PEOPLE v. MORLEY (1997)

Following a jury trial in the circuit court of Lake County, defendant, David Morley, was found guilty of two counts of attempted first-degree murder, two counts of aggravated discharge of a firearm, one count of armed violence, and one count of aggravated battery with a firearm.   The charges against defendant stemmed from his involvement in a shoot-out on May 7, 1991, with two Round Lake Beach police officers, one of whom, Detective David Ostertag, was struck by a bullet and seriously wounded.   Defendant was sentenced to an extended term of 50 years' imprisonment for the attempted murder of Detective Ostertag to run consecutively to a sentence of 30 years' imprisonment for the attempted murder of the other officer, Detective Gary Bitler.

An appeal was taken, and this court reversed defendant's convictions and remanded the cause for a new trial.   See People v. Morley, 255 Ill.App.3d 589, 194 Ill.Dec. 281, 627 N.E.2d 397 (1994).   A new jury trial ensued on the same charges in September 1994 and concluded with guilty verdicts on all of the charged offenses.   Defendant was sentenced to 50 years' imprisonment on one count of attempted first-degree murder to be served consecutively to a 30-year term on the other attempt count.   Defendant was also sentenced to 30 years' imprisonment on one count of aggravated discharge of a firearm to be served concurrently with a 15-year term on the other discharge count and concurrently with the other two attempt convictions.   No sentence was entered on the armed violence count or the count charging aggravated battery with a firearm.

In this appeal, defendant raises the following issues:  (1) whether the trial court improperly refused defendant's request to appoint a special prosecutor;  (2) whether the trial court improperly refused to allow defendant to impeach two witnesses by omission;  (3) whether the impeachment of a defense witness with his convictions of the same offenses as those for which defendant stood trial was improper;  (4) whether the trial court erred in its refusal to instruct the jury on the defense of mistake of fact;  (5) whether the content of the prosecutor's closing argument deprived defendant of a fair trial;  and (6) whether the trial court erred in finding the attempted murder of Detective Ostertag to have been accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, thus improperly imposing an extended term of imprisonment upon defendant.   We affirm.

The facts of this case are set out in People v. Morley, 255 Ill.App.3d 589, 194 Ill.Dec. 281, 627 N.E.2d 397 (1994).   The following supplemental facts are provided to address the issues relevant to this appeal.

On September 22, 1994, arguments were heard on defendant's motion for the appointment of a special prosecutor.   The motion alleged, inter alia, that, after the appellate court reversed defendant's conviction, the prosecutor at defendant's first trial (and the prosecutor assigned to conduct the retrial), Steven McCollum, had a leading role in the decision to employ Ostertag as an investigator in the State's Attorney's office.   Ostertag was a Round Lake Beach police officer at the time of the alleged offenses and was shot following a high-speed chase involving defendant and James Files.   The motion sought an order to disqualify the State's Attorney's office.

McCollum, the chief deputy State's Attorney for Lake County, testified that he was one of two assistant State's Attorneys who were assigned to prosecute defendant in the first trial.   McCollum is on the hiring committee for attorneys and investigators;  the committee evaluates and recommends individuals for hiring to Michael Waller, the Lake County State's Attorney, who makes the final hiring decision.   McCollum's duties include assigning cases to the investigators and supervising their performance.

McCollum testified that he prepared Ostertag for defendant's trial because Ostertag was the victim.   McCollum specifically indicated to Ostertag that he should not be involved in any capacity other than as a victim.   McCollum instructed Ostertag not to investigate or serve subpoenas.   McCollum testified that Ostertag approached him with information received during a telephone call from a man named Bob Vernon, who wanted to provide information regarding James Files' alleged involvement in the assassination of President Kennedy.   McCollum testified that Ostertag conducted no other investigation into the case.

On cross-examination, McCollum testified that the office of the State's Attorney decided to reprosecute defendant after the appellate court reversed defendant's conviction.   He further testified that the decision to prosecute defendant was not based upon any personal relationship that McCollum had with Ostertag.

Ostertag testified that he was a special investigator in the State's Attorney's office and had been employed as such for the past 10 weeks.   Prior to that he was an officer with the Round Lake Beach police department.   Ostertag's immediate supervisor at the State's Attorney's office is George Strickland, but he also works at the direction of McCollum.   Ostertag testified that at McCollum's request he contacted witnesses for new addresses.   Prior to his employment with the State's Attorney's office, Vernon contacted Ostertag with his claims of Files' involvement with the Kennedy assassination.   Ostertag testified that he apprised McCollum of his discussions with Vernon and that McCollum never told him to cease gathering information from Vernon.   McCollum told him, however, not to serve subpoenas, and Ostertag did not talk to witnesses about their anticipated testimony.   Ostertag, on his own, requested federal “rap” sheets for defendant and Files.

Following argument of counsel, the trial court denied defendant's motion, stating that no conflict existed at the time of the first trial and nothing presented in the motion hearing convinced it that a conflict existed as this second trial approached.   Furthermore, the trial court stated that should Ostertag's testimony deviate from his original testimony, the defense could attempt to impeach him.   Therefore, no harm would result even if a conflict was to be determined.

Defendant was tried before a jury on September 26-29, 1994.

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The State's first witness was Patrick Mahoney, an officer with the Round Lake Beach police department.   He testified that at approximately 11:30 p.m. on May 1, 1991, he discovered activity occurring in a storage garage and decided to investigate.   He heard sounds of spray painting;  when he opened the door to the storage area, he saw defendant and Files next to a vehicle.   Mahoney and his partner requested identification from defendant and Files, but Files fled and was not apprehended.   Defendant, however, was arrested for unlawful possession of a stolen vehicle.

Mahoney further testified that defendant was held until the next morning, at which time Mahoney took defendant to court for a bond hearing.   Defendant appeared, and Mahoney also informed the court that he would be seeking a warrant for Files.   A photograph of Files was distributed to the Round Lake Beach police department, including Officers Ostertag and Bitler.

On cross-examination, Mahoney testified that when he encountered defendant at the storage area, he was in full police uniform and that defendant did not resist.

The parties stipulated that defendant was charged with unlawful possession of a stolen motor vehicle.   Bond was set on May 2, 1991, and defendant was ordered to appear in court on May 7, 1991.   On May 7, though, defendant failed to appear.   Thus, his bond was forfeited and a warrant was issued for his arrest.

Gary Bitler, a Round Lake Beach police officer and detective, testified next.   He was on duty with Ostertag on the afternoon of May 7, 1991, dressed in plain clothes.   They were in an unmarked, white, 1984 Chevrolet Impala, equipped with a spotlight on the side of the car, an antenna on top of the car, a built-in siren, a portable red oscillating light, and flashing headlamps called “wig-wag” lights.

Bitler testified that he and Ostertag were returning to Round Lake Beach from Lisle;  Ostertag was the driver.   They were traveling on Route 12, also known as Rand Road.   Bitler described Rand Road as having two lanes in each direction, essentially north and south, and a turning lane in the middle.   It was approximately 3:30 p.m., and the traffic was medium to heavy.

Bitler testified that Mahoney had earlier shown him a photograph of Files and was aware of the outstanding warrant for Files' arrest.   At the intersection of Plum Grove Road and Rand Road, Bitler saw Files at a Checker gas station pumping gas into a gray Pontiac.   Bitler alerted Ostertag, and they returned to the Checker station.   As Ostertag drove into the lot, defendant made a U-turn and picked up Files at the pay booth.   Bitler testified that Files looked at Bitler and Ostertag, got into the Pontiac, and the Pontiac left the Checker lot, went to Plum Grove Road, and from there to Rand Road.   In the process, the Pontiac disregarded a stop sign.   Ostertag turned on the wig-wag lights, the siren, and placed the red oscillating light on the dashboard.   Bitler radioed to other officers that a northbound chase was in progress.

Bitler further testified that the chase proceeded at a speed of about 70 miles per hour.   After approximately one mile, the Pontiac swerved to the right, went into a driveway, and struck a tree.   Bitler testified that at this time, the siren was shut off.

Ostertag stopped on Rand Road a short distance from the Pontiac.   Bitler testified that he saw Files raise a chrome, semi-automatic pistol in his right hand and begin to exit the car on the passenger side.   In response, Ostertag pulled the police car forward to block Files' exit.   Bitler's exit followed Ostertag's by about one to two seconds at which time Bitler heard a shot.   Bitler then saw Files at the front of the Pontiac aiming at Ostertag.

Bitler and Files exchanged gunfire.   Bitler overheard Ostertag shout that he had been hit and saw him falling to the ground at the rear of the Chevrolet.   Bitler moved to the rear of the vehicle, looked over the trunk lid, and saw defendant pointing a blue semi-automatic pistol at him.   He heard more shots and felt bullets going past his head.   Bitler fired a few shots at Files and defendant, who were standing about 15 to 20 feet apart on the driver's side of the Pontiac.   The next time Bitler looked over the hood of the Chevrolet, he saw defendant and Files running toward a hedge row.   Both Ostertag and Bitler then fired a few shots at Files and defendant before they ran behind the hedge row.

Bitler then turned to Ostertag and saw another police officer, Chief Mills of Lake Zurich, attending to him.   Bitler returned to the squad car, summoned an ambulance, and shut off the wig-wags and oscillating light.   Bitler explained that he did not fire his gun until he was shot at and that Ostertag had his gun in his holster when he announced that he had been shot.

On cross-examination, Bitler stated that without activating the siren, wig-wags, and red light, it is not apparent that the Chevrolet is so equipped.   The vehicle bore no official insignia, and had normal license plates.   Bitler said that all the emergency equipment was turned on by the time the Chevrolet reached Rand Road.   Bitler also conceded that anyone could order a spotlight for a 1984 Chevrolet Impala.   Bitler stated he did not see who shot Ostertag and that four to six shots rang out before he heard Ostertag announce being hit.

Also during cross-examination, defense counsel elicited from Bitler that he had spoken with officers Weinger, Bertrand, and Robin of the Lake County Sheriff's Department.   Defense counsel posed a follow-up question to Bitler which began, “[y]ou never told Bertrand-.”  The State objected, proposing that the questioning was “impeachment by omission.”   At a side-bar conference, defense counsel argued that Bitler had testified that he and Ostertag had pulled within a short distance of the Pontiac at the Checker station and made eye contact with Files.   Defense counsel further contended that Bitler's statement to the officers omitted reference to a U-turn maneuver and stated instead that he and Ostertag pulled in behind the Pontiac and the latter sped off.

The court posed the question to defense counsel, “Was the eye contact made before, during, or after the U-turn?”   Defense counsel responded that he thought that Bitler had testified that the eye contact was made as he and Ostertag pulled around in the U-turn.   The trial judge disagreed, and sustained the State's objection.

Upon further cross-examination, Bitler stated that as he and Ostertag pulled in the Checker lot, defendant began a U-turn.   Bitler also acknowledged that he did not remember advising Bertrand that the suspects drove westbound on Rand Road while approaching the Checker station.   Defense counsel offered Bertrand's report to refresh Bitler's recollection;  Bitler responded that he did not remember saying that phrase to Bertrand.

At this point in the examination of Bitler, defense counsel approached the bench and offered that Bitler had failed to mention to Bertrand and Weinger that Ostertag activated the siren, wig-wags, or oscillating light.   The court asked defense counsel whether he had ever seen a police report that reflected that a police officer turned on emergency equipment, and defense counsel responded affirmatively.   The trial court then inquired as to how often that occurred, and defense counsel stated that one report of a detective who interviewed the officers contained this information.   The prosecutor informed the trial court that the omission by Bitler of emergency equipment was not unusual and that the proffer was impeachment by omission.   The trial court sustained the State's objection.

During the offer of proof, Bitler testified that he did not remember telling Bertrand that defendant sped away as he and Ostertag approached the Checker gas station.   Bitler acknowledged that “it was a good possibility” that he did not tell Weinger that Ostertag put the siren on.   Bitler also said that if Bertrand's report failed to mention that Ostertag put the siren or oscillating light on during the chase that was “probably [consistent with] what he [Bitler], had told him.”   Likewise, Bitler acknowledged that if Weinger's report omitted reference to the wig-wags or oscillating light during the chase, then he had probably not mentioned them.

On the next day of trial, defendant renewed his claim that it was improper to limit his examination of Bitler on the matter of his failure to mention the emergency equipment to other police personnel.   The trial court denied defendant's motion to reconsider the ruling.

Detective Ostertag testified extensively to the circumstances surrounding the events that occurred on May 7, 1991;  his testimony corroborated Bitler's testimony.

Daniel Allen testified that on May 7, 1991, while traveling with his spouse, he was driving southbound on Rand Road in the inside lane when he saw an unmarked white police car going north.   The unmarked car had its siren on and a red, oscillating light on the dashboard.   In addition, the headlamps were alternately going on and off.   Allen stopped at an intersection at Long Grove Road and from his rear-view mirror at a distance of about 150 to 200 yards, he saw a car in front of the unmarked car pull off the road and strike an object.   He then heard loud noises and assumed them to be gun shots.   A person who appeared to have a weapon drawn came to the rear of the unmarked car and ran into the woods.   Allen further testified that he traveled home to Palatine and called the police.

On cross-examination, Allen agreed that he had testified at an earlier proceeding and that at the time, he was asked the following questions and provided the following answers:

“Q: You say an unmarked car with sirens or lights on.   Can you describe * * * what lights you actually saw at that time?

A: It was a single red oscillating light on the dashboard of the squad.

Q: Any other lights that you saw at that time?

A: No.”

At this stage of Allen's cross-examination, the prosecutor objected;  the trial court sustained the objection and instructed the jury to disregard the exchange.   Defense counsel then asked, “[y]ou never told anybody prior to today-.”  The State objected on the basis that the question contemplated impeachment by omission.   The trial court agreed that it was “[s]tarting to sound like it.”   Defense counsel offered to prove that Allen never told anyone about the wig-wags.   The trial court responded, “[t]he question that you asked was at that time.   He clearly testified to different times.   First he saw the red light and later the oscillating lights.   Impeachment is no good, doesn't stand up there.”  (Emphasis added.)   The trial court sustained the State's objection.

Witness Luciano Baros testified next.   He described the events of May 7, 1991, from his perspective at a garden center on Rand Road.   Ed Haras, a deputy with the Lake County Sheriff's Office, then testified.   Haras was “running radar” about two miles north of the shooting scene and received a dispatch of a chase occurring approximately two miles south.   He turned on the emergency equipment in his marked car and drove south.   Along the way, he learned that the chase had ended in an accident.   He pulled his car to a point about 50 yards from the accident in the northbound outside lane and stopped.   He saw two men running approximately 25 yards away.   Defendant appeared to drop something and then pick it up, and Haras thought he made eye contact with him.   Haras drew his gun, pointed it in the direction of defendant, identified himself as a member of the Lake County sheriff's department, and ordered him to stop.   Then Haras lost sight of the men.   He did not recall seeing lights or sirens from the Chevrolet, but stated that he was focused on defendant and Files running across the field.

Howard Weinger, a deputy sheriff in the Lake County sheriff's department, testified next.   He overheard a dispatch of a Round Lake Beach police car involved in an attempt to effectuate a traffic stop on Rand Road.   The report subsequently was that the cars involved went off the road.   Weinger drove south on Rand Road with his emergency equipment activated and stopped at the scene.   Weinger briefly spoke with Bitler, who described the subjects in the Pontiac.

Jay Mills, the chief of police of Kildeer, testified that he was driving southbound on Rand Road on May 7, 1991, in a marked squad car.   Mills' car was equipped with interior strobes and oscillating lights on the front and rear dashboards.   Mills made a left turn at Long Grove Road when he noticed a police vehicle with flashing headlamps, an oscillating red light, and a siren pursuing another car.   As the police car went by him, he saw the officers in the car pointing forward.   Mills made a U-turn and joined the chase with his emergency equipment activated.   He saw the accident occur, and parked his car on Rand Road about 25 feet from the Pontiac.

Mills started to get out of his car and heard shooting.   He got back into the car and radioed that shots had been fired.   When he exited the car again, he saw Ostertag with his hands in the air, motioning to get back;  Ostertag's hands were empty.   Mills ran to Ostertag and stayed with him and summoned an ambulance.   He did not see the defendant and Files.

Robert Agnes, a sergeant with the Cook County Forest Preserve police department, testified that he, with assistance from his canine partner, found defendant hiding in a sewer pipe.   Defendant surrendered a cocked .9 millimeter pistol without physical resistance after being commanded to do so three times.   Defendant also had five loaded magazines for the weapon and a box of ammunition.

Robert Flanigan, a physician, treated Ostertag at a hospital for his gunshot wound.   According to Flanigan, the bullet wound would have been fatal without prompt medical attention and was consistent with being inflicted while Ostertag was in a crouching position with his hands down.

The State's next witness was Lawrence Cipowski, a police officer with the Illinois Secretary of State.   Cipowski testified that he was with Agnes and the canine officer when defendant was apprehended in a sewer pipe.   Following two stipulations read to the jury, Robert Maze, a police officer with the Lake County sheriff's police, testified next.   Maze described his aerial search for defendant and Files.

Fred Heidecke, a detective with the Lake County sheriff's office, testified that he searched the scene on three separate occasions looking for evidence of a black valise or gun case.   He found a loaded AK-47 semi-automatic rifle and an unloaded, chrome, .9 millimeter pistol in a swamp.   Bullets for the pistol were found lying in the mud of the swamp.

John Paret, a Vernon Hills police officer, testified that he found Files laying on his back in the swamp with only his head and hands exposed.

Martin Bertrand, an evidence technician and detective, testified regarding the location, identity, and preservation of the bullets, shell casings, and other evidence found at the scene.   Gilbert Farrow, an investigator with the Lake County sheriff's police, testified that he assisted in the collection of evidence at the scene and photographed the evidence.   Farrow also searched the Pontiac that defendant was driving and described the contents collected from the vehicle.   The State's next witness was W. James Gretz, a special agent for the Federal Bureau of Investigation.   Gretz testified regarding his team's search of the swamp where Files was found, along with additional evidence of a black gun case, a semi-automatic rifle, a .9 millimeter semi-automatic pistol, and ammunition.   The State's last witness was Robert Wilson, an expert in the area of firearms and ballistics.   Wilson testified regarding the weapons found at the scene, bullets, and ejection of shell casings.   He matched the shell casings to the weapons based on his experiments in firing the weapons and retrieving the bullets and casings.

Defendant's witnesses included Daniel Arendt and David Soemo, who testified as to their observations of the vehicle chase and subsequent shooting.   Ethyl Brown, a cashier at the Checker gas station on May 7, 1991, testified next.   She testified that she did not see an unmarked police car with lights and siren activated chasing another vehicle on to Plum Grove Road and from there to Rand Road.

Daniel Colin, a detective with the Lake County sheriff's police, participated in the investigation of the Ostertag case and determined that Files had rented storage facilities in Round Lake Park.   He executed a search warrant at one and found 36 tires, although he did not determine whether they were stolen.   One unit was rented under the name of James Patterson.

John Clarke, a consultant for security matters, organized crime matters, and federal defense matters, testified next.   Clarke testified that he has advised industry and government on matters involving organized crime since 1950.   From the mid 1950s until 1973, he was an insurance adjuster and worked with the insurance industry in connection with “chop-shop” operations.

Clarke described a chop-shop as a business in which expensive cars are stolen on order.   The cars are then delivered by the thieves, and another individual picks them up and takes them to another location.   There the cars are dismantled and the parts are sold to car dealers and repair shops.   He said that organized crime dominates the chop-shop industry by extorting money from chop-shop operators.   Operators have to pay this “street tax” or else they are beaten or killed.   A large operation will have to pay as much as one-third of its proceeds to organized crime.

Clarke stated that if an order came out to kill a Lake County chop-shop operator, the execution would not take place in Melrose Park.

Clarke stated that organized crime figures used a vehicle known as a “work car” to perform surveillance and hits.   A work car has the outward appearance of an ordinary sedan, but is equipped with a powerful engine and high speed tires.   They are equipped with antennas and a spotlight to look like police vehicles.   Police officers assume that the occupants of the work car are legitimately engaged and do not bother them.   Clarke identified a picture of Ostertag's car as an example of a work car.   Clarke affirmed that he received $1000 for his testimony, but added that money was also compensation for his testimony at an earlier hearing.   Although Clarke did not prepare a report himself, he stated that he read some police reports and transcripts in preparation for his testimony.   Clarke did not interview anyone, look at photographs of or visit the shooting scene, analyze the diagrams prepared by the parties, or examine physical evidence.

Prior to the testimony of James Files, defense counsel moved to prohibit the State from cross-examining Files concerning his prior conviction related to this matter.   Defense counsel argued that at the time of defendant's original trial, Files had not yet been convicted of any offenses arising out of this incident (defendant had been tried first), and would have been able to testify without impeachment.   His second argument was that if the jury was informed of Files' convictions, they would be signalled to what their verdict should be.   Defense counsel requested that the State only be allowed to mention that Files possessed unnamed felony convictions instead of naming the offenses.   The State contended that Files was a witness in this case, not a defendant.   Thus Files could be questioned about his prior criminal history, bias, and motives to testify untruthfully in this case.   The trial court reviewed Files' criminal record, which included prior convictions for interstate transportation of stolen vehicles and two bank robberies.   The trial court denied the motion.

James Files testified that he ran a large chop-shop operation in northern Illinois from 1978 until 1981, when he was convicted for his crimes.   He started in business again in 1991.   He described the concept of street taxes paid by independent operators of chop shops.

Files testified that in 1991 he received a telephone call from a person who explained that he had authority for the area in which Files operated and wanted to have a meeting in Melrose Park.   Files understood that the caller was a mob “enforcer.”   The meeting was set for noon on May 7, 1991, at the Melrose Park Inn.   Defendant accompanied Files to the meeting in a role as back-up.

Files testified that the mob enforcer demanded that Files pay him $25,000 for the privilege of remaining in business and in lieu of payments, Files would be killed.   Files refused to comply.

Files and defendant returned to Lake County.   They stopped at the Checker gas station to refuel.   Files saw a beige or white earlier model car pull into the lot of the Checker.   He walked quickly from the cashier's window to the Pontiac and got in.   He told defendant, “Let's go.   I think we might have a problem.”   They pulled out on to Plum Grove Road and from there to Rand Road.   The lighter car followed.   Files testified that at no time did he see any activated emergency equipment.   Files testified to his observations of the incident.

The following colloquy took place during cross-examination:

“Q: Let's go over your prior criminal history * * *.   You have been convicted of interstate transportation of stolen motor vehicle, isn't that correct?

A. Yes, sir.

Q. You've been convicted for attempted murder?

A. Yes, sir.

Q. You have been convicted of aggravated battery with a firearm.

A. Yes, sir.

Q. You have been convicted of aggravated discharge of a firearm.

A. Yes, sir.

A. From this case.

Q. You have been convicted of armed violence, isn't that correct?

A. Yes, sir.

Q. You have also been convicted of another offense of interstate transportation of stolen motor vehicle, isn't that correct?

A. Yes, sir.   You just asked me that.

Q. You've also been convicted of a third charge of interstate transportation of stolen motor vehicle, isn't that correct?

A. Yes, sir.   That was the same case.”

Files testified that he was not aware that a warrant had been issued for his arrest in connection with the incident at the storage facility earlier described by Mahoney.   He did know, however, that defendant had a court date on May 7, 1991.   He also attempted to avoid being stopped by police at “all cost,” and that a radar detector mounted on the dash of the Pontiac was to detect police vehicles and not the mob.   Files asked defendant to accompany him to Melrose Park, and defendant agreed.

As to the conversation at the Melrose Park Inn, Files stated that, although defendant was not physically present for the conversation with the mob enforcer, he told defendant about the conversation on the way to the Checker station.   During that trip, he did not see anyone following him, but Ostertag's car resembled the light-colored sedan he saw at the motel parking lot.

Files admitted ownership of two .9 millimeter pistols, but he denied ownership of the AK-47 rifle and the black case.   He conceded knowing of the presence of the 520 rounds of 7.62 caliber ammunition found in the Pontiac and explained that the ammunition came from a stolen Chevrolet Blazer.

At the scene of the shooting, he saw a squad car pull up, but he did not seek the aid of Officer Mills.   He ran by some residences into the woods but did not seek any help from the people living there.   He explained that he did not do so because he was an ex-felon in possession of a gun and that for the same reason, he hid in the swamp.   Files testified that he removed the bullets from his pistol because he had never shot a police officer, and he wanted to ensure that if the police began shooting, he could not return fire.   He testified that he did not learn that a police officer had been shot until he was at the hospital or later at the Lake County jail.

Following Files' testimony, defendant rested.   Closing arguments included the following exchanges:

“MR. PAVLETIC [Assistant State's Attorney]:  * * * Now I will tell you up front I don't believe a minute there was any-

MR. BORASSO [Defense Counsel]:  Objection

MR. PAVLETIC:  -meeting with any mob guy.

THE COURT:  Don't put yourself in it.

MR. BORASSO:  Ask the jury to disregard, judge.

THE COURT:  He can argue.   Go ahead.

MR. PAVLETIC:  * * * If you find this defendant guilty of attempt second degree murder, you will have given him the gift of the century.

MR. BORASSO:  Objection, Judge.

THE COURT:  Rephrase your argument.   Sustained.”

After closing arguments, the jury was instructed as to the law.   The parties conducted a jury instruction conference at which defendant made it clear that he wanted to have the jury instructed on the defense of mistake of fact.   The following colloquy took place:

“THE COURT:  What was tendered then is ‘A defendant's mistake as to a matter of fact is a defense if the mistake shows that the Defendant did not have the knowledge necessary for the offense charged,’ and, ‘A Defendant's mistake as to a matter of fact is a defense if the mistake shows the Defendant did not have the intent, knowledge, or recklessness necessary for the offense charged,’ and ‘A Defendant's mistake as to a matter of fact is a defense if the mistake shows the Defendant did not have the intent or knowledge necessary for the offense charged.’

MR. BRODSKY [Defense Counsel]:  * * * We believe that mistake of fact was an issue.   We should have been allowed the affirmative defense.   The mistake was that he did not, mistakenly believed they were not police officers and that affected the mental element of all the offenses charged.

The first one that we put in, which had all three mental states, recklessness, intent, and knowledge, obviously was necessary, we believe was necessary when we were going to give the reckless, lesser-included offenses of reckless conduct, reckless discharge of a firearm, which were also rejected by the court and the other two for obvious reasons.

MR. MCCOLLUM:  There was no affirmative evidence that this defendant's state of mind was [a] mistaken state of mind.   There was no spontaneous declaration by this defendant indicating * * * a mistake of fact on his part.   In fact, the evidence was clear that he observed the police officers standing there and shot him without a gun in his hands.  * * * I don't think mistake of fact applied.”

The trial court denied the request.

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The jury returned verdicts finding defendant guilty of two counts of attempted first-degree murder, two counts of aggravated discharge of a firearm, one count of armed violence, and one count of aggravated battery with a firearm.

At a post-trial hearing on November 21, 1994, defendant's motion for a new trial was denied, and the cause proceeded to sentencing.   Following arguments, in stating that defendant's conduct was brutal and heinous and indicative of wanton cruelty and in considering defendant's prior convictions and criminal history, the trial court imposed an extended-term sentence of 50 years' imprisonment as to the attempted murder of Ostertag, to be served consecutively to a 30-year term as to the same charge in reference to Bitler.   A 30-year extended term was imposed for the offense of aggravated discharge of a weapon (Ostertag), to be served concurrently with a 15-year term on the same offense with regard to Bitler.   No sentence was entered for the offenses of armed violence or aggravated battery with a firearm.

On November 23, 1994, defendant's motion for reconsideration of sentence was denied.   Defendant timely appeals.

Defendant first contends that his motion for appointment of a special prosecutor should have been granted.   The basis of defendant's motion is that the victim, Ostertag, was recommended for employment in the State's Attorney's office by the prosecutor, McCollum, and was subsequently hired as an employee of the State's Attorney's office.   Therefore, defendant argues, a reasonable possibility existed that the prosecution would not exercise its discretionary power in an even-handed manner.   The State argues that Ostertag was the victim and did not perform employee functions in this case.

Article VI, section 19, of the Illinois Constitution provides for the election of a State's Attorney in each county.  Ill. Const.1970, art. VI, § 19.   The powers and duties of a State's Attorney include commencing and prosecuting all actions, civil and criminal, in which the people of the State may be concerned.  55 ILCS Ann. 5/3-9005 (Smith-Hurd Supp.1996).   However, when a State's Attorney is interested in any cause or proceeding, civil or criminal, which it is or may be her or his duty to prosecute, the court may appoint some other competent attorney to prosecute such cause or proceeding.   55 ILCS 5/3-9008 (West 1994).   The purpose of this provision is to prevent any influence upon the discharge of the duties of the State's Attorney by reason of personal interest.   See People ex rel. Hutchison v. Hickman, 294 Ill. 471, 128 N.E. 484 (1920).   The decision to appoint a special prosecutor rests with the discretion of the trial court.  People v. Polonowski, 258 Ill.App.3d 497, 503, 196 Ill.Dec. 318, 629 N.E.2d 1162 (1994).   A special prosecutor can be appointed at any stage of the case.  Baxter v. Peterlin, 156 Ill.App.3d 564, 566, 108 Ill.Dec. 730, 509 N.E.2d 156 (1987).

The conflict asserted here is based on McCollum's professional relationship with Ostertag.   Initially, we note that the trial court clearly had the discretion either to appoint or deny the appointment of a special prosecutor.   The issue thus becomes whether McCollum was “interested” within the scope of the statute.   The State denies that McCollum was “interested” or had a conflict of interest as such.   Our supreme court has held that the only situations in which the Attorney General or the State's Attorney could be considered to be interested so as to authorize the appointment of a special Attorney General or State's Attorney are where (1) she or he is interested as a private individual;  or (2) she or he is an actual party to the litigation.   Environmental Protection Agency v. Pollution Control Board, 69 Ill.2d 394, 400-01, 14 Ill.Dec. 245, 372 N.E.2d 50 (1977);  see also Suburban Cook County Regional Office of Education v. Cook County Board, 282 Ill.App.3d 560, 569, 217 Ill.Dec. 671, 667 N.E.2d 1064 (1996).

Defendant also cites People v. Lewis, 88 Ill.2d 429, 58 Ill.Dec. 743, 430 N.E.2d 994 (1981), and People v. Polonowski, 258 Ill.App.3d 497, 196 Ill.Dec. 318, 629 N.E.2d 1162 (1994), for support.   However, the Lewis and Polonowski holdings are limited to conflicts based on counsel's personal relationships.   Because defendant contends that McCollum's conflict is based on a professional relationship with a witness, and not a personal relationship, we decline to analyze under the Lewis and Polonowski line of cases.   Furthermore, neither of these cases imposed a per se rule that required the disqualification of counsel on the basis of an acquaintance with a witness.

In the instant case, McCollum is not an actual party, nor does the record support a finding that McCollum has a private individual interest in the litigation.   The words that McCollum used to describe Ostertag, a “very nice man,” a “colleague,” and a “very good and professional police officer,” do not rise to the level of a personal interest.   Cf. Baxter v. Peterlin, 156 Ill.App.3d 564, 108 Ill.Dec. 730, 509 N.E.2d 156 (1987).   Further, at the pretrial hearing, Ostertag testified that he had been employed at the State's Attorney's office for approximately 10 weeks;  he only checked the current addresses of some of the witnesses;  he did not discuss their testimony with them;  he did not interview them;  he did not serve any subpoenas;  he made no diagrams;  and he did not handle any physical evidence.   Regarding the communications between Ostertag and Vernon, Ostertag testified that it was Vernon who initially contacted him regarding Files' involvement with the Kennedy assassination, and this was done prior to his employment with the State's Attorney's office.

The State's Attorney's responsibilities are not limited to representing the people of the State who are not employed by the State of Illinois or some other governmental entity.   These prosecutorial responsibilities will occasionally include prosecuting cases where victims and witnesses are employed by a state, county, or local agency, including, but not limited to, the State's Attorney's office.   Furthermore, the State's Attorney does not represent individuals or specific witnesses during the course of criminal prosecutions.   Criminal prosecutions are commenced in the name of and on behalf of the people of the State of Illinois.   To hold that a special prosecutor must always be appointed whenever a victim or witness is employed by a state, county, or local agency would be an illogical, as well as impractical, encroachment upon the authority of a constitutional officer.   Accordingly, we hold that the trial court did not abuse its discretion in denying defendant's motion for the appointment of a special prosecutor.

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Defendant's second contention is that the trial court improperly refused to allow defendant to impeach two witnesses by omission.   Defendant argues that he should have been able to impeach Bitler by showing that Bitler did not mention the use of emergency equipment during the chase and that Bitler told Bertrand that defendant sped away as Bitler and Ostertag approached the Checker station.   Defendant contends that a police officer would normally relate to other officers and in reports that emergency equipment would be activated in a chase of a suspect.

Defendant also sought to impeach witness Daniel Allen in a similar fashion.   During cross-examination, defense counsel attempted to show that, in an earlier proceeding, Allen mentioned the red oscillating light on the dashboard, but did not mention the wig-wags.

The State contends that these omissions are not material omissions, and hence, the objections were properly sustained.   Initially, we note that the latitude to be afforded in the cross-examination of witnesses rests largely in the trial court's discretion, and absent a showing of abuse of that discretion, its determination will not be disturbed on appeal.  People v. Hobley, 159 Ill.2d 272, 309, 202 Ill.Dec. 256, 637 N.E.2d 992 (1994).   A witness' failure to state a particular fact under circumstances rendering it incumbent or likely to state such a fact, may be shown to discredit the witness' testimony as to such fact.  People v. Henry, 47 Ill.2d 312, 321, 265 N.E.2d 876 (1970);  People v. Brown, 47 Ill.App.3d 920, 928-29, 8 Ill.Dec. 276, 365 N.E.2d 514 (1977).   However, in order to impeach a witness by omission, the omission must be material and a proper foundation must be laid.  Henry, 47 Ill.2d at 321, 265 N.E.2d 876;  People v. Hamelin, 75 Ill.App.3d 445, 447, 31 Ill.Dec. 364, 394 N.E.2d 566 (1979).   In any event, an improper refusal to allow such impeachment does not mandate reversal unless defendant is manifestly prejudiced.  People v. Brown, 91 Ill.App.3d 582, 586, 47 Ill.Dec. 49, 414 N.E.2d 1165 (1980);  Hamelin, 75 Ill.App.3d at 448, 31 Ill.Dec. 364, 394 N.E.2d 566.

In the present case, the trial court sustained an objection to defendant's attempts to cross-examine Bitler on the basis that Bitler did not mention his activation of emergency equipment to Bertrand and Weinger.   The trial court also sustained an objection to defendant's attempts to cross-examine Allen on the basis that Allen never mentioned observing the wig-wag head lights.   We fail to see the relevance of Bitler specifically informing Bertrand that he activated the emergency equipment, as Bertrand's duty as evidence technician was to identify, collect, and preserve evidence at the crime scene.   We do not believe it natural, nor incumbent, for Bitler to relate to the evidence technician that he activated his siren, wig-wags, and oscillating light.   As to Weinger, it appears from the record that he spoke with Bitler only briefly to get descriptions of defendant and Files, who were at that time, fleeing suspects.   Further, from our review of the record, it appears that at the time of trial, Bitler had been a police officer with the Round Lake Beach police department for the past 16 years.

Our review of the record also leads us to conclude that the trial court did not abuse its discretion in limiting defendant's cross-examination of Allen.   The restriction of cross-examination of the two witnesses did not result in manifest prejudice to defendant, since testimony was also elicited from numerous other witnesses who heard the sirens and saw the wig-wags and red oscillating light.   In light of the foregoing, we determine that the trial court did not abuse its discretion in restricting the cross-examination of the State's witnesses.

Defendant's third contention is that the trial court erred when it allowed the State to impeach Files with his convictions for the same offenses as those for which defendant stood trial.   Defendant argues that he should have been placed in the same position he would have been in were it not for the error in the conduct of the first trial, and therefore, Files' convictions arising out of this incident should not be allowed for purposes of impeachment.   Alternatively, defendant argues that even if it was proper to impeach Files at defendant's second trial with felonies arising out of the shooting, the trial court should have required the State to refer only to unnamed felonies.   Files was not called to testify by the prosecution, but instead was called by defendant during his case in chief.

Supreme Court Rule 238, which applies to criminal cases under Rule 433, states that “[t]he credibility of a witness may be attacked by any party, including the party calling [her or] him.”   107 Ill.2d Rs. 238(a), 433;  see also People v. Johnson, 197 Ill.App.3d 74, 83, 143 Ill.Dec. 761, 554 N.E.2d 696 (1990).   Impeachment of a codefendant's credibility may be done by showing that the codefendant has pleaded guilty or has been convicted of the same offense.  People v. Sullivan, 72 Ill.2d 36, 42, 17 Ill.Dec. 827, 377 N.E.2d 17 (1978);  Johnson, 197 Ill.App.3d at 83, 143 Ill.Dec. 761, 554 N.E.2d 696.   An accomplice's guilt or innocence is irrelevant to a defendant's guilt.  People v. Williams, 115 Ill.App.3d 276, 280, 71 Ill.Dec. 163, 450 N.E.2d 851 (1983).   Classically, a codefendant is impeached where her or his testimony has inculpated the defendant on trial.   In the present case, the State did not call Files as a witness and, therefore, no situation was presented where a codefendant was called as a witness by the State to “point the finger” at defendant on trial.   Instead, defendant called Files to testify and attempted to get Files to state that he and defendant thought they were being chased by mob executioners for refusing to pay a $25,000 “street tax” for the chop-shop operation.   During the cross-examination of Files, the State reviewed Files' prior criminal convictions.   It was, however, Files, who volunteered that his conviction for aggravated discharge of a firearm arose from this case.   The State's questions did not specifically refer to Files' convictions arising out of this case, and only called for a “yes” or “no” response from Files.   We determine that the State utilized proper procedures to impeach Files.

Defendant next contends that the trial court erred in its refusal to instruct the jury on the defense of mistake of fact.   In support of his contention, defendant argues that he adduced evidence from witness testimony that he was not aware that Ostertag and Bitler were police officers and that he perceived them to be mob executioners.   This formed the core of his defense.   Defendant argues that to find him guilty of attempted murder, the jury had to conclude that he had the intent to kill Ostertag and Bitler without lawful justification.   The State also had to prove that defendant knowingly acted without legal justification as to armed violence and aggravated battery, aggravated battery with a firearm, and aggravated discharge of a firearm.   Defendant maintains that ample evidence existed from the testimony of Files, Clarke, Soemo, and Arendt that defendant believed that he was being pursued by mob enforcers, that is, had a mistake of fact as to his legal justification.

A defendant is entitled to an instruction of her or his theory of the case if some foundation exists for the instruction in the evidence.  People v. Crane, 145 Ill.2d 520, 526, 165 Ill.Dec. 703, 585 N.E.2d 99 (1991), citing People v. Unger, 66 Ill.2d 333, 338, 5 Ill.Dec. 848, 362 N.E.2d 319 (1977).   If such evidence exists, a trial court's refusal to so instruct the jury is an abuse of discretion.  Crane, 145 Ill.2d at 526, 165 Ill.Dec. 703, 585 N.E.2d 99, citing People v. Papas, 381 Ill. 90, 95, 44 N.E.2d 896 (1942).   Where a statute establishes knowledge as the mental state for a particular offense, a mistake of fact constitutes a valid defense if that mistake negates the requisite knowledge.   See 720 ILCS 5/4-8(a) (West 1992);  People v. Crane, 145 Ill.2d 520, 527, 165 Ill.Dec. 703, 585 N.E.2d 99 (1991);  People v. Nash, 282 Ill.App.3d 982, 985, 218 Ill.Dec. 410, 669 N.E.2d 353 (1996).   A person acts knowingly when that person is “consciously aware that [her or] his conduct is of such nature or that such circumstances exist.   Knowledge of a material fact includes awareness of the substantial probability that such fact exists.”  720 ILCS 5/4-5(a) (West 1992).  “Substantial” is defined as “actually existing;  real;  not seeming or imaginary;  not illusive” (Black's Law Dictionary 1428 (6th ed. 1990)), and “probability” is defined as “[l]ikelihood;  appearance of reality or truth” (Black's Law Dictionary 1201 (6th ed. 1990)).   In contrast, a “possibility” is merely an “uncertain thing which may happen.”   Black's Law Dictionary 1165 (6th ed. 1990).

Defendant's mistake of fact defense is not supported by the evidence.   The record shows that while Ostertag and Bitler were exiting their vehicle, defendant began shooting at them.   Who defendant may have possibly thought they were is not justification for a mistake of fact jury instruction for the crimes defendant stands accused.   Applying the statutory definition of “knowledge” and reviewing the evidence in the light most favorable to the prosecution, the State's witnesses' testimonies established that it was more probable that defendant knew Ostertag and Bitler were police officers, and not gangland executioners.   Officer Haras' testimony revealed that he was in uniform, drew and pointed his gun at defendant, identified himself as law enforcement to defendant, and ordered defendant to stop.   Haras believed he had made eye contact with defendant.   Further, the record reveals that at no time during the chase, subsequent shoot-out, or period of hiding did defendant seek the assistance of law enforcement.   We therefore, uphold the trial court's refusal to tender the mistake of fact jury instruction.

Defendant's fifth contention is that the prosecutor's closing argument deprived defendant of a fair trial.   Specifically, defendant argues that the prosecutor incorrectly informed the jury that in order to acquit defendant, the jury would have to discount every witness;  improperly proffered a personal opinion that no meeting with a mob enforcer ever existed;  and that if the jury found defendant guilty of attempted second-degree murder, defendant would have received “the gift of the century.”   Defendant argues that the cumulative effect of the errors requires reversal and a new trial.   The State responds that the statements and characterizations made by the prosecutor during closing argument were permissible.

We note that a prosecutor is allowed a great deal of latitude in giving a closing argument.  People v. Cisewski, 118 Ill.2d 163, 175, 113 Ill.Dec. 58, 514 N.E.2d 970 (1987);  People v. Siefke, 195 Ill.App.3d 135, 144, 141 Ill.Dec. 833, 551 N.E.2d 1361 (1990).   The trial court's determination of the propriety of the closing argument will generally be followed on appeal absent a clear abuse of discretion.  Cisewski, 118 Ill.2d at 175, 113 Ill.Dec. 58, 514 N.E.2d 970.   Arguments and statements based upon the facts in evidence, or upon reasonable inferences drawn therefrom, are within the scope of proper argument.  People v. Terry, 99 Ill.2d 508, 517, 77 Ill.Dec. 442, 460 N.E.2d 746 (1984).   In reviewing allegations of prosecutorial misconduct, the closing arguments of both the State and defense counsel must be examined in their entirety, and the allegedly improper remarks must be placed in their proper context.  Cisewski, 118 Ill.2d at 175-76, 113 Ill.Dec. 58, 514 N.E.2d 970.   Even where certain remarks are found to be improper, they will not be considered reversible error unless they constitute a material factor in the defendant's conviction or result in substantial prejudice to the accused, such that the verdict would have been different had they not been made.  Terry, 99 Ill.2d at 517, 77 Ill.Dec. 442, 460 N.E.2d 746.

The prosecutor made the following comments:

“[I]n order for you to acquit this defendant, you have got to * * * disregard every State witness in this case, you have to disregard the defense witnesses in this case, and you have got to believe that Ostertag and Bitler were renegades;  * * * You have to believe that Ostertag and Bitler were going to forgo their entire careers, all of their police experience, for this thug and Mr. Files;  * * * [Defendant] did not care about anyone except for himself, nor should you care one bit for him;  * * * [Defendant] deserves no sympathy from you;  * * * This defendant is trying to escape * * * through your verdict.”

With the exception of the two following remarks, discussed below, all of the foregoing allegedly improper comments in the State's closing argument were not included in defendant's post-trial motion.   Therefore, these statements have been waived for review.  People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988).   The plain error rule may be invoked as an exception to the waiver rule to correct errors in criminal cases where the evidence is closely balanced or where the error was of such magnitude as to deny defendant a fair trial.  People v. Williams, 264 Ill.App.3d 278, 285, 201 Ill.Dec. 198, 636 N.E.2d 630 (1993).   However, the plain error doctrine is to be invoked only in exceptional circumstances (People v. Easley, 148 Ill.2d 281, 323, 170 Ill.Dec. 356, 592 N.E.2d 1036 (1992), and none of defendant's cited comments were prejudicial to such magnitude as to deny him a fair trial.

The two comments objected to at trial and included in the post-trial motion were the following colloquies:

“MR. PAVLETIC [Assistant State's Attorney]:  * * * Now I will tell you up front I don't believe a minute there was any * * * meeting with any mob guy.

MR. PAVLETIC:  * * * If you find this defendant guilty of attempt second degree murder, you will have given him the gift of the century.

Defense counsel objected for the record to the prosecutor's statement referring to the jury giving defendant a gift should they have found defendant guilty of attempted second-degree murder.   This objection was sustained by the trial court.

Defendant also argues that the prosecutor improperly interjected his personal opinion in his closing argument when he informed the jury of his disbelief that a meeting with the mob ever existed.   The record reflects that when defense counsel objected, the trial court immediately admonished the prosecutor.   Similarly, the trial court immediately sustained defense counsel's objection when the State likened the lesser sentence to a gift.   We determine that any potential error caused by this argument was cured by the trial court's immediate admonishment and ruling.  People v. Harris, 129 Ill.2d 123, 160-61, 135 Ill.Dec. 861, 544 N.E.2d 357 (1989);  People v. Jones, 265 Ill.App.3d 627, 637, 202 Ill.Dec. 62, 637 N.E.2d 601 (1994).

After reading the prosecutor's and defense counsel's closing arguments in their entirety, we hold that the prosecutor's remarks did not constitute a material factor in defendant's conviction or result in substantial prejudice such that the verdict would have been different had the comments not been made.

Defendant also contends that the cumulative effect of the prosecutor's closing argument prejudiced the jury and denied him a fair trial.   In instances where individual errors committed by a trial court do not merit reversal alone, the cumulative effect of the errors may deprive a defendant of a fair trial.   People v. Batson, 225 Ill.App.3d 157, 169, 167 Ill.Dec. 280, 587 N.E.2d 549 (1992).   In such cases, due process and fundamental fairness require that the defendant's conviction be reversed and the cause remanded for a new trial.   Batson, 225 Ill.App.3d at 169, 167 Ill.Dec. 280, 587 N.E.2d 549.

In the present case, any error of the trial court was harmless in light of the overwhelming evidence of defendant's guilt.   Accordingly, we find that the cumulative effect of the alleged errors at trial did not deprive defendant of a fair trial.

Defendant's final contention is that trial court erred in imposing an extended term of imprisonment upon defendant.   Defendant contends that he was not eligible for an extended term based upon his prior felony convictions from another jurisdiction.   He also contends that the trial court erred in also considering the brutality of his offense, which was not “brutal or heinous behavior indicative of wanton cruelty to support an extended term sentence,” as required by section 5-5-3.2(b)(2) (730 ILCS 5/5-5-3.2(b)(2) (West 1992) (now 730 ILCS Ann. 5/5-5-3.2(b)(2) (Smith-Hurd 1996).   The State confesses error in the trial court's decision to impose an extended term sentence based upon defendant's prior felony convictions from another jurisdiction.   However, the State argues that the trial court properly determined that defendant's crime was exceptionally brutal and heinous, supporting the imposition of an extended term.   We agree with the State's authority found in People v. Gross, 265 Ill.App.3d 74, 78, 202 Ill.Dec. 250, 637 N.E.2d 789 (1994).   In Gross, the court stated that “[w]here the imposition of an extended term may be sustained on the basis of one of the trial court's findings of eligibility, we will not address the propriety of another basis.”  Gross, 265 Ill.App.3d at 78, 202 Ill.Dec. 250, 637 N.E.2d 789.   Therefore, we will only address the issue of whether defendant's offense was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty.

Reviewing courts have the power under Supreme Court Rule 615(b)(4) ( 134 Ill.2d R. 615(b)(4)) to reduce sentences.   The determination and imposition of a sentence is a matter involving considerable judicial discretion, and our standard of review is whether the trial court abused its discretion.  People v. Shaw, 278 Ill.App.3d 939, 953, 215 Ill.Dec. 700, 664 N.E.2d 97 (1996), citing People v. Harris, 187 Ill.App.3d 832, 843, 135 Ill.Dec. 291, 543 N.E.2d 859 (1989).   Attempted first degree murder is a Class X felony with a sentence of not less than six years but not more than 30 years.  730 ILCS 5/5-8-1(a)(3) (West 1992).   An extended term of imprisonment is authorized if the trial court determines that an aggravating factor is present, such as where an attempted murder is accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.  730 ILCS 5/5-8-2(a)(2) (West 1992), now codified, as amended, at 730 ILCS Ann. 5/5-8-2(a)(2) (Smith-Hurd 1996).  “Brutal” has been defined as including conduct that is grossly ruthless, devoid of mercy or compassion, or cruel and cold-blooded.  People v. LaPointe, 88 Ill.2d 482, 501, 59 Ill.Dec. 59, 431 N.E.2d 344 (1982).  “Heinous” has been defined as including conduct that is hatefully or shockingly evil, grossly bad, and enormously and flagrantly criminal.  LaPointe, 88 Ill.2d at 501, 59 Ill.Dec. 59, 931 N.E.2d 344.   Further, each sentence is determined by the circumstances of the individual case (People v. Bishop, 179 Ill.App.3d 99, 103, 128 Ill.Dec. 219, 534 N.E.2d 401 (1989), and that even a single stab wound has been determined to be brutal.  People v. Diamond, 229 Ill.App.3d 48, 54, 170 Ill.Dec. 864, 593 N.E.2d 753 (1992).

Our review of the record indicates that the trial court carefully considered the evidence within the prescribed statutory framework, including the statutory factors in aggravation and mitigation, the presentence investigation, and the credibility and demeanor of the witnesses.   The record indicates a thorough consideration of the factors constitutionally and statutorily designated for the trial court's attention.

The record in the present case indicates that defendant, a mature man with a serious record of criminal activity, acted with deliberation to shoot officers Ostertag and Bitler.   As a result of defendant's shooting, Ostertag was seriously injured.   Ostertag's victim impact statement, attached to the presentence investigation report, wrote, “[defendant] waited to shoot me until I looked at him.   He could have shot me before this but, (sic) he waited until I was looking at him[.]”  Dr. Flanigan treated Ostertag and testified that the bullet wound would have been fatal without prompt medical attention.   The trial court stated an extended term was necessary for the protection of the public.   The trial court was entitled to take all of these facts into consideration in sentencing defendant.   Because the record supports the trial court's decision in sentencing defendant, we find no abuse of discretion.

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For the foregoing reasons, defendant's convictions and sentence are affirmed.

Affirmed.

Justice HUTCHINSON delivered the opinion of the court: