dissenting:
The defendant, Rolando Marinez, was charged with attempted murder, aggravated battery and two counts of armed violence. The charges against the defendant arose from an incident at a bowling alley in December 1986. The prosecution alleged that the complainant, Donna Chisenall, was returning from the rest room when she turned a corner and came face to face with defendant. Defendant then allegedly slashed Chisenall’s neck with a switchblade. Following a jury trial, defendant was found guilty of two counts of armed violence and aggravated battery. The trial court sentenced defendant to a 10-year term of imprisonment.
On appeal, defendant raises an issue as to whether the trial court committed reversible error in allowing the prosecutor’s remarks during closing argument regarding the defendant’s intoxication defense. The majority concludes that the prosecutor’s rebuttal comments constituted a misstatement of the law, entitling defendant to a new trial. I respectfully dissent.
During the trial, defendant promoted his intoxication as a defense. In conference regarding jury instructions, defendant tendered Illinois Pattern Jury Instructions, Criminal, No. 24—25.02 (2d ed. 1981), which states:
“An intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting knowingly.”
This instruction was allowed by the trial court. Defendant’s closing argument referred to the instruction, again pointing out defendant’s intoxication defense. Finally, in rebuttal, the prosecutor reminded the jury of the instruction on intoxication, and continued, clarifying the meaning of the word “incapable,” as used in the instruction:
“So what is incapable? It means that the condition is so extreme as to suspend all reason and make impossible the existence of a mental state, which is an element of the crime. It just doesn’t mean intoxicated because you can be intoxicated and do something. I can [sic] be so extreme you can’t reason and intend to do what you are doing.”
The majority terms these remarks an “inaccurate interpretation” of the IPI instruction tendered by defendant, and finds they constitute plain error. (196 Ill. App. 3d 318.) I disagree.
The majority’s reliance on an analogy to People v. Haywood (1980), 82 Ill. 2d 540, is flawed. Haywood dealt with two conflicting instructions on intoxication, both given to the jury. The first instruction presented in Haywood was very similar to the instruction given to the jury in the instant case. The second Haywood instruction, however, stated:
“While intoxication may be used to nagative [sic] the element of intent when it is extreme, merely being drunk or intoxicated is not a sufficient defense. Only if the Defendant’s intoxication is so extreme as to suspend entirely his power of reason, rendering him incapable of any mental action, is that intoxication a defense to the offense of Murder.” (82 Ill. 2d at 544.)
The problem in Haywood centered on the ambiguous attempt by the second instruction to redefine the clear statement of the intoxication defense presented in the first instruction. The supreme court was particularly concerned with' the possibility that the second instruction could be construed as requiring a state of unconsciousness for an intoxication defense. (82 Ill. 2d at 545-46.) No such problem exists in the instant case.
The prosecutor’s rebuttal arguments did not present a conflicting instruction; they merely emphasized the requirement that defendant be rendered unable to form the “mental state which is an element of the crime.” This does not constitute confusing or ambiguous language, nor is it a misstatement of Illinois law. The prosecution is afforded significant latitude in closing argument. (People v. Belton (1982), 105 Ill. App. 3d 10.) Furthermore, the substance and style of closing argument is within the discretion of the trial court, and its decisions will not be disturbed absent extreme error. (People v. Cruz (1983), 119 Ill. App. 3d 868.) The decision of the majority represents an unwarranted encroachment on the trial court’s discretion. I dissent.