*1 1111/2, 2.) if finds, Even the court so the defendant may 6360— not be entitled the alternative if sentencing the court finds that im prisonment necessary protect the public or that the addiction had no significant relationship (Hirschmann, crime. 175 Ill. App. 150, 529 express no opinion on the resolution of these questions. We find only there is enough evidence in the rec ord that defendant an may be addict or alcoholic to set in motion the statutory scheme for determining whether defendant may be entitled to alternate sentencing treatment.
Because the trial court failed to inform defendant of the sentenc- ing option Act, under the the sentence is vacated cause is re- manded for resentencing. part;
Affirmed in vacated in part and remanded.
HARTMAN, P.J., DiVITO, J., concur. ILLINOIS,
THE PEOPLE OF THE STATE OF Plaintiff-Appellee, v. STUCKEY, JR., al., FELIX et Defendants-Appellants. (3rd Division) 1—87—2573, First District Nos. — 3114 cons. 1—87 Opinion 17, 1992. Rehearing 31, 1992. filed June July denied — *3 GREIMAN, P.J., specially concurring. Defender, Fry, Chicago
Rita and (Henry A. Public of L. Hams Donald Honchell, Defenders, counsel), appellants. S. Assistant of Public Attorney, Chicago (Renee and O’Malley,
Jack State’s of Goldfarb counsel), Howlett, Attorneys, of for the Kathleen F. Assistant State’s People. of the court: opinion delivered
JUSTICE RIZZI Jr., was convicted trial, defendant, Stuckey, Felix a Following jury 38, 4) ag and 1985, ch. par. Stat. (Ill. of murder Rev. attempted 8— 38, 12— par. ch. (Ill. Rev. Stat. sexual assault gravated criminal impris years’ term of 60 sentenced Stuckey was 14). Defendant Defendant Bruce of Corrections. Department in the Illinois onment murder attempted guilty trial and was found received a bench Davis ( (Ill. battery 4) aggravated ch. and par. Rev. Stat. 8— Davis was sentenced 4). Defendant par. ch. Rev. Stat. 12— of Cor in the Illinois Department years’ imprisonment to a term of 40 rections. (1) review: whether this court for following
The issues are before cause police probable it ruled that the trial court erred when effec Davis; defendants were denied (2) whether to arrest defendant counsel and a trial because defense speedy assistance of counsel tive to the sixth discharge pursuant for a trial speedy failed to move Constitution, I, 8, of article section of the United States amendment Constitution, (Ill. Trial Act Rev. Stat. Speedy and the Illinois alternative, if we find for or, in the 5(a)), ch. 103— against issue, ruling the trial court’s State on this whether right defendants the obtain weight giving manifest of the evidence agreement; (3) whether alleged pretrial of an specific performance during closing argu comments impact prosecutorial cumulative process a fair trial and due ments violated defendants’ of the fourteenth amendments the sixth and guaranteed by law proven Constitution; (4) whether defendants United States trial court doubt; (5) whether guilty beyond reasonable Davis it sentenced defendants abused its discretion when affirm in incarceration, respectively. to 60 and 40 years’ years’ and remand. part, part, reverse in vacate part, a.m., waiting awake 30, 1986, at Merrill was Mary On March 1:30 barking, she hearing dogs daughters Upon for her to return home. a young on her back door observed through looked window girl’s pres- of the police Merrill informed the girl lying ground. on the ence in their assistance. yard requested her in re- home drove to Merrill’s and his Barry partner
Officer Kevin yard the victim found sponse report. police The victim Illinois. King Chicago, South Martin Luther Drive *4 raped by had been that she Barry identified as T.S. T.S. told Officer incident, of this at the time age Felix T.S. of Stuckey. years was her assault. prior to run from home a few weeks away she had T.S. was taken to Roseland Community Hospital and was later transferred to Cook County Hospital 1 p.m. around on March time, 1986. At that T.S. was almost comatose. There was blood her posterior vagina although she was not addition, menstruating. 50% of the skin on the right face, side of her and 70% the of skin on the left face, side of her had been avulsed revealing her bone, orbit her muscles, facial and the muscles her surrounding right eye. The victim also had abrasions on her right shoulder, arm, right buttocks, and addition, heels. In the top right of her ear missing, her eyes were shut, swollen and she was barely able to breathe because her nose and neck were swollen. T.S. placed on a respirator aid her breath- ing. She was given also several skin grafts, and was required to wear a “jobst stocking” to prevent her skin help from scarring. T.S. was treated in Cook Hospital’s County burn unit because most her in- juries were similar in nature to degree third burns. mother, W.S., victim’s visited her daughter at Cook County
Hospital. During this visit W.S. asked T.S. who hurt her. W.S. testi- fied that T.S. responded: “James, Felix and Bruno.” T.S. was refer- ring to James defendant Felix Stuckey, Stuckey, defendant Bruce Davis. toldW.S. about this police conversation, and she later testi- fied her daughter’s account of the crime and identification of defendants remained “consistent.”
Officer Barry searched area of the crime for evidence. Officer Barry found a trail of blood which ran down the from 104th alley Street, Street north to 103rd pool with a and beige jacket blood at the lying end of the trail. Officer also Barry hair, discovered human beads, sweaters, two pair of blue jeans, pair and a of red and white striped panties scattered on the pavement between 10332 and 10306 South Calumet Avenue.
Officer Stephen Sharp drove 109th Street and South Michigan Avenue, witnesses, where he met two Alana White and Yolanda Har- rington. Harrington and prostitutes White were who worked same area geographical as the victim. White and Harrington were then taken to the station for police questioning. During the course interview, the officers discovered that defendant Harrington’s “man.” In Harrington told Officer Thomas Sheehan Davis, that “Bruno” was also known as Bruce and that man, Felix, brother, Davis was “an associate of her and his James.” Harrington gave police defendant name and address.
On the morning of March police went 147 West 103rd Afterwards, Street and Harrington arrested defendant Stuckey. *5 the to do with vic- nothing had the that defendant police told Harrington involved. Davis was assault, and that defendant tim’s ar- subsequently The police Davis’ address. the defendant gave police 31, 1986, at on March a warrant Davis without rested defendant photographed Defendants were 119th Street and South Edbrooke. their arrests. subsequent the station police fingerprinted James photographs. from said T.S. later identified defendants apprehended. was never T.S. at Cook Horan visited Kevin Attorney
Assistant State’s pho- showed T.S. Horan Attorney Assistant State’s Hospital. County Stuckey, Philip Conley, Stuckey, James tographs defendant men her assailants. of these as defendant T.S. identified all Davis. indicted. and defendants were Philip Conley First, defendant Davis three motions. pretrial
The defense made in the form suppress his arrest and evidence quash made a motion to arrest the failed to search and police of his obtain photograph because warrants. motion, from testimony on the the court heard
During hearing Davis, officers. Officer arresting his brother Ed- arriving at 119th and South upon Thomas Sheehan testified brooke, he went to the front while another officer went door two men an- rear of the house. Sheehan told the court Officer door, police himself as a offi- swered front and that he identified himself, he cer. Sheehan that after he identified asked Officer testified “Bruno,” an unidentified male and that he was told speak by Sheehan stated that asleep “Bruno” was basement. Officer rear of the he left the front door and walked to the subsequently that he arrested defendant Davis property. Officer Sheehan testified of the house. after defendant Davis exited the rear door Officer of a search Sheehan admitted that he did not know of existence home, for arrest. warrant for the or a warrant Davis’ arrested that he awakened and Defendant Davis testified Davis, Terrell Similarly, while he was his bedroom. on in his home brother, sitting
Davis’ testified that he was his couch Terrell stated when officers entered his house. plainclothes police two that he did not the officers inside. invite proper arrest was be- trial court found that defendant Davis’ judge him. The trial
cause the had cause to arrest police probable stated: clear duty had cause and a police certainly probable
“[T]he the victim Davis,] look to who had been accused [defendant and the ***. witnesses
* * * Davis, they As to cause clearly probable to arrest him. Davis, And as to the question, they warrant had no warrant house, but either they were admitted into which what I might conclude the brother’s he testimony, says they knows, there far as he suddenly appeared as ar- they rested him back yard ***.
Either what way police justified in did.” they The trial court denied defendant Davis’ motion to quash suppress. defendants moved to dismiss indictments on the State, basis that an agreement relied with the and the State subsequently breached said agreement. Defendant Davis’ attor- argued ney that when State experienced difficulty its preparing trial, witnesses for State asked defendants to from de- “defer manding trial” “go by agreement” and to in order to it suffi- allow *6 cient time to samples obtain fluids from and to bodily defendants upon conduct tests Davis’ coun- laboratory specimens. Defendant agreed sel maintained that the State to against dismiss its case defendants, nolle in return prosequi for defendants’ reservation of object to to State’s On continuances. February State nol-prossed Conley’s but continued its Philip charges, prosecu- tion of defendants. to
Defendants also moved bar testimony relating to photographs of them which T.S. County Hospital. viewed Cook ar- Defendants gued that State failed inform them that T.S. previously identified them in the to her photographs hospi- shown while she talized. argued Defendants also that the State did not in- accurately form them of identity of the in attorneys detectives involved session, and that the State photo specify identification failed the manner in process Testimony relating which the was conducted. photographs to the was later admitted. trial, night
At T.S. that on the she testified March “looking place T.S. Stuckey prostitute.” James kept that she from and that she prostitution, stated earned $120 $60 gave her boot and to James Stuckey. $60 the street T.S. further that she later on approached testified night. that same T.S. maintained Stuckey James and defendants on three her into a and drove to defendant that men forced car then James defend- Stuckey’s residence. T.S. stated that Stuckey car, defendant leaving ant exited the her car with Stuckey in sexual engage made her Davis. T.S. testified that defendant Davis T.S. later on cross- with him her consent. stated intercourse without although agree examination that she did not to have intercourse with Davis, sex, he did not force her to have and that he did not her beat or threaten her before had intercourse. they
T.S. further testified that defendant and James Stuckey Stuckey returned to the car everyone and drove T.S. stated that park. upon at the arriving park, defendant held a in her gun face car, and ordered her to exit the complied. and she The victim further stated that clothes, forced her to her remove he vagina touched her with his penis, and defendant Davis again made her engage in sexual intercourse him her with without consent. T.S. stated on cross-examination that defendant Davis did not force her sex, to have and that defendant Davis did not threaten her or beat her prior intercourse. T.S. also admitted that she did not re- sist defendant Davis’ sexual advances.
T.S. testified that after her, defendants assaulted sexually re- moved a rope car, the trunk of the and tied one end the rope around her body hands. She recalled that defendants attached the opposite end of the rope to the back of the car. T.S. testified that then got car, back into drove the car forward and dragged her along the pavement behind the automobile. T.S. testified that defendants stopped the car a few minutes later whereupon defendant Davis got out of the car and untied her. T.S. stated that he then got back the car and left her lying in the street. T.S. testified that she went to two houses for help, and that the police found her and sent her to the hospital.
Dr. Demetra Soter also testified on behalf of the State. Dr. Soter examined the victim her admission to Cook County Hospital. Dr. Soter testified as to the nature of T.S.’ Dr. injuries. Soter opined T.S.’ injuries were consistent with being dragged along concrete road. Dr. Soter further stated that the act of someone forcing his pe- *7 nis into T.S.’ vagina could account for the presence of blood in her va- gina.
Phillip Conley testified on behalf of defendant and Dr. Stuckey, Rogelio Rodriguez testified on behalf of both defendants. Dr. Rodri- guez, a psychology intern at Cook County Hospital, interviewed T.S. daily for more than six weeks. Dr. Rodriguez stated that T.S. suffered from post-traumatic stress syndrome and suicidal ideation. Dr. Rodri- guez testified that on April 18, 1986, T.S. told him that defendants did not harm her. Dr. Rodriguez, however, admitted on cross-examina- tion that he observed that T.S. appeared frightened and confused when she stated that she wasn’t sure that she had correctly identified her assailants. Dr. Rodriguez further admitted that on April him not Stuckey
T.S. told that she was nervous because James had and she feared that he would return and attack apprehended, been in hours. hospital during hospital visiting her lied to she told Rodriguez
T.S. admitted on redirect that she when persons him did know the of the identity pictures that she not she him to leave her alone. identified wanted T.S. both defendants court.
Next, testified that James him in Phillip Conley Stuckey picked up a and that p.m. night car at 10:30 on of March T.S. was him the three picked up. According Conley, in the car when James to T.S. Michigan Avenue, got then to South out drove 103rd and where of the car and stated that he and Conley entered another automobile. Lounge then bar on 129th and South James went Famous closing Avenue, they remained there until time. Michigan closed, he went testified that after bar and James Conley they White Castle at 111th and South State Streets where restaurant that he and James then re- Conley saw defendant Davis. maintained that he see Conley turned to his house. said did not night. at all on Stuckey during ar- objections closing
Defendants several the State’s made First, gument. objected to the State’s statement that T.S. defendants “she grave,” obviously “one foot in the and that within Second, the objected prosecutor’s inches from defense dying.” *** *** the same consistent story statement maintained “[W.S.] from start to finish.”
Next, of its theory to the State’s statement objected characterized prosecutor for T.S. The attacking defendants’ motive a made “work on street.” Stuckey T.S. as who James runaway stated that T.S.: prosecutor further mistake some of the “[Mjakes big keeps money she her to they initially prosti- James doesn’t know wanted Stuckey friend, Davis, Bruno more, this got tute some this time he’s car, to Felix they go and his friend Felix Stuckey, going sex to pay he wants some and ain’t Bruno Davis decides against her it, he seat and have sex takes the back [T.S.] ($60.00) off, he finds the dollars sixty will and takes her clothes and Felix that’s ***. When James missing house, he tells them about come out of Felix Stuckey’s lesson, dollars, only to teach her a ($60.00), got sixty they ruin going far its prostitute her as as a but will ruin do, going to other what are prostitutes, James Stuckey’s *8 it, and with prostitute get away can from James keep money they got to teach her a lesson. *** do, her, satisfied, rape they What did are not they *** she’s there is knocking people under and she tells these want, no I am not what way going you hap- to do what the street pens, gets up gets dragged she tied and she down ff HeHs* statement,
Defendants also found the “I think that prosecutor’s everything that I am about to is ob- say supported by evidence” jectionable. the-
Similarly, objected defendants to the State’s of its explanation ory defendants, as to T.S. recanted her why why identification Dr. didn’t The Rodriguez question prosecutor her confession. said: “Mr. didn’t Rodriguez year, know that she knew Felix for a Mr. didn’t mean Rodriguez say you have what do opportunity you are unsure ***.” you guy, you know how could be unsure to the statement objected prosecutor’s will never be able to walk into a restaurant and order up “[T.S.] her, meal and not have entire restaurant look at never again, thanks to Stuckey].” [defendant
The defense also objected to the State’s comment Davis’ appearance. prosecutor said: blood is on his feet “[T.S.’] and it’s on it, his conscience he he knows did he knows that he was the one that her as raped tie, he sits here now in that suit clean shaven with a nice haircut.”
Finally, defendants objected during State’s statement its re- buttal argument that T.S. was in the kind of “engaged activity would shock most of us.”
After closing arguments, the jury found defendant guilty murder, of attempted assault, aggravated aggra- criminal sexual vated battery. Defendant Davis was convicted of murder attempted and aggravated battery.
First, alleges defendant Davis that he is to a new trial entitled be- cause the trial court erred his when denied motion to his ar- quash rest therefrom, and suppress evidence obtained and ruled that the po- lice probable cause to him arrest without warrant.
The State maintains that the quantum information known by police at the time of was more than suffi defendant’s arrest cient to probable establish cause where the victim’s mother testified that the victim identified defendant as one of the offenders immedi assault, after the ately Harrington gave and where Yolanda the police defendant’s name and agree. address. We the police knowledge exists where have cause to arrest
“Probable to believe a crime has person would lead a reasonable of facts which (People Erby (1991), arrested.” person committed been making a When warrant- through arrest, information received ‘may rely upon less “an officer *** reasonably as the informant’s statement long an informant so ” (Illi *9 knowledge.’ the officer’s other matters within by corroborated 527, 550, 213, 242, 76 L. Ed. 2d 103 S. 462 U.S. (1983), nois Gates 257, (1960), 362 U.S. 2317, 2334, v. United States quoting Ct. Jones 725, The which 269, 697, 707, 735.) inquiry 80 Ct. 4 L. Ed. 2d S. if there was determining probable a trial court by should be made arrest, a person is whether reasonable cause for a warrantless that a crime had been would have believed police position officer’s 398, 387, Ill. 2d 546 N.E.2d (1989), v. Adams 131 (People committed. 561, “If court finds that a warrantless arrest was based 566.) the trial lawful, cause, and evidence obtained on the arrest is deemed probable to incident to that arrest is admissible during a warrantless search (1984), v. Tisler prove guilt.” (People defendant’s to 147, of a trial court on a motion 469 N.E.2d The decision by a review arrest evidence will be disturbed quash suppress and Foskey finding manifestly People that erroneous. ing court unless 66, 192, 197; (1990), v. Redd People 136 554 N.E.2d 553 N.E.2d 322. Ill. 2d case, there was cause probable In the we find present sufficient First, the circumstances here were defendant Davis’ arrest. commit- to that a crime had been person to lead a reasonable believe the informa- Sheehan’s reliance upon ted defendant Davis. Officer by it was reasona- proper Harrington tion he received Sheehan knowledge. matters within his by corroborated other bly Harrington and and severely injured, knew that T.S. had been area. geographical in the same prostitutes T.S. worked as that the Moreover, has failed to demonstrate defendant Davis suppress and evi motion to his arrest ruling quash trial court’s on his trial court to It is the function of the erroneous. manifestly dence was credibility during to determine witnesses’ weigh evidence and v. Redd (People to and quash suppress. on a motion hearing heard the 322.) The trial court Ill. 2d Davis, Terrell Davis dur Sheehan, of Officer testimony cause probable had police and concluded that ing hearing, in arrest Davis, police “justified” and that arrest defendant ruling supported court’s him The trial ing without warrant. the evidence. Davis, the cause to arrest police probable
Since the Davis taken of defendant photographs ruled that correctly trial court been Accord- suppressed. arrest should not have to his subsequent the motion to ruling quash the trial court’s on ingly, we affirm suppress. assist were denied effective they
Defendants next contend failed to trial because defense counsel speedy ance of counsel and a sixth amendment discharge pursuant move for a trial speedy Constitution, I, section of the Illinois Con article United States 1985, ch. stitution, (Ill. Trial Act Rev. Stat. Speedy 5(a)). 103 — denial of in the alternative that trial court’s argue Defendants manifest of the evi- against weight their motion dismiss agreement evidence of a ignored pretrial dence because trial court State, spe- between them and the are therefore entitled agreement. cific of said performance
The that it not violate defendants’ constitu- State maintains did tional and because defendants’ trial commenced be- statutory of defend- fore the term and that there is no evidence 120-day passed, alleged agreement ants’ with the State. Trial following provision: Act makes the relevant Speedy trial, in this for an “Speedy (a) Every person custody State
alleged having jurisdiction offense shall be tried the court by within 120 from the date he was taken into unless days custody 1985, is occasioned the defendant ***.” Ill. Stat. delay by Rev. 38, par. 5(a). ch. 103— 31, Defendants on March 1986. Defendants cal were arrested 1, 1986, culated their time in until their time of custody April arraignment 18, on June 1986. find that miscalculated We defendants the amount of time in Defendants cannot count the they custody. period 8, 1986, 18, 1986, of time May between and June trial granted continuing court a continuance defend by agreement, 18, ants’ cases until June 1986. parties expressly agree Where a record, continuance on the an act constitutes affirmative attribut able to the defendant and 120-day period. (People time suspends 540, 553, 1196, Turner In the (1989), 128 Ill. 2d case, present in of trial was delay the commencement defendants’ by reason, occasioned them. For 95 in are attribut days custody able to reduced days custody by defendants. Defendants’ total are 18, 39 days since the of time and June period May between 1986, not counted. we rule that defendants re may Accordingly, be speedy ceived a trial.
562 assist argument received ineffective
Defendants’ for a defendant to obtain a rever also fails. order ance of counsel on the that he received ineffective assist of his conviction basis sal “(1) that his counsel made counsel, prove defendant must ance of deficient, he was serious, was so performance errors so and his commensurate the standards estab not a manner with functioning amendment, prej that those deficiencies so (2) the sixth by lished him fair trial result.” as to of a with reliable deprive udiced [him] 249, 258-59, N.E.2d v. Jenkins (People (1984), 466 U.S. 122, 128-29; Washington see also Strickland v. 2064.) In the present 104 S. Ct. 80 L. Ed. 2d for a trial by failing speedy did not err move case, defense counsel Trial Act. Ac Speedy no violation of the there was discharge because not deemed inef attorneys may defendants’ be we find that cordingly, discharge. trial speedy to move for a failing fective for Furthermore, that defendants’ alternate contention we rule their motion to dismiss be erred when it denied that the trial court alleged agree in violation of an were obtained cause their convictions not grant lacks merit. will them and the State ment between agreement of the alleged for specific performance defendants’ request agree the existence of an cannot substantiate because defendants promised in the record that State ment. There is no evidence Moreover, against them. charges that it dismiss defendants would prosecution both to commence the State has absolute discretion Matuck charge. (People nol-pros case, the State ex 1102, 1103-04.) In the 593-94, present charges and Phillip Conley’s it nol-prossed discretion when ercised its defendants. indicted ruling court’s on defendants’ find that the trial we
Accordingly, of the evi- weight the manifest contrary motion to dismiss was dence. impact improper the cumulative
Next, allege their arguments violated during closing made comments prosecutorial the sixth guaranteed law process to a fair trial and due Constitution, article the United States amendments to and fourteenth (Ill. Trial Act Constitution, Speedy I, the Illinois section 5(a)). ch. Rev. Stat. 103— *11 a fair process his to due argues that
Defendant Davis misconduct that the prosecutorial on the basis trial were violated ability judge’s affected closing argument possibility there was a in his case because render a fair decision in the simultaneous trial of two confusion inherent prejudice and a judge jury. defendants before that received a fair trial because
The State maintains
defendants
at trial
upon
presented
its
was based
evidence
closing argument
In instances where indi
inferences drawn therefrom.
and reasonable
trial court would not merit reversal
errors committed
aby
vidual
alone,
errors
a defendant
may deprive
the cumulative effect of said
713, 734-35,
215 Ill.
3d
App.
a fair
v.
(People
trial.
Johnson
cases, due
and fundamen
1260-61.)
process
In such
trial.
remanded for a new
John
tal fairness
cause be
require
son,
3d at
We First, argue their cumulative defendants dressing impact. “one foot in the State’s comment that T.S. had prejudiced by from Defendants grave, dying.” was within inches obviously [and] court sustained their objection
maintain that trial should have there at that T.S. testimony nearly this comment because was no trial died as a of her that the State’s comment con injuries. result We find condition the evidence ad cerning physical supported by T.S.’ was duced at T.S. she at Cook trial. was almost comatose when arrived had trou County Hospital, she was on a because she placed respirator breathing, ble and she suffered from severe abrasions which were similar in character to “A comments degree prosecutor’s third bums. cannot if be labelled those comments are based facts improper (People record reasonable inferences drawn those facts.” 659.) 529 N.E.2d “A Moya (1988), the trial prosecutor during closing argument, has wide latitude court’s will regarding propriety argument determination [an] (Peo be on absent a clear abuse of discretion.” appeal [overruled] ple Williams proper we find that the statement Accordingly, prosecutor’s
and that the trial court did not abuse its discretion when overruled to this comment. Stuckey’s objection
Next, argue prosecutor, improperly that the bolstered “maintained the same credibility of W.S. when he stated W.S. *** consistent that this argue from start to finish.” Defendants story testimony presented statement was because there was no improper disagree. argument trial which would This support argument. at trial. proper presented because it was upon testimony based her, W.S. testified and that T.S. daughter that she asked her who hurt “James, said: then asked prosecutor Felix and Bruno.” The W.S.: *** “Did tell the name of your daughter you Conley man *12 564 the “At I
driving responded: anytime my W.S. when talked to car[?]” daughter, Accordingly, she was consistent.” we find that the trial court did not its discretion when it overruled abuse defendant Stuck- ey’s objection to statement.
Third, defendants contend that the court trial erred when it over ruled defendant to the Stuckey’s objection prosecutor’s comment con defendants’ motive for cerning harming T.S. Motive is a sub proper ject argue to is jury, where there some evidence of a (People defendant’s motive to commit a crime. v. Lasley (1987), 158 614, 629, Ill. App. 672.) 3d 511 N.E.2d T.S. testified that on the night of the assault she earned from prostitution, she kept $120 $60 herself, for gave and she remaining Stuckey. James There $60 fore, argument the State’s that defendants’ attempted motive for kept murder that T.S. half of the she earned money prostitution proper, and the trial court did not its discretion when it abuse Stuckey’s objection overruled defendant to this statement.
Next, comment, defendants contend that the “I think prosecutor’s evidence,” I am im everything say supported by about proper because the his prosecutor expressed personal opinion. We dis agree. A comment on prosecutor may strength of his case based (People (1991), the evidence. 209 Ill. App. Smith 3d 568 N.E.2d 488.) record reveals that the prosecutor trial, outlined the evidence at presented against defendant and that he then stated that the evidence defendant proved Stuckey’s Therefore, guilt. the prosecutor’s statement was and the trial proper, court did not its when it Stuck abuse discretion overruled defendant ey’s objection.
Defendants next that argue prosecutor’s describing comment T.S. and as “in re being improper. agree. W.S. tears” was We This mark was because there is no in the record that improper evidence However, either “in improper woman was tears.” comments made during closing arguments will not constitute reversible error unless (People result to the accused. v. Jenkins prejudice substantial 249, 261, 122, 130; 209 Ill. 3d 568 v. Wil (1991), App. People N.E.2d liams Im are not mate proper during closing arguments comments made which rial do not fair trial. deprive (People defendant Cobb In the 1182-83.) present “in case, being we find that reference to T.S. and W.S. State’s material, such, prejudice tears” was not and as it did not them a fair trial. deny erred when trial court that argue addition, defendants con- comments State’s objection defendant overruled about that she was uncertain Rodriguez to Dr. cerning T.S.’ statement to ask her failure defendants, subsequent and his her identification Defend- Stuckey. since she knew unsure she could be how toas was uncertain that T.S. there is no evidence ants maintain concerning missing anxiety due of defendants her identification trial testimony was no there assailant, Stuckey, and James known T.S. had knew that Rodriguez Dr. whether which addressed of this state- find that a portion one year. Dr. Rodri- evidence. supported it was proper ment was ap- he that T.S. observed cross-examination admitted on guez sure that she wasn’t she stated confused when peared frightened further admit- Rodriguez Dr. correct assailants. identified the she had *13 him that she was nervous 14, 1986, T.S. told that on April ted he that she feared apprehended, had not been James Stuckey There is hours. hospital visiting her during and assault would return that T.S. had Rodriguez was aware evidence, however, that Dr. no therefore, of portion year; for one known defendant material, assertion, however, not was This improper. statement was a fair trial. defendants of deprive and therefore it did not T.S. comment that Next, prosecutor’s contend defendants meal and and order a walk into a restaurant be able to “will never A prose her” was prejudicial. restaurant look at not the entire have the evidence upon presented comment cutor has latitude to wide Moya (People committed. of the crime the court and evils The record 657, 659.) 22, 24, 529 N.E.2d 3d (1988), App. 175 Ill. similar injuries she sustained disfigured because shows that T.S. was was Therefore, the State’s comment degree in nature to third bums. when over did not its discretion and the trial court abuse proper, Stuckey’s objection. ruled defendant comment argue prosecutor’s defendants We improper. appearance and his neat guilt if However, is harmless an error was improper.
find that this remark it, and where assigning party to the of it is not prejudicial if the er even prevail entitled to not have been the defendant would Ill. App. 209 Jenkins (People committed. ror had not been ren the error was find that 249, 257, N.E.2d We 3d 568 defendants. against evidence overwhelming dered harmless that T.S. remark prosecutor’s argue Finally, us” most of kind that would shock of “engaged activity of than a determination attorney rather created a trial of defense 566 guilt defendants’ maintains, innocence. The State however, that
the remarks were made response defense attorney’s argu- ment referring to T.S. as a prostitute. agree. The State properly argued though that even T.S. had engaged prostitution night on the she injured, T.S.’ engaging in prostitution did not give defendants license to assault her.
After a careful record, review the we conclude that the cumula- tive effect of the errors at trial did not deprive defendants of a fair trial or due process law. next allege
Defendants that they were not proven guilty beyond a reasonable doubt. The State maintains that defendants were proven guilty beyond a reasonable doubt because overwhelming evidence of guilt defendants’ was presented at trial.
The relevant
inquiry upon review of the
sufficiency
the evi
dence in
“whether,
a criminal case is
after viewing the evidence in the
light most
the prosecution,
favorable to
any rational
trier of fact
could have found the essential elements of the crime
beyond
reason
able doubt.” (Emphasis
(Jackson
in original.)
v. Virginia (1979), 443
307, 319,
U.S.
61 L. Ed. 2d
2781, 2789;
99 S. Ct.
People v.
Trimble (1991),
3d
App.
580
1209, 1216;
N.E.2d
Peo
ple v.
Schorle
206 Ill. App.
91.) A
guilty verdict will not be reversed on appeal
“inconclusive,
unless it is
improbable, unconvincing, or
to human
contrary
experience.” Trim
ble,
Ill.
3d at
1216; Schorle,
Defendants maintain that there is a reasonable doubt as to their guilt because T.S.’ testimony was (1) credible because she told po- lice officers that defendant Davis and Phillip Conley tied her to the back of the car rather than defendant Stuckey; (2) she told Dr. Rodriguez that her identification of her assailants was erroneous.
After the considering light evidence the most favorable to the prosecution, we find that the trial court’s ruling is neither improb able, unconvincing, inconclusive, nor to contrary human experience. The trial court could have found defendants guilty of the for crimes which charged. were Officer testified Barry that T.S. identified defendant Stuckey as the person her, who assaulted sexually T.S. later testified that assaulted, she was and Dr. Soter testified that she found blood in vagina T.S.’ an during examination. In T.S. sus tained great bodily harm. T.S. testified that she was dragged across the pavement by to rope attached the back of a car. Dr. Soter testi fied that T.S.’ injuries were being consistent with dragged along the pavement. T.S. identified defendant Stuckey, defendant Davis and
mi viewing photographs, their upon her assailants Phillip as Conley that T.S. testified Rodriguez Dr. in court. she identified defendants she feared syndrome, traumatic stress post suffered from con- again. Rodriguez her Dr. one of defendants would assault the for identifying about apprehensive cluded was that T.S. proven find that defendants these we Accordingly, reasons. guilty a reasonable doubt. beyond its discretion the trial court abused allege that
Finally, defendants to 60 and 40 Stuckey years’ Davis when it sentenced defendants maintains that incarceration, Defendant respectively. Stuckey years’ because his and his cause remanded his sentence should be vacated investigation in his re presentence was not included history criminal of Corrections. 5—3—2 of Unified Code port by as section required (I find for 38, If we 1985, par. 3—2.) Rev. Stat. ch. 1005— ll. issue, argues in the alternative that Stuckey State on this defendant cause re his is excessive be vacated and his sentence and should resentencing. for manded not prejudiced
The maintains that defendant State from by adult criminal and that he benefitted its missing history, waived argues omission. The State also that defendant his right of a in the appellate presentence review of the issue defect Dye investigation report pursuant People bring alleged he failed to because of the trial history omission of his adult criminal the attention court, alleged objeption report and he made no defect his sentencing hearing. argues sentence and there-
Defendant Davis that his is excessive alternative, fore if are not should be vacated In we and reduced. that his argument, ag- convinced defendant Davis maintains gravated his convictions battery conviction must vacated be in- murder same aggravated battery attempted arise cident. State, 3—2(bX2) reliance section Unified upon 5— Corrections,
Code of was properly maintains that defendant Davis to a the trial court 40-year sentenced term of incarceration because where the may an extended-term sentence a defendant impose is convicted and the court finds the of any felony fense or heinous behavior in accompanied by exceptionally brutal cruelty. dicative of wanton Stat. ch. 1005 — 3— Ill. Rev. 2(b)(2). case, presentence investigation report lacked of defend- July description filed on 1987. The report
568 Stuckey’s ant adult criminal history. The report indicated that his criminal history adult had not been submitted at the time report the was written. On the date sentencing of the the hearing, report indi- cated that adult criminal history or- been dered, but had not been objec- received. Defendant made no tion the incomplete presentence during the investigation report sentencing hearing.
We find that defendant Stuckey prejudiced the omis by of sion his adult criminal investigation his history presentence The of report. doctrine waiver inapplicable present is case be cause the trial court committed error plain when sentenced defend ant Stuckey without a complete presentence investigation report. Supreme 615(a)
Illinois Court Rule provides plain error which affects a party’s substantial noticed on rights may appeal be even though the error not brought attention of the trial court. People v. Ill. Sherrod 134 2d R. see also 615(a); (1991), App. 220 Ill. 429, 433, 53, 3d 581 N.E.2d 56. plain
The doctrine of error “encompasses those errors which are obvious, accused, which, which affect substantial of the and uncorrected, if would an to the integrity reputation be affront of judicial proceedings.” (5th Black’s Dictionary 1979). Law 1035 ed. People Young (1989), v. 461, 1, 47, 471,
In Ill. 2d 538 128 N.E.2d supreme our court ruled that criterion of application “[t]he plain error rule in criminal is whether closely cases the evidence is balanced or the error is of magnitude such commission thereof denies the accused a trial impartial fair or sentencing hearing.” v. Bass People 230, 239, Ill. (1991), 220 580 N.E.2d 471, quoting Young, 46, Ill. 2d at 538 N.E.2d at we
noted that rule dual of “[tjhis purposes ‘correcting serves the serious injustices’ preserving integrity ‘the of the reputation judicial ” process.’
The prior criminal record of be when a must considered 1985, court 38, sentence. Rev. ch. 1005— imposes (Ill. par. Stat. 3-1; 563, Hart see People also Code of Section 5—3—1 the Unified Corrections for a before provides defendant shall be sentenced felony “[a] con presentence report investigation presented written to and 3—1; (Ill. par. sidered court.” Rev. Stat. ch. 1005— People Youngbey see also 82 Ill. 2d 420-21.) In the Unified Code of Corrections makes investiga- of presentence contents governing following provision reports: tion set report shall Report, (a) presentence
“Presentence forth: criminality delinquency history the defendant’s
(1) 1005-3-2. Stat. ch. ***.” Rev. *16 sentenced, Code Unified Stuckey
At the time defendant his- his the trial court consider required that of Corrections explicitly present done in the This was not criminality. of delinquency tory not infor- did contain investigation report the presentence case since It history. adult criminal Stuckey’s defendant concerning mation Code of the section 5—3—2 Unified clear that trial court violated history criminal Stuckey’s of The omission of defendant Corrections. which an obvious error investigation report from the presentence This error was of to due upon right process. encroached the accused’s a fair Stuckey impartial it and magnitude such denied defendant find the trial court abused sentencing we hearing. Accordingly, im- its it defendant years’ discretion when sentenced and prisonment. Stuckey’s therefore vacate defendant sentence We sentencing remand his case for a new hearing. hearing,
At the trial court Stuckey’s sentencing new history, conjunction must obtain and consider adult criminal in his presentence report, with the information in his existing investigation of at- committing and sentence defendant for crimes aggravated murder and criminal sexual assault. tempted Next, court its discretion when we find the trial abused Defendant years’ imprisonment. defendant Davis to 40 sentenced attempted aggravated battery convictions for murder and Davis’ her upon dragging both T.S. the rear of a car and tying based ag rule for pavement. across the that defendant Davis’ conviction gravated reversed, and the of his sentence portion must be battery vacated, ag for upon aggravated battery based his conviction because of gravated a lesser included offense murder. attempted battery 389, People Washington (1984), See 127 Ill. 1302; People Bingham 437. herein, For the reasons stated convictions are af- aggravated murder criminal sexual assault attempted firmed, his Defend- sentencing hearing. case remanded for new affirmed, murder is attempted ant Davis’ conviction sentence for reversed, aggravated portion but his conviction for and the battery is of his sentence based the offense of aggravated battery is va- cated. reasons,
For the foregoing affirm we in part, part, reverse va- cate in part, remand. part;
Affirmed in reversed part; vacated in part; and remanded. CERDA, J., concurs. GREIMAN,
PRESIDING JUSTICE specially concurring: This concurrence is not special disagree written with the major- ity’s holdings on any issue but to address the consequences a defec- tive presentence investigation report.
The majority opinion holds that the correctly facts of case ne- cessitate for resentencing remandment the plain under error doctrine presentence not report did contain defendant’s criminal determine history required as statute. sentence, To an appropriate a sentencing court be apprised should defendant’s clearly status as either a first-time offender or recidivist.
However,
presentence report
absence
or the failure of
such
all
report
include
enumerated in the
(Ill.
factors
statute
Rev.
Stat.
ch.
3—2) does
re
automatically require
1005—
*17
for resentencing.
mandment
The parties
duty
bring
have a
to
to
the attention of
sentenc
ing
alleged
authority any
deficiency
inaccuracy
or
in
presentence
report. (People
v.
Ill. 2d
(1980),
Meeks
81
411 N.E.2d
Ac
the issue of a
be
cordingly,
presentence report
defective
can
deemed
waived
a
fails
where
to
party
object
trial court about
al
any
leged
Meeks,
or
deficiency
report.
81 Ill. 2d at
inaccuracy
533
(where
presentence report
issue
not fully comply
at
did
with the
statutory requirements,
resentencing was not
required
de
fense
preserve
counsel failed to
the error for
also
review);
People
see
v.
(1985),
392;
106 Ill. 2d
478
v.
Madej
People
Godinez
(1982),
Ill. 2d
(and
therein);
91
571 1, 107-08, People v. Ill. 468 N.E.2d Gacy (1984), 103 2d report. of the resentencing re that defendant’s (in argument 1171 rejecting “no which it saw basis court observed supreme quired, report would investigation presentence find a formal written v. case”); People on the facts of determination judge’s alter (this court Calhoun re a failing presentence error in order the trial court’s held required pro of statutorily the “omission port was harmless because tech amounts sentencing hearing, in when the omission cedure defendant, does not prejudice error which does not nical formal resentencing”); People Casper remand require re (the presentence N.E.2d 510 deficiencies con of the trial court’s well port light did not warrant remandment necessary). a sentence of imprisonment sidered conclusion that ILLINOIS, Plaintiff-Appellee, THE PEOPLE THE STATEOF OF CLARK, Defendant-Appellant. JOHN (5th Division) No. First District 1 — 90—1564 3, 1992. 5, 1992. Rehearing August Opinion filed denied June —