Defendant-appellant, Sam Armstead, was convicted of aggravated batterywith a firearm and was sentenced to 12 years' imprisonment. Defendantpresents the following issues upon appeal: (1) the State failed to prove himguilty of aggravated battery with a firearm beyond a reasonable doubt; (2) thetrial court improperly admitted hearsay testimony; (3) the prosecutor, duringcross-examination of defendant, asked questions that depicted to the jury thatdefendant was of bad moral character, denying him of a fair trial; and (4)during closing argument, the prosecutor improperly argued that the complainantand a nontestifying witness were afraid to testify that defendant was theoffender, attempted to shift the burden to the defense, and repeatedlymisstated the evidence, denying him of a fair trial.

We reverse and remand.

BACKGROUND

At defendant's jury trial, James Morris was called by the State. Morristestified that on July 14, 1997, he "noticed somebody downstairs fighting" andhe "went down to break the fight up." There was a light pole about three feetaway, which was dimly lit. Morris discovered that it was his cousin, RochelleAppling, fighting with defendant's cousin, Yolanda Armstead. Morris statedthat two of defendant's nephews, Latrell and Jen, were also there. As hebroke up the fight between the two women, Morris was involved in "a littletussle" with defendant's two nephews. At that time, he did not see a weapon.

After the fight between the two women was broken up, Morris wentupstairs with his mother. Approximately 5 to 10 minutes later, Morris wentback outside. While outside, Morris spoke to his friend Vernon Martin forabout five minutes on the sidewalk. About five feet away from them was acrowd of 5 to 10 people. Morris testified that he heard someone say "Don'tmess with my cousin." As Morris turned toward the voice, he noticed someoneshooting at him. He initially testified that he did not see the shooter orthe gun. He then testified that he could see the gun and as he tried to grabthe gun, he fell and the shooter fell on top of him. The shooter quickly gotup and ran away. He testified that he did not see the shooter's face.

Morris further testified that on July 15, 1997, the day after theshooting, police officers came to speak with him at the hospital. A femaledetective showed Morris a picture of defendant. Morris testified that sheasked, "Is this the one that shot you?" and he told her, "This is the one Iheard shot me."

On July 22, 1997, two or three officers visited Morris at the hospitalto tell him that they caught defendant and asked Morris to identify defendantfrom five pictures. Morris testified that he told the officers that he heardthat the defendant shot him. When the State asked, "Isn't it true that youtold them that, 'Sam was the one that shot me'? Isn't that what you told thedetectives at the hospital?", Morris replied, "I don't remember."

On cross-examination, Morris testified that on the day after he wasshot, his mother came to the hospital and told him that while she was on theporch of their sixth floor apartment, she saw the defendant shoot him. Hestated that he saw the gun but did not see the face of the shooter. Thefollowing questioning occurred during cross-examination:

"MS. CAROTHERS [defense attorney]: And now, when you were in thehospital on the 15th when you talked to the woman detective, did shealso show you a photograph?

A. Yes.

* * *

Q. And did you tell the detective that this was SamArmstead? ***

A. Yes. * * *

Q. Okay. Now, why did you tell her that was the person that shot you?

A. Because that's who I thought shot me, and that's who I heard shotme."

During redirect examination, the following colloquy occurred:

"MR. FAHLGREN [assistant State's Attorney]: Now, do you recallmyself, my partner and your mother Minnie Morris coming into the cell tospeak to you?

A. Yes.

* * *

Q. And didn't you answer in response to that question that it was SamArmstead that shot you?

A. Yes.

Q. Weren't you -- were you asked the question, 'The night you wereshot, did you see the shooter'?

A. Yes.

Q. And you said yes, correct?

A. Correct.

Q. And you said you recognized him, correct?

A. Correct.

Q. And yesterday during that conversation didn't you tell myself andmy partner and your, in your mother's presence that the night of theshooting you did see Sam Armstead shoot you? Is that correct?

A. Yes."

Upon re-cross-examination, the defense attorney inquired:

"MS. CAROTHERS [defense attorney]: And you knew that your mom hadsaid that she saw the shooting from the balcony on the sixth floor ofthe project, right?

A. Right.

Q. And you said that because you didn't want to make your mother outa liar, did you? You didn't want to do that to your mom, did you?

A. Uh uh."

The State also called Minnie Morris, James Morris' mother. Shetestified that on the evening of July 13, 1997, she was on her balcony withtwo friends. From there she noticed her niece, Rochelle Appling, fightingwith Yolanda Armstead. She observed her son, James, attempt to stop the fightand saw two young men start fighting him. Mrs. Morris then went downstairsand told James to go upstairs, but he did not go at that time. Whiledownstairs, Mrs. Morris saw a young woman pick up a piece of glass and try tocut Rochelle. Yolanda was cut instead. She testified, "Then Latrell hadpulled a gun out, and a boy grabbed him, and next thing I know, he was gone. And I looked around and I told James to come upstairs. I made him comeupstairs where I was."

Mrs. Morris stated that about 10 minutes later, Vernon Martin askedJames to come back downstairs. She watched James go downstairs and talk withsome people for a short while. She saw James walk over to an adjacentbuilding with Vernon Martin. Shortly thereafter, she heard a car approach andsaw Latrell get out of the car and he pointed toward her son and VernonMartin. She testified that she also saw the defendant walking toward Jamesand Vernon. The pertinent testimony regarding the shooting included thefollowing:

"A. I don't know if he said anything to him or anything. Only thingI can see was firing coming out the gun. He was shooting, shooting,shooting, shooting.

Q. Who was?

A. Sam Armstead.

Q. Who was he shooting?

A. He was shooting my son James Morris.

* * *

I seen Sam come down, going down 14th Street coming from over therewith the gun in his hand."

During cross-examination, the following colloquy occurred betweendefense counsel and Mrs. Morris:

"MS. HILL-MCCLAIN [defense attorney]: And at some point, your son,according to you, got up off the ground, correct, again?

A. He was trying to run.

Q. Okay. So he got up and turned his back toward Mr. Armstead, isthat what you are saying?

A. Sure did.

Q. When turned his back, at the time Mr. Armstead shot him again,four more times?

A. Sure did.

Q. Once in the stomach, correct?

A. No, he shot him once in the stomach when he first started. Whenhe first started."

Mrs. Morris also gave the following testimony:

"Q. Did you then return after not being able to see James [at thehospital]? Did you return to the scene?

A. Yes, with an officer.

Q. Did you see police officers there?

A. Yes.

Q. Did you talk to the police officers?

A. Yes.

Q. And did you tell the police officers immediately after the shootingwho shot your son?

A. Sam Armstead."

Mrs. Morris further testified that she had known defendant for about 15 years. She stated that on July 22, 1997, she viewed a lineup and identified SamArmstead as the shooter.

The testimony of Officer Patrick O'Kelly establishes that, atapproximately 12:25 a.m. on July 14, 1997, Officer O'Kelly and his partnerwere dispatched to a call of a man shot at 2650 West Ogden. They went to thescene and observed Morris shot and bleeding. An ambulance arrived and tookMorris to Mount Sinai Hospital. During direct examination, the State askedOfficer O'Kelly this leading question: "Okay. Did you later speak to MinnieMorris?" The response was, "Yes." The State then continued examining O'Kellyas follows:

"Q. [Assistant State's Attorney:] Where did you speak to her?

A. In the emergency room of Mount Sinai.

Q. When you spoke to her, did you learn the identity of the shooter?

A. Yes.

Q. Who did you learn the shooter was?

MS. CAROTHERS [defense attorney]: Objection.

THE COURT: Form of the question. Sustained.

Q. When you spoke to Renina Morris did you learn from her whathappened?

A. Yes.

Q. What did you ascertain the identity of the perpetrators involvedin this offense?

A. Yes.

Q. What did you ascertain?

MS. CAROTHERS: Objection.

THE COURT: Sustained. It's the same question, Counsel.

MS. SCARIA: After speaking to her, did you ascertain the identity,without naming, without saying what she said, did you ascertain theidentity of a shooter?

A. Yes.

Q. Did you fill out a case report in this matter?

A. Yes.

Q. And was the offender named in this case report?

A. Yes.

* * *

Q. After you spoke to Renina Morris, what name did you have that youput in your report?

MS. CAROTHERS: Objection.

MS. SCARIA: Judge, it's prior identification.

THE COURT: Objection sustained.

MS. SCARIA: Judge--

THE COURT: Counsel, sustained.

MS. SCARIA: After you spoke to Renina Morris, did you have someoneyou were looking for?

THE WITNESS: Yes.

Q. Who was that?

A. Sam Armstead."

Officer O'Kelly further testified that Renina was the only person thathe recalled speaking to and getting a statement. He did not recall speakingto James Morris' mother or the mother of James Morris' children. O'Kelly wasnot involved in any further investigation of the shooting.

The State called Detective Patricia Sawczenko to testify. She testifiedthat shortly after 5 p.m. on July 15, 1997, she brought a black and whitepicture of Sam Armstead to the hospital and showed it to James Morris. Shetestified that when she showed James the photograph, Morris stated that theperson in the photograph was the person that shot him. During cross-examination, Sawczenko stated that she did not see Minnie Morris' name listedas a witness in the police report prepared by O'Kelly. Sawczenko stated thatshe spoke with James' mother on the phone because she was trying to reachRenina, but she did not prepare any reports regarding a conversation withMinnie Morris. Sawczenko never spoke with Renina. Sawczenko also testifiedthat in her report regarding her interview of James Morris, there was nomention of James wrestling with the shooter. She also stated that JamesMorris did not indicate to her that he had merely heard that it was defendantthat had shot him.

Officer Gayle Maurovich was called by the State and testified that onJuly 22, 1997, she discovered that defendant was in custody and conducted alineup. Mrs. Morris identified defendant from the lineup as the one whom shesaw shoot James Morris. After the identification, Maurovich arranged forphotographs to be taken of the lineup and took those five photographs to JamesMorris at the hospital. Two other detectives and an assistant State'sAttorney accompanied Maurovich to the interview. She testified that aftershowing Morris the photo array, he identified defendant as the person he sawshoot him. During cross-examination, Maurovich testified that she did notindicate to Morris that his mother had viewed a lineup or that she hadidentified defendant as the shooter. She stated that James did not indicateto her that he tried to grab the gun from the shooter. She also stated thatduring the interview, James indicated to her that when defendant and Latrellwalked up to him on the night of the shooting, James started to search Latrellfor a gun and that is when defendant shot him.

The State proceeded by stipulation with Dr. Steven Wise's report ofJames' emergency room examination at Mount Sinai Hospital. It was stipulatedthat James suffered one gunshot to his abdomen, four gunshot wounds to hisleft leg, and three gunshot wounds to his right leg. All of the entrancewounds were in the front of his body. Toxicology reports showed that he hadcannabanoids and ethyl alcohol in his system. Upon entering certain exhibitsinto evidence, the State rested its case in chief.

The defendant made a motion for a directed finding. The motion wasdenied.

Sharonda Lee was then called to testify. Lee stated that on July 14,1997, from approximately 8 p.m. to 2:30 a.m., she was with defendant atDouglas Park at a birthday party. During cross-examination, Lee admitted thatwhile she did not have a romantic relationship with defendant, she had a"crush" on him. She stated that she saw defendant two or three times a weekfrom May to July of 1997 for several hours at a time. Lee stated that, inFebruary of 1998, defendant told her that he was arrested for allegedlyshooting someone. Shortly before the trial, defendant asked Lee to testify attrial as to the events of July 13 to July 14, 1997.

Next, Yolanda Armstead, defendant's cousin, was called to testify. Shetestified that during a fight on July 13, 1997, at approximately 11 p.m.,Rochelle Appling cut her face with a broken bottle. During cross-examination,Yolanda stated that she saw her cousin Latrell Armstead outside, but shedenied seeing him fight with James Morris.

The defendant then testified on his own behalf. When asked whether heshot James Morris with a gun on July 13 going into the morning of July 14,1997, he testified that he did not. During cross-examination, defendanttestified that he did not have a fight or argument with James Morris on thenight in question. He testified that he attended a birthday party for a"friend of a friend" on July 13, 1997, and did not learn of the fight betweenRochelle and Yolanda until July 14, 1997. He also stated that he was notaware that James Morris had interfered during the fight.

ANALYSIS

I

The defendant in the instant case was found guilty of aggravated batterywith a firearm pursuant to the Criminal Code of 1961 (720 ILCS 5/12-4.2(1)(West 1996)). A person commits aggravated battery with a firearm when he orshe, in committing a battery, knowingly or intentionally by means of thedischarging of a firearm causes any injury to another person. (720 ILCS 5/12-4.2(1)) (West 1996). The prosecution has the burden of proving beyond areasonable doubt all the material and essential facts constituting a crimecommitted by an accused. People v. Lopez, 152 Ill. App. 3d 667, 677, 504N.E.2d 862 (1987). Defendant in the instant case contends that his convictionshould be reversed because the State failed to prove him guilty beyond areasonable doubt. Specifically, he argues that: (1) James Morris was unableto identify him as the offender, and (2) the identification by Minnie Morriswas doubtful, was contradicted by the evidence, and was not brought forwarduntil eight days after the offense.

A criminal conviction will not be set aside unless the evidence is soimprobable and unsatisfactory that it creates a reasonable doubt of thedefendant's guilt. People v. Hood, 229 Ill. App. 3d 202, 210, 593 N.E.2d 805(1992). It is the reviewing court's function to carefully examine theevidence, giving due consideration to the fact that the court and the jury sawand heard the witnesses. Hood, 229 Ill. App. 3d at 210. If, in viewing theevidence in the light most favorable to the prosecution, any rational trier offact could have found the essential elements of the crime beyond a reasonabledoubt, the conviction will not be overturned. People v. Collins, 106 Ill. 2d237, 261, 478 N.E.2d 267 (1985). At trial, Morris testified that he did notsee the face of the shooter. However, two police officers testified thatduring their investigation James Morris identified the defendant as theshooter.

Defendant also contends that the only witness who identified him as theoffender was Minnie Morris and that her identification is doubtful,contradictory, and incredible. Defendant relies on Minnie's distance from theactual shooting, the dim outdoor lighting, the amount of time she had toobserve the offender, the fact that there was a large crowd of people in thearea, and the fact that she covered her face and fell from her chair when theshooting started. Defendant also points out Minnie's testimony as to her sonbeing shot as he ran away conflicted with the medical report stating that hesuffered only frontal wounds.

However, where the evidence is conflicting, it is the duty of the trierof fact to resolve any conflicts and determine questions of credibility andweight. People v. Mullen, 141 Ill. 2d 394, 403, 566 N.E.2d 222 (1990). Apositive identification by one witness with ample opportunity to observe isenough to prove a defendant guilty beyond a reasonable doubt. People v.Escobar, 77 Ill. App. 3d 169, 175, 395 N.E.2d 1028 (1979). The test ofpositive identification is whether the witness is close enough to the accusedfor a sufficient length of time under the conditions adequate for observation,and where this test is met, the credible testimony of one witness issufficient to support a finding of guilt. People v. Crawford, 90 Ill. App. 3d888, 891, 414 N.E.2d 25 (1980). Despite the inconsistencies of Minnie Morris'testimony, we cannot say that no rational jury could have found defendantguilty of aggravated battery with a firearm beyond a reasonable doubt. SeePeople v. Sanchez, 115 Ill. 2d 238, 260-61, 503 N.E.2d 277 (1986).

II

Defendant next asserts that the testimony of Officer O'Kelly was hearsayand constituted reversible error. Hearsay is defined as testimony of an out-of-court statement offered to establish the truth of the matter assertedtherein and resting for its value upon the credibility of the out-of-courtasserter. People v. Lopez, 152 Ill. App. 3d 667, 672, 504 N.E.2d 862 (1987). The basis for excluding evidence under the hearsay rule lies in the fact thatan opportunity to ascertain the veracity of the testimony is absent. Peoplev. Rogers, 81 Ill. 2d 571, 577, 411 N.E.2d 223 (1980). An opportunity forcross-examination of the party whose assertions are offered to prove the truthof the matter asserted is an essential requirement of such a testimonialoffering and, accordingly, testimony by a third party as to statements made byanother nontestifying party identifying an accused as the perpetrator of acrime constitutes hearsay testimony and is inadmissible. Lopez, 152 Ill. App.3d at 672, citing Rogers, 81 Ill. 2d at 577-79.

The State argues that because defendant only raised objections duringthe preliminary questions in the sequence of questions at issue, but did notobject to the final question nor was a challenge raised in defendant's post-trial motion, this argument is waived.

Generally, alleged errors must be objected to at trial and specified ina posttrial motion in order to preserve them for appeal. People v. Enoch, 122Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). The Illinois Supreme Court has heldthat the failure to raise a contemporaneous objection to each in a series ofstatements waives appellate review of the unobjected-to statements, even whereprior objections to similar statements were overruled. People v. Steidl, 142Il. 2d 204, 233, 568 N.E.2d 1033 (1991). Although lack of a timely objectionwaives such a challenge for review, the rule of waiver is a limitation on theparties and not on the courts, and a reviewing court may ignore the waiverrule in order to achieve a just result. Lopez, 152 Ill. App. 3d at 676.

An exception to the waiver rule exists under the plain error doctrine. Under the plain error doctrine, issues regarding the violation ofconstitutional rights not properly preserved for review may still be reviewedunder two circumstances: (1) where the evidence is closely balanced, or (2)where the error is of such a magnitude that the commission thereof denied thedefendant a fair trial. See 134 Ill. 2d R. 615(a). In the instant case, theevidence is closely balanced and the plain error doctrine is applicable.

During Officer O'Kelly's testimony, it was elicited that he was told byRenina Morris that defendant was the shooter. The State argues that this isnot inadmissable hearsay, but a statement used to explain the progress of thepolice investigation. It is true that a statement used to detail the courseof a police investigation, not to prove the truth of the matter asserted, isnot hearsay. People v. Malave, 230 Ill. App. 3d 556, 560, 595 N.E.2d 117(1992). Such a statement is admissible if offered for the limited purpose ofexplaining why the police conducted their investigation as they did or whythey arrested defendant. Malave, 230 Ill. App. 3d at 561. Where the trialcourt admits out-of-court statements for the limited purpose of explaining whythe police acted as they did in their investigation, the court mustspecifically instruct the jury that the statement is introduced for a limitedpurpose and that the jury is not to accept the statement for the truth of itscontents. People v. Williams, 233 Ill. App. 3d 1005, 1017, 599 N.E.2d 1033(1992).

Admission of hearsay identification testimony constitutes plain erroronly where it serves as a substitute for courtroom identification or is usedto strengthen and corroborate a weak identification. People v. Hughes, 259Ill. App. 3d 172, 178-79, 632 N.E.2d 251 (1994). If the hearsay testimony ismerely cumulative, or is supported by a positive identification and othercorroborative circumstances, it constitutes harmless error. People v. Smith,59 Ill. App. 3d 480, 490, 375 N.E.2d 941 (1978). But before a federalconstitutional error can be held harmless, the court must be able to declare abelief that it was harmless beyond a reasonable doubt. Chapman v. California,386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828 (1967).

The final series of questions during O'Kelly's direct examination waspart of a long series of objected-to and unobjected-to questions. Thequestioning clearly revealed the substance of the conversation between ReninaMorris, a nontestifying witness, and Officer O'Kelly and implicated defendantas the shooter. Because the evidence in the instant case is close, thetestimony could have affected the outcome of the case. We hold that thistestimony as to statements made by a nontestifying party identifying thedefendant as the shooter is inadmissable hearsay and eliciting this testimonyconstitutes reversible error.

Additionally, defendant contends that his trial counsel's failure topreserve this issue for appeal by including it in the posttrial motion wasineffective assistance of counsel. Because we reverse and remand this casefor a new trial on other issues, we do not reach this issue.

III

The defendant, citing People v. Butler, 58 Ill. 2d 45, 317 N.E.2d 35(1974), next contends that continued attempts to impeach him with evidencedepicting bad character was improper and denied him of a fair trial. Defensecounsel objected to the State's cross-examination about his cohabitation withhis long-time girlfriend prior to his arrest and marriage to a different womanshortly after his arrest. This issue was raised in the posttrial motion and has been properly preserved for review.

It is well established that the scope and propriety of cross-examinationrest largely in the discretion of the trial court, and the court's decisionwill be overturned only where an abuse of that discretion results in manifestprejudice to the defendant. People v. Gacho, 122 Ill. 2d 221, 245-46, 522N.E.2d 1146 (1988). In Butler, as in the instant case, irrelevant cross-examination was used to establish the defendant's bad character. Butler, 58Ill. 2d at 49-50. The defendant in Butler was questioned extensivelyregarding the details of his trip to New Orleans with a woman and his livingarrangements both prior and subsequent to that trip. Butler, 58 Ill. 2d at50. That questioning, which was objected to by defendant but permitted by thecourt, revealed that, prior to and after the trip, the defendant had livedwith two different women, neither being the woman who accompanied him to NewOrleans. Butler, 58 Ill. 2d at 50. The Illinois Supreme Court stated thatthe only purpose of such questioning was to demonstrate to the jury that thedefendant "was of bad moral character." Butler, 58 Ill. 2d at 50. The courtheld that the questioning was clearly improper and defendant's objectionsshould have been sustained in that case. However, the court in Butler did notconsider the evidence to be close and held the error to be harmless. Butler,58 Ill. 2d at 50. A death sentence in that case was vacated for otherreasons. Butler, 58 Ill. 2d at 50.

Another instructive case is People v. Nuccio, 43 Ill. 2d 375, 253 N.E.2d353 (1969). In Nuccio, the State repeatedly insinuated that defendant and hiswitnesses had engaged in a pattern of reprehensible conduct in theirrelationships with youths that frequented a restaurant. Nuccio, 43 Ill. 2d at381. It was the court's view that the totality of the impact of the State'sunsupported insinuations denied defendant the right to a fair trial. Nuccio,43 Ill. 2d at 381.

In the instant case, the judge, on cross-examination, gave the Statewide latitude to demonstrate that the line of questioning had some relevancy. However, the judge ultimately halted the questioning and stated that it had nobearing on defendant's credibility. The questioning in the instant case issimilar to the questioning in Butler and Nuccio. The evidence is close andthe State's case is weak. Therefore, we cannot say that the improper cross-examination of defendant depicting bad character was harmless beyond areasonable doubt. Fundamental fairness mandates a new trial. See Nuccio, 43Ill. 2d at 396.

IV

Defendant further contends that the State committed reversible errorduring the State's closing argument by improperly indicating that James Morriswas afraid to identify defendant as the shooter, by arguing that certainpersons who were allegedly witnesses were not called by the defense totestify, and by repeatedly misstating the evidence. The defendant claims thatthese errors denied him a fair trial.

Specifically, the State stated during closing argument that James Morris"had to have seen the face of the shooter. *** You know that -- you know wherethe defendant lives. *** And you know where the victim lives. Think about itladies and gentleman." Objections were made by defendant and a challenge wasraised in defendant's posttrial motion. Therefore, this issue has beenproperly preserved for review.

While the prosecutor is allowed a great deal of latitude in making hisopening and closing statements (People v. Pasch, 152 Ill. 2d 133, 184, 604N.E.2d 294 (1992)), assumptions and statements of fact not based upon evidencemay not be argued to the jury (People v. Beier, 29 Ill. 2d 511, 517, 194N.E.2d 280 (1963)). Prosecutorial statements that suggest that witnesses wereafraid to testify because defendant had threatened or intimidated them, whennot based upon the record, are highly prejudicial and inflammatory. People v.Mullen, 141 Ill. 2d 394, 406, 566 N.E.2d 222 (1990).

The trial court's determination of the propriety of the remarks madewill not be disturbed absent a clear abuse of discretion. Pasch, 152 Ill. 2dat 185. In evaluating claims that remarks in closing arguments wereerroneous, reviewing courts must consider these remarks in the context of theparties' arguments as a whole. People v. Buss, 187 Ill. 2d 144, 244, 718N.E.2d 1 (1999). To constitute reversible error, the complained-of remarksmust have resulted in substantial prejudice to the accused, such that, absentthose remarks, the verdict would have been different. People v. Cisewski, 118Ill. 2d 163, 175, 514 N.E.2d 970 (1987). While a prosecutor's statement basedon a legitimate inference from the evidence does not constitute improperargument (People v. Albanese, 104 Ill. 2d 504, 520, 473 N.E.2d 1246 (1984)),the indication by the State that Morris felt threatened by defendant or hisfamily was not based on any evidence. Due to the closeness of the evidence inthis case, this error, together with other errors, constituted reversibleerror.

During the defendant's closing argument, defense counsel also statedthat Renina Morris did not testify "because she would have told you SamArmstead did not do this shooting." During rebuttal argument, the State askedthe jury to consider that James Morris' sister, Renina, was not present totestify because defendant's large family lived in the same building asRenina's family. In the State's appellate brief, the State argues that thedefendant invited the prosecutor's comments about Renina Morris. We disagree.

However, defendant made no objection to these comments either during trial orin the posttrial motion. This issue has not been preserved for review. Additionally, we do not consider the plain error doctrine applicable.

Defendant next contends that the State improperly shifted the burden ofproof to him by commenting on defendant's failure to call certain witnesses. During rebuttal argument, the State stated:

"Counsel did allude to Linda Jamison, Coretha Maclin (phonetic)-- notMatthews, Maclin, and said that, well, they were sitting out thereduring the shooting. Why aren't they brought in?

Well, what she didn't tell you, ladies and gentlemen, is that thedefense has the same subpoena power as the [S]tate does."

Defendant objected and the court overruled that objection. The Statecontinued:

"And if they thought for one minute they would have identifiedanybody else but Sam Armstead as the shooter, they had the opportunityto find those people, and you heard no evidence that that happened."

No further objection was made and this issue was not raised in defendant'sposttrial motion. However, due to the closeness of the evidence, togetherwith other errors, this issue is reviewable under the plain error doctrine.

The burden of proof never shifts to the accused, but remains theresponsibility of the prosecution throughout the trial. People v. Weinstein,35 Ill. 2d 467, 470, 220 N.E.2d 432 (1966). In fact, it is reversible errorfor the prosecution to attempt to shift the burden of proof to the defense. People v. Falconer, 282 Ill. App. 3d 785, 791, 668 N.E.2d 1095 (1996). Moreover, a defendant is not bound to produce any witnesses and it is error tocomment on his failure to do so. People v. Swift, 319 Ill. 359, 365-66, 150N.E.2d 263 (1925). However, where the defendant is responsible for injectinga witness into the case or refers to his efforts to secure the witness, it isproper to comment on defendant's failure to produce that witness. People v.Scaggs, 111 Ill. App. 3d 633, 636 (1982).

In the instant case, Minnie Morris, the State's witness, testified thattwo other women were with her on the night of the shooting. She did notprovide these names during the defendant's case in chief. The State elicitedthese names on direct examination of Mrs. Morris.

The State also stated during its rebuttal:

"Let's talk for a moment about the alibi. Sam Armstead, convictedfelon, told you he's with all these people at a party, and they're notjust generic people. He gives names. Charles Clark, Pooh, Little D,Anthony, and of course Shawanda, who had the crush on him.

* * *

Those people were with him. *** He did, however, choose to callwitnesses. He did, however, choose to take the stand himself, and hetold you about all these people that he was with. But we didn't hearfrom anybody else about where he was that night."

No objection was made as to these statements and it was not raised in theposttrial motion. Here, in light of the closeness of the evidence, togetherwith other errors, we review this error under the plain error doctrine.

A complete review of the record indicates that the defendant did notreveal the names of other party-goers until he was cross-examined by theState. The defendant has no burden to produce these witnesses to support anaffirmative alibi defense. Swift, 319 Ill. at 365-66. The State's argumentwas improper and erroneous. The evidence in this case is close. So, due tothis error, together with other errors, we cannot say that the error washarmless beyond a reasonable doubt.

Defendant next contends that the State, during its closing argument,misstated the evidence, thereby denying him a fair trial. In the firstinstance, the State argued: "There is no evidence that [James Morris] turnedhis back to run to get away." Defense counsel objected to the statement basedupon Minnie Morris' testimony. The judge admonished the jury to rely on itsown recollection of the facts. In the second instance, the State argued: "There is not one letter or word of evidence in this case to show anybody outthere but the defendant had a gun, and I'd ask you consider that, ladies andgentlemen." This statement, again, conflicts with Minnie Morris' testimony attrial. However, there was no objection made at trial as to this comment andit was not specifically raised in defendant's posttrial motion. Therefore,the issue is waived for review. However, were this issue not waived, we donot agree that reversible error occurred. Reversible error only occurs wherethe remarks are attributable to deliberate misconduct of the prosecutor andresult in substantial prejudice to the defendant. People v. Smith, 141 Ill.2d 40, 64, 565 N.E.2d 900 (1990). The record does not establish that theseremarks are attributable to deliberate misconduct of the prosecutor.

Accordingly, for the foregoing reasons, we reverse defendant'sconviction for aggravated battery with a firearm and remand for a new trial.

Reversed and remanded.

GORDON and McBRIDE, JJ., concur.