APPEAL from the Circuit Court of Cook County; the Hon. B. FAIN
TUCKER, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Defendant, Victor Bellamy, was charged with a burglary allegedly committed on 8 June 1954. (Ill. Rev. Stat. 1953, ch. 38, sec. 84.) The indictment also charged that he had been previously convicted of burglary, which brought him within the Habitual Criminal Act. (Ill. Rev. Stat. 1953, ch. 38, sec. 602.) He was found guilty by a jury and judgment was entered on the verdict and defendant sentenced to the Illinois State Penitentiary "for the term of life", as required by section 602.
On this late appeal (the facts with respect to which appear in the latter half of this opinion), defendant argues: (1) the mandatory life sentence was unconstitutional; (2) the court failed to give limiting instructions to the jury, which denied him a fair trial; and (3) the State's closing argument was so prejudicial that it denied him a fair trial.
The evidence showed that the complaining witness, Mrs. Burton, returned home in the early afternoon to find defendant lying face down on the floor in her bedroom; she then left the apartment by the back steps, where she saw the janitor and his 18 year old son. When defendant came down the back steps, shortly thereafter, she pointed him out to the janitor and his son, who gave chase. Mrs. Burton later picked the defendant out of a four-man lineup and was present when he confessed his guilt to the arresting police officer. Defendant also took the stand and openly admitted the burglary in question and his previous conviction for burglary in 1951, reciting in some detail his previous prison experiences to explain to the jury his state of mind when he committed the second burglary.
The prosecutor, during his argument, referred to defendant as "that sick man, that mentally sick man"; defendant objected and the court ordered it stricken. The prosecutor also discussed defendant's telling the judge that he didn't want the public defender as his counsel; that a Chicago Bar Association lawyer was then appointed but was refused by defendant; and that his current counsel (who represented him at trial only during the presentation of the State's case in chief) then was appointed. Defendant frequently interrupted the prosecutor's closing argument.
• 1 In respect of defendant's first contention, it is well settled that the penalty to be attached to criminal behavior is a matter for the legislature. (People v. Smith (1958), 14 Ill.2d 95, 150 N.E.2d 815.) The States are free to enact habitual criminal statutes designed to deal with recidivism: "The rate of recidivism is acknowledged to be high, a wide variety of methods of dealing with the problem exists, and experimentation is in progress." Spencer v. Texas (1967), 385 U.S. 554, 566.
• 2 The issue is the constitutionality of the Habitual Criminal Act and not its wisdom. The latter has been called into serious question. As the Illinois Supreme Court, in again upholding the constitutionality of the Act, said (People v. Lamphear (1955), 6 Ill.2d 346, 350-351, 128 N.E.2d 892):
"In People v. Manning, 397 Ill. 358, this court did express misgiving as to the procedure established in section 602, stating at page 361: `It is conceivable that the introduction of such fact [the prior conviction] might influence a jury as to the character of the defendant and cause it to conclude that if he had been formerly convicted of a felony, there was a strong probability that he was guilty of the second offense. The requirements of the law as to the degree and character of proof required to establish the principal offense are not changed and the fact that evidence of the former conviction might create an adverse impression with the jury is not, in view of the requirements of the act, a denial of due process of law.' It is reasonably apparent that the evidence of the prior conviction, properly related only to the matter of punishment, might affect the jury's determination of guilt or innocence.
Likewise, other features of the statute are subject to reasonable criticism. The provision that on the subsequent conviction the maximum penalty be imposed, does not permit any flexibility in adjusting the punishment to the particular violation or allow for any mitigation, however much justified in an individual case. In addition, the maximum penalty may be unduly severe, especially where a life sentence is mandatory, as in the instant case.
In all of these respects our statute follows the form of the earlier habitual criminal acts. Dissatisfaction with their operation has resulted in widespread legislative modification. (See U. Chi. Law Revision Series, No. 1, p. 16ff.) The constitutionality of our statute has, however, been sustained. (People v. Lawrence, 390 Ill. 499; People v. Manning, 397 Ill. 358; People v. Kirkrand, 397 Ill. 588.) Correction of defects in the statute which experience had brought to light is a matter for the General Assembly."
• 3, 4 Defendant's second contention is that the failure of the court to give limiting instructions was error. He is correct in this contention, but the record does not show that he offered such an instruction or objected to the instructions given, so the point has not been preserved for review. In any event, the error is harmless since defendant made a judicial confession of his commission of the second burglary.
• 5 As to defendant's third contention, while the arguments of the prosecutor here were not altogether temperate, they were partly the result of defendant's constant interruptions of the prosecutor (at that stage of the trial, defendant was acting pro se). In any event, in view of the overwhelming evidence of defendant's guilt, the prosecutor's argument was harmless. People v. Stahl (1962), 26 Ill.2d 403, 186 N.E.2d 349.
The judgment of the circuit court of Cook County is affirmed.
We must now deal with an issue which defendant did not raise in this appeal, but which has developed during the pendency of the appeal owing to the enactment of the new Unified Code of Corrections (Ill. Rev. Stat. (1972 Supp.), ch. 38, secs. 1001-1-1 et seq.) which became effective on 1 January 1973. (Ill. Rev. Stat. (1972 Supp.), ch. 38, sec. 1008-6-1.) The issue is whether the sentencing provisions of the new Code apply to defendant and, if so, how they shall be applied to his mandatory life sentence imposed under the provisions of the Habitual Criminal Act. To deal with that issue requires the recitation of ...