People v. Spain

                                             FOURTH DIVISION
                                             November 14, 1996





Nos. 1-92-2780 & 1-92-3260; Cons.

THE PEOPLE OF THE STATE OF ILLINOIS,

          Plaintiff-Appellee,

     v.

DANNY SPAIN and EDUARDO MORONES,

          Defendants-Appellants.)
)
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)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County



Honorable
Patrick Grossi,
Judge Presiding.


     JUSTICE O'BRIEN delivered the opinion of the court:
     Defendants, Danny Spain and Eduardo Morones, were tried
together in a joint jury trial.  Each was found guilty of (a)
first-degree murder on an accountability theory and (b) conspiracy
to commit murder.  Spain was sentenced to 35 years in jail for
first-degree murder and Morones was sentenced to 25 years in jail
for first-degree murder.  The trial court vacated the conspiracy
convictions.  Spain appeals and argues:  (1) the trial court erred
when it denied his motion to sever his trial from that of
codefendant Morones; (2) the trial court made numerous incorrect
evidentiary rulings; (3) the trial court erred when it allowed the
attorney for witness Douglas Fuit to assert the attorney-client
privilege when Spain questioned him about conversations he had with
Fuit; (4) the trial court erred by denying his tendered instruction
that described his theory of the case and stated the prosecution
had to disprove his theory of the case beyond a reasonable doubt; 
(5) the trial court erred when it sua sponte gave Illinois Pattern
Jury Instructions, Criminal, No. 5.06 (2d ed. 1981); (6) he was
denied a fair trial when the State made improper comments during
closing argument; and (7) he was denied due process when the State
failed to inform him of criminal contempt proceedings against
witness Maribel Martinez.  Morones appeals and argues: (1) the
trial court erred by denying his motion to sever his trial from
that of codefendant Spain; (2) the trial court erred by admitting
the videotaped evidence deposition of witness Nancy Shallon; (3) he
was denied due process when the State failed to correct the false
testimony of witness Juan Moreno that the State had not promised
him anything in return for his testimony; and (4) he was denied a
fair trial when the State, during closing argument, equated his
membership in a gang with his accountability for the murder.  We
reverse and remand for separate trials for defendants Spain and
Morones.
     At trial, the jury heard testimony regarding three gangs:  the
"Party Players," the "Two-Six" and a rival of those two gangs, the
"Saints."  The jury heard that Danny Spain, Doug Fuit and Carlos
Rasso were "Two-Sixers" and Eduardo Morones and Roderigo Gonzalez
were "Party Players."  The jury learned that Rasso and Gonzalez
were the "shooters" and that Fuit was an alleged eyewitness.  Only
Spain and Morones were on trial on the theory of accountability,
specifically, Morones carried a rifle for Gonzalez and Spain drove
the car for Rasso.   
     At trial, the jury heard testimony that on the evening of
September 16, 1988, members of the Two-Six and the Party Players
decided to kill a member of a rival gang, the Saints.  Pursuant to
that plan, Two-Sixer Danny Spain drove fellow Two-Sixers Doug Fuit
and Carlos Rasso to Saints territory at 46th and Honore.  
     At the same time, Party Players Eduardo Morones and Roderigo
Gonzalez walked to Saints territory at 4608 South Honore to provide
help for the Two-Sixers.  Morones carried a rifle and handed it to
Gonzalez when they arrived.  Two-Sixers Spain and Rasso drove up,
and Rasso shot in the direction of the Saint.  Party-Player
Gonzalez then  fired the rifle in the same direction.  None of the
shots hit the Saint.  Instead, a shot hit and killed Ida Garcia, an
innocent bystander, who had been waiting on the corner for her
brother.
     The jury found defendants Spain and Morones legally
accountable for the death of the victim and convicted them of
first-degree murder.  Defendants appealed.  
     Both defendants contend the trial court erred by failing to
sever their trials.  Because the issue of severance is dispositive
for both defendants, we address that issue first as it specifically
applies to each defendant and then address their other individual
claims of error.
Spain's Motion for Severance
     Spain contends the trial court erred by failing to grant his
oral motion for severance after trial began.  Spain did not make a
pretrial motion for severance. Spain moved for severance after
trial began when the State sought to admit a statement from Morones
that referred to Two-Six involvement in the murder. Although
generally a defendant must move for severance prior to trial,
demonstrating how a joint trial will prejudice him (People v.
Peterson, 273 Ill. App. 3d 412, 426 (1995)), the trial court has a
continuing duty at all stages of trial to grant severance if
prejudice appears.  People v. Blount, 220 Ill. App. 3d 732, 740
(1991).  Spain's motion alerted the trial judge to the potential
prejudice of jointly trying both defendants.   Accordingly, Spain
has not waived this issue, despite the State's contention to the
contrary, and we consider his claim of error.  
     Defendants jointly indicted are to be jointly tried unless
fairness to one of them requires a separate trial to avoid
prejudice.  People v. Davis, 254 Ill. App. 3d 651, 661 (1993).  One
type of prejudice occurs when a codefendant has made hearsay
admissions implicating  defendant.  People v. Daugherty, 102 Ill. 2d 533, 541 (1984).  Defendant is denied his constitutional right
of confrontation if the codefendant's hearsay admission is admitted
against the defendant and the defendant is unable to cross-examine
the codefendant because the latter does not testify.  Daugherty,
102 Ill. 2d  at 541.  In such a case, the trial court must choose
between severance, nonuse of the admission, or redaction to
eliminate all reference to the implicated defendant. Blount, 220
Ill. App. 3d at 738.
     A second type of prejudice occurs when codefendants' defenses
are so antagonistic to each other that severance is imperative to
assure a fair trial.  People v. Braune, 363 Ill. 551 (1936), is the
classic example of antagonistic defenses.  There, each defendant
was "protesting his innocence and condemning the other."  "The
trial was in many respects more of a contest between the defendants
than between the People and the defendants.  It produced a
spectacle where the People frequently stood by and witnessed a
combat in which the defendants attempted to destroy each other." 
Braune, 363 Ill.  at 555, 557.
     Spain alleges both forms of prejudice.  First, he argues the
trial court erred by admitting Morones' statement.  In his
statement, Morones said that on the night of the murder Morones
heard the Two-Sixers were going to pull a "hit" on the Saints and
needed backup, that Morones and Gonzalez walked to 46th and Honore,
where they saw Two-Six gang members drive by, and that Morones
heard shots and Gonzalez fired a series of shots.  Spain contends
Morones' statement implicated him in the murder, that Spain could
not cross-examine because Morones did not testify and, therefore,
the trial court should have severed the trial.  We disagree. 
Morones' statement does not mention Spain by name, nor does it say
or imply Spain was aware of the plan to pull a "hit" on the Saints
or that he was present at the time of the shooting.  In short,
Morones' statement does not implicate Spain for the murder, and it
cannot be a basis for severance.
     Spain's next argument for severance is that Morones' defense
was antagonistic to him.  The State disagrees.  The State contends
Morones' only theory at trial, that merely carrying the rifle for
Gonzalez did not make Morones accountable for murder, did not
implicate Spain, who raised an alibi defense, contending he was not
present at the scene of the murder.  
     However, Morones developed two theories: (1) even if Gonzalez 
shot the victim, Morones was not accountable for that conduct; and
(2) there was no rifleman or Party Player involved in the crime, so 
the murder resulted solely from the handgun shot from the car
driven by Spain.  It is the second theory by Morones which met the
Braune test, by Morones protesting his innocence and condemning
Spain.  The following testimony illustrates:
     Morones Protesting His Innocence
(a) Morones elicited testimony from Doctor Nancy Jones, the
forensic pathologist who performed the autopsy on the victim, that
a handgun, rather than a rifle, caused the mortal wound; (b) 
elicited cross-examination testimony from Assistant State's
Attorney Pulia that Spain did not mention Morones or Gonzalez in
his confession, nor did Spain state that the "hit" on the Saints
was made jointly with the Party Players; (c) elicited cross-
examination testimony from eyewitness Evette Matos that she did not
see Morones or anyone else with a rifle on the night of the
shooting; and, (d) elicited cross-examination testimony from Fuit
that he did not see Morones or a rifleman at the time of the
shooting.

Morones Condemning Spain
(a) After Danny Spain testified that police physically coerced him
into making a false confession, Morones elicited cross-examination
testimony from Spain that Spain never told assistant State's
Attorney Pulia that the police had hit him or that his confession
was false; further, Morones elicited testimony from Spain that
Spain told Pulia the police officers had been "nice" to him, and
Spain also admitted he was not drunk or under the influence of a
controlled substance when he signed the confession;  (b) after
Spain's mother testified Ronnie Spain never allowed his brother
Danny Spain to drive his car, Morones elicited an admission from
her that she was not always present when Ronnie and Danny used the
car; (c) during opening argument, Morones stated he "didn't have a
grudge against anybody from a rival gang," and during closing
argument, Morones asked the jury to remember who "had the grudge
against the Saints"; and, (d) testimony established the Two-Sixers
wanted to kill a member of the Saints in retaliation for the
Saints' killing of a Two-Six member.
     The above examples demonstrate that Morones protested his
innocence and implicated Spain.  Therefore, Morones' defense was 
antagonistic to Spain and the trial court erred when it denied
Spain's motion for severance.
Morones' Motion for Severance
     Morones contends the trial court erred in denying his pretrial
motion for severance.  In his pretrial motion, Morones informed the
court that a joint trial would become a "contest among the
defendants," because Spain would assert his own innocence and
implicate Morones in the murder.  In support of his motion, Morones
attached letters from Spain stating he intended "to blame Morones
for everything that happened" in opening statements and that
Spain's defense would be  "[Morones] and others caused the death of
Ida Garcia, and *** there never was a vehicle that allegedly drove
by where Carlos Rasso allegedly fired a handgun towards Ida
Garcia."
      Spain fulfilled his promise to assert his own innocence and
blame Morones for Garcia's death.  During opening argument, Spain
stated: 
     "[w]e're [Spain and Morones] sitting at the defense table, but
     we're not together.  We're trying to get as far away as we 
     can.  The evidence is going to show that Mr. Morones carried
     the gun,  the 22 caliber gun that Mr. Gonzalez fired for which
     the  medical experts and which the police firearm experts are
     going to show that it was a 22 caliber fragment that caused
     the death of Ida Garcia.  And you are not going to hear one
     word, according to the evidence, from any police officer about
     the  existence of another gun that allegedly was fired by
     Carlos Rasso."      
     
During closing argument, Spain stated:
 
     "The only gun in evidence, the only gun anybody ever found is
     this gun, 22 caliber gun, which the firearms expert said to
     you without  a doubt, beyond all doubt, fired the bullets,***
     [The witnesses]  all heard one series of shots, of course,
     because there's one shooter.  It is *** Gonzalez, holding this
     gun *** [the] only unrefuted statement in this entire case is
     Eduardo Morones' confession that he was there carrying that
     gun for that murderer *** again the only unrefuted confession
     in this entire case is Eduardo Morones'.  No one suggested it
     wasn't true.  You're looking at the murder weapon, you're
     looking at the man who carried the murder weapon ***."

The State contends these comments by Spain were not antagonistic to
Morones, because Morones admitted in his opening and closing
argument that he carried the rifle Gonzalez used to kill the
victim.  We disagree.  Morones argued that carrying the rifle did
not make him accountable for the death even if the jury believed
Gonzalez fired the fatal shot.  Morones' argument was clearly at
odds with Spain's argument that both Gonzalez and Morones were to
blame for the murder. 
     Another example of Spain's antagonism toward Morones may be
found in Spain's opening statement, when Spain commented on
Morones' decision not to testify:
          "The purpose of an opening statement on *** behalf
     of Danny Spain is to give you an outline of what the
     defendant, Danny Spain, intends to show.  You may wonder
     why the defendant has to say anything.  The judge told
     you he's presumed to be innocent.  The judge told you
     that you can't make any inference from the fact he
     doesn't testify.  According to our system of justice,
     Danny Spain can sit there, not answer one question.  Not
     get on the witness stand and you would have to determine
     that the State, the government, the people of the State
     of Illinois must prove that Danny Spain is guilty beyond
     a reasonable doubt.  
          It's wonderful.  It sounds wonderful, but in real
     life for the fourteen of you, it is almost impossible
     unless someone gets on the witness stand and says 'I
     didn't do it and I was someplace else' because that
     wonderful constitution we have, the wonderful presumption
     of innocence are words.  And people want to hear it. 
     Like Harry Truman says, you know, 'You can't stand the
     heat, get out of the kitchen.'  They have to hear it from
     the horse's mouth.  Someone has to get on the stand." 

     In People v. Bean, 109 Ill. 2d 80 (1985), our supreme court
found a similar comment on a codefendant's failure to testify
deprived that codefendant of a fair trial.  There, Bean and Byron
were jointly tried and convicted of murder, armed robbery, home
invasion, and conspiracy, and Bean was also convicted of
solicitation.  Bean, 109 Ill. 2d  at 84.  During opening argument,
Byron stated:
          "His Honor *** told you that the defense need prove
     nothing in a criminal case.  And the defendant need never
     take the stand, never has to take the stand because the
     burden of proof is on the State ***.
          But Bob Byron is going to take the witness stand. 
     He is going to testify.  Because an innocent man can't
     wait to tell his story.  And a guilty man will never take
     the stand."  Bean, 109 Ill. 2d  at 87.

     The supreme court found reversible error, citing De Luna v.
United States (5th Cir. 1962), 308 F.2d 140, a case where the
codefendant's attorney commented on De Luna's failure to testify. 
The De Luna court noted Supreme Court cases forbidding self-
incrimination and concluded that comment from a codefendant's
attorney might be more harmful than comment by the judge or
prosecutor.  Further, as in the present case, the trial judge in De
Luna instructed the jury to disregard counsel's remarks, but the
court held "considering the head-on collision between the two
defendants, the repetition of the comments, and the extended
colloquy over the comments between the trial judge and the lawyers,
the implication of guilt to de Luna was magnified to such an extent
that it seems unrealistic to think any instruction to the jury
could undo the prejudicial effects of the reference to de Luna's
silence. The seed of inference was so well planted, it is fair to
assume that it germinated".  Bean, 109 Ill. 2d  at 98, quoting De
Luna, 308 F.2d  at 154-55.
     Similarly, the supreme court in Bean found that "codefendant's
counsel drew attention to his remarks by specifically pointing out
that even though the judge would instruct the jury that should not
draw inferences from the defendant's failure to testify, he wished
to mention it anyway.  This comment completely destroyed any
protection provided by the fifth amendment ***."  Bean, 109 Ill. 2d 
at 98-99.
     In this case, Spain pointed out that even though the judge
would instruct the jury that they should not draw inferences from
the defendant's failure to testify, the defendant must still get on
the witness stand and say "I didn't do it."  As in De Luna and
Bean, the comment destroyed any protection provided to Morones by
the fifth amendment.
     Spain further showed his antagonism toward Morones when
Morones objected to the admission of the videotaped evidence
deposition of Nancy Shallon.  Shallon provided the only eyewitness
testimony that a rifleman was at 4608 South Honore at the time of
the murder.  Her testimony contradicted Morones' theory that no
rifleman or Party Player was at the scene of the crime.  Spain
argued for the admission of the videotaped deposition, and the
trial court admitted it at trial.  Later, during closing argument,
Spain argued that the jury should believe Shallon because of her
"photographic memory," which implicates Morones, but downplayed the
evidence linking him to the crime. 
     In sum, the defenses of Spain and Morones did clash, with each
defendant protesting his innocence at the expense of the other. 
Therefore, the trial court abused its discretion by failing to
sever the trial, and we reverse and remand for separate trials for
Spain and Morones. 
     We address issues that are likely to recur during the new
trials.
Issues at Spain's Retrial
     We have addressed Spain's first issue on appeal regarding
severance of his trial from that of codefendant Morones.
     Second, Spain argues the trial court's evidentiary rulings
constitute reversible error because the court repeatedly excluded
relevant testimony.  Spain waived this issue by failing to make
adequate offers of proof as to most of what the various witnesses
would have said.  People v. Andrews, 146 Ill. 2d 413, 420-21
(1992).   Third, Spain argues that the trial court erred by
allowing Neil Kaufman, the attorney for witness Doug Fuit, to
assert the attorney-client privilege at trial when Spain asked
Kaufman about his conversations with Fuit.  The absence of an offer
of proof as to Kaufman's testimony does not hinder our review in
this instance, because the nature of Kaufman's testimony is
obvious.  Bafia v. City International Trucks, Inc., 258 Ill. App.
3d 4, 7 (1994).
     Spain called Kaufman to corroborate parts of Fuit's earlier
testimony.  In that testimony, Fuit said he once told Kaufman he
had alibi witnesses who could place him somewhere other than the
crime scene at the time of the murder.  Such testimony was
important to Spain because it called into question other portions
of Fuit's  testimony that he was in the car driven by Spain when
shots were fired from the car at the victim.
     Spain makes numerous arguments why Kaufman's testimony would
not have violated the attorney-client privilege.  We need not
address those arguments, because Kaufman's testimony, which Spain
intended to offer for the truth of the matter asserted, was
inadmissible hearsay.   Accordingly, the trial court did not err by
excluding Kaufman's testimony.  
     Fourth, Spain argues the trial court erred by refusing to give
his defense instruction 20, a non-Illinois Pattern Jury
Instruction. The proposed instruction stated that Spain had an
alibi defense the police refused to investigate, that the police
had conspired to procure a false confession from him, and that the
State had to disprove his defense beyond a reasonable doubt.     
     The question of alibi instructions is covered by Illinois
Pattern Jury Instructions, Criminal, No. 24 ~ 25.05 (2d ed. 1981)
(hereinafter IPI Criminal 2d).  The committee recommends no
instruction be given on this subject because of its view that
instructions should avoid commenting on particular types of
evidence.  See People v. Poe, 48 Ill. 2d 506, 511-12 (1971). 
Additionally, if a non-IPI instruction is given, it must be simple,
brief, impartial, and free from argument.  Poe, 48 Ill. 2d  at 511;
134 Ill. 2d R. 451(a).  Here, the trial court gave IPI Criminal 2d
Nos. 2.03 and 7.02A, which accurately describe the State's burden
of proof, and rejected Spain's instruction 20, which was long and
argumentative.  Therefore, the trial court committed no abuse of
discretion by refusing to give Spain's instruction 20, a non-
Illinois Pattern Jury Instruction.  See 134 Ill. 2d R.451(a).   
     Fifth, Spain contends the trial court erred when it sua sponte
gave the following version of IPI Criminal 2d No. 5.06:
          "A person who is legally responsible for the conduct
     of another may be convicted for the offense committed by
     the other person even though the other person, who it is
     claimed committed the offense, has not been prosecuted or
     is not amenable to justice."
That instruction referred to the alleged rifleman, Gonzalez, whom
the State has not prosecuted.  
     Spain argues that no evidence exists that Gonzalez is not
amenable to justice.  The State does not respond to that argument
in its appellate brief. The record indicates the trial judge told
the parties he was giving the instruction even though he did not
know whether Gonzalez was amenable to justice.  This is error and,
on remand, the trial court should not include the "not amenable to
justice" portion of IPI Criminal 2d No. 5.06 unless there is
evidence to that effect.
     Sixth, Spain argues he was denied a fair trial when the State 
made three improper comments during closing argument. 
Specifically, Spain contends it was error for the State to tell the
jury to "send a message to their buddies *** [and] tell the good
people *** of this neighborhood that justice will not abandon
them."  We find no error, as the State may properly admonish the
jury to "send a message to the community" that violent crime will
not be tolerated.  People v. Batson, 225 Ill. App. 3d 157, 168-69
(1992).
     Spain also specifically contends it was error for the State to
tell the jury "You're here, ladies and gentlemen, as
representatives of the people of the State."  In support, Spain
cites People v. Thomas, 146 Ill. App. 3d 1087 (1986), in which the
appellate court reversed and remanded for a new trial because the
State told the jury "There's nobody here for the People, just you." 
Thomas, 146 Ill. App. 3d at 1089.  The Thomas court held the
State's comment was a "perversion of the principle that a jury is
composed of nonpartisans who function under the presumption that a
defendant is innocent until proved otherwise."  Thomas, 146 Ill.
App. 3d at 1089.
     However, in People v. Johnson, 220 Ill. App. 3d 550, 563
(1991), the appellate court found no reversible error when the
State told the jury "in this case you are the People of the State
of Illinois."  The Johnson court did "not believe that [the
State's] comment misled the jurors as to their function, on which
they were adequately instructed, or that it was a perversion of the
principle that a jury is a nonpartisan body.  Rather, when
considered in the context of the State's argument in its entirety,
[the State's comment is an] additional urging by the prosecutor
that the jury fearlessly administer the law."  Johnson, 220 Ill.
App. 3d at 563.
     In the present case, as in Johnson, we hold the State's
comment that the jury represents the people of the State to be
additional urging that the jury fearlessly administer the law. 
Accordingly, we find no error.     
     Spain also specifically contends it was error for the State to
tell the jury that the police officers who testified would not put
their careers and the security of their families on the line by
conspiring to frame Spain for murder.  In support, Spain cites
People v. Rivera, 235 Ill. App. 3d 536 (1992), which held that
these types of remarks generally are error.  However, we find no
error in the present case because the State's remarks were invited
by Spain's argument that the police framed him.  People v.
Richardson, 123 Ill. 2d 322, 356 (1988); People v. Davis, 228 Ill.
App. 3d 835, 841 (1992).
     Seventh, Spain argues he was denied due process when the State
failed to inform him of criminal contempt proceedings against
witness Maribel Martinez. Spain contends the failure to disclose
this information prevented Spain from cross-examining Martinez
about her assistance she may have rendered with the prosecution of
Spain in exchange for leniency from the State on the criminal
contempt charges.  We need not address this issue for retrial as
Spain is now aware of the contempt proceedings against Martinez.

Issues at Morones' Retrial
     We have addressed Morones' first issue on appeal regarding
severance of his trial from codefendant Spain.
     Second,  Morones argues the trial court erred by admitting the
videotaped evidence deposition of Nancy Shallon.  In her
deposition, Shallon stated she was pulling her dog into her
apartment at 4608 South Honore in the early hours of September 17,
1988, when she saw a young Hispanic man leaning on a car with a
rifle in his hand.  After she shut the door, Shallon heard several
shots.
     Morones argues neither he nor his attorney was present at the
deposition and, therefore, its admission violated his right to
confront and cross-examine the witnesses against him.  Morones also
contends the trial court erred in ordering the deposition because
(1) there was no showing Shallon was unavailable for trial as
required by Supreme Court Rule 414 (134 Ill. 2d R. 414), which
governs the use of evidence depositions; and (2) neither Morones
nor his attorney made a written waiver of their right to be present
at the deposition, as required by Supreme Court Rule 414(e).
     The State argues that since Nancy Shallon testified in open
court (albeit outside the presence of the jury), on a scheduled
court date, with the judge presiding, her appearance was 
"testimony," not a "deposition," and that Supreme Court Rule 414 is
not applicable.
     Testimony taken outside the presence of the jury for later
admission at trial, even if taken in a courtroom with a judge
presiding, is an evidence deposition that must comply with Supreme
Court Rule 414.  See People v. Johnson, 118 Ill. 2d 501 (1987). 
Accordingly, the appearance of Nancy Shallon is by evidence
deposition and controlled by Supreme Court Rule 414(e).  
     Supreme Court Rule 414(e) provides that a defendant and his
counsel may waive in writing the right to confront and cross-
examine any witness whose deposition is taken.  See 134 Ill. 2d R.
414(e).  Neither Morones nor his counsel made a written waiver of
the right to confront and cross-examine Shallon.  Therefore, the
trial court erred in admitting her videotaped evidence deposition. 
The trial court shall not admit Shallon's deposition testimony
during Morones' new trial.
     Third, Morones argues he was denied due process when the State
failed to correct the false testimony of its witness, Juan Moreno 
that the State had not promised him any beneficial treatment in
exchange for his testimony.  Morones argues Moreno was a defendant
in a pending aggravated battery case, and the State told Moreno it
would tell the sentencing judge in that case about his cooperation
in this case against Morones and Spain.  We agree the State erred
by not disclosing that information to the jury on direct
examination (see People v. Holmes, 238 Ill. App. 3d 480, 490-91
(1992)), but the error was harmless since the jury heard the
information on cross-examination.
     Fourth, Morones argues he was denied a fair trial when the
State, during three separate parts of its closing argument,
improperly equated his membership in a gang with his accountability
for the murder.  We find no error.  The first part of the State's
closing argument discussed the street gang subculture and was 
based on the evidence at trial that the murder was motivated by
gang loyalties. 
     The second part of the State's closing argument stated that
Morones provided backup and moral support for Gonzalez.  That
comment was also supported by the evidence and did not imply that
Morones' mere membership in a gang made him accountable for the
murder.
     The third part of the State's closing argument reflected
unfavorably on Morones by saying that he was a coward.  An
unfavorable description of a defendant is not improper.  People v.
Miller, 101 Ill. App. 3d 1029, 1038-39 (1981).
     Finally, we have reviewed the evidence at trial and find it
was sufficient for a trier of fact to conclude defendants Spain and
Morones were guilty beyond a reasonable doubt.  We are not making
a determination of guilt or innocence that is binding on retrial. 
Rather, our consideration of the sufficiency of the evidence
removes the risk that defendants would be subject to double
jeopardy.  People v. Taylor, 76 Ill. 2d 289, 309-10 (1979).



     For the foregoing reasons, we reverse and remand for new
trials for defendants Spain and Morones.
     Reversed and remanded.
     CAHILL, J., and THEIS, J., concur.