APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
J. MAHON, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant, Lamont Shumate, was charged in an information with robbery, attempt robbery and aggravated battery. (Ill. Rev. Stat. 1977, ch. 38, pars. 18-1, 8-4 and 12-4(a).) In a jury trial defendant was found guilty of attempt robbery and the lesser included offense of battery. He was acquitted of robbery and aggravated battery. For the attempt robbery defendant was sentenced to serve an extended term of eight years in the Department of Corrections, and for battery he received a concurrent term of 364 days. From these judgments and sentences defendant has appealed, presenting the following issues for review: (1) whether the State denied defendant a fair trial where the prosecutor, in response to a remark by defense counsel in his opening statement, objected and commented that defendant could "get out on probation"; and (2) whether the trial court committed error in imposing the foregoing sentences.
For reasons hereinafter set forth we affirm both the judgments and the sentences imposed thereon.
Since a detailed recitation of the testimony elicited at trial is not necessary in disposing of defendant's contentions on appeal, we briefly summarize the principal evidence.
Testifying for the State were the victim, Mary Ann Chilcutt, and two Chicago police officers, Lieutenant Richard Dwyer and Officer Daniel Dettloff, who witnessed the entire incident. At approximately 1:45 a.m. on January 6, 1979, the victim and a companion, Joey Anderson, were walking west on Evergreen toward the victim's automobile which was parked on Evergreen midway between North Park and Wells. In the same area Lieutenant Dwyer, Officer Dettloff and Officer Philip Watzke were working an undercover detail in an unmarked car. Because they had observed defendant and another man closely following the victim and her friend, the officers stopped their vehicle at the intersection of Evergreen and North Park and kept all four persons in view. As the victim reached her car and started to put the key in the lock on the driver's side, defendant stepped up behind her, grabbed her by the shoulder, spun her around and punched her on the left side of the face, knocking her to the ground. After she fell, the victim saw the second man, whom the officers identified as Vincent Galloway, standing three to four feet away.
Defendant picked the victim's keys off the packed snow and threw them to Galloway, then took hold of the victim's unbuttoned fur coat and said, "Give me your coat, bitch." While they were struggling for the coat the police exited their vehicle and, announcing their office, rushed to the victim's aid. Both defendant and Galloway were apprehended as they attempted to flee from the scene. After defendant was arrested, he denied committing a robbery, claiming that an unidentified "she" had robbed him or a friend of his. Lieutenant Dwyer asked defendant what had been taken. Defendant said, "My wallet. Oh, it's in my pocket." A wallet was later recovered from defendant's pants pocket.
The victim sustained a hairline fracture of the left cheekbone, blurred vision in the left eye, and abrasions to the back of the ear. Her vision continued to trouble her.
Defendant took the stand in his own defense, admitted to a prior conviction for aggravated battery for which he served 26 months in the penitentiary, but denied that he had taken any property from the victim or had even seen her on the street that night. Defendant said that he was picked up by the police on Evergreen shortly after he, his girlfriend Clarisse Brown and his friend Vincent Galloway had left the Club Misty lounge on North Wells looking for a taxicab. The driver of the fourth cab defendant flagged down agreed to pick them up but insisted on being paid in advance. Defendant reached into his back pocket for his wallet but discovered that it was missing. The driver said he would wait for a few moments while defendant tried to find his wallet. He walked 20 to 30 feet west on Evergreen and found his wallet and showed it to Galloway and Brown. As defendant started to return to the taxi, Galloway came down the street to tell him that the cab was going to leave. Before he got back to the cab defendant was overtaken by a vehicle which stopped next to him. Three plainclothes police officers jumped out of the car, grabbed defendant and without any provocation or resistance on his part started striking his face and hands with their pistols. Lieutenant Dwyer pointed his gun at defendant and acted as if he was going to shoot him, but the "short officer" (Dettloff) intervened and said, "Don't shoot." According to defendant, Lieutenant Dwyer put up his gun, grabbed a flashlight and beat him for 10 minutes. Defendant testified that he suffered multiple fractures to his wrists and head as a result of this beating. His glasses were also broken.
Defendant's former girlfriend, Clarisse Termane Lewis, corroborated most of defendant's testimony. She stated that five to seven minutes after defendant left to search for his wallet the cab driver became impatient. Galloway went to find defendant. Two or three minutes later the driver told Lewis she would have to get out of the cab. She pleaded with him to back the cab up so that she could find defendant and Galloway. After the cab backed up, Lewis saw defendant and Galloway being held at gunpoint by three men. She had the driver take her to the nearest police station where she informed the desk officer what she had seen. About a half hour later an officer advised her that defendant and Galloway had been arrested for robbery. On cross-examination Lewis testified that both defendant and Galloway were out of her sight for five to seven minutes.
In rebuttal, Officer Dettloff testified that neither he nor any other officer struck defendant or attempted to shoot him.
The jury returned verdicts finding defendant guilty of attempt robbery and battery and not guilty of robbery and aggravated battery. A presentence investigation report was thereafter prepared which revealed that defendant had previous convictions for theft, criminal trespass to a vehicle and aggravated battery. On the aggravated battery conviction defendant was sentenced to serve two to six years in the penitentiary from which he was paroled on October 13, 1978.
After hearing arguments in aggravation and mitigation, the trial court commented that there are two reasons for sentencing — punishment and rehabilitation. Expressing the belief that there was no hope for defendant's rehabilitation, the court said it would base its sentence solely with the objective of punishing defendant for his conduct. The court found that the extended term provisions applied because defendant previously had been convicted of a crime of the same or greater degree (aggravated battery, a Class 3 felony). The court therefore sentenced defendant to serve an extended term of eight years in the Department of Corrections on the attempt robbery conviction and 364 days on the battery conviction, the sentences to run concurrently.
Defendant's first argument on appeal is that reversible error was committed when, in response to defense counsel's remark in opening statement that defendant would be sent to the penitentiary if convicted, the prosecutor objected and said, "He can get out on probation. Sentencing is something, a matter for the Court, anyway." The prosecutor's objection was overruled. Defendant now contends that by notifying the jury that probation was an available sentence, the prosecutor denied defendant his right to a fair trial because the jury's "reluctance to convict the defendant could be easily overcome by reliance on the knowledge he need not suffer for those convictions but could `get out on probation.'" The People respond that by not objecting to the prosecutor's remark or raising it in his motion for a new trial defendant has waived it for review. In the alternative the People argue that the error was harmless.
In the case at bar defense counsel made no objection to the prosecutor's remark. If a timely objection is made at trial to an improper remark by counsel, the court, by sustaining the objection or instructing the jury to disregard the remark, can usually correct the error. (People v. Carlson (1980), 79 Ill.2d 564, 577, 404 N.E.2d 233.) Counsel's failure to object at trial waives those errors which the court can correct by sustaining an objection and admonishing the jury. "Otherwise, counsel, by not giving the court the opportunity to prevent or correct error at trial, will gain the advantage of obtaining a reversal through his own failure to act, either intentionally or inadvertently." (Carlson, at 577.) This waiver doctrine is not absolute, however. "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." (Ill. Rev. Stat. 1979, ch. 110A, par. 615(a).) This rule has been construed to permit review of errors that have not been properly preserved for review where the evidence is closely balanced and there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record or where the errors are of such magnitude that the commission thereof denies the accused a fair and impartial trial. Carlson, at 576-77.
• 1 In light of the evidence in this case where, in addition to the unimpeached testimony of the victim, there was testimony of two Chicago police officers who witnessed the entire incident and arrested the offenders at the scene, we believe it would strain credulity to suggest that the evidence was "closely balanced." Defendant, however, argues that the error is of such magnitude that review is necessary to safeguard his right to a fair trial. We do not agree. Moreover, we note that defendant failed to raise this issue in his motion for a new trial, which affords an additional reason to deny review. People v. Pickett (1973), 54 Ill.2d 280, 282, 296 N.E.2d 856.
Assuming, arguendo, that defendant had preserved this alleged error for our review, we would not find that reversible error had been committed.
Our supreme court has repeatedly held that where the jury has nothing to do with fixing the punishment, it is improper for either side in a criminal case to argue the punitive effect of the jury's verdict. (People v. Klapperich (1939), 370 Ill. 588, 593-94, 19 N.E.2d 579; People v. Burgard (1941), 377 Ill. 322, 330, 36 N.E.2d 558.) In both Klapperich and Burgard, criminal convictions were reversed even though the prosecutor's remarks that defendant could receive probation were ostensibly made in reply to defense arguments that defendant would be committed to the penitentiary. In the instant case, however, the prosecutor's reference to probation was not made in argument to the jury but by way of objection addressed to the court. This has been found to be of critical significance in determining whether the mention of probation constitutes reversible error.
In People v. Galloway (1963), 28 Ill.2d 355, 192 N.E.2d 370, defense counsel stated in closing argument to the jury that "* * * this is what they have to prove beyond a reasonable doubt before you can send him from the bar of the court to wherever he may be committed." The prosecutor promptly objected, saying, "Objection inasmuch as the offense is probationable," but the objection was overruled. The supreme court found that its previous decisions in Klapperich and Burgard were not controlling "since the subject was injected by way of objection rather than argument." The court noted, "It was defense counsel who first referred to commitment, thus provoking the objection, and we are loathe to say that reversible ...