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People v. Mcfarland

OPINION FILED FEBRUARY 4, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

LARRY JOE MCFARLAND, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Rock Island County; the Hon. DAVID DeDONCKER, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 9, 1981.

Defendant, Larry Joe McFarland, was charged with the offense of murder. Following a jury trial in the circuit court of Rock Island County, defendant was acquitted of murder but convicted of voluntary manslaughter and sentenced to a determinate term of 14 years in the Department of Corrections.

During the early evening of September 5, 1979, David Mewes was fatally stabbed in the abdomen with a butcher knife. As defendant has admitted he was responsible for this act and has not challenged the sufficiency of the evidence, we shall recite only those facts which are germane to the four issues he presents for appellate review.

The first issue presented for review is whether the trial court erred in refusing to strike the testimony of the pathologist who performed the autopsy on the victim, as his identification of Mewes was based on a hospital identification band. Defendant premises this assignment of error on the characterization of the identification band as hearsay and inadmissible as a business record.

In People v. Ward (1975), 61 Ill.2d 559, 338 N.E.2d 171, a testifying physician based his opinion, in part, upon medical records compiled by others who did not testify and which would normally not have been admitted into evidence. After citing the advisory committee's note to Rule 703 of the Federal Rules of Evidence (28 U.S.C.A.R. 703, at 503-04 (1975)) which mentioned, inter alia, the expenditure of substantial time in producing and examining various authenticating witnesses, the court stated:

"If such reports are of a type customarily utilized by the medical profession, then these reports may be used as factors by an expert in the determination of his opinion as to an accused's sanity even though the reports are not admitted into evidence. The restriction that these materials be commonly used by the medical profession attributes a high degree of reliability to them. [Citations.]" People v. Ward (1975), 61 Ill.2d 559, 568, 338 N.E.2d 171, 177.

• 1 A hospital identification band is certainly customarily utilized by the medical profession and is thus attributed a high degree of reliability. Considering this and the fact that reports may be used in an expert determination of sanity (People v. Ward) and in other situations (see Montefusco v. Cecon Construction Co. (1979), 74 Ill. App.3d 319, 322-24, 392 N.E.2d 1103, 1105-06), we hold that a hospital identification band may be similarly utilized as the basis of identification testimony. People v. Ransom (1976), 65 Ill.2d 339, 357 N.E.2d 1164, cited by both litigants, is inapposite to our determination as the testimony therein related to a chain of custody issue rather than a hearsay identification problem.

• 2 The second issue presented for review is whether defendant was denied his constitutional right to a fair trial by the comments of the prosecutor in closing argument. Before turning to this issue, we first consider the People's contention that this issue has been waived even though a nonspecific, oral post-trial motion was made by defendant. While agreeing that the requirement that a written post-trial motion specifying the grounds for a new trial is waived when a defendant makes a nonspecific oral motion for a new trial which is not objected to by the People (People v. Whitehead (1966), 35 Ill.2d 501, 221 N.E.2d 256), they argue that a specific objection during trial is still necessary to preserve the error for review. We agree with the State's position. The general oral post-trial motion may obviate the necessity of a specific written motion (People v. Redmond (1979), 73 Ill. App.3d 160, 390 N.E.2d 1364), but it does not eliminate the need for timely objection to claimed erroneous matter occurring during the course of the trial.

• 3 In the case at bar, defendant twice interposed objections to parts of the People's closing argument but only one assignment of error raised on this appeal relates to those objections. However, the trial court at no time had the remaining 12 allegedly improper comments brought to its attention by timely objection. Under these circumstances we find consideration of the propriety of the comments to which no objections were interposed has been waived.

• 4 While not raised by defendant, we note that Supreme Court Rule 615(a) provides a limited exception to the waiver rule. We may take notice of errors appearing upon the record which deprive an accused of substantial means of enjoying a fair and impartial trial (People v. Burson (1957), 11 Ill.2d 360, 143 N.E.2d 239) or in criminal cases in which the evidence is closely balanced (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856). Our review of the record does not indicate the existence of either of these situations and we therefore limit our review of this issue to the error preserved at trial and raised on appeal.

During closing argument, the People made the following statement:

"Again, when you don't have facts you start saying: well, what didn't he do? I'll give you an example. Is there any dispute that Larry McFarland touched that knife? Is it so hard to believe that he walked to a kitchen drawer and pulled out a butcher knife. Don't kitchen drawers keep butcher knives? Is that so hard to believe? His fingerprints weren't on the knife, but he tells you he handled it."

Defendant had not stated that he handled the knife; rather, he testified that he grabbed the victim's hand by the wrist and then put him in a bear hug, whereupon the wound was administered. While the People's misstatement of the evidence was improper, we do not find, in view of the totality of the evidence, that the remark influenced the result of this cause or that the verdict could have been otherwise had the misstatement been avoided. We therefore decline to reverse the judgment on this ...


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