PEOPLE v. BRAZZIEL

unsatisfactory, improbable or implausible" to raise a reasonable doubt as to the defendant's guilt. People v. Slim, 127 Ill. 2d 302, 307, 537 N.E.2d 317 (1989).

• 1 A defendant is guilty of first degree murder when the State proves beyond a reasonable doubt that, in performing the acts which cause the death of an individual:

Defendant does not expressly challenge the jury's finding as to his personal discharge of a firearm.

"(1) he either intends to kill *** that individual *** or knows that such acts will cause death to that individual ***; or

(2) he knows that such acts create a strong probability of death *** to that individual ***; or

(3) he is attempting or committing a forcible felony other than second degree murder." 720 ILCS 5/9-1(a)(1) through (a)(3) (West 2002).

• 2 After reviewing the record, we find the evidence was sufficient to support defendant's conviction. Six witnesses testified that they saw defendant shoot the victim. Two of the six testified at trial that defendant was the shooter, while the remaining four witnesses were impeached with their handwritten statements identifying defendant as the shooter. Three of the four witnesses impeached with their handwritten statements were also impeached with their grand jury testimony implicating defendant. One of the witnesses that positively identified defendant at trial was defendant's cousin. The other witness that identified defendant at trial was a woman who exited her home when she heard commotion outside on the street and then saw defendant point and shoot his weapon at the victim as the victim attempted to run away.

"A single witness' identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification." Slim, 127 Ill. 2d at 307. Generally, identification testimony is assessed pursuant to the factors announced in Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), which include: (1) the opportunity the witness had to view the offender at the time of the crime; (2) the degree of attention given by the witness; (3) the accuracy of the witness' prior description of the offender; (4) the level of certainty the witness demonstrated when identifying the perpetrator in person; and (5) the amount of time that lapsed between the crime and the inperson identification. Slim, 127 Ill. 2d at 307-08.

Defendant challenges Floyd's identification, arguing it was unlikely Floyd would have seen the shooter, whom she described as being within eight feet of her, because a person in a similar situation would have "at least instinctively covered her face" to protect against the gunshot. Floyd, however, testified that she clearly saw defendant when he raised his revolver and shot the victim in the back of the head. Investigator William Moore confirmed the likelihood that defendant used a revolver to shoot the victim because no discharged cartridges were found at the scene. According to Investigator Moore, cartridges are not discharged from revolvers; rather, cartridges remain in the cylinder of a revolver after the bullet is shot. Floyd positively identified defendant in a photographic array on May 2, 2006, and positively identified defendant in a lineup on May 7, 2006, within days of the April 26, 2006, shooting. To the extent defendant infers from the unclear record that Floyd provided a contradictory account of the victim's distance from her when he was shot, it was the jury's duty to resolve inconsistencies in the witness's testimony. See Evans, 209 Ill. 2d at 211.

Defendant does not challenge the circumstances surrounding Raper's identification. Defendant, instead, challenges the reliability of Raper's trial testimony where he stated on cross-examination that his handwritten statement in which he identified defendant was coached by the police. We note, however, that on redirect examination Raper confirmed that his direct testimony identifying defendant as the shooter was accurate as given. Moreover, it was the jury's duty to assess Raper's credibility. See Evans, 209 Ill. 2d at 211. Therefore, the identification by Raper or Floyd alone would be sufficient to sustain defendant's conviction.

As to the four witnesses that were impeached at trial, "[v]ariances between a witness' trial testimony and pretrial statements raise questions of credibility which the trier of fact must assess in making a determination of guilt." Slim, 127 Ill. 2d at 308. It was the jury's duty to resolve inconsistencies across the witnesses' testimony. Evans, 209 Ill. 2d at 211. The jury was entitled to believe that Smith, Gibbs, Henry, and Ceasar provided truthful handwritten statements shortly after the incident and that Smith, Gibbs, and Henry testified truthfully before the grand jury. Moreover, ASAs Clarke and Garcia-Camilo and Detective Landando refuted Henry's and Ceasar's testimony that they were threatened prior to making their statements.

Defendant contends that, contrary to the State's witnesses, the defense witnesses provided "strong" and "consistent" accounts of what transpired on the night in question. Defendant maintains that Samuel, Palmer, and Eric all presented credible testimony that defendant was with them while watching the fight between Raper and the victim. According to Samuel, Palmer, and Eric, defendant was standing next to them when a gun was discharged, but defendant was not armed. The jury, however, was not obligated to believe defendant's alibi over the State's witnesses, especially where Samuel, Palmer, and Eric each reported being defendant's "good" friend for 10 to 12 years, yet none came forward with his version of the events during the investigation.

We conclude that the evidence was not so unsatisfactory, improbable, or implausible to create a reasonable doubt regarding defendant's guilt. The evidence supported the jury's verdict.

II. Rule 431(b)

Defendant contends the trial court failed to comply with the mandates of Rule 431(b), and he, therefore, should be afforded a new trial. Defendant admits he did not object at trial or include the error in a posttrial motion ( People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988)); however, he contends that we should relax the rules of forfeiture and find plain error. The State responds that defendant failed to establish error. The State contends that, in the event we find error, this court should apply a harmless error analysis because a violation of Rule 431(b) is not a structural error requiring automatic reversal.

We review a trial court's compliance with a supreme court rule de novo. People v. Suarez, 224 Ill. 2d 37, 41-42, 862 N.E.2d 977 (2007).

We first address whether the trial court erred.

Supreme Court Rule 431(b) codified our supreme court's holding in People v. Zehr, 103 Ill. 2d 472, 477, 469 N.E.2d 1062 (1984). The rule was amended effective May 1, 2007, prior to the April 4, 2008, date jury selection began in this case. See Ill. S. Ct. R. 431 (eff. May 1, 2007). The amended rule places a sua sponte duty on trial courts to ensure compliance with the mandates of Rule 431(b). People v. Thompson, 238 Ill. 2d 598, 607 (2010). The amended rule provides:

"The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that the defendant's failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant's failure to testify when the defendant objects.

The court's method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section." (Emphasis added.) Ill. S. Ct. R. 431(b) (eff. May 1, 2007).

Supreme court rules are not aspirational; they must be "obeyed and enforced as written." Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275 (1995).

The trial court erred in this case by conducting a voir dire that failed to fully comply with Rule 431(b). Prior to individually questioning the prospective jurors, the trial judge provided three of the four Zehr principles, in narrative form. The trial judge did not advise the prospective jurors that defendant's decision not to testify could not be held against him. More importantly, the trial judge did not ask the venire whether they understood or accepted any of the Zehr principles. Much later in his opening remarks, the trial judge secured the venire's understanding and acceptance of the State's burden of proof. The prospective jurors, however, were never given an "opportunity to respond" to the remaining three Zehr principles.

While individually questioning a prospective juror from the first venire, the trial judge turned his attention to the entire first panel and asked whether they would follow the law regarding the State's burden of proof, "along with all the other law I give you in the case?" The venire responded in the positive. Then, although the judge seemingly addressed the entire first panel when he stated that the defendant does not have to prove anything, the record does not reflect that the judge secured the venire's understanding and acceptance of this principle. Ten jurors were selected from the first panel.

While addressing the entire second panel, the trial judge asked whether the group understood and would follow "the law that I've been talking about all morning." The trial judge then specifically asked one of the two impaneled jurors whether he understood and accepted the law regarding the State's burden of proof. The juror responded in the positive.

Prior to swearing in the jury, the trial judge referenced the "rules of law" that were given during jury selection and secured that the jurors "remembered" and would follow "that along with all the other law" given in the case.

We find the trial court fell short of complying with Rule 431(b). The trial judge's narrative recitation of three of the four Zehr principles was not timely connected to specific questions providing the jurors with an opportunity to express their understanding and acceptance of those principles. People v. Wheeler, 399 Ill. App. 3d 869, 874, 927 N.E.2d 829 (2010). The trial judge only secured the jurors' understanding and acceptance of the Zehr principle regarding the State's burden of proof. The trial judge's questions as to whether the jurors would follow all of "the law" given was "a general question concerning the juror[s'] willingness to follow the law," which is a practice the rule sought to prohibit. 177 Ill. 2d R. 431(b), Committee Comments, at lxxix. Our supreme court recently instructed:

"Rule 431(b), therefore, mandates a specific question and response process. The trial court must ask each potential juror whether he or she understands and accepts each of the principles in the rule. The questioning may be performed either individually or in a group, but the rule requires an opportunity for a response from each prospective juror on their understanding and acceptance of those principles." Thompson, 238 Ill. 2d at 607.

Here, the trial court violated Rule 431(b).

Our court has been divided as to whether a harmless or plain error analysis is appropriate when such error is found. The supreme court's recent decision in Thompson, however, resolves the question regarding the impact of a Rule 431(b) violation.

In Thompson, the supreme court relied on its prior decision, People v. Glasper, 234 Ill. 2d 173 (2009), to conclude that a trial court's failure to comply with Rule 431(b) is not a structural error requiring automatic reversal. Thompson, 238 Ill. 2d at 609-10. The supreme court recognized that the Glasper court was addressing the preamended version of Rule 431(b), which required Zehr questioning only when requested by the defendant; however, the court determined that the structural error discussion in Glasper equally applied to the amended Rule 431(b). Thompson, 238 Ill. 2d at 608. In relevant part, the supreme court reasoned that "[a]n error is typically designated as structural only if it necessarily renders a criminal trial fundamentally unfair or an unreliable means of determining guilt or innocence." Thompson, 238 Ill. 2d at 609. The supreme court found that a violation of Rule 431(b) does not necessarily result in a biased jury; rather, "Rule 431(b) questioning is simply one way of helping to ensure a fair and impartial jury." Thompson, 238 Ill. 2d at 610-11. The court added that "violation of [Rule 431(b)] does not necessarily render a trial fundamentally unfair or unreliable in determining guilt or innocence." Thompson, 238 Ill. 2d at 611. The supreme court concluded that where there is no evidence that a defendant was tried by a biased jury, a Rule 431(b) violation does not fall within the very limited category of structural errors requiring automatic reversal. Thompson, 238 Ill. 2d at 611.

Because there is no structural error for Rule 431(b) violations, we may review defendant's forfeited contention only if there was plain error. Thompson, 238 Ill. 2d at 611. As was the case in Thompson, we find that the rules of forfeiture should not be relaxed in this case. Pursuant to the Sprinkle doctrine, the rules of forfeiture may be relaxed only in extraordinary circumstances where a trial judge oversteps his authority in front of the jury or when counsel's objection would fall on deaf ears. See Thompson, 238 Ill. 2d at 612. There is no indication in the record that either circumstance existed here. We, therefore, do not find it appropriate to relax the forfeiture rule.

Turning to the question of plain error, the plain error doctrine (134 Ill. 2d R. 615(a)) allows us to review an issue affecting substantial rights despite forfeiture in two instances:

"First, where the evidence in a case is so closely balanced that the jury's guilty verdict may have resulted from the error and not the evidence, a reviewing court may consider a forfeited error in order to preclude an argument that an innocent person was wrongly convicted. [Citation.] Second, where the error is so serious that defendant was denied a substantial right, and thus a fair trial, a reviewing court may consider a forfeited error in order to preserve the integrity of the judicial process." People v. Herron, 215 Ill. 2d 167, 178-79, 830 N.E.2d 467 (2005).

Once it is determined that an error occurred at trial, the burden is on the defendant to establish plain error. Thompson, 238 Ill. 2d at 613.

The supreme court in Thompson reaffirmed the Glasper finding that the second prong of plain error review is equated with structural error. Thompson, 238 Ill. 2d at 613. Relying on the reasoning in Glasper, the Thompson court said a structural error is a systemic error that erodes the integrity of the judicial process and undermines the fairness of trial. Thompson, 238 Ill. 2d at 613-14, citing Glasper, 234 Ill. 2d at 197-98. The supreme court clarified that the 2007 amendment did "not indicate that compliance with the rule is now indispensable to a fair trial." Thompson, 238 Ill. 2d at 614. Moreover, "[a] violation of Rule 431(b) does not implicate a fundamental right or constitutional protection, but only involves a violation of [the supreme] court's rules." Thompson, 238 Ill. 2d at 614-15. The supreme court concluded that a defendant must demonstrate he was tried by a biased jury to establish under the second plain error prong that his right to a fair trial and the integrity of the judicial process were affected. Thompson, 238 Ill. 2d at 613-14.

• 3 Here, defendant challenges the trial court's Rule 431(b) error under both prongs of plain error. We first address defendant's second-prong attack in light of Thompson. The jury was admonished and instructed on the Rule 431(b) principles. Although the jurors received some, but not all, of the Rule 431(b) questioning, defendant did not present any evidence demonstrating that the jury was biased. As a result, defendant failed to meet his burden of establishing that the trial court's error affected the fairness of his trial and challenged the integrity of the judicial process. Thompson, 238 Ill. 2d at 613-14. Therefore, there was no second-prong plain error.

Turning to defendant's first-prong attack, defendant contends the evidence was closely balanced because "the State called two unreliable witnesses who identified Brazziel from the stand, while the defense called three strong witnesses who testified Brazziel was not [the] shooter" and the State's remaining occurrence witnesses did not "affirm their prior identifications." We recognize that the question of whether the evidence is closely balanced is distinct from a sufficiency of the evidence challenge. People v. Piatkowski, 225 Ill. 2d 551, 566, 870 N.E.2d 403 (2007). After reviewing the evidence, we find defendant failed to meet his burden of demonstrating that the evidence was closely balanced. On the contrary, we find that the strength of the evidence was overwhelming.

Two eyewitnesses, Raper and Floyd, identified defendant as the shooter. Raper testified against his cousin that he was next to him when defendant shot the victim. Floyd testified that she was in front of her home within eight feet of defendant when he shot the victim. Four additional witnesses, Smith, Gibbs, Henry, and Ceasar, identified defendant as the shooter in handwritten statements given within days of the victim's murder, and Smith, Gibbs, and Henry also inculpated defendant before the grand jury. Although Smith, Gibbs, Henry, and Ceasar did not identify defendant as the shooter at trial, their prior statements were admitted as evidence. We conclude that defendant's forfeiture may not be excused based on the first prong of plain error.

III. Propriety of the State's Cross-examination and Rebuttal Argument

• 4 Defendant contends the State committed prosecutorial misconduct when the defense witnesses' moral character was attacked during cross-examination and highlighted by the State during rebuttal closing argument. The State responds that defendant forfeited review of this contention. In the alternative, the State contends its cross-examination of the defense witnesses and rebuttal closing argument were proper.

"Generally, cross-examination is limited in scope to the subject matter of direct examination of the witness and to matters affecting the credibility of the witness. [Citations.] However, this limitation is construed liberally to allow inquiry into whatever subject tends to explain, discredit, or destroy the witness' direct testimony. [Citation.]" People v. Terrell, 185 Ill. 2d 467, 498, 708 N.E.2d 309 (1998).

It is within the trial court's discretion to determine the latitude to be given on cross-examination. People v. Hall, 195 Ill. 2d 1, 23, 743 N.E.2d 126 (2000). We will not interfere with the trial court's decision unless the court clearly abused its discretion such that there is manifest prejudice to the defendant. Hall, 195 Ill. 2d at 23.

Defendant takes issue with certain portions of the State's cross-examinations of the defense witnesses. In regard to the cross-examination of Samuel, defendant challenges the following exchange:

"Q. You don't — did you care that anybody could have got shot over there?

A. Yes, I did care, but. . .

Q. You did care?

A. Mm-hmm.

Q. Because you're a caring person, right?

A. Yes.

Q. And you're such a caring person that if someone got shot, you would want to go tell the police what you saw, right?

DEFENSE COUNSEL: Objection.

THE COURT: Overruled.

A. Yeah.

Q. Okay. But you didn't?

A. No, because I was young.

Q. Even though there's police officers all over the place, right?

A. Yep.

Q. You could have walked up there and talked to one of the officers, right?

A. No. I was young.

Q. You were young?

A. Mm-hmm.

Q. So that stops you from talking to a police officer?

A. What was I gonna tell?"

As the cross-examination continued, Samuel admitted that, despite his knowledge that the police wrongly arrested defendant for the victim's murder, Samuel did not share this information with the police, the ASAs, any newspapers, or any television stations.

Defendant challenges the portion of Palmer's cross-examination after the State asked Palmer who he was with as he fled after the gunshot. Palmer maintained that the group of friends intended to meet back together; however, Palmer's primary focus was on getting himself to safety. In response, the State asked, "right, because you're really concerned ultimately about yourself, right." Defense counsel's objection was overruled and Palmer replied, "yes." Later, Palmer testified that he and defendant waited at the meeting place until the entire group arrived and then they went their separate ways. The State asked in response, "because you care about yourself, right?" Defense counsel objected and the objection was sustained.

During his cross-examination, Eric testified that it was not important to him to tell the police what occurred on the night in question. Defendant challenges the following exchange:

"Q. You didn't really care about anybody who got shot out there, right?

A. It wasn't none of my people.

Q. None of your people, right, so you really don't care about them?

A. I ain't saying I don't care about them. It wasn't none of my people.

Q. Who's your people?

DEFENSE COUNSEL: Objection.

A. My friends.

THE COURT: Overruled.

Q. So if some random guy gets shot, because he's not one of your people, you really don't care about him, right?

A. I didn't say I didn't care.

Q. Are you happy they got shot?

A. No, I'm not.

Q. Are you sad that they got shot?

A. No, I'm not.

Q. You just have no feelings whatsoever about it?

A. No, sir.

Q. So the boy that got shot over there, you have no feelings for whatsoever?

A. I never knew him."

In the two instances where the trial court overruled defense counsel's objections to the challenged cross-examination, we find the court did not abuse its discretion. It is clear from the record that the State was eliciting testimony regarding the defense witnesses' credibility and bringing to light their bias. "Generally, any permissible kind of impeaching matter may be developed on cross-examination, since one of the purposes thereof is to test the credibility of the witnesses." Hall, 195 Ill. 2d at 23. Defendant cannot demonstrate that he suffered manifest prejudice as a result of the latitude the trial court allowed in relation to the objected to cross-examination.

In regard to the challenged cross-examinations that defendant failed to preserve, we find the State did not engage in prosecutorial misconduct and, therefore, there was no error for purposes of defendant's suggested plain error analysis. See Enoch, 122 Ill. 2d at 186 (an error is forfeited when the defendant fails to lodge a contemporaneous objection and does not include the alleged error in a posttrial motion). The State was not attacking the defense witnesses' morality or lack thereof; rather, the State attempted to undermine the witnesses' credibility by attacking the fact that none of the witnesses reported what occurred on the night in question or attempted to provide information to the authorities to exonerate defendant. The State further demonstrated the defense witnesses' bias by establishing that Palmer was most concerned about his safety and that of his group and that Eric's allegiance was to his group of friends. "The possible bias of a witness is always material, and relationship to a defendant is clearly a possible basis for bias." People v. Jones, 60 Ill. 2d 300, 306, 325 N.E.2d 601 (1975).

We find the cases cited by defendant in support of his argument that the State improperly questioned the defense witnesses' character are distinguishable. In People v. Rivera, 145 Ill. App. 3d 609, 495 N.E.2d 1088 (1986), the prosecutor improperly attempted to impeach a witness based on insinuation, not evidence in the record. Rivera, 145 Ill. App. 3d at 619-22. Here, the State attacked the witnesses' credibility based on their direct testimony. In People v. Redmond, 50 Ill. 2d 313, 278 N.E.2d 766 (1972), the prosecutor improperly attacked the defendant's character unrelated to the crime charged. Redmond, 50 Ill. 2d at 315-16. In People v. Quick, 236 Ill. App. 3d 446, 603 N.E.2d 53 (1992), the prosecutor improperly attacked the defendant's religious beliefs when the direct examination was limited to testimony regarding the defendant's religious activities. Again, the State's attacks discredited the witnesses' direct testimony.

Defendant additionally challenges the following remarks made by the State during rebuttal argument:

"Well, let's talk about the defense witnesses because it's interesting how the defense characterizes those witnesses. It's interesting because apparently they are like three little angels. Oh, they say they work. Oh, they got kids. They got jobs. What they don't have is credibility. And you know why? You heard them up there, three different stories. Three different stories.

You know, it was Eric Harris that stated, and I think that basically sums up all three of those witnesses, he doesn't care about anybody but his friends. The boy that got shot, doesn't care. Didn't make him happy. Didn't make him sad. What a wonderful individual he is. What a great guy. What a great witness.

And that is why he testified for the defendant because he didn't care about anybody but the defendant. That's why he got up there and did not tell you the truth, basically got up there and gave you a cockamamie story about how they're just like spectators at a football game, about a fight that they didn't know anything about.

*** Those witnesses were not credible whatsoever despite what counsel was saying about them.

* * *

That takes *** us to Eric Harris. And once again, everything is summed up by this guy. Doesn't care about anybody but his people, his friends. Guy got shot. So what. Doesn't care. That's what he's about. ***

Credible testimony of witnesses came from Anthony Raper, came from Yolanda Floyd and came from handwritten statements and Grand Jury testimony of Lakesha Gibbs, Shontrice Smith, De[S]ean Henry and Johnny Ceasar. That's where the credible testimony is, not with the defense witnesses who can't get their story straight, and basically can all be summed up by Eric Harris. `I only care about my people.' That's one of his people, a guy who shoots down Larry Brown in the head over a squabble with a girl. That's the type of person he is."

A prosecutor is given wide latitude in making a closing argument. People v. Nicholas, 218 Ill. 2d 104, 121, 842 N.E.2d 674 (2005). During that argument, a prosecutor may comment on the evidence and any fair and reasonable inferences therefrom. Nicholas, 218 Ill. 2d at 121. A closing argument must be reviewed in its entirety and the challenged comments must be viewed in context. Nicholas, 218 Ill. 2d at 122.

As with the majority of the challenged cross-examination questions, defendant failed to object to the State's rebuttal. Defendant, therefore, forfeited review of his contention. See Enoch, 122 Ill. 2d at 186. We emphasize that defense counsel was obligated to raise a contemporaneous objection because failure to do so prevented the trial court from having the opportunity to correct the alleged error immediately or to grant a mistrial. People v. McLaurin, 235 Ill. 2d 478, 488, 922 N.E.2d 344 (2009). Nevertheless, we find no plain error occurred.

After reviewing the State's rebuttal in its entirety, we find that the State's arguments were in direct relation to testimony elicited on cross-examination. The State addressed the testimony of each defense witness. Contrary to defendant's argument, the State was not attacking the witnesses' general moral character; rather, the State was arguing that the witnesses were not credible when they testified that they, along with defendant, were innocent observers of the victim's murder, yet none of them came forward to report what they observed or to proclaim defendant's innocence. To the extent the State crossed the line of propriety when it facetiously called Eric Harris a "great guy," we find any error was cured when the jury was instructed at the end of trial that closing arguments were not evidence. Nicholas, 218 Ill. 2d at 122-23. The jury is presumed to have followed the law as given. People v. Taylor, 166 Ill. 2d 414, 438, 655 N.E.2d 901 (1995). Defendant, therefore, cannot establish plain error where, as we previously determined, the evidence was not closely balanced and any minor error was not so serious as to affect the integrity of defendant's trial.

• 5 We further conclude that defendant cannot establish a claim for ineffective assistance of counsel. To demonstrate ineffective assistance of counsel, a defendant must show counsel's performance was deficient and such deficient performance caused substantial prejudice. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). To establish prejudice, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Even assuming, arguendo, defense counsel should have objected to all of the challenged cross-examination questions and rebuttal, the evidence overwhelmingly supported defendant's guilt and defendant cannot demonstrate that, but for the challenged questions and comments, the jury would have found him not guilty.

IV Excessive Sentence

• 6 Defendant contends his sentence was excessive in light of mitigating factors, namely, his age and lack of a criminal record.

A trial court's sentence may not be disturbed absent an abuse of discretion. People v. Perruquet, 68 Ill. 2d 149, 154, 368 N.E.2d 882 (1977). A sentence must be balanced between the seriousness of the offense at issue and the potential for the defendant's rehabilitation. See Ill. Const. 1970, art. I, § 11. A trial court's sentence is entitled to great deference and weight because the trial court is in a superior position to make such a determination. Perruquet, 68 Ill. 2d at 154. The trial court weighs the defendant's credibility, demeanor, general moral character, mentality, social environment, habits, and age. People v. Stacey, 193 Ill. 2d 203, 209, 737 N.E.2d 626 (2000). A reviewing court may not substitute its judgment for that of the trial court simply because it would have weighed those factors differently. Stacey, 193 Ill. 2d at 209. Moreover, a sentence within the statutory limits will not be considered excessive unless it greatly varies with the spirit and purpose of the law or is manifestly disproportionate to the nature of the offense. Stacey, 193 Ill. 2d "at 210.

The trial court heard arguments in aggravation and mitigation. Prior to announcing defendant's sentence, the trial court said:

"I have reviewed closely the pre-sentence investigation. And in addition, I'm going to consider what the Illinois State Legislature says I should consider, those statutory factors in aggravation and mitigation, in reaching my decision regarding what the number should be in this case.

* * *

As I said, the idea and the notion that one can point a gun at another person and fire it while that person runs away from you carries with it a full story of who that person that is firing is.

* * *

[Defense counsel] correctly points out that rehabilitation [is] a secondary aspect or another aspect that I'm considering. I am considering every one of those statutory obligations or considerations that I am asked to use. But it cannot be disputed that no conduct that he could have engaged in on that afternoon or early evening could have been worse than that which he did, which the jury found that he did.

It's for that reason that the sentence today will reflect the seriousness of this conduct. It will reflect the arguments in aggravation and mitigation of the attorneys, the statutory factors, and the pre-sentence investigation, everything."

A first degree murder conviction carries a sentence of not less than 20 years and not more than 60 years. 730 ILCS 5/5-8-1(a)(1) (West 2004). The firearm enhancement adds "25 years or up to a term of natural life" to the sentence. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2004). Defendant's aggregate 60-year sentence, therefore, falls within the permissive statutory range.

The record clearly demonstrates that the trial court considered both the seriousness of the offense and defendant's potential for rehabilitation. The court repeatedly stated that it had taken into consideration defendant's presentence investigation report, the arguments in aggravation and mitigation, and the statutory factors while fashioning defendant's sentence. "The trial court has no obligation to recite and assign value to each factor presented at a sentencing hearing." People v. Hill, 402 Ill. App. 3d 920, 928, 932 N.E.2d 173 (2010). Rather, "it is presumed that the trial court properly considered all mitigating factors and rehabilitative potential before it; and the burden is on the defendant to affirmatively show the contrary." People v. Garcia, 296 Ill. App. 3d 769, 781, 695 N.E.2d 1292 (1998). Defendant has failed to demonstrate the trial court abused its discretion.

We find that People v. Bolyard, 61 Ill. 2d 583, 338 N.E.2d 168 (1975), is distinguishable from the case at bar. In Bolyard, the supreme court reversed and remanded the cause for resentencing after finding that the trial court abused its discretion when it denied a request for probation based on an expressed categorical belief that the defendant fell within the court's group of disfavored offenders. Bolyard, 61 Ill. 2d at 586-87. Here, the record demonstrates that the trial court considered the facts and circumstances of this case and did not simply apply a blanket policy This court repeatedly has stated that the seriousness of the defendant's offense is the most important factor and the defendant's rehabilitation potential need not be given greater weight. People v. Tye, 323 Ill. App. 3d 872, 890, 753 N.E.2d 324 (2001).

CONCLUSION

We affirm defendant's conviction and sentence.

Affirmed.

HALL, P.J., and PATTI, J., concur.