# People v. Kliner

> Illinois Supreme Court · December 3, 1998 · 185 Ill. 2d 81

URL: https://www.frixlaw.com/law-library/cases/1998534

## Case

- **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RONALD KLINER, Appellant
- **Court:** Illinois Supreme Court
- **Decided:** December 3, 1998
- **Citations:** 185 Ill. 2d 81; 235 Ill. Dec. 667; 705 N.E.2d 850; 1998 Ill. LEXIS 1582
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Bilandic, Harrison
- **Cited by:** 521 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1998534

## How later opinions describe it (automated extraction)

- finding in light of the context of the proceeding, the prosecutor's comments about the defendant not testifying were not improper nor did the comments deprive the defendant of a fair trial where the jury was instructed that the defendant's decision not to testify was not to be…
- holding that “prosecutor’s comments during rebuttal argument regarding defense counsel’s ability to subpoena [a witness] were invited by defense counsel’s argument that the State failed to call [the person] as a witness”
- concluding that “prosecutor did not shift the burden of proof to defendant” by commenting on defendant’s subpoena power where prosecutor also “acknowledged that the burden of proof was on the State”
- holding that “[a] delay is occasioned by the defendant and charged to the defendant when the defendant’s acts caused or contributed to a delay resulting in the postponement of trial”
- noting that “the trial judge did not cite to any of the evidence here challenged”

## Opinion text

705 N.E.2d 850 (1998)
185 Ill.2d 81
235 Ill.Dec. 667
The PEOPLE of the State of Illinois, Appellee,
v.
Ronald KLINER, Appellant.
No. 81314
Supreme Court of Illinois.
December 3, 1998.
Rehearing Denied February 1, 1999.
*861 State Appellate Defender/SCU, John J. Hanlon, Asst. State Appellate Defender, Springfield, Martin Carlson, Assistant Appellate Defender, Capital Litigation Division, Chicago, Ronald S. Kliner, Pontiac, for Ronald Kliner.
Richard A. Devine, State's Attorney of Cook Co., Crim. Appeals Div., Jim Ryan, Attorney General, Criminal Appeals Div., Sally Dilgart, Assistant State's Attorney of Cook County, William L. Browers, Assistant Attorney General, Chicago, for the People of State of Illinois.
Locke E. Bowman, Chicago, for Amicus Curiae Coalition Concerned About The Execution of the Inn.
Katherine Anthony, Chicago, for Other.
Justice BILANDIC delivered the opinion of the court:
Defendant, Ronald Kliner, was charged in Cook County with two counts of first degree murder (Ill.Rev.Stat.1987, ch. 38, par. 9-1(a)(1), (a)(2)) and one count of conspiracy to commit murder (Ill.Rev.Stat.1987, ch. 38, par. 8-2). These charges related to the February 18, 1988, murder of Dana Rinaldi in Palatine, Illinois. The jury returned verdicts of guilty against defendant on all counts and the trial court entered judgment on the murder verdict. Defendant waived a jury for the death sentencing hearing. The trial court found defendant eligible for the death penalty on the basis that he committed the murder pursuant to a contract, agreement or understanding by which he was to receive money or anything of value in return for committing the murder (Ill.Rev.Stat.1987, ch. 38, par. 9-1(b)(5)). After considering evidence in aggravation and mitigation, the trial court found no mitigating factors sufficient to preclude imposition of the death penalty and sentenced defendant to death for the murder of Dana Rinaldi. Defendant's death sentence has been stayed pending direct review by this court. Ill. Const.1970, art. VI, § 4(b); 134 Ill.2d Rs. 603, 609(a). For the reasons that follow, we affirm defendant's conviction and death sentence.
*862 FACTS
The evidence adduced at trial showed that at around 12:30 a.m. on February 18, 1988, two neighbors, John and Deborah Fostin, discovered the body of Dana Rinaldi in her car located in the parking lot of the Wyndham Court apartment complex in Palatine, Illinois. Dana had lived in that apartment complex with her husband, Joseph Rinaldi. Dana was found seated on the driver's side of her blue Mustang, slumped over to the passenger side. Her left leg was hanging out of the driver's side door. An assistant medical examiner, who performed an autopsy on Dana, testified that Dana, while seated in her car, had been shot five times in the face and head from a distance of 18 to 24 inches. Three gunshot wounds to her hands also suggested that Dana had raised her hands in front of her face in an attempt to protect herself. The cause of death was determined to be multiple gunshot wounds.
After arriving on the scene shortly after discovery of Dana's body, police officers found six .22-caliber spent shell casings and one .22-caliber live round on the ground close to Dana's car. The live round had an indentation indicating the firing pin had struck the bullet but did not discharge it. A firearms tool mark examiner later concluded that the six shell casings and the live round were all .22 Long Rifle caliber and had been fired from the same weapon. In addition to the casings and the bullet, police officers found Dana's gloves, which she was wearing, and her purse in the car, both of which displayed bullet holes. No fingerprints were found in the car.
Police officers interviewed a number of Dana's neighbors, including Paul Skorupa, shortly after the discovery of the body. When Skorupa returned home around 11:45 p.m. on February 17, 1988, he nearly rear-ended a 1987 or 1988 red Nissan Pulsar in the apartment complex's parking lot. Under lighting conditions which he described as "pretty good," Skorupa could see the passenger in the car. Skorupa viewed a group of photographs three days later, picked out defendant's photograph, and said that defendant "looked like" the passenger in the Nissan Pulsar. Skorupa, however, was unable to identify anyone at a lineup conducted five years later. When Skorupa last saw the red car, it was parked toward a cul-de-sac at the end of the driveway. Skorupa did not see the victim's car at this time. On cross-examination, Skorupa acknowledged that he had seen another red Nissan Pulsar parked in the apartment complex parking lot a few days after the murder. On redirect, however, he testified that it did not resemble the car he had seen on the night of the murder.
Neighbor Tyrone Miller testified that he heard his dog barking sometime between midnight and 12:30 a.m. on the night of the murder. When he looked out his upstairs bedroom window, Miller saw a man jogging or walking fast down the street. The man stopped below Miller's window, looked at Miller, and ran away. Miller got a good look at his face and identified codefendant Michael Permanian in open court. Miller also identified Permanian as the man he had seen the night of the murder, during a photograph array conducted a few days after the murder, as well as at a lineup held five years after the murder. The last thing that Miller observed on the night of the murder were headlights leaving the area. On re-cross-examination, Miller acknowledged that if asked by the police to make an identification, he would falsely identify someone about 10% of the time based upon his mood.
During the early morning hours of February 18, 1988, police officers also interviewed the victim's husband, Joseph Rinaldi, who cried upon learning of Dana's death. When officers asked Rinaldi if he knew anyone who owned a small red sports car, Rinaldi offered the name of his friend Michael Permanian. Permanian was later photographed getting out of a red Nissan Pulsar at Dana's wake. It was later confirmed that Permanian was the owner of a red 1988 Nissan Pulsar.
No arrests were made in this case until June 10, 1993 following grand jury testimony by Tammy Behenna, defendant's former girlfriend, and John Apel, Sr., defendant's uncle. These witnesses along with Joseph Rinaldi testified for the State. Rinaldi testified in exchange for, among other things, the prosecutor's promise to recommend a 40-year sentence, although he later received a sentence *863 of 60 years' imprisonment after pleading guilty to murder, conspiracy, and solicitation. Rinaldi testified that he had married Dana in 1980, and they began having marital problems in the fall of 1987 when the couple was deeply in debt. About this time, Rinaldi began meeting with Michael Permanian, a close friend since childhood who had served as best man at his wedding. Rinaldi indicated to Permanian that he was having marital problems and wanted to have his wife killed because divorce was not an option given their debts. Permanian suggested that Rinaldi meet with defendant because defendant might be able to help Rinaldi with his problem. Rinaldi also had been acquainted with defendant since his childhood.
Prior to the murder, Rinaldi met with both Permanian and defendant, both of whom agreed to kill Dana. Defendant even pointed to a gun tucked in his waistband when Rinaldi asked how he would do it. Rinaldi informed them that he wanted it to look like a botched robbery attempt and defendant and Permanian agreed. Rinaldi provided defendant and Permanian with background information regarding Dana's employment and their apartment complex, the Wyndham Court Apartments. Rinaldi drew a map of the complex indicating the exact location where Dana usually parked her car. Rinaldi also informed defendant and Permanian about a $50,000 life insurance policy he had obtained on Dana's life and agreed to give them half of those proceeds. After investigating the matter, defendant and Permanian reported to Rinaldi that the apartment complex was the best place to kill Dana. Defendant and Permanian announced that they planned to commit the murder on February 17, 1988, and Permanian indicated that they would steal a car. Permanian suggested that Rinaldi go out on the night of the murder and page him as soon as he was finished talking to the police.
Rinaldi further testified that he called his friend Jim Groszka and persuaded him to go drinking with him in downtown Chicago on the night of February 17, 1988. Groszka later corroborated this in his own trial testimony, adding that he was surprised by Rinaldi's call and agreed to go out because Rinaldi was insistent. Groszka testified that he and Rinaldi were together at several bars in Chicago from 9 p.m. on February 17, 1988, until about 4 a.m. on February 18, 1988.
On February 17, 1988, Rinaldi visited his wife at work, which was 10 miles from their home, and took her out to dinner. Jennifer Sparesus, one of Dana's coworkers, corroborated Rinaldi's testimony regarding his visit at the office, and his announcement that he was going downtown later that night. Dana returned to the office after dinner. Sparesus testified that she last saw Dana around midnight when Dana indicated that she was going home.
Rinaldi testified that he returned home sometime after 4 a.m. Upon arriving home, Rinaldi knew the murder had been carried out because he saw Dana's car being towed away.
Following the murder, Rinaldi testified that he received more insurance proceeds than he originally anticipated. Rinaldi received approximately $137,000. Rinaldi had originally agreed to pay defendant and Permanian $25,000, and he did not immediately inform them of the additional funds. Rinaldi began making weekly payments to defendant and Permanian shortly after the murder. Permanian later contacted Rinaldi and informed him that he and defendant had learned about the additional insurance proceeds. Rinaldi agreed to pay defendant and Permanian $55,000. Rinaldi had meetings with defendant and Permanian regarding the insurance proceeds. Rinaldi testified that he was threatened by defendant and Permanian with respect to making payments to them and speaking to the police.
Rinaldi testified that, on September 28, 1993, while he, defendant and Permanian were in a holding cell awaiting transportation for a court appearance, Permanian talked about how he and defendant had driven to Indiana at speeds exceeding 100 miles per hour after the murder, where they disposed of the clothes and gun used to commit the murder. Both defendant and Permanian were laughing as they recalled how officers had dragged Lake Michigan looking for the gun.
*864 Rinaldi further recounted how, in late October, while all three men were in a lockup, Rinaldi saw defendant and Permanian reen-act the murder. Permanian sat on a bench while defendant stood over him, defendant's hand pointed at Permanian's head, and defendant's index finger stuck out as if he were holding a gun. After Permanian put his hand up by his face, defendant indicated that was how he shot Dana. Defendant also indicated that the gun had jammed during the shooting.
Rinaldi testified that, in January 1995, he had a conversation with defendant and Permanian before he testified at a suppression hearing on the defendant's motion to suppress his statements to police. Both defendant and Permanian coached him in an effort to get his statements suppressed. They advised him to testify that officers had threatened him, offered leniency to him, and denied his requests for counsel. When Rinaldi testified at the suppression hearing, he claimed coercion. At trial, however, Rinaldi admitted that he had perjured himself in that testimony.
Tammy Behenna, defendant's former girlfriend, testified for the State at trial. Behenna met defendant in 1987. Defendant and Behenna occasionally spent the night at her apartment prior to moving in together in October, 1988. They lived together until July 1, 1991. Defendant and Behenna had a child together, a son. Behenna recounted the events of February 17, 1988, in her testimony. According to Behenna, defendant got up around 11 p.m. and put on a suit. Defendant then left the apartment and did not return that night. Defendant called Behenna the next morning, February 18, 1988, and informed her he was okay and was going out to eat. Defendant returned to the apartment later that morning and went back to bed. When he heard a radio news report, however, he jumped out of bed and screamed, "That can't be right. They can't have a suspect." Behenna overheard defendant then make a phone call, during which he mentioned the name "Mike." Later that day, defendant called Behenna at her office and informed her that he had to meet "Mike" and that "they were going to make a deposit in Lake Michigan." On the evening of February 18 or 19, 1988, defendant asked Behenna to listen to a tape recording of a conversation between Permanian and Rinaldi. Defendant asked her if Rinaldi sounded like a man who had spent two months practicing his crying. Behenna recalled that defendant made a lot of phone calls on February 18 and 19, and that he clipped a lot of newspaper articles about the Rinaldi murder.
Behenna testified that, when she was subpoenaed to appear before the grand jury in April of 1988, she claimed the fifth amendment privilege, as defendant had advised her, and refused to testify. Behenna testified that when she was served with the subpoena to appear before the grand jury, defendant informed her that people can die in a number of ways, including being struck by a car while crossing the street. Defendant then had Behenna cross the street to mail a letter.
Behenna stated that defendant had a conversation with her about the Rinaldi murder in August of 1988, when they visited Great America amusement park. Defendant stated to Behenna that "I want you to picture this. It's cold outside. It's late. It's dark ... somebody is just coming home from work.... And I walk up to her car and point a gun at her. And she says `what are you doing?' And then she put her hand up, and then I shot her five times." Behenna stated that defendant was smiling when he relayed this information to her. Behenna also recounted that, in July of 1990, defendant walked up to her, put his finger to her head, and impersonated a woman's voice as he said: "What are you doing?" Defendant then said "bang" five times.
Behenna further testified that, sometime in February of 1988, or the fall of 1989, defendant mentioned Joe Rinaldi and that he was angry with Rinaldi and that he wanted Rinaldi to pay him for a job he had done. In the fall of 1989, Behenna saw defendant kneeling on the floor of their bedroom, counting what appeared to be a large amount of cash. Defendant looked at the money and asked, "Is this worth a life?"
On cross-examination, Behenna admitted that she had engaged in a sexual relationship with Permanian in 1991, just before she and *865 defendant stopped living together. Behenna stated that she stopped living with defendant after July 1, 1991, and moved in with her parents. Behenna began cooperating with the police in September of 1991, and testified before the grand jury in May of 1993. Behenna acknowledged that she was involved in ongoing litigation with defendant and his parents regarding visitation with her son.
John Apel, Sr., defendant's uncle and a Chicago police officer, also testified for the State. Apel testified about a number of incriminating statements defendant made to him. On February 18, 1988, around 6 p.m., defendant called him at home and told him to watch the news that night. Apel did so and heard an account of the Rinaldi murder. Defendant called him again that night to confirm Apel had watched the news, and defendant specifically referred to the murdered girl in Palatine, at which time defendant began laughing.
Sometime in May of 1988, defendant unexpectedly arrived at Apel's home. Defendant honked the horn repeatedly and drove partially onto Apel's driveway and his neighbor's lawn. Defendant admitted to Apel that he had killed Dana Rinaldi and provided details, including how he had stuck a gun to her head and pulled the trigger, and how she had thrown up her arms with a terrified look on her face. Defendant relayed that he laughed when he shot her in the head. Defendant also told Apel that the gun had jammed at one point. After relaying this information, defendant threatened that he would kill the members of the Apel family if his uncle said anything.
On cross-examination, Apel admitted that he did not inform anyone at the police department or make a written report about these admissions by defendant. Apel also admitted that he had claimed the fifth amendment privilege when he appeared before the grand jury in May of 1988. Apel explained that he did so because he was afraid of defendant. Apel stated that he did discuss defendant's statements when subpoenaed to appear before the grand jury a second time, in May of 1993, after defendant was in jail. Apel also admitted that he continued to engage in a business relationship with defendant even after the driveway conversation described above because defendant is a "pushy kind of person" and because "[i]t is either you are his enemy or you are his friend."
Apel's son, John Floyd Apel, also testified at defendant's trial. John corroborated his father's testimony about the conversation in the driveway of the Apel home in May of 1988. He also testified that he was present for another conversation with defendant in which defendant stated that "he could kill anyone just like he had killed the Rinaldi girl." John believed that this conversation had taken place in the fall of 1992, although he stated he could not recall the date with certainty, only that it was before defendant was incarcerated. The parties later stipulated that defendant had been continuously incarcerated in the Cook County jail from April 8, 1992, on another charge to the time of this trial.
Defendant called two witnesses, Todd Pugh, a law student working for the defense, and John Eierman, an investigator for the defense, to rebut the testimony of the State's witness Tyrone Miller. Pugh, Eierman and counsel for Permanian visited the Rinaldi's apartment complex, Wyndham Court, on February 18, 1996, to test the accuracy of Miller's observations. Each took a turn looking out the lower-level window of Miller's former apartment, and out the second-story window of a neighboring apartment, while another walked or jogged past the apartment. Both Pugh and Eierman testified they could not make an identification from that vantage point. On cross-examination, Pugh and Eierman acknowledged they did not know the lighting conditions on the actual day of the murder, nor did they know to what extent trees and bushes might have grown since then to obscure their vision. Moreover, both witnesses admitted they did not look out the bedroom window at which Miller was standing when he saw Permanian. Eierman also testified that the others could not see the headlights in the manner suggested by Miller when Eierman drove his car behind the clubhouse. Eierman, however, admitted that they did not attempt the experiment with a 1988 Nissan Pulsar.
*866 Defendant called a final defense witness, Cook County sheriff's police officer Ronald Russell, to impeach the testimony of State's witness Paul Skorupa. Russell acknowledged that he had prepared a police report in which he reported that Skorupa saw the victim's blue Mustang parked on the street when he returned home around 11:45 p.m. On cross-examination, however, Russell testified he had erred when he drafted the report because Skorupa indicated that, although he saw the victim's car parked on the street in the past, he did not see the victim's car on the night of the murder.
In the State's rebuttal case, Palatine police officer John Saurmann testified he was sent to the Wyndham Court apartments on February 18, 1996, after someone reported suspicious people on the premises. Saurmann saw Pugh, Eierman and Permanian's attorney at the apartment complex. Although he stayed for some time, Saurmann did not see any of the men walk up and down the street and then look up at the apartment window. Saurmann stated that no one asked him if he could identify anyone from where he stood by the apartment.
In surrebuttal, defendant presented codefendant Permanian's attorney to contradict the evidence given by Saurmann. He testified that, when he asked Saurmann, who was standing by the apartment, if he could identify Pugh or Eierman, who were by the street, Saurmann replied that he could not.
After considering the aforementioned evidence, the jury returned verdicts finding defendant guilty of murder and conspiracy to commit murder. The sentencing hearing was conducted before the trial judge because defendant had previously waived a jury for sentencing. After the State provided evidence that defendant was over 18 years of age, and the trial judge took judicial notice of the verdicts and the trial testimony, the trial judge found defendant eligible for the death penalty because the murder had been committed pursuant to a contract. Ill.Rev.Stat. 1987, ch. 38, par. 9-1(b)(5).
The State then presented extensive evidence in aggravation. Assistant Cook County State's Attorney Patrick Quinn testified that inmate Charles Russell called him on June 3, 1993, and that he and Detective John Duffy later visited Russell in the Kendall County jail. Russell stated that, sometime before April of 1993, when he was in Cook County jail, defendant asked him to find someone to kill a woman named Tammy. Defendant said the woman planned to testify against him in his aggravated battery and murder cases. Russell agreed to do so for $25,000, with half to be paid up front. When he talked to Quinn, Russell stated that he had already received $11,000 through intermediaries. When Quinn sought to verify Russell's story, he learned that Russell had been on the same jail tier as defendant. Quinn met with Russell again on June 11 in the company of Officers Dornbos and Duffy. Russell repeated the same story and said he had already received $11,000 from defendant. Russell gave Quinn a note with Behenna's name on it, which Quinn submitted for analysis. After comparing the note with the known handwriting of defendant, forensic document examiner Maureen Casey-Owens concluded that defendant had written the note. Russell later offered to wear a transmitting device and requested that Quinn help him with his existing prison sentence. Quinn refused and his contacts with Russell then ended.
The State also presented evidence of defendant's solicitation to murder John Apel, Sr. Quinn testified that he was contacted in January of 1994 by Detective Mike Fleming, who reported that he had a note that had been seized during a routine search of inmate Maurice Coleman's cell at Cook County jail. The note refers to John Apel, Sr., describes where he lived and worked, contains maps, and contains other personal information about Apel. When Quinn talked to Coleman in January of 1994, Coleman told him that defendant had given him the note and asked him "to see to it" that the police officer named therein (John Apel, Sr.) was murdered. Coleman added that defendant had deposited $900 in his commissary account, and Quinn verified that Coleman had indeed received $900 in his account at the time he said he had talked to defendant. Coleman wanted Quinn to help him with a pending murder charge, which Quinn could not do. *867 Document examiner Casey-Owens concluded that defendant had written this note as well as the Behenna note. Officer Duffy corroborated Quinn's testimony about the Apel contract.
The State also presented evidence of defendant's criminal record. The State presented a police "rap sheet" showing defendant's numerous prior arrests. The State also showed that, before his sentencing hearing in this case, defendant had been convicted of aggravated battery, aggravated unlawful restraint and two counts of unlawful use of weapons. The State also produced newspaper clippings which described crimes that defendant had been charged with committing. Apel, defendant's uncle, testified that, shortly after each crime, defendant gave him a newspaper clipping about defendant's involvement in a crime. The State then presented testimony about defendant's alleged involvement in the burglaries of several department stores, "road rage" incidents in which defendant displayed a gun, defendant's fire bombings of fellow students' homes and threats to them while in college, defendant's threats to Tammy Behenna and her family, and defendant's threats to an attorney who had previously represented defendant.
The State also presented evidence of defendant's gun purchases and possession of weapons. Cook County sheriff's police detective Thomas Mayton was assigned to investigate the Rinaldi murder, and he checked the records of various gun shops. Detective Mayton found that defendant, prior to the murder, had purchased various types of handguns and rifles. Defendant was also found in possession of two different guns when he was arrested on two occasions in 1990. Moreover, on three different occasions in 1991 and 1992, when defendant was arrested on unrelated charges, police officers discovered a considerable amount of ammunition of different types and caliber and various weapons in defendant's possession. In addition, when Cook County corrections officer Thomas McInerney conducted a random search of defendant's cell on July 6, 1993, he found two razors under defendant's bunk and a pair of scissors inside the mattress. Defendant admitted possession of the razors in a disciplinary hearing.
Following the State's case in aggravation, the defense presented the following evidence in mitigation. Pat Marz testified that defendant had dated her daughter, and that he was a "gentleman" and "very respectable."
Anthony Goldstein, defendant's stepbrother, testified that he has known defendant all his life. Defendant is a "good man" who took in homeless people and who allowed them to live in buildings that he owned. Defendant, however, did not live with Goldstein when he lived in Indiana between the ages of 9 and 18.
Alvin Goldstein, defendant's stepfather for 27 years, provided a more comprehensive account of defendant's life. Goldstein described defendant as an intelligent child who learned things quickly. For example, defendant managed to pass exams after cramming at the last minute. After graduating from college, defendant became a paralegal and opened a real estate business. Goldstein testified that, "as an adult, he was just superb." Defendant showed respect for older relatives, protected his siblings, supported Tammy Behenna, and took in homeless persons. On cross-examination, Goldstein acknowledged that defendant had not lived with him for the last 14 years.
Several professional acquaintances testified on behalf of defendant. Patti Werner knew defendant in the real estate business and briefly dated him. According to her, defendant acted like a gentleman and treated her "great." John Manglardi also knew defendant from the real estate business. He knew defendant to be helpful and trustworthy. Deborah Fiorito, an attorney, represented defendant in an unrelated matter. Fiorito recalled that defendant's father had abandoned his family. She, however, was not aware of defendant's criminal background.
Nicholas Wayne grew up in defendant's neighborhood and stated that he has known defendant for 20 years. According to Wayne, defendant treated him well and was never violent.
*868 Cleatus Coleman, a business associate of defendant's parents, described defendant as smart, energetic and "above board." He saw defendant once or twice a month, but defendant stopped visiting him at his store seven to nine years before the trial.
Andy Gonzalez, a volunteer chaplain at Cook County jail, testified that defendant was "wild and crazy" when he first came to him for counseling in the county jail. In his opinion, however, defendant is now calm and well behaved and a positive influence on other inmates.
After considering the evidence in aggravation and mitigation, the trial judge concluded that there were no mitigating factors sufficient to preclude the death penalty and sentenced defendant to death for the murder of Dana Rinaldi.
Codefendants Joseph Rinaldi and Michael Permanian were jointly indicted on charges of murder and conspiracy, with Rinaldi additionally indicted on a charge of solicitation (Ill.Rev.Stat.1987, ch. 38, par. 8-1(a)). Rinaldi ultimately pled guilty in a separate proceeding and was sentenced to 60 years' imprisonment. With respect to Permanian, the trial court severed his case from defendant's case but conducted their trials jointly before separate juries. A jury found Permanian guilty of two counts of first degree murder and one count of conspiracy. Permanian received a sentence of 75 years' imprisonment.
Additional relevant facts are set forth in the analysis portion of the opinion where necessary for a thorough discussion of the issues.
ANALYSIS
I. Pretrial Issue
A. Speedy Trial
Defendant argues that the trial court abused its discretion in denying his motions to dismiss the indictment because the delay between his arrest on June 10, 1993, and the commencement of his trial on January 25, 1996, violated his statutory right to a speedy trial. Defendant therefore requests that we reverse his conviction.
Initially, we note that an accused has a constitutional right to a speedy trial. U.S. Const., amends. VI, XIV; Ill. Const.1970, art. I, § 8. An accused also has a statutory right to a speedy trial under section 103-5 of the Code of Criminal Procedure of 1963 (speedy trial statute), which specifies the periods of time within which an accused must be brought to trial. 725 ILCS 5/103-5 (West 1994). The constitutional and statutory provisions address similar concerns; however, the rights established by each of them are not necessarily coextensive. See People v. Ramey, 151 Ill.2d 498, 525-26 , 177 Ill.Dec. 449 , 603 N.E.2d 519 (1992); People v. Garrett, 136 Ill.2d 318, 323 , 144 Ill.Dec. 234 , 555 N.E.2d 353 (1990). In the present case, defendant asserts only a violation of his statutory right to a speedy trial and does not raise a constitutional issue.
Section 103-5(a) provides that an accused in custody must be brought to trial within 120 days from the date he was taken into custody, unless delay is occasioned by the defendant. 725 ILCS 5/103-5(a) (West 1994). Defendant was in custody from his arrest until trial and section 103-5(a) therefore applies. A delay is occasioned by the defendant and charged to the defendant when the defendant's acts caused or contributed to a delay resulting in the postponement of trial. See People v. McDonald, 168 Ill.2d 420, 438 , 214 Ill.Dec. 125 , 660 N.E.2d 832 (1995); People v. Turner, 128 Ill.2d 540, 550 , 132 Ill.Dec. 390 , 539 N.E.2d 1196 (1989); People v. Reimolds, 92 Ill.2d 101, 106 , 65 Ill.Dec. 17 , 440 N.E.2d 872 (1982). A defense counsel's express agreement to a continuance may be considered an affirmative act contributing to a delay which is attributable to the defendant. See Reimolds, 92 Ill.2d at 106 , 65 Ill.Dec. 17 , 440 N.E.2d 872 . The defendant bears the burden of affirmatively establishing a speedy-trial violation, and in making his proof, the defendant must show that the delay was not attributable to his own conduct. See People v. Jones, 104 Ill.2d 268, 280 , 84 Ill.Dec. 495 , 472 N.E.2d 455 (1984). Any period of delay occasioned by the defendant temporarily suspends the running of the speedy-trial period until the expiration of the delay, at which point the statute shall recommence *869 to run. 725 ILCS 5/103-5(f) (West 1994); see McDonald, 168 Ill.2d at 438-39 , 214 Ill.Dec. 125 , 660 N.E.2d 832 ; People v. Bowman, 138 Ill.2d 131, 149 , 149 Ill.Dec. 263 , 561 N.E.2d 633 (1990). An accused not tried within the mandate of section 103-5(a) must be discharged from custody, and the charges must be dismissed. See Bowman, 138 Ill.2d at 137 , 149 Ill.Dec. 263 , 561 N.E.2d 633 . The trial court's determination as to who is responsible for a delay of the trial is entitled to much deference, and should be sustained absent a clear showing that the trial court abused its discretion. See McDonald, 168 Ill.2d at 438 , 214 Ill.Dec. 125 , 660 N.E.2d 832 ; People v. Bowman, 138 Ill.2d 131, 137 , 149 Ill.Dec. 263 , 561 N.E.2d 633 (1990); Reimolds, 92 Ill.2d at 107 , 65 Ill.Dec. 17 , 440 N.E.2d 872 . With these principles in mind, we now examine the periods of alleged delay in the instant case.
The first period at issue is the 47 days between June 10, 1993, and July 27, 1993. As noted, defendant was arrested on June 10, 1993, for the murder of Dana Rinaldi, and the 120-day period commenced on that date. According to the common law record, which contains the trial court's memorandum of orders, commonly referred to as "half-sheets," and the transcript of proceedings, the parties first appeared in court on June 11, 1993, when the trial court conducted a probable cause hearing and denied bail. At the conclusion of this hearing, the trial court continued the case until June 22, 1993. The State on appeal concedes that these 12 days are not delays attributable to defendant. The record reveals that the parties next appeared before the court on June 22, 1993, at which time the trial court entered a continuance by agreement of the parties to July 27, 1993. Although there is no transcript available for the proceedings dated June 22, 1993, the record is not silent concerning the reason for the delay because the record includes the half-sheets contained in the common law record. See People v. Sojak, 273 Ill.App.3d 579, 582-83 , 210 Ill.Dec. 85 , 652 N.E.2d 1061 (1995). According to both the half-sheet and an order entered by the trial court on June 22, 1993, defendant filed a motion to set bail, which was entered and continued by agreement of the parties to July 27, 1993. In general, an agreed continuance constitutes an affirmative act of delay attributable to the defendant which tolls the speedy-trial term. See Turner, 128 Ill.2d at 553 , 132 Ill.Dec. 390 , 539 N.E.2d 1196 ; People v. Plair, 292 Ill.App.3d 396, 398 , 226 Ill.Dec. 679 , 686 N.E.2d 28 (1997). Given that the continuance was by agreement, this period of time is attributable to defendant.
Defendant argues, however, that the State, during a hearing on a motion to dismiss the indictment on speedy-trial grounds on June 5, 1995, conceded, and the trial court accepted, that the 34-day delay between June 10, 1993, and July 14, 1993, was not attributable to defendant. At that same hearing, prior to the State's concession, the trial court indicated that the record showed a continuance by agreement between June 11, 1993, and July 27, 1993. The trial court nevertheless accepted the State's concession. We find that the trial court abused its discretion in attributing this delay to the State. See Bowman, 138 Ill.2d at 139 , 149 Ill.Dec. 263 , 561 N.E.2d 633 (in a criminal case, a factual determination by a trier of fact is entitled to great weight, but where the record does not support the finding, this court must reverse). As noted above, the record clearly establishes a continuance by agreement of the parties during this period. Consequently, only 12 of the 47 days between June 10, 1993, and July 27, 1993, should not be attributed to defendant and thereby computed within the 120-day period.
The next period at issue is the 130-day delay between March 14, 1994, and July 22, 1994. Prior to March 14, 1994, defendant filed a series of motions, including a motion for discovery, a motion for substitution of judges, a motion to dismiss indictment, a motion for severance, a motion to suppress statements, and a motion to suppress "message unit detail records" and telephone records. Defendant on appeal concedes, and the record reflects, that he agreed to a series of continuances from July 27, 1993, until March 14, 1994. Defendant contends, however, that the period between March 14, 1994, and July 22, 1994, is not attributable to him because he had to wait for the court to *870 assign another judge to hear his pending motions. We reject defendant's claim because this delay resulted from his filing of the aforementioned motions. A delay occasioned by the processing of the defendant's motions, including the time required for the State to respond and the time necessary for the court to hear and decide the issues, is attributable to the defendant. See McDonald, 168 Ill.2d at 440 , 214 Ill.Dec. 125 , 660 N.E.2d 832 ; Jones, 104 Ill.2d at 280 , 84 Ill.Dec. 495 , 472 N.E.2d 455 .
A detailed review of the events occurring between March 14, 1994, and July 22, 1994, reveals that this delay is attributable to defendant. On March 14, 1994, Judge Kavitt, who recused himself from defendant's case on February 10, 1994, granted Permanian's lawyer leave to file a severance motion. Defendant's attorney did not attend this March 14 proceeding. Judge Kavitt continued the case until April 15. This period of delay is chargeable to defendant. When a defendant's attorney fails to appear in court at the appointed time, his absence causes a delay attributable to the defendant. See Bowman, 138 Ill.2d at 141 , 149 Ill.Dec. 263 , 561 N.E.2d 633 ; People v. Hairston, 46 Ill.2d 348, 354 , 263 N.E.2d 840 (1970); see Sojak, 273 Ill.App.3d at 584 , 210 Ill.Dec. 85 , 652 N.E.2d 1061 .
On April 15, 1994, when the parties appeared, Judge Kavitt reminded the parties that he could not proceed on defendant's motions, and that defendant's case would be assigned to a different judge after he had decided Permanian's severance motion, at which time he would know how many judges would be needed to hear the cases. Defendant's attorney agreed that defendant had no reason to pursue his own severance motion at this time because defendant would receive a separate trial as long as the judge granted his codefendant's motion for severance. Judge Kavitt continued the case for a hearing on the severance motion by agreement to May 6, 1994. We note that a defendant has the primary duty to call his motions for hearing and disposition. See People v. Donalson, 64 Ill.2d 536, 542 , 1 Ill.Dec. 494 , 356 N.E.2d 776 (1976). Moreover, when defense counsel replied "that would be just fine" to the continuance, he expressly agreed to the continuance. See People v. Arsberry, 242 Ill.App.3d 1034, 1039 , 183 Ill.Dec. 637 , 611 N.E.2d 1285 (1993). A defendant is bound by the acts or omissions of his counsel. See Bowman, 138 Ill.2d at 141 , 149 Ill.Dec. 263 , 561 N.E.2d 633 . Consequently, defense counsel's failure to call defendant's motion for severance for hearing and disposition, and counsel's agreement to the continuances during this period, resulted in a delay attributable to defendant.
The parties next appeared on May 6, 1994, when Judge Kavitt considered Permanian's motion for severance. The State agreed to the severance and the trial judge granted the severance of all three cases. Judge Kavitt thereafter transferred the cases to Judge Hoffenberg. On that same day, Judge Hoffenberg noted that defendant had previously removed him via a substitution-of-judges motion, precluding him from hearing matters relating to defendant. Judge Hoffenberg continued the case by agreement of codefendants' attorneys to June 17, 1994, for a hearing on the motions. Once again, defense counsel did not attempt to call his motions for hearing at this time. Rather, defense counsel stated that he wanted to be there on June 17, 1994, to hear the codefendant's motions. In response, Judge Hoffenberg continued defendant's case by agreement to June 17, 1994, for status. On June 17, 1994, defense counsel moved the court to assign a judge to hear his motions. Defendant's motion was allowed and all three cases were transferred to Judge Bierman. Defendant's and codefendants' attorneys agreed to a continuance to July 22, 1994, for status so that Judge Bierman could hear all pending matters. The period between May 6, 1994, and July 22, 1994, is a delay occasioned by defendant because it arises from defense counsel's failure to call his motions for hearing and from defendant's prior motion for substitution of judge, which results in a delay that includes the actual reassignment to a new judge. See People v. Spicuzza, 57 Ill.2d 152, 155 , 311 N.E.2d 112 (1974); People v. Turley, 235 Ill.App.3d 917, 920 , 175 Ill.Dec. 908 , 601 N.E.2d 305 (1992); People v. Helton, 153 Ill.App.3d 726, 730 , 106 Ill.Dec. 600 , 506 *871 N.E.2d 307 (1987). We therefore conclude that the speedy-trial period was tolled from March 14, 1994, to July 22, 1994, because of defense counsel's actions and defendant's motions.
The next period at issue is the 21-day period from August 24, 1994, to September 14, 1994. On July 22, 1994, defense counsel agreed to continue the case with respect to the pending motions until August 24, 1994, for a hearing on pending motions. On August 24, 1994, the trial court continued the case on the State's motion to September 14, 1994. The State now concedes and the record reflects that this 21-day delay is not attributable to defendant. This 21-day delay is therefore charged to the State and computed towards the speedy-trial period.
Defendant next contests the periods of delay between January 12, 1995, and January 31, 1995, and between March 3, 1995, and June 5, 1995. From September 14, 1994, to January 12, 1995, and from January 31, 1995, to March 3, 1995, hearings were held on various defense motions. Defendant now acknowledges that defense counsel agreed to those continuances. When the parties appeared on January 12, 1995, defendant's case could not be heard because the judge was in the middle of a jury trial in another case. Defense counsel was not present; however, the trial judge addressed defendant personally and informed him that "all the attorneys [had] reached a date of agreement" when the court had contacted them earlier. The 19-day delay from January 12 to January 31 cannot be charged to defendant because another trial was the cause of the delay. Defense counsel was given no choice in regard to this delay. As such, defense counsel was essentially forced to accept another date. The delay occasioned by the court's schedule cannot be attributable to defendant because the continuance was solely due to the trial judge's unavailability on January 12, 1995. See People v. Beyah, 67 Ill.2d 423, 428 , 10 Ill.Dec. 568 , 367 N.E.2d 1334 (1977).
On March 3, 1995, after concluding the hearing on the defense motions, defense counsel demanded trial. The trial court, however, refused to recognize the demand because defense counsel indicated to the trial court that he intended to file death penalty motions. The trial court found that, since the defense was planning to file such motions, it was not ready to proceed to trial and that the delay caused by those motions was attributable to the defense. The trial court continued the case until March 21, 1995, to give defendant's attorney time to file sentencing motions, as well as motions challenging the constitutionality of the Illinois death penalty statute, and to allow the State time to respond. This delay was attributable to defendant even if, as defendant now claims, the motions did not require evidentiary hearings, because the State was entitled to time in which to prepare responses to defendant's numerous motions. See McDonald, 168 Ill.2d at 440-41 , 214 Ill.Dec. 125 , 660 N.E.2d 832 .
On March 21, 1995, the case was continued to March 23, 1995, on the court's motion. Because the case was continued on the court's motion, the two-day delay cannot be attributable to defendant.
On March 23, 1995, the trial judge heard and denied the sentencing motions filed by defendant. The trial court announced that June 5, 1995, would be an agreed trial date. Defense counsel agreed. The trial court also stated that there was an agreed continuance for status to May 4, 1995. Defense counsel responded: "Very good, your Honor." On May 4, 1995, defense counsel requested to argue on June 5, 1995, a motion to dismiss the indictment on speedy-trial grounds for running of its term. The trial court allowed defense counsel's request. The trial court also stated that there was an agreed continuance of the case to June 5, 1995, for trial. This period of delay between March 23, 1995, and June 5, 1995, is chargeable to defendant because there was agreement by defense counsel to continue the date for trial to June 5, 1995. See Plair, 292 Ill.App.3d at 400 , 226 Ill.Dec. 679 , 686 N.E.2d 28 (when defense counsel expressly consents to a particular trial setting, the delay up to that date is attributable to the defendant). We therefore conclude that defendant has not established that the delays between March 3, 1995, to March 21, 1995, and March *872 23, 1995, to June 5, 1995, were delays caused by the prosecution. As such, these periods of time may not be counted in computing the 120-day period.
The State concedes that the 43-day delay between June 5, 1995, and July 18, 1995, is not attributable to defendant. On June 5, 1995, the trial court denied the defense motion to dismiss the indictment. The State sought a continuance because the prosecutor, a member of the United States Army Reserves, had been called for one week of active duty. Moreover, the prosecutor needed additional time to interview codefendant Joseph Rinaldi, who had decided to testify for the State against defendant and codefendant Permanian after accepting the State's plea bargain offer on May 22, 1995, and to reduce any of his statements to writing. The trial court continued the case on the State's motion to June 27, 1995, for status, and determined that this delay was attributable to the State. On June 27, 1995, the prosecutor, having completed his interviews of Rinaldi, sought more time in order to reduce his statements to writing and provide copies to defense counsel. The court continued the case until July 19, 1995, on the State's motion, and therefore the delay is chargeable to the State.
The final period of delay concerns the period between July 19, 1995, and January 25, 1996. In addressing this period of delay, it is necessary to note that defendant had charges of armed violence, aggravated battery and aggravated unlawful restraint arising out of a July 1, 1991, incident with Tammy Behenna pending against him at the time officers arrested him and charged him with the Rinaldi murder. Initially, the State elected to proceed to trial first on the Rinaldi murder case. The State, however, sought to change that election. On June 5, 1995, the State not only sought a continuance in the Rinaldi murder case but also sought to change its election and proceed first with the other pending armed violence charges for the reasons stated in the preceding paragraph. Defense counsel objected to the change of election on the basis that it was a subterfuge on the part of the State to avoid the running of the speedy-trial term in the murder case. The trial court rejected defendant's argument and found that the State was entitled to change its election. The trial court determined that the fact that Joseph Rinaldi had recently become a witness for the State was a valid reason to change the election. The trial court therefore allowed the change of election and continued the case to June 27, 1995. On June 27, 1995, in granting the State's motion to continue to July 19, 1995, the trial court reaffirmed its prior ruling that the State had a right to change its election and proceed to trial first with the armed violence charges. On July 19, 1995, defense counsel informed the court that, although it was ready to proceed in the Rinaldi murder trial, it was not ready to try the armed violence charges. The trial court therefore ruled that the running of the speedy-trial statute was tolled in the murder case until the other pending charges were tried, and the trial court continued the case to August 17, 1995, for status. The murder case was continued several times thereafter so as to determine the status of the other pending charges, which ultimately proceeded to trial on October 18, 1995. Defendant was found guilty for aggravated battery and aggravated unlawful restraint on March 21, 1996, and was sentenced on May 9, 1996. Meanwhile, defendant's trial for the Rinaldi murder commenced on January 25, 1996.
Defendant contends that the delay between July 19, 1995, and January 25, 1996, is attributable to the State and that the trial court erroneously tolled the speedy-trial statute during this period. Defendant claims that, because the State elected to proceed on the murder case, the State was required to try him for murder within 120 days of his arrest on June 10, 1993. Defendant further claims that the State was not entitled to change its election and proceed first on the armed violence case because the State's change of election represented a subterfuge to allow it to delay trial of the murder charge. We disagree.
Where a defendant is simultaneously in custody for more than one charge, the State must bring him to trial on one of those charges within 120 days of his arrest and must try him on the remaining charge *873 within 160 days from the rendering of judgment on the first charge. 725 ILCS 5/103-5(e) (West 1994). Section 103-5(e) thereby preserves a defendant's right to a speedy trial and also mitigates the State's burden of preparing more than one charge for trial against a single incarcerated defendant. Under section 103-5(e), the speedy-trial period on the second charge is tolled until a judgment is rendered in the first charge. The 160-day period from the entry of judgment on the first charge, however, is only tolled if the requisite circumstances occur with respect to the second charge, including a delay occasioned by the defendant or an interlocutory appeal. 725 ILCS 5/103-5(e) (West 1994); see People v. Brown, 92 Ill.2d 248, 256-57 , 65 Ill.Dec. 825 , 442 N.E.2d 136 (1982) (interlocutory appeal in one case does not toll the 160-day statutory period in another case pending against the defendant). Because the State here announced on June 5, 1995, its decision to proceed to trial first in the armed violence charges, the State was required to bring defendant to trial on those charges within 120 days given that defendant was in custody on those charges. The speedy-trial period with respect to the murder case was therefore tolled from June 5, 1995, until judgment was rendered on the armed violence charges. Once judgment was rendered, however, the State was required to bring defendant to trial for murder within 160 days. The State brought defendant to trial in the murder case before judgment was rendered in the armed violence case. Consequently, defendant was tried within the 160 days provided for in section 103-5(e).
As a final matter, we reject defendant's contention that the prosecutors engaged in an act of subterfuge calculated to occasion delay in going to trial on the murder case. We first point out that the State is not precluded from changing its election. See People v. Beard, 271 Ill.App.3d 320, 327-28 , 207 Ill.Dec. 655 , 648 N.E.2d 111 (1995) (allowing the State to change its election three times where the defendant was brought to trial within 160 days from judgment rendered on the first case); People v. Holmes, 234 Ill.App.3d 931, 939-40 , 176 Ill.Dec. 287 , 601 N.E.2d 985 (1992) (rejecting the defendant's claim that the State changed its election merely to give its expert time to revamp his findings in response to a defense challenge). If the law were to the contrary, a defendant could decide which charge should be tried first by challenging a prosecutor's legitimate reason for changing his election. In this case, the prosecutor changed his election primarily because he needed additional time in the murder case to interview codefendant Rinaldi, who had recently decided to testify for the State, and to prepare his statements. The trial court properly decided that this event constituted good cause for a change of election. The record does not show that the State changed its election as an act of subterfuge to delay proceeding to trial on the murder charge.
In sum, we find that only 97 days from defendant's arrest to commencement of his trial for murder are not attributable to defendant. We therefore conclude that the trial court did not abuse its discretion in denying defendant's motions to dismiss. Accordingly, we hold that defendant was brought to trial within the statutory periods proscribed by the speedy-trial statute.
II. Trial Issues
A. Opening Statements
Defendant contends that he was denied a fair trial because the prosecutor, in his opening statements, promised that various witnesses would testify as to defendant's ownership of .22-caliber handguns and then failed to produce such evidence at trial. Specifically, defendant points to the following statements by the prosecutor:
"Mr. Apel will tell you that he knew Kliner [defendant] to be the owner of several.22 caliber handguns.
* * *
You will hear also from gun dealers whose records show sales of .22 caliber handguns to Ronald Kliner. You will also hear from another witness, Tammy Behenna. You will learn from her that she is the Defendant Kliner's former girlfriend and the mother of his child. She will also tell you about the many times that she saw him with guns."
*874 The record reveals that, several days after the prosecutor's opening statements, defendant filed a motion to exclude testimony relating to the possession or purchase of handguns by defendant. The motion claimed that such testimony was irrelevant and prejudicial because the alleged guns had not been recovered, had been reported stolen before the murder, and had not been identified as the weapon used in the murder. Moreover, the motion noted that the only .22-caliber handgun found at defendant's residence had been tested and determined not to have been the murder weapon. The motion therefore concluded that the guns had not been shown to be connected to either defendant or the crime. At the hearings on this motion, the prosecutor explained that he was seeking to introduce into evidence records and testimony which showed that defendant had purchased two .22-caliber handguns, one in 1985 and one in 1987, to show that one of those guns possessed by defendant could have been the murder weapon given that the victim in this case was shot by a .22-caliber gun. The trial court ruled that there was an insufficient connection between these prior gun purchases and the crime and that evidence of defendant's ownership of these guns was prejudicial. The trial court therefore allowed defendant's motion to exclude this evidence.
Defendant now claims that the prosecutor's promises in opening statements of witnesses who would testify about defendant's purchase and possession of guns was reversible error because there was deliberate misconduct on the part of the prosecutor. According to defendant, the prosecutor had no good-faith basis to assume that testimony about purchases of unidentified handguns, which had been reported stolen by defendant before this offense, and had no hint of connection to this case, could be admissible, particularly where the only gun which had been recovered from defendant had been proven not to be the murder weapon. Defendant further argues that the intentional nature of the prosecutor's misconduct is apparent in regard to the promises of Apel's and Behenna's testimony about defendant's possession of handguns. Defendant points out that the prosecutor did not attempt to inquire of Apel or Behenna about this subject matter. Defendant therefore concludes that he was prejudiced by the prosecutor's remarks because the prosecutor promised witnesses who would place the potential murder weapon in defendant's hand.
The State responds that defendant has waived this issue for review because he failed to object at trial. We need not address the State's waiver argument because waiver limits the parties' ability to raise an argument and not this court's right to entertain an argument. See People v. Hicks, 181 Ill.2d 541, 545 , 230 Ill.Dec. 244 , 693 N.E.2d 373 (1998). For this reason, we address the merits of this issue.
The purpose of an opening statement is to apprise the jury of what each party expects the evidence to prove. See People v. Leger, 149 Ill.2d 355, 392 , 173 Ill. Dec. 612 , 597 N.E.2d 586 (1992). An opening statement may include a discussion of the expected evidence and reasonable inferences from the evidence. See Leger, 149 Ill.2d at 392 , 173 Ill.Dec. 612 , 597 N.E.2d 586 ; People v. Smith, 141 Ill.2d 40, 63 , 152 Ill.Dec. 218 , 565 N.E.2d 900 (1990). No statement may be made in opening which counsel does not intend to prove or cannot prove. See Smith, 141 Ill.2d at 63 , 152 Ill.Dec. 218 , 565 N.E.2d 900 . As such, it is improper for counsel to make opening statements about testimony to be introduced at trial and then fail to produce that evidence. See People v. Thompkins, 121 Ill.2d 401, 422 , 117 Ill.Dec. 927 , 521 N.E.2d 38 (1988). Nevertheless, it is not always grounds for reversal when an opening statement refers to evidence which later turns out to be inadmissible. Reversible error occurs only where the prosecutor's opening comments are attributable to deliberate misconduct of the prosecutor and result in substantial prejudice to the defendant. See Smith, 141 Ill.2d at 64 , 152 Ill.Dec. 218 , 565 N.E.2d 900 .
In the present case, the prosecutor's remarks regarding testimony relating to defendant's prior possession or purchase of.22-caliber handguns were improper because such matters were not later proven given the trial court's granting of defendant's motion to exclude such evidence at trial. We also *875 agree with defendant that the prosecutor did not have a good-faith basis to believe that the evidence regarding the guns would be admitted. The prosecutor should have known that he could not demonstrate that the .22-caliber handguns allegedly purchased by defendant were sufficiently connected with the murder and defendant so as to permit testimony about them into evidence. See People v. Free, 94 Ill.2d 378, 415-18 , 69 Ill.Dec. 1 , 447 N.E.2d 218 (1983); People v. Yelliott, 156 Ill.App.3d 601, 602-03 , 108 Ill.Dec. 685 , 509 N.E.2d 111 (1987). As noted, Dana Rinaldi was murdered by a .22-caliber weapon; however, the two .22-caliber handguns allegedly owned by defendant, and about which the State sought to introduce evidence, had not been recovered, had been purchased years prior to the offense, and had been reported stolen before the murder. Consequently, the prosecution could not have shown that defendant had access to such weapons around the time of the murder. The prosecutor's statements, however, did not amount to reversible error. The prosecutor's remarks regarding these handguns did not result in substantial prejudice to defendant. The trial court instructed the jury both before opening statements and at the conclusion of the evidence that opening statements are not evidence and that the jury should disregard any statements not supported by the evidence. Moreover, the prosecutor presented no evidence concerning defendant's alleged prior possession and purchases of .22-caliber handguns to the jury. The prosecutor properly did not question Apel and Behenna about defendant's prior gun ownership in compliance with the court's order excluding such evidence. We therefore conclude that the prosecutor's opening statements did not deny defendant a fair trial.
B. Cross-Examination
Defendant challenges the trial court's limitation of defense counsel's cross-examination of two of the State's witnesses and argues that such limitation amounted to reversible error because of the witnesses' importance to the State's case.
Defendant first argues that he was deprived of his constitutional right to confront and cross-examine State witness Joseph Rinaldi by the trial court's refusal to allow him to elicit additional information from Rinaldi regarding his alleged use of tranquilizers during his testimony at trial.
The record discloses that, several days following Rinaldi's testimony, defense counsel informed the trial court at a side bar conference that one of the prosecutors had been overheard telling police officers that Rinaldi had been tranquilized. The prosecutor emphatically denied such an allegation. At a hearing held outside of the jury's presence, Mary Permanian, codefendant's mother, testified that, during a break in the trial, she had overheard detectives ask the prosecutor in the hallway outside the courtroom how the prosecutor had gotten Rinaldi to remain calm, to which the prosecutor replied "we had him tranquilized." According to Mrs. Permanian, the prosecutor and the officers thought it was a big joke, and had smiles on their faces during this conversation. On cross-examination, Mrs. Permanian admitted that she could not remember the date when the conversation allegedly took place, and that she had waited several days before informing defense counsel about the conversation. Mrs. Permanian also could not name or describe the officers in any detail. The prosecutor testified that he did not make this statement, did not have any knowledge that Rinaldi was taking tranquilizers during his testimony, and did not discuss Rinaldi's testimony with the officers. Defense counsel moved to have Rinaldi returned to court for further examination, and for production of the jail's medication records for Rinaldi. The trial court denied each of these requests. The trial judge explained that she did not believe an accusation made by a codefendant's mother, who could not remember when the statement was allegedly made, and who admitted that she did not report this incident for several days. Moreover, the trial judge found that the State had refuted the testimony of Mrs. Permanian.
Defendant challenges the trial court's refusal to allow him to recall Rinaldi as an improper restriction of cross-examination. Defendant claims that he should have been allowed to cross-examine Rinaldi as to this *876 issue because Rinaldi's use of tranquilizers was relevant to his credibility.
A criminal defendant has a fundamental constitutional right to confront the witnesses against him, which includes the right to cross-examination. See Davis v. Alaska, 415 U.S. 308, 315 , 94 S.Ct. 1105, 1110 , 39 L.Ed.2d 347, 353 (1974); People v. Triplett, 108 Ill.2d 463, 474 , 92 Ill.Dec. 454 , 485 N.E.2d 9 (1985). Any permissible matter which affects the witness's credibility may be developed on cross-examination. See People v. Kitchen, 159 Ill.2d 1, 37 , 201 Ill. Dec. 1 , 636 N.E.2d 433 (1994). This court has held that drug addiction of a witness at the time of testifying or at the time that an event occurred is a proper subject of cross-examination and may be used in an attempt to diminish a witness' credibility. See People v. Collins, 106 Ill.2d 237, 270 , 87 Ill.Dec. 910 , 478 N.E.2d 267 (1985); People v. Strother, 53 Ill.2d 95, 99 , 290 N.E.2d 201 (1972). Nevertheless, the latitude permitted on cross-examination is a matter within the sound discretion of the trial court, and a reviewing court should not interfere unless there has been a clear abuse of discretion resulting in manifest prejudice to the defendant. See Kitchen, 159 Ill.2d at 37 , 201 Ill.Dec. 1 , 636 N.E.2d 433 ; People v. Enis, 139 Ill.2d 264, 295 , 151 Ill.Dec. 493 , 564 N.E.2d 1155 (1990).
The trial court did not abuse its discretion in precluding cross-examination of Rinaldi regarding his alleged use of tranquilizers. Defendant did not provide an adequate foundation to support his claim that Rinaldi had been on tranquilizers at the time of his testimony. In light of the testimony of both Mrs. Permanian and the prosecutor, we agree with the trial court that the State refuted the defendant's allegations. Therefore, additional inquiry into Rinaldi's alleged use of tranquilizers was not warranted. See People v. Crisp, 242 Ill.App.3d 652, 660 , 182 Ill.Dec. 206 , 609 N.E.2d 740 (1992) (finding defense counsel was properly precluded from cross-examining the witness regarding the witness's alleged drug use because he failed to lay a proper foundation). Parenthetically, we note that defense counsel was able to cross-examine Rinaldi extensively about any motivation for lying and display to the jury whether or not Rinaldi was worthy of belief.
Defendant also claims that he was deprived of his constitutional right to confront and cross-examine State witness Tammy Behenna by the trial court's refusal to allow him to question Behenna about her current name, address, place of employment, and social security number.
The record discloses that, prior to Behenna's taking the stand, the State filed a motion in limine to bar defendant from questioning Behenna about her new name, new home address, new place of employment, and new social security number. In support of its motion, the State asserted that such matters were neither relevant nor material, and that disclosure might compromise the safety of Behenna, who had been placed in the witness protection program. Defense counsel countered that such information was relevant for cross-examination, and that such information was necessary to continue investigative efforts regarding Behenna's background. Defense counsel further argued that disclosure was necessary to show Behenna's interest and bias given the ongoing visitation battle between Behenna and defendant's family regarding defendant and Behenna's young son. The trial court granted the State's motion on the basis that such information was not relevant to establishing Behenna's interest and bias. The trial court, however, ruled that defense counsel could ask Behenna if she had changed her name and address, and whether she had entered the witness protection program.
Defendant now asserts that he was entitled to the disclosure of this information regarding Behenna so as to properly investigate her. In support of his argument, defendant relies on the United States Supreme Court's decision in Smith v. Illinois, 390 U.S. 129 , 88 S.Ct. 748 , 19 L.Ed.2d 956 (1968). In Smith, the trial court refused to allow the defense to inquire about the real name and address of the State's witness, who was both an informant and participant in the illegal sale of narcotics. The Supreme Court found this to be reversible error because the defendant was denied his right to confront a witness against him. The Court reasoned that when *877 the credibility of a witness is at issue, the very starting point in exposing falsehood and bringing out the truth through cross-examination is to ask the witness who he is and where he lives because the witness' name and address open avenues of in-court examination and out-of-court investigation. Smith, 390 U.S. at 131 , 88 S.Ct. at 750 , 19 L.Ed.2d at 959 .
Initially, we note that the circumstances of this case are distinguishable from those in Smith. Unlike in Smith, Behenna is neither an informant nor a participant in the murder. Instead, the record reveals that Behenna is a witness whom defendant knew quite well. Moreover, there was evidence that Behenna's safety was a concern. The State informed the trial court that Behenna was in the witness protection program, which itself implies an issue of safety. It is evident that cross-examining Behenna about her current name, address, place of employment or social security number might have endangered her personal safety. See People v. Lewis, 57 Ill.2d 232, 237 , 311 N.E.2d 685 (1974) (an informer should not be forced to disclose his name and address at trial on cross-examination if his life or safety is in jeopardy). We therefore find that the trial court did not abuse its discretion in precluding defense counsel from making the aforementioned inquiries of Behenna because sufficient evidence was presented at trial that Behenna's safety was an issue. Parenthetically, we note that testimony at defendant's sentencing hearing supported the State's concern for Behenna's safety even after defendant's incarceration in Cook County jail in April of 1992. The record at sentencing reveals that defendant hired inmate Charles Russell sometime in 1993 to find someone to kill Behenna because she was prepared to testify against him in this case and another case pending against defendant.
In a related argument, defendant contends that the trial court improperly deprived him of his right to cross-examine Behenna about the terms of the visitation order regarding defendant and Behenna's son. During cross-examination of Behenna, defense counsel questioned her about the ongoing litigation between Behenna and defendant's family, namely that defendant's mother was seeking visitation rights with Behenna's son. After Behenna denied that defendant's mother had been granted visitation, defense counsel sought to question Behenna about the specific terms of a visitation order. The trial court refused to allow defense counsel to ask Behenna additional questions regarding the order. More specifically, the court refused to allow defense counsel to inquire: (1) whether Behenna had disobeyed a visitation order; (2) whether Behenna had brought the child to visit defendant's mother pursuant to the order; (3) whether defendant's mother had ever seen the child; and (4) whether Behenna had told numerous persons that members of defendant's family would never see the child. Nevertheless, the trial court allowed defense counsel to prove that defendant's mother had filed a petition seeking visitation, which was pending at the time of defendant's trial.
Defendant argues that the trial court's ruling prevented him from adequately informing the jury of the extent of Behenna's bias against him and motivation to offer false testimony. According to defendant, cross-examination as to the terms of the visitation order would show that Behenna had a motive to testify falsely, namely, to defeat defendant's family's attempts to gain visitation rights with her son.
A defendant has the right to cross-examine a witness concerning bias, interest or motive to testify falsely. See Davis, 415 U.S. at 316 , 94 S.Ct. at 1110 , 39 L.Ed.2d at 354 ; Kitchen, 159 Ill.2d at 37 , 201 Ill.Dec. 1 , 636 N.E.2d 433 ; People v. Harris, 123 Ill.2d 113, 144 , 122 Ill.Dec. 76 , 526 N.E.2d 335 (1988). The confrontation clause, however, does not prevent the trial judge from imposing limits on defense counsel's inquiry into potential bias of a witness. We have held that a trial judge retains wide latitude to impose reasonable limits on such cross-examination based on concerns about harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or of little relevance. See Delaware v. Van Arsdall, 475 U.S. 673, 679 , 106 S.Ct. 1431, 1435 , 89 L.Ed.2d 674, 683 (1986); Harris, 123 Ill.2d at 144 , 122 Ill.Dec. *878 76, 526 N.E.2d 335 . The United States Supreme Court observed in Delaware v. Fensterer, 474 U.S. 15, 20 , 106 S.Ct. 292, 294 , 88 L.Ed.2d 15, 19 (1985), that "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (Emphasis in original.) Moreover, the improper denial of a defendant's constitutional right to cross-examine a witness regarding bias does not always mandate reversal, but may be found to be harmless error. See Van Arsdall, 475 U.S. at 684 , 106 S.Ct. at 1438 , 89 L.Ed.2d at 686 .
Here, the trial court permitted defense counsel to question Behenna about defendant's family's attempts to obtain visitation rights with Behenna's son. The trial court merely limited defense counsel's inquiry into the terms of a visitation order. Despite this restriction, defense counsel was able to elicit from Behenna that there was ongoing litigation between herself and defendant's family regarding visitation rights with her son. This evidence was more than sufficient to point out to the jury Behenna's potential bias against defendant. We note, furthermore, that defendant was permitted a full cross-examination of Behenna in other respects. The jury was advised of information with which to make an informed decision about Behenna's motivation for offering false testimony. The jurors were informed that Behenna and defendant had ended their relationship. The jurors were also informed that Behenna had a sexual relationship with codefendant Permanian in 1991. In the context of this case, the restriction placed on defendant's cross-examination of Behenna by the trial court was minor. Therefore, we find that, even if the trial court erred in limiting Behenna's cross-examination regarding the terms of the visitation order, the error was harmless beyond a reasonable doubt.
C. Conspiracy Conviction
Defendant claims that his conspiracy conviction must be vacated because the statute of limitations for conspiracy had expired prior to the filing of the indictment, and the conspiracy allegation was insufficiently pled in the indictment. We need not consider these claims because no judgment on the conspiracy count was entered against defendant. Conviction is defined as a "judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury." 720 ILCS 5/2-5 (West 1996); 730 ILCS 5/5-1-5 (West 1996). Judgment means "an adjudication by the court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court." 730 ILCS 5/5-1-12 (West 1996). Thus, a jury verdict is not a judgment of conviction because only the trial judge renders a judgment in a case. Here, the jury returned guilty verdicts for the conspiracy and murder counts; however, the trial judge did not enter a judgment of conviction or a sentence with regard to the conspiracy verdict. Instead, the trial judged entered an adjudication that defendant is guilty of first degree murder and sentenced him to death for that offense. We note that the trial judge's decision is consistent with the well-established principle that a defendant cannot be convicted of both the inchoate offense ( i.e., conspiracy) and the principal offense ( i.e., murder). 720 ILCS Ann. 5/8-5, Committee Comments-1961, at 519-20 (Smith-Hurd 1993); see People v. St. Pierre, 146 Ill.2d 494, 519 , 167 Ill.Dec. 1029 , 588 N.E.2d 1159 (1992). Given that there is no conspiracy conviction to vacate, there is also no reason to remand for resentencing, as advocated by defendant.
D. Conspiracy Evidence
Defendant also challenges the admission, through the testimony of Joseph Rinaldi, of several statements by defendant and Permanian regarding the conspiracy. Defendant claims that Joseph Rinaldi's testimony about preoffense and post-offense statements by defendant and codefendant Permanian was inadmissible because the State's evidence did not conform to the time limitations placed upon it by the bill of particulars. Prior to Rinaldi's testimony at trial, defendant filed a *879 motion to exclude portions of Rinaldi's testimony which related to statements made by defendant and Permanian before and after February 18, 1988, which was the date on which the offenses of murder and conspiracy allegedly occurred pursuant to the bill of particulars. Defendant argued that he was surprised by that evidence because it was beyond the scope of the bill of particulars on which defendant relied in preparing his case. The trial court denied defendant's motion on the basis that the defense was not taken by surprise because the State tendered such statements to the defense prior to trial.
Rinaldi thereafter testified about meetings and conversations with defendant and Permanian before and after February 18, 1988. Rinaldi testified that, beginning in November of 1987, there were a series of meetings between him and Permanian. During these meetings, Permanian made statements that suggested the development of a plan by Permanian, Rinaldi and defendant to murder Dana Rinaldi. Rinaldi also testified about meetings with Permanian and defendant at which defendant agreed to murder Rinaldi's wife in exchange for a portion of the insurance proceeds. According to Rinaldi, defendant requested background information about Dana Rinaldi regarding her place of employment, work hours, and the location of their home, including the layout of their apartment complex, which defendant and Permanian indicated would be the best place to commit the murder. Rinaldi also testified about statements made by Permanian following the murder. These statements related to defendant's and Permanian's threats to Rinaldi, their efforts to collect the insurance proceeds from Rinaldi, including a payment schedule, and a plan to convert traveler's checks into cash in Las Vegas.
Defendant now contends that the trial court erred by allowing Rinaldi's testimony about defendant's and Permanian's statements because these statements varied from the date of the murder and conspiracy set forth in the bill of particulars.
Section 111-6 of the Code of Criminal Procedure (725 ILCS 5/111-6 (West 1996)) provides that the trial court has discretion to require the State to furnish the defendant with a bill of particulars containing such particulars of the offense as may be necessary for the preparation of the defense. That section further states that "[a]t the trial of the cause the State's evidence shall be confined to the particulars of the bill." The purpose of the bill of particulars in criminal prosecutions is to give the defendant notice of the charge against him and to inform him of the particular transactions brought in question so as to enable the defendant to prepare his defense. See People v. Westrup, 372 Ill. 517, 518 , 25 N.E.2d 16 (1939); 21A Ill. L. & Prac. Indictments and Informations § 59 (1977). In general, the State is confined in its proof to the matters set forth in the bill of particulars; however, a bill of particulars limits the evidence only as to the matters that it purports to particularize and does not limit the introduction of evidence tending to prove such matters. See 30 Ill. L. & Prac. Pleading § 243 (1993). Although the bill of particulars limits the State's evidence to transactions set out in the bill, the State is not required to disclose in the bill all of the evidence that will be offered in support of the charge. See Westrup, 372 Ill. at 519 , 25 N.E.2d 16 ; People v. Seawright, 228 Ill. App.3d 939, 969 , 171 Ill.Dec. 183 , 593 N.E.2d 1003 (1992). In fact, any evidence tending to establish the transactions set forth in the bill of particulars is admissible. See People v. Depew, 237 Ill. 574, 578 , 86 N.E. 1090 (1908). Moreover, a variance between the bill of particulars and the evidence at trial does not result in reversible error where the defendant has not been misled or prejudiced in the preparation of his defense. See People v. Suter, 292 Ill.App.3d 358, 364 , 226 Ill.Dec. 568 , 685 N.E.2d 1023 (1997); People v. Paik, 257 Ill.App.3d 620, 625-26 , 195 Ill.Dec. 676 , 628 N.E.2d 1140 (1993); 21A Ill. L. & Prac. Indictments and Informations § 83 (1977), 30 Ill. L. & Prac. Pleading § 245 (1993).
In this case, it is clear from the information relayed in the statements at issue that the State introduced those statements to support its charge of conspiracy to commit murder on the part of defendant. The offense of conspiracy arises where a person with intent that an offense be committed agrees with another to the commission of *880 that offense and an act in furtherance of such agreement is alleged and proved to have been committed by that person or by a coconspirator. 720 ILCS 5/8-2 (West 1996). Consequently, conspiracy involves a criminal agreement to commit a separate criminal act or acts. The bill of particulars provided that the date of the conspiracy was on or about February 18, 1988. Given that Rinaldi's testimony referred to events and statements which were made before and after that date, there was indeed a variance between the evidence presented by Rinaldi and the date of the conspiracy specified in the bill of particulars. However, we find that the trial court's ruling allowing Rinaldi's testimony despite that variance was not error. The preoffense statements laid a foundation for the conspiracy, and the post-offense statements indicated the ongoing nature of the conspiracy, which included obtaining insurance proceeds. Moreover, the trial court indicated that the State tendered Rinaldi's statements to the defense during pretrial discovery. The State's answer to discovery also provided that written or recorded statements and summaries of oral statements of codefendants, which included Rinaldi, were given to the defense. In view of these circumstances, we are not persuaded that defendant was misled or prejudiced in the preparation of his defense due to any variance between the date set forth in the bill of particulars and the evidence presented by the State. We therefore conclude that any variance did not amount to reversible error.
In a related claim, defendant argues that the trial court erred in ruling that the coconspirator exception to the hearsay rule permitted Rinaldi to testify about hearsay statements of Permanian occurring after Dana Rinaldi's murder. The following testimony by Rinaldi is at issue.
On February 18, 1988, several hours after the murder, Rinaldi called Permanian in accordance with their prior agreement. Rinaldi told Permanian that his wife, Dana, had been murdered and Permanian indicated that he knew because he had been listening to the news. Permanian asked Rinaldi how he had fared with the police, and Rinaldi admitted that he had told the police that Permanian owned a red sports car. When Permanian became upset, Rinaldi reminded him that he had originally planned to use a stolen car to commit the murder. Permanian responded that "he and Ron [defendant] had used his [Permanian's] car, and it was all over the news."
During a second conversation between Rinaldi and Permanian, which occurred sometime in March of 1988, Permanian angrily reported that officers had contacted him about Dana's murder. Permanian blamed Rinaldi for the police involvement because Rinaldi had told them about Permanian's red sports car. Rinaldi responded by telling Permanian that he was supposed to steal a car and make the murder look like a robbery. Permanian in turn responded that "Ron couldn't get the purse out of her hand, and it looked like one of the shots may have hit it." During this conversation, Permanian demanded payments for the murder. Shortly after this conversation, Rinaldi began making payments to Permanian and defendant.
Defendant also challenges additional statements in which Rinaldi and Permanian discussed Permanian's and defendant's demands for money, payment schedules, distribution of the insurance proceeds, and threats to kill Rinaldi. One such conversation occurred in August of 1989, when Permanian told Rinaldi that defendant wanted the remainder of the money owed to him. Permanian stated to Rinaldi that "Kliner [defendant] wanted his money by the end of the month, the end of August, or that he [defendant] was going to kill me [Rinaldi]." This conversation led to another conversation involving a gambling scheme to convert traveler's checks to cash in Las Vegas.
It is defendant's contention that the preceding statements were not admissible under the coconspirator exception to the hearsay rule because they were made beyond the pendency of the conspiracy and did not further the conspiracy. Instead, these statements merely served to incriminate defendant. Defendant therefore concludes that the admission of these statements through Rinaldi's testimony violated his constitutional rights under the confrontation clause of the sixth amendment.
*881 We find that Permanian's statements were admissible under the coconspirator exception to the hearsay rule. Pursuant to this hearsay exception, any declaration by one coconspirator is admissible against all conspirators where the declaration was made during the pendency of and in furtherance of the conspiracy. See People v. Goodman, 81 Ill.2d 278, 283 , 41 Ill.Dec. 793 , 408 N.E.2d 215 (1980). The coconspirator hearsay exception does not extend to a statement which is merely a narrative of past occurrences and which does not further any objective of the conspiracy. See People v. Byron, 164 Ill.2d 279, 290 , 207 Ill.Dec. 453 , 647 N.E.2d 946 (1995). Statements made in furtherance of a conspiracy include those that have the effect of advising, encouraging, aiding or abetting its perpetration. See M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 802.10 (6th ed.1994). Statements relating to attempts at concealment further the objective of the conspiracy, which implicitly includes escaping punishment. Moreover, subsequent efforts at concealment of the crime, where sufficiently proximate in time to the offense, are considered as occurring during the course of the conspiracy. See People v. Thomas, 178 Ill.2d 215, 238 , 227 Ill.Dec. 410 , 687 N.E.2d 892 (1997).
Here, Permanian's statement to Rinaldi regarding the use of Permanian's car during the murder occurred the same day as the murder and, as such, was proximate in time to the commission of the underlying offense of murder. Permanian's statement went beyond a mere narrative of a past event. Rather, it was directed toward persuading Rinaldi to remain silent by explaining the alteration of the original plan with respect to using a stolen car. Consequently, Permanian's statement expressed his desire to conceal the conspiracy by encouraging Rinaldi not to reveal further information to the police. Because Permanian's statement was made in furtherance of an effort at concealment, the statement was also made in furtherance of the conspiracy. Cf. People v. Parmly, 117 Ill.2d 386, 394-95 , 111 Ill.Dec. 576 , 512 N.E.2d 1213 (1987) (codefendant's hearsay statement that the defendant fired the fatal shot was not admissible under the coconspirator exception because the statement was not made in furtherance of any effort at concealment, and it was a mere attempt by the declarant to place the principal blame for the murder on the defendant). We therefore determine that this statement was properly admitted pursuant to the coconspirator hearsay exception.
The remainder of Permanian's statements concern the collection of the payment for the murder. This court has found that statements made in an effort to obtain payment for the murder are admissible under the coconspirator hearsay exception. See People v. Byron, 164 Ill.2d 279 , 207 Ill.Dec. 453 , 647 N.E.2d 946 (1995). In Byron , this court was presented with a murder-for-hire scheme in which a codefendant testified about hearsay statements made by another codefendant after the murder. These statements revealed details of the murder, demands for payment and threats. We held that the trial court did not err in admitting testimony concerning these statements, which were made during the course of and in furtherance of the conspiracy. Byron, 164 Ill.2d at 290-91 , 207 Ill.Dec. 453 , 647 N.E.2d 946 . We reasoned that the conspiracy did not end with the victim's murder because the ultimate goal of the conspiracy was for the defendant and codefendants to obtain money as payment for the murder. Byron, 164 Ill.2d at 291 , 207 Ill.Dec. 453 , 647 N.E.2d 946 . The conversations between the codefendants following the murder were calculated to further such financial interests, and the recitations about the murder were inextricably intertwined with the requests for money. Byron, 164 Ill.2d at 291 , 207 Ill.Dec. 453 , 647 N.E.2d 946 .
Defendant contends that the holding in Byron cannot be applied to this case. We reject this contention. Although the statements in Byron were made within one week of the offense, the holding in that case is not premised on that fact. The statements in Byron were admissible not because they were made shortly after the murder, but because they were made during and in furtherance of the conspiracy.
In the case before us, as in Byron , a conspirator (Permanian) discussed certain *882 details about the commission of the murder in his attempts to obtain payment for the murder. Permanian's statements were not merely a narrative of past details of the crime. Rather, Permanian's statements were made during the course of and in furtherance of the conspiracy. The conspiracy did not end with Dana Rinaldi's murder on February 18, 1988, because the conspiracy encompassed obtaining the insurance proceeds. See Ramey, 151 Ill.2d at 528 , 177 Ill.Dec. 449 , 603 N.E.2d 519 (the conspiracy included invading the victim's house, taking the electronic equipment, and selling it). The real objective of the conspiracy included Permanian's and defendant's obtaining the insurance proceeds from Rinaldi as payment for the murder. At the time of Permanian's statements, this goal of the conspiracy had not been accomplished. Permanian's statements served to further an objective of the conspiracy, namely, to obtain payment for the murder. Even Permanian's statement regarding Dana Rinaldi's purse was attributable to his attempts to obtain payment because it sought to encourage Rinaldi to pay Permanian and defendant for the murder despite the fact that the attempt to make it look like a robbery had failed. Under these circumstances, Permanian's statements were made in the course of the conspiracy and to advance the ultimate goal of the conspiracy. As we determined in Byron , Permanian's statements were inextricably intertwined with the continued requests for compensation from Rinaldi. Accordingly, we conclude that Permanian's statements made in the context of receiving payment from Rinaldi were admissible under the coconspirator exception to the hearsay rule.
As a final matter on this issue, we reject defendant's claim that the admission of Permanian's statements violated the holding in Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968). In Bruton , the Supreme Court held that the defendant was deprived of his rights under the confrontation clause of the sixth amendment when his codefendant's post-arrest confession, which incriminated the defendant, was admitted at their joint trial. In reaching its decision, the Court acknowledged that there was no recognized exception to the hearsay rule before it. Bruton, 391 U.S. at 128 n. 3, 88 S.Ct. at 1623 n. 3, 20 L.Ed.2d at 480 n. 3. The circumstances of this case are distinguishable from those in Bruton . Here, unlike Bruton , the statements at issue do not involve a custodial confession by Permanian, and the statements were admissible under the coconspirator hearsay exception. Permanian's statements were also generally made under circumstances that indicate their reliability including that Permanian had personal knowledge of the incident, it was unlikely that Permanian's statements were founded upon a faulty recollection, the statements were against Permanian's penal interest given their context, and the statements did not contain any express factual assertion of defendant's guilt but only an inference of guilt. See Dutton v. Evans, 400 U.S. 74, 87-89 , 91 S.Ct. 210, 219-20 , 27 L.Ed.2d 213, 226-27 (1970) (holding that the sixth amendment confrontation clause was not violated by the admission of hearsay statements under a Georgia statute permitting an exception for statements by coconspirators where there was sufficient indicia of reliability supporting the truth of the statements); Goodman, 81 Ill.2d at 284-85 , 41 Ill.Dec. 793 , 408 N.E.2d 215 (finding hearsay statements admissible because there was sufficient indicia of reliability). Moreover, defendant was able to confront and cross-examine Rinaldi, who testified about the statements. See Ramey, 151 Ill.2d at 528 , 177 Ill.Dec. 449 , 603 N.E.2d 519 (holding that the confrontation clause of the sixth amendment is not violated by the admission of hearsay statements under the coconspirator exception to the hearsay rule, where the defendant was able to confront and cross-examine the witness who claimed that the statements at issue were made); Goodman, 81 Ill.2d at 284 , 41 Ill.Dec. 793 , 408 N.E.2d 215 (same). We therefore conclude that the use of Permanian's statements at defendant's trial did not deny defendant his constitutional rights under the confrontation clause of the sixth amendment.
E. Evidence of Another Crime
Defendant argues that the trial court committed reversible error in allowing the State *883 to elicit from its witness evidence that defendant committed another crime.
On direct examination, Tammy Behenna, defendant's former girlfriend, testified about inculpatory statements made to her by defendant regarding the Rinaldi murder. Behenna indicated that she moved out of defendant's apartment on July 1, 1991, and began cooperating with law enforcement officials on September 13, 1991, with regard to the Rinaldi murder. On cross-examination, defense counsel elicited from Behenna that on July 1, 1991, there was an "occurrence" between her and defendant that led to her filing of a complaint and defendant's arrest in September of 1991. Defense counsel further elicited that, although Behenna had been in court on several occasions seeking orders of protection against defendant, she had not included her alleged knowledge about defendant's role in the Rinaldi murder in the orders of protection and had not informed any of the judges before whom she appeared about that matter. On redirect examination, the prosecutor asked Behenna why she had sought the orders of protection against defendant. Defense counsel's objection was overruled. Behenna responded that "there was an incident in July when he pistol whipped me." Defense counsel moved for a mistrial. The trial court denied the motion for mistrial and ruled that defense counsel on cross-examination opened the door regarding the orders of protection and that the jury had a right to know the allegations surrounding those orders.
Defendant claims that it was impermissible for the trial court to permit the jury to hear that defendant had allegedly pistol-whipped Behenna because such evidence was not relevant to establish any material question.
In general, evidence of other crimes is not admissible if it is relevant merely to establish the defendant's propensity to commit crime. See People v. Thingvold, 145 Ill.2d 441, 452 , 164 Ill.Dec. 877 , 584 N.E.2d 89 (1991); People v. Illgen, 145 Ill.2d 353, 364 , 164 Ill.Dec. 599 , 583 N.E.2d 515 (1991). Evidence of the defendant's commission of other crimes is admissible, however, where relevant to prove any material question other than the defendant's propensity to commit crime, including modus operandi, intent, identity, motive, or absence of mistake. See Thingvold, 145 Ill.2d at 452 , 164 Ill.Dec. 877 , 584 N.E.2d 89 ; Illgen, 145 Ill.2d at 364-65 , 164 Ill.Dec. 599 , 583 N.E.2d 515 . In considering the admissibility of other-crimes evidence, the trial judge must weigh its probative value against its prejudicial effect on the defendant, and may exclude the evidence if its prejudicial effect substantially outweighs its probative value. See Illgen, 145 Ill.2d at 365 , 164 Ill.Dec. 599 , 583 N.E.2d 515 . The trial court's ruling as to the admissibility of other-crimes evidence will not be reversed absent a clear showing of abuse of discretion. See Illgen, 145 Ill.2d at 364 , 164 Ill.Dec. 599 , 583 N.E.2d 515 .
Applying these principles to the case at bar, we conclude that the trial judge abused her discretion in admitting evidence that defendant had pistol-whipped Behenna. Although defense counsel referred to the orders of protection on cross-examination, he did not introduce the details surrounding those orders. Rather, he referred generally to the orders to show that Behenna did not discuss defendant's involvement in the Rinaldi murder in the context of those orders. In essence, defense counsel attempted to discount Behenna's testimony by showing that she did not make a prompt revelation to authorities even when she had the opportunity. On redirect, the prosecutor indicated that the purpose of discussing the basis of the orders of protection was to show that Behenna maintained her silence because of her fear of defendant. The prosecutor attempted to rehabilitate Behenna by showing that she was afraid of defendant; however, there was no reason to introduce to the jury that defendant had allegedly pistol-whipped Behenna. Such details of the other crime were not relevant to establish any material question because the prosecutor could have accomplished his purpose without referring to those details. Moreover, we find that the prosecutor introduced the pistol-whipping incident to enhance the credibility of Behenna by showing that defendant is a bad person who has a propensity to commit crime. Evidence of other crimes cannot be admitted to enhance the credibility of a witness. See *884 People v. Romero, 66 Ill.2d 325, 330-31 , 5 Ill.Dec. 817 , 362 N.E.2d 288 (1977). For these reasons, it was improper for the trial judge to admit the details of the pistol-whipping incident. See People v. Cortes, 181 Ill.2d 249, 285 , 229 Ill.Dec. 918 , 692 N.E.2d 1129 (1998).
Despite the erroneous admission of this evidence, we find this error to be harmless beyond a reasonable doubt. The evidence regarding defendant's alleged pistol-whipping of Behenna was not so prejudicial as to deny defendant a fair trial. See Cortes, 181 Ill.2d at 285-86 , 229 Ill.Dec. 918 , 692 N.E.2d 1129 (finding the erroneous admission of certain details of other-crimes evidence to be harmless error). We find that the error is unlikely to have influenced the jury's verdicts such that its admission does not warrant reversal. As noted above, Behenna admitted on cross-examination that there is ongoing litigation between her and defendant's family regarding visitation rights with the child she had with defendant. On re-cross-examination, defense counsel admitted and published to the jury a number of photographs taken at family parties in July of 1991, in which Behenna bears no visible signs of injury. Defense counsel also elicited from Behenna that she was merely given Tylenol and did not receive X-rays following the alleged pistol-whipping incident. Defense counsel also showed that Behenna sent affectionate letters and a Christmas present to defendant after the alleged incident. Additional re-cross-examination elicited information that all orders of protection against defendant were eventually terminated. Consequently, defense counsel was able to again challenge Behenna's credibility with respect to the pistol-whipping incident such that any reference to that incident was not likely to have materially influenced the jury's decision. We therefore find that defendant was not prejudiced and was not denied a fair trial because of the admission of the alleged pistol-whipping incident.
In a related claim, defendant contends that the trial court abused its discretion in precluding him from eliciting from Behenna that defendant had been acquitted of armed violence for the pistol-whipping incident. At the time of Behenna's testimony, the case against defendant regarding the pistol-whipping incident was pending. Although the armed violence charge had been dismissed, the trial proceeded against defendant on the remaining two charges of aggravated battery and aggravated unlawful restraint. Defendant was found guilty of those charges after the jury returned a verdict of guilty against defendant in the instant case. We find that defendant was not prejudiced by the trial court's ruling because the jury was also not informed that a trial was proceeding against defendant on the remaining counts. Moreover, the jury heard defendant's outburst in court that he had been found not guilty of pistol-whipping Behenna.
F. Hearsay Statements
Defendant contends that this court should order a new trial because prejudicial hearsay testimony was erroneously admitted at trial.
On direct examination, John Apel, Sr., a witness for the State, testified that defendant had confessed to him in May of 1988 about the Rinaldi murder. During cross-examination, Apel recalled two occasions in March of 1993, when investigating officers interviewed him. On both occasions, he told the investigating officers that he had no "first hand" knowledge of the Rinaldi murder. He also told them that he had received all of his information about the case from Joe Splindorio, his father-in-law and defendant's grandfather. Apel then admitted on cross-examination that those statements to the investigating officers were false. Apel claimed to be afraid of defendant. Apel also admitted on cross-examination that in May of 1993, he finally told law enforcement officials about defendant's confession to him, following defendant's incarceration in Cook County jail.
On redirect examination, the prosecution attempted to elicit Apel's testimony about a conversation he had with Splindorio. The trial judge found that defense counsel's cross-examination of Apel had "opened the door with regard to him [Apel] garnering his information from Splindorio." The trial judge therefore ruled, over defense objection, that the prosecutor could ask Apel if he had *885 a conversation with Splindorio and if he gave out information that he gleaned from that conversation. The trial judge, however, precluded the prosecutor from going into the actual contents of the conversation. The following exchange thereafter occurred between the prosecutor and Apel on redirect examination:
"Q. * * * [D]id you ever have a conversation with Mr. Splindorio regarding the things you have testified to here?
A. Yes.
Q. And did you relay any of those facts or knowledge that you gleaned from that conversation to the police?
A. Yes, I did."
Defendant now claims that Apel's testimony regarding this conversation was hearsay because the jury could deduce that defendant had made inculpatory statements to Splindorio, and Splindorio was not called as a witness. According to defendant, such hearsay testimony was erroneously admitted since no exception to the hearsay rule applied. Defendant further claims that he was prejudiced by the admission of such hearsay because the testimony not only suggested to the jury that defendant made inculpatory statements to a close confidant, but also corroborated Apel's testimony. The State argues that defendant has waived this issue for review because he failed to raise it in his post-trial motions. Because we choose to address the merits of defendant's argument, we need not decide whether this issue has been waived.
Hearsay testimony is an out-of-court statement offered in court to prove the truth of the matter asserted. See People v. Edwards, 144 Ill.2d 108, 161 , 161 Ill.Dec. 788 , 579 N.E.2d 336 (1991). Where an out-of-court statement is offered for some purpose other than to establish the truth of the matter asserted, the statement is not hearsay and is admissible. See People v. Albanese, 102 Ill.2d 54, 70 , 79 Ill.Dec. 608 , 464 N.E.2d 206 (1984); M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 801.5 (6th ed.1994). We agree with the State that Apel's testimony did not improperly introduce statements by Splindorio, but established simply that a conversation had occurred between Apel and Splindorio. Defense counsel opened the door on cross-examination to the conversation with Splindorio by suggesting that Apel never had the conversation with him. Consequently, the statement itself had legal significance on redirect since the State sought to rehabilitate Apel's credibility by proving that Apel had a conversation with Splindorio. Apel's testimony about the conversation, however, was not offered to establish the truth of the matters asserted in the conversation. It was offered only to show that Apel and Splindorio had a conversation. We therefore reject defendant's claim that he was denied a fair trial by the erroneous admission of hearsay testimony.
G. Closing Arguments
Defendant claims that the prosecutor made a number of improper and prejudicial remarks during closing and rebuttal arguments. Defendant insists that the prosecutor's remarks deprived him of a fair trial and therefore warrant a new trial.
We initially note that the State claims that defendant has waived his challenge to most of the comments about which he now complains by failing to object to the comments at trial. We, however, choose to address the merits of defendant's argument, and therefore need not decide whether this issue has been waived.
It is well established that the prosecutor is afforded wide latitude in closing argument and may argue to the jury facts and reasonable inferences drawn from the evidence. See People v. Enis, 163 Ill.2d 367, 407 , 206 Ill.Dec. 604 , 645 N.E.2d 856 (1994); Kitchen, 159 Ill.2d at 38 , 201 Ill.Dec. 1 , 636 N.E.2d 433 ; People v. Edgeston, 157 Ill.2d 201, 219 , 191 Ill.Dec. 84 , 623 N.E.2d 329 (1993); Smith, 141 Ill.2d at 60 , 152 Ill.Dec. 218 , 565 N.E.2d 900 . It is, however, improper for the prosecutor to argue assumptions or facts not based upon the evidence in the record. See Smith, 141 Ill.2d at 60 , 152 Ill.Dec. 218 , 565 N.E.2d 900 . The trial court has discretion to determine the proper character, scope and prejudicial effect of closing arguments. See People v. Cloutier, 156 *886 Ill.2d 483, 507, 190 Ill.Dec. 744 , 622 N.E.2d 774 (1993); People v. Peeples, 155 Ill.2d 422, 483 , 186 Ill.Dec. 341 , 616 N.E.2d 294 (1993). Improper remarks warrant reversal only where they result in substantial prejudice to the defendant, considering the content and context of the language, its relationship to the evidence, and its effect on the defendant's right to a fair and impartial trial. See Peeples, 155 Ill.2d at 483 , 186 Ill.Dec. 341 , 616 N.E.2d 294 ; Smith, 141 Ill.2d at 60 , 152 Ill.Dec. 218 , 565 N.E.2d 900 .
Defendant first contends that the prosecutor improperly commented on defendant's failure to produce certain evidence and witnesses. In closing argument, the prosecutor made the following remarks regarding the production of evidence:
"Yeah, you heard all kinds of things about well, where is the bank records. Well, of course, the defense felt that there is something to these bank records. They, too, can subpoena them."
Defense counsel objected, and the trial court instructed the jury to disregard anything that was not evidence, and that counsel's arguments were not evidence.
The prosecutor, in rebuttal, made similar arguments regarding the production of witnesses:
"Mr. Lynch [defense counsel] keeps telling you about things like where is Sergeant Dornbos? Where are the records that are kept by the banks * * *
Now, it is true the burden of proof is on us, but nobody, ladies and gentlemen-there is a thing-know this. There is a thing called a subpoena, and he has the right to subpoena any witness he wants to and he called Russell to the stand.
* * *
He could have subpoenaed Sergeant Dornbos and he could have subpoenaed the bank records if he thought they would show it and he would. If anything that shows his client's innocence, he would do that. And he did put on a witness.
* * *
Now, we hear about Larry Shriner. Of course, we didn't hear any testimony about Larry Shriner's news reports. We didn't hear any testimony by Larry Shriner himself on the stand. I mean, if Larry Shriner, and they have the name, knows about the fired bullet, he would have been on that stand. Oh, I already knows [sic] about the bullet. I reported.
* * *
Last but not least, and we heard him ask, where is Sergeant Dornbos? Why didn't they present Sergeant Dornbos? Well, we presented Ronald Russell and a host of other witnesses. The defense chose to call Ronald Russell. We don't believe obviously that Sergeant Dornbos had anything to add to this. You heard from the witnesses. You heard from Joe Rinaldi himself. That is who talked to Sergeant Dornbos, so you also heard testimony from that stand read to you again by Mr. Lynch here not long ago, not that long ago, that Joseph Rinaldi said Sergeant Dornbos offered him three years. Sergeant Dornbos told him he would be married that night to a big black person. You know, if Sergeant Dornbos said all those things, they had a subpoena, bring him in. Tell him. Let him tell you that."
Defendant contends that the prosecutor committed reversible error when he repeatedly told the jury that the defense also had subpoena power and could have subpoenaed Rinaldi's bank records, Dornbos and Shriner. Defendant claims that the prosecutor's remarks improperly sent a message to the jury that they should place blame upon the defense for having failed to meet their burden of presenting this evidence and these witnesses. According to defendant, the prosecutor's comments resulted in shifting the burden of proof to defendant.
After examining the prosecutor's comments in the context of the proceedings, we find that such comments were not improper because they were based on reasonable inferences drawn from the evidence or invited by the closing arguments of defense counsel. Moreover, we note that the trial court instructed *887 the jury that the State has the burden of proving defendant guilty beyond a reasonable doubt and that defendant is not required to prove his innocence. This instruction made it clear to the jury that the prosecutor could not shift the burden of proof to defendant.
During trial, Rinaldi testified that he initially paid defendant and Permanian several cash installment payments to avoid detection by the police. On cross-examination, Rinaldi indicated that he made these payments either out of his employment check or his bank account but that the bank records would not reflect a set amount. Defense counsel cross-examined Rinaldi about his inability to show bank records of withdrawals to corroborate his testimony regarding the installments payments. Defense counsel, on cross-examination, further elicited from Rinaldi that the State never inquired about the bank records. The implication by defense counsel was that the bank records would belie Rinaldi's claims regarding the installment payments and therefore represented the reason that the State did not produce those records. During closing arguments, the prosecutor merely responded to the inference set forth by defense counsel during trial. By referring to defendant's ability to subpoena those records, the prosecutor merely commented on the value of such records, which is a reasonable inference drawn from the evidence given Rinaldi's testimony that the records did not reflect the actual payments. As noted, an attorney's statements that are based on reasonable inferences drawn from the evidence are within the scope of proper argument. See Edgeston, 157 Ill.2d at 219 , 191 Ill.Dec. 84 , 623 N.E.2d 329 ; Peeples, 155 Ill.2d at 485-86 , 186 Ill. Dec. 341 , 616 N.E.2d 294 .
The prosecutor's remarks in rebuttal regarding defendant's ability to call Dornbos and Shriner can be construed as a response to statements made by defense counsel in closing argument. We have held that the prosecutor may respond to comments by defense counsel which clearly invite a response (see Kitchen, 159 Ill.2d at 39 , 201 Ill.Dec. 1 , 636 N.E.2d 433 ), and that comments made in closing argument must be considered in the proper context by examining the entire closing arguments of both the State and the defendant (see Cloutier, 156 Ill.2d at 507 , 190 Ill.Dec. 744 , 622 N.E.2d 774 ; Kitchen, 159 Ill.2d at 38 , 201 Ill.Dec. 1 , 636 N.E.2d 433 ). In closing argument, defense counsel reminded the jury that Dornbos was the lead investigator in this case, and that Dornbos had interrogated Rinaldi. Defense counsel then suggested that the jury consider why, if Dornbos had not made promises or threats to Rinaldi upon Rinaldi's arrest, as Rinaldi had originally testified at the suppression hearing, the prosecution had not called Dornbos to testify to that fact. In response to defense counsel's argument, the prosecutor pointed out on rebuttal that defendant could have called Dornbos as a witness. In so responding, the prosecutor did not shift the burden of proof to defendant. See People v. Redd, 173 Ill.2d 1, 31 , 218 Ill.Dec. 861 , 670 N.E.2d 583 (1996) (holding that the burden of proof was not shifted when the prosecutor, in closing argument, referred to the defendant's right to "`subpoena each and every witness he may want to and put anybody at all on the witness stand'"); People v. Brown, 172 Ill.2d 1, 42 , 216 Ill.Dec. 733 , 665 N.E.2d 1290 (1996) (holding that the jury would not interpret the prosecutor's comment as shifting the burden of proof to the defendant where the prosecutor argued that "`[i]f there was anybody in the world that could describe the relationship * * *, you can be sure the defense would have had the people up on the stand'"). In fact, the prosecutor acknowledged that the burden of proof was on the State. Moreover, we find that the prosecutor's comments during rebuttal argument regarding defense counsel's ability to subpoena Dornbos were invited by defense counsel's argument that the State failed to call him as a witness. See People v. Mahaffey, 128 Ill.2d 388, 423-25 , 132 Ill.Dec. 366 , 539 N.E.2d 1172 (1989).
We likewise find that the prosecutor did not shift the burden of proof to defendant with respect to the comments about Shriner. In closing argument, defense counsel argued that, although police claimed that evidence was not released to the media, newsman Shriner knew about evidence in the case regarding a bullet and shell casings found on *888 the ground on the night of the murder. Defense counsel suggested that the jury consider the State's failure to present testimony about alleged facts reported to the news media. Defense counsel sought to imply that the State's witnesses gleaned information about the case from media reports and not firsthand knowledge. In rebuttal, the prosecutor remarked about Shriner's lack of testimony at trial in response to defense counsel's arguments regarding the State's failure to call Shriner as a witness. This court has held that where the challenged remarks were invited, a defendant cannot assign them as error on appeal. See Brown, 172 Ill.2d at 43 , 216 Ill.Dec. 733 , 665 N.E.2d 1290 .
Defendant next claims that the prosecutor, in rebuttal argument, improperly commented on defendant's failure to testify at trial. In rebuttal argument, the prosecutor informed the jury:
"The only witnesses who were brought in in rebuttal to say these people said something different to me were the witnesses brought in from Tyrone Miller and that wasn't even to say he said something different, just to say he couldn't have seen what he saw[;] and Ronald Russell. When Joe Rinaldi finished testifying, his testimony stands unrebutted."
Defendant contends that the prosecutor's reference to the "only witness" called by the defense and Rinaldi's testimony being "unrebutted" reminded the jury that defendant had not testified.
A criminal defendant has a constitutional right not to testify as a witness in his own behalf. See People v. Howard, 147 Ill.2d 103, 146 , 167 Ill.Dec. 914 , 588 N.E.2d 1044 (1991); People v. Herrett, 137 Ill.2d 195, 210 , 148 Ill.Dec. 695 , 561 N.E.2d 1 (1990). As a result, the prosecutor is prohibited from directly or indirectly commenting on the defendant's failure to take the stand in his own defense. See Howard, 147 Ill.2d at 146 , 167 Ill.Dec. 914 , 588 N.E.2d 1044 ; Herrett, 137 Ill.2d at 210-11 , 148 Ill.Dec. 695 , 561 N.E.2d 1 . This court, however, has held that the prosecutor can describe the State's evidence as uncontradicted provided that the comments are not intended or calculated to direct the jury's attention to the defendant's failure to testify. See Howard, 147 Ill.2d at 147 , 167 Ill.Dec. 914 , 588 N.E.2d 1044 ; Herrett, 137 Ill.2d at 211 , 148 Ill.Dec. 695 , 561 N.E.2d 1 . In determining whether the challenged remarks were improper comments on the defendant's failure to testify, a reviewing court must examine the remarks in the context of the entire proceedings. See Howard, 147 Ill.2d at 147 , 167 Ill.Dec. 914 , 588 N.E.2d 1044 ; Herrett, 137 Ill.2d at 211 , 148 Ill.Dec. 695 , 561 N.E.2d 1 . Moreover, an error resulting from a comment on the defendant's failure to testify does not require reversal where the reviewing court is able to conclude upon an examination of the entire record that the error was harmless beyond a reasonable doubt. See Howard, 147 Ill.2d at 147-48 , 167 Ill.Dec. 914 , 588 N.E.2d 1044 .
We find that the prosecutor's comments in rebuttal were not intended or calculated to direct the jury's attention to defendant's failure to testify. The prosecutor responded to defense counsel's closing argument, which challenged the State's evidence against defendant, by summarizing the evidence presented by the defense. The prosecutor noted that the defense witnesses consisted of those who contradicted Tyrone Miller regarding Miller's ability to see someone in the parking lot on the night of the murder, and Ronald Russell, who attempted to impeach the testimony of Paul Skorupa regarding whether he saw the victim's car on the night of the murder. In particular, the comments referring to the "only" witnesses and Rinaldi's testimony being "unrebutted" were merely designed to characterize the evidence against defendant. These comments did not necessarily direct the jury's attention to defendant's failure to testify, and therefore were not improper. See Herrett, 137 Ill.2d at 211 , 148 Ill.Dec. 695 , 561 N.E.2d 1 (finding that the prosecutor's comments referred to omissions in testimony that could have been supplied by witnesses other than the defendant); cf. Howard, 147 Ill.2d at 147 , 167 Ill.Dec. 914 , 588 N.E.2d 1044 (determining impermissible comment on the defendant's failure to testify where the prosecutor referred to the absence of any testimony to contradict the statements appearing in the defendant's confessions and the only witness *889 who would have presented such evidence was the defendant). Nevertheless, even if error occurred, the challenged comments did not deprive defendant of a fair trial. Defendant's rights were sufficiently safeguarded when the trial judge, at the close of the evidence, instructed the jurors that defendant's decision not to testify should not be considered by them in rendering a verdict. In light of the context of the proceeding, we conclude that the prosecutor's comments were not improper or did not deprive defendant of a fair trial. See People v. Moore, 171 Ill.2d 74, 105-07 , 215 Ill.Dec. 75 , 662 N.E.2d 1215 (1996).
As a final matter regarding closing arguments, defendant contends that the prosecutor committed reversible error when he informed defendant's jury about damaging testimony which had been heard only by codefendant Permanian's jury. During closing arguments, the prosecutor made the following statements regarding Tammy Behenna:
"Yes, she cooperated with police, wearing a wire. Trying to get information from Permanian as well. You heard about that. It seems Permanian had begun to catch on and pats her down looking for the wire.
[Defense Counsel]:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1998534. Public record. Not legal advice.