, Cook County, Illinois,

with the intent to commit therein a theft."

       A person commits residential burglary if that person "knowingly and without

authority enters or knowingly and without authority remains within the dwelling place of

another, or any part thereof, with the intent to commit therein a felony or theft." 720

ILCS 5/19-3 (West 2004).

       A person commits theft when he knowingly "[o]btains or exerts unauthorized

control over property of the owner" and "[i]ntends to deprive the owner permanently of

the use or benefit of the property." 720 ILCS 5/16-1(a) (West 2004).

       Although the indictment did not specifically charge defendant with the offense of

theft or set forth the elements of theft, it charged defendant with entering the home of

James Rauch with the intent to commit a theft. We can reasonably infer the missing

elements of theft; that defendant intended to obtain unauthorized control over the

property of James Rauch and to permanently deprive Rauch of the use or benefit of the

property. See Hamilton, 179 Ill. 2d at 325. We note that the parties agree that theft is

a lesser included offense of residential burglary as charged in this case.

                                              7
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       Having first determined, based on the facts in this case, that theft is a lesser

included offense of residential burglary, we must now examine the evidence adduced at

trial to determine whether the evidence would have rationally supported a conviction on

the lesser offense.

       The trial court denied defendant's request for an instruction for theft, finding that

"the jury will believe that his statement is true or that it is not true." In other words, the

court determined that if the jury believed defendant's alleged confession that he

entered Rauch's apartment and took Rauch's jewelry and bicycle, then the jury would

find him guilty of residential burglary. If the jury did not believe that defendant

confessed to Detective Foria, then the jury would acquit him of residential burglary.

       We agree. As stated above, if the jury believed defendant's confession to

Detective Foria, which was supported by the fact that the proceeds of the burglary were

recovered from his house, then it would find him guilty of residential burglary.

However, if the jury did not find Detective Foria's testimony that defendant confessed to

the crime credible, then no rational jury could have found him guilty of residential

burglary or theft. Without defendant's confession, the only evidence at trial was Officer

Davey's testimony that defendant's wife directed them to a bedroom and a dresser from

which they recovered the jewelry. There was no additional testimony that defendant

had been at home or had been in the bedroom since the burglary occurred the previous

day. There was also no evidence indicating that defendant would have known that the

jewelry had been in the dresser. Also, because the bicycle was recovered from the

                                               8
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stairway, there was no indication that it had been hidden amongst defendant's

possessions and it could have been placed there by anyone with access to the home.

Therefore, the evidence would not sustain the finding that the jury could have convicted

defendant of theft but acquitted him of residential burglary. Therefore, we find that

defendant was not entitled to an instruction on the lesser included offense of theft and

the trial court did not err in denying the instruction.

                               IPI Criminal 4th No. 3.06-3.07

       Defendant next contends that he was denied a fair trial because the jury was

improperly instructed as to his alleged oral statement. The instruction, Illinois Pattern

Jury Instructions, Criminal, No. 3.06-3.07 (4th ed. 2004) (hereinafter IPI Criminal 4th),

provides:

              "You have before you evidence that the defendant made a

       statement relating to the offense charged in the indictment. It is for you to

       determine [whether the defendant made the statement, and, if so,] what

       weight should be given to the statement. In determining the weight to be

       given to a statement, you should consider all of the circumstances under

       which it was made." IPI Criminal 4th No. 3.06-3.07.

       The instruction given to the jury omitted the above bracketed phrase. The

committee notes following the instruction state that the phrase directing the jury to

determine whether defendant made the statement should be deleted only when the

defendant admits to making the material statement attributed to him. IPI Criminal 4th

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No. 3.06-3.07, Committee Notes, at 91.

       Initially, we note that defendant has waived this issue because he did not object

to the instruction as given and did not raise the issue in a posttrial motion. A defendant

waives a jury instruction issue if the defendant does not raise the issue at trial and does

not raise the issue in a posttrial motion. People v. Herron, 215 Ill. 2d 167, 175 (2005).

Both a trial objection and a written posttrial motion raising the issue are required to

preserve an issue for review. People v. Enoch, 122 Ill. 2d 176, 186 (1988).

       Waiver aside, we find no error. Defendant relies on People v. Richmond, 341 Ill.

App. 3d 39 (2003), for support. We acknowledge that Richmond supports defendant's

contention to some extent; however, as the State points out, part of the analysis in

Richmond appears contrary to established case law.

       This court has consistently held that IPI Criminal 4th No. 3.06-3.07 is proper

without the bracketed phrase in circumstances where the defendant presented no

evidence that he denied making the statement. See People v. Ramos, 318 Ill. App. 3d

181, 188 (2000); People v. Moore, 294 Ill. App. 3d 410, 417 (1998); People v. Garner,

248 Ill. App. 3d 985, 992-93 (1993); People v. Lee, 151 Ill. App. 3d 510, 530 (1986);

People v. Fleming, 103 Ill. App. 3d 194, 198 (1981). These cases have reasoned that

to hold otherwise would confuse the jury by making it decide an issue improperly before

the court. Ramos, 318 Ill. App. 3d at 188.

       In Richmond, the defendant's signed statement was entered into evidence at

trial. The defendant did not testify or present any witnesses on his behalf. Defense

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counsel cross-examined the assistant State's Attorney about whether he had

videotaped the statement or given the defendant the option of writing out the statement

himself or having the statement tape-recorded. Defense counsel also cross-examined

a police detective about whether the defendant's statement was tape-recorded, video-

recorded, or recorded by a court reporter. In closing argument, defense counsel

argued that the defendant did not make the statement attributed to him. The jury was

given IPI Criminal 3d No. 3.06-3.07 without the bracketed phrase, over defense

counsel's objection. This court found on appeal that the trial court erred in failing to

give the instruction without the bracketed phrase because the defendant was entitled to

have the jury instructed on his theory of the case where there was some foundation for

the instruction in the evidence. Richmond, 341 Ill. App. 3d at 52. The court determined

that the cross-examination of the assistant State's Attorney and the police detective

regarding the defendant's alleged statement could support the inference that the

defendant's statement was fabricated. Richmond, 341 Ill. App. 3d at 52. The court

stated that the bracketed phrase should have been included in the instruction because

although "the inference drawn by defense counsel rested on a thin foundation, it

contained enough vitality for presentation to the jury." Richmond, 341 Ill. App. 3d at 52.

Nevertheless, the court determined that the error was harmless because the evidence

was not closely balanced and the result of the trial would not have been different had

the jury been properly instructed. Richmond, 341 Ill. App. 3d at 53.

       Justice Hoffman wrote a concurrence wherein he agreed with the result the

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majority reached, but disagreed that it was error to give the instruction without the

bracketed phrase. The concurrence noted consistent case law such as Ramos, Moore,

Garner, Lee and Fleming, that has held that the instruction was sufficient without the

bracketed phrase when the defendant presented no evidence that he did not make the

statement. Richmond, 341 Ill. App. 3d at 55 (Hoffman, J., specially concurring). It

further stated that to conclude, solely based on the cross-examination of the assistant

State's Attorney and the police detective that the defendant's statement was fabricated,

would be nothing more than speculation, and a jury is not permitted to engage in guess,

speculation or conjecture. Richmond, 341 Ill. App. 3d at 55 (Hoffman, J., specially

concurring). Justice Hoffman noted that "innuendoes and insinuations, wholly

unsupported by any evidence," were not sufficient to entitle a defendant to an

instruction containing the bracketed phrase. Richmond, 341 Ill. App. 3d at 55

(Hoffman, J., specially concurring). The concurrence also cautioned that the

established case law should not be read to stand for the proposition that a defendant

must take the stand and deny making the statement attributed to him before he is

entitled to have the bracketed phrase included in the instruction. Justice Hoffman

concluded that the fact that the defendant's statement "was not videotaped, not

recorded verbatim, and not in the defendant's own handwriting are certainly

circumstances that the jury should consider in determining the weight to be given to the

statement, but these facts, either individually or collectively, hardly constitute evidence

supporting a reasonable inference that the statement was fabricated." Richmond, 341

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Ill. App. 3d at 55-6 (Hoffman, J., specially concurring).

         Here, as noted above, Richmond does provide some support for defendant's

contention. Similar to Richmond, defense counsel cross-examined Detective Foria

about defendant's alleged statement and Detective Foria admitted that he did not have

defendant memoralize the statement in writing or on videotape. However, as noted in

Justice Hoffman's concurrence, most case law has consistently held contrary to the

majority's analysis. In following this case law, we find that when the defendant does not

present any evidence that he did not make the statement, then the bracketed phrase in

the instruction is properly omitted. As stated above, here, defendant did not testify or

present any evidence that he denied making the statement. We do not find the cross-

examination of Detective Foria sufficient to amount to "evidence that the defendant did

not make the statement." The jury heard defense counsel's cross-examination of

Detective Foria regarding defendant's statement and the inferences drawn therefrom.

It was then for the jury to determine what weight should be given to the statement. We

find no error in the instruction as given.

                                Rebuttal Closing Argument

         Lastly, defendant contends that the State's rebuttal closing argument was

improper. He argues that the State made several comments that shifted the burden of

proof.

         Defendant first points to the State's comment regarding defendant's alleged oral

statement, "What evidence is there that this guy did not talk to the police and did not

                                             13
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tell them exactly what happened?" Defendant maintains that the State has the burden

of proving defendant guilty beyond a reasonable doubt and the State may not make

comments that shift the burden of proof to the defendant to present evidence.

       Initially, we note that the State is given wide latitude in closing arguments.

People v. Miller, 302 Ill. App. 3d 487, 495 (1998). Also, the State may comment on the

evidence, draw inferences therefrom, and comment on the accused's credibility. Miller,

302 Ill. App. 3d at 495.

       Defendant relies on People v. Giangrande, 101 Ill. App. 3d 397 (1981). In

Giangrande, the State argued in closing argument, "'where's the evidence that the

defendant didn't do it?'" (Emphasis omitted.) Giangrande, 101 Ill. App. 3d at 402. This

court found that the State's comment "tended" to shift the burden of proof to the

defense and it was error for the trial court to overrule the objection. Giangrande, 101

Ill. App. 3d at 402. The court noted that although "a prosecutor may comment on the

uncontradicted nature of the State's case even where the only person who could have

contradicted the State's evidence was the defendant himself," the State's comment

went too far. Giangrande, 101 Ill. App. 3d at 402. The court found that the comment

may have improperly suggested to the jury that the defendant had a burden to

introduce evidence. Giangrande, 101 Ill. App. 3d at 402.

       Here, the State's comment concerned defendant's alleged oral statement. The

State did not ask, as in Giangrande, where was the evidence that the defendant did not

commit the crime. Instead, the State asked where was the evidence that defendant did

                                            14
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not make the statement. We find that this was a fair comment in response to defense

counsel's closing argument and on the evidence presented at trial. In his closing

argument, defense counsel stated that the statement was not written down by a State's

Attorney or court reporter and argued that "[s]o now all we have is what Detective Foria

said [defendant] said." The State's comment asking "[w]hat evidence is there that this

guy did not talk to the police and did not tell them exactly what happened," was in

response to defense counsel's argument. The comment was also proper because it

was a comment on the uncontradicted nature of the State's case. See People v.

Skorusa, 55 Ill. 2d 577, 584 (1973) (it is permissible for a prosecutor to comment on the

uncontradicted nature of the State's case even where the only person who could have

contradicted the State's evidence was the defendant himself).

      Defendant next points to the State's comment:

      "Okay, folks. I guess one of two things must have happened. Either this

      defendant is the most unlucky person on the planet, really not the type of

      person who should be buying lottery tickets at all, always at the wrong

      place at the wrong time, always, or if we are going to go with the

      defense's arguments, everybody, including Jamie and Eric, Officers

      Plovanich, McNaughton, Detective Foria, all got together over breakfast

      and decided to frame poor Mack Echols."

      It is generally improper for a prosecutor to argue that in order to believe the

defendant or to acquit the defendant the jury must believe that the State's witnesses

                                           15
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are lying. Miller, 302 Ill. App. 3d at 497. However, our supreme court has made a

distinction between two different versions of this argument. See People v. Coleman,

158 Ill. 2d 319, 346 (1994). If the State argues that in order to acquit the defendant the

jury must believe that the State's witnesses are lying, the statement is a misstatement

of law that shifts the burden of proof. Miller, 302 Ill. App. 3d at 497. If the State argues

that in order to believe the defendant's version of the incident, the jury must believe that

the State's witnesses are lying, is usually considered a misstatement of the evidence

and a less serious error. Miller, 302 Ill. App. 3d at 497.

       In Coleman, the State argued to the jury, "'in order to believe the [d]efendant you

must believe that all the civilian witnesses, all the police, all the experts, lied. They got

together to frame him.'" Coleman, 158 Ill. 2d at 345. The supreme court found that the

statements were an improper comment on the evidence rather than a misstatement of

law. Coleman, 158 Ill. 2d at 347. The court determined that the comment did not

inform the jury that the defendant had the burden of proof; instead, the comment was a

direct response to defense counsel's closing argument that many of the State's key

witnesses had lied. Coleman, 158 Ill. 2d at 347.

       In Miller, the State argued in closing argument that in order to find the defendant

not guilty, the jury would have to find that the State's witnesses were lying. This court

found on appeal that the statements were a misstatement of law that distorted the

burden of proof, rather than a misstatement of the evidence. Miller, 302 Ill. App. 3d at

497. The court emphasized that the statement was particularly misleading because

                                             16
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none of the State's witnesses claimed to have seen the crime and the defense argued

that one of the witnesses was mistaken rather than lying. Miller, 302 Ill. App. 3d at 498.

The court further noted that the State's comments reinforced its error when it

specifically argued that the State's witnesses were not mistaken and the jury would

have to believe that they were lying in order to acquit the defendant. Miller, 302 Ill.

App. 3d at 498.

       Here, we view the State's comments that the witnesses "all got together over

breakfast and decided to frame poor Mack Echols" as a misstatement of the evidence

rather than a misstatement of the law or a shift in the burden of proof. The comments

were more akin to the comments in Coleman that to believe the defendant, the jury

would have to believe that all the witnesses lied in order to frame the defendant.

Defense counsel argued in closing argument that defendant did not confess to

committing the crime and that anyone could have placed the proceeds of the burglary

in his house. The State did not argue as in Miller that in order to acquit defendant the

jurors must find that all of the State's witnesses were lying. Even when a prosecutor's

remarks exceed the bounds of proper comment, the verdict must not be disturbed

unless it can be said that the remarks resulted in substantial prejudice to the accused,

such that absent those remarks the verdict would have been different. Coleman, 158

Ill. 2d at 347. We cannot find that absent the State's remarks the verdict would have

been different. Therefore, defendant suffered no prejudice as a result of the comments.




                                            17
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       Defendant additionally contends that the State created further prejudice because

it improperly elicited evidence during trial from which the jury could have inferred that

defendant was in a street gang. Defendant points to the State's direct examination of

Officer Plovanich, the arresting officer, who stated that he was assigned to the gang

unit of the18th district. Defendant also maintains that Officer Plovanich testified that he

had knowledge that defendant was "wanted" and he knew defendant by his first name.

       We note that defendant failed to object to the complained-of testimony at trial or

in his posttrial motion. Therefore, defendant has waived the issue. See Enoch, 122 Ill.

2d at 186. Defendant does not acknowledge that the issue is waived and makes no

plain error argument. Even if we were to address defendant's contention, we find that

defendant has mischaracterized Officer Plovanich's testimony. Officer Plovanich

testified that he was a Chicago police officer in the 18th district assigned to a gang unit.

He also stated that he was aware that there was an investigative alert issued for

defendant. When asked if he knew the first name of the individual, he said "yes."

Officer Plovanich did not testify that he knew defendant by his first name as defendant

contends; rather, he testified that he knew the first name of the individual for whom the

investigative alert was issued. We fail to see how the complained of testimony

prejudiced defendant.

       Accordingly, we affirm the judgment of the circuit court.

       Affirmed.

       SOUTH, J., concurs.

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   JUSTICE HALL, specially concurring:

   I disagree with the majority's decision that instructing the jury with No. 3.06-07

without the bracketed phrase was not error. Our supreme court's committee on jury

instructions stated in its note on the instruction that "[t]he bracketed phrase *** should

be deleted only when the defendant admits making all the material statements

attributed to him." IPI Criminal 4th No. 3.06-3.07, Committee Note.

   The word "admit" is defined as "[t]o acknowledge; confess: admit the truth *** [t]o

accept or allow as true or valid." (Italics in original.) The American Heritage Dictionary

80 (2nd College Edition. 1982). The defendant did not admit making the statement to

Detective Foria. Instead, as did the courts in the cases cited by it, the majority relies on

the fact that the defendant offered no evidence contradicting Detective Foria's

testimony that the defendant confessed.

   In Richmond, this court and Justice Hoffman in his specially concurring opinion

agreed that prior case law did not require the defendant to give up his constitutional

right to remain silent, i.e. not testify, in order to have the jury instructed with the

bracketed phrase of the instruction. Richmond, 341 Ill. App. 3d at 52; see Richmond,

341 Ill. App. 3d at 55 (Hoffman, J., specially concurring). Nonetheless, Justice Hoffman

rejected the view that inferences from cross-examination were sufficient to entitle the

defendant to the bracketed phrase in the instruction. Richmond, 341 Ill. App. 3d at 55

(Hoffman, J., specially concurring).

   In this case there were no other witnesses to the defendant's statement. Without


                                              19
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giving up his right not to testify, the defendant's only recourse was to challenge the

detective's testimony by cross-examination. The detective's testimony was evidence

from which inferences could properly be drawn to support the giving of the bracketed

phrase. See People v. Buck, 361 Ill. App. 3d 923 (2005) (the failure of the police to

videotape the defendant's statement gave rise to the inference that the statement was

not made at all).

   In Lange v. Freund, 367 Ill. App. 3d 641 (2006), the court addressed the extent to

which recommendations and comments of the supreme court's committee on

instructions controlled the giving of jury instructions. Noting that there had been no

blanket prohibition of the instruction given in the case or a judicial analysis of the

committee's recommendation, the court recognized that "the propriety of the trial court's

instructions herein is not conclusively determined by the recommendations and

comments of the supreme court's jury instruction committee." Lange, 367 Ill. App. 3d at

645. Still, Lange does not require that the committee's recommendations and

comments be ignored, and, unlike Lange, the committee's note to No. 3.06-3.07

regarding the bracketed phrase was not in the nature of a recommendation but in the

nature of a requirement.

   In my view, prior case law, as well as the majority here, pays too little heed to the

requirement that the defendant admit the statement in order for the instruction to be

given without the bracketed phrase. In the present case, equating the defendant's

failure to put forth evidence, which here could only consist of his own testimony, to an


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admission that he made the statement, clearly violates the defendant's right not to

testify. Protecting that right required that the bracketed phrase be given to the jury in

this case. In any event, based on Richmond, the defendant was also entitled to the

bracketed phrase based on the inferences from the cross-examination of Detective

Foria. Richmond, 341 Ill. App. 3d at 52.

   While the failure to give the bracketed portion of the instruction was error, I am also

convinced that had the jury been given the proper instruction, the result of the trial

would not have been different. Therefore the error was harmless, and the defendant's

conviction should be affirmed. See Richmond, 341 Ill. App. 3d at 53.




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            REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT


THE PEOPLE OF THE STATE OF ILLINOIS,

                   Plaintiff-Appellee,

v.


MACK ECHOLS,

                   Defendant-Appellant.

                                    No. 1-05-3293

                              Appellate Court of Illinois
                            First District, Second Division

                                    April 22, 2008


               JUSTICE KARNEZIS delivered the opinion of the court.

                 SOUTH, J., concurs, HALL, J., specially concurring.


                    Appeal from the Circuit Court of Cook County.

                The Honorable Thomas R. Sumner, Judge Presiding.


For APPELLANT, Michael J. Pelletier, Deputy Defender, Office of the State Appellate
Defender (Joshua A. Tepper, Assistant Appellate Defender, of counsel)


For APPELLEE, Richard A. Devine, Cook County State's Attorney (James E.
Fitzgerald, Alan J. Spellberg, Kathleen Warnick, Hareena Meghani-Wakely, Assistant
State's Attorneys, of counsel).




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