Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Du Page County,
the Hon. Bruce R. Fawell, Judge, presiding.
JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Following a joint bench and jury trial (jury as to defendant) of defendant and three co-defendants in the circuit court of Du Page County, the defendant, Gregory Dixon, was convicted of armed violence, aggravated battery, mob action, and disorderly conduct. He was sentenced to concurrent terms of four years' imprisonment on the armed-violence and aggravated-battery convictions. The trial court imposed no sentence, however, on the mob-violence and disorderly-conduct convictions, holding that they "merged" into the other two offenses. The appellate court, in a Rule 23 order (73 Ill.2d R. 23), reversed defendant's armed-violence conviction on the basis of our decision in People v. Haron (1981), 85 Ill.2d 261, affirmed the aggravated-battery conviction, and refused to remand for sentencing on the two convictions upon which no sentence had been imposed. (96 Ill. App.3d 1201.) We allowed the State's petition for leave to appeal. No question is raised as to the propriety of the reversal of the armed-violence conviction.
The charges in question arose from a violent altercation between several inmates in Tier I East of the DuPage County jail. Two of the State's witnesses, who were deputy sheriffs, testified to seeing defendant and at least one co-defendant repeatedly strike another inmate, Michael Mastro, with wooden broom or mop handles as 12 to 14 other persons congregated nearby. Mastro was treated at the Central Du Page Hospital for multiple abrasions and contusions and a groin injury. Defendant presented on his behalf a co-defendant, George Hopkins, for the purpose of showing self-defense. Hopkins testified that there was considerable racial tension and hostility in the jail which precipitated the fight. He stated that on the day in question he initially observed defendant and Mastro "slamming sticks at each other." When he entered the hall, Mastro then proceeded to strike him, at which point, he stated, defendant intervened to assist him.
Defendant contends that improper remarks by the prosecutor during closing arguments deprived him of a fair trial. Specifically, it is argued that the prosecutor commented on defendant's failure to testify. The complained-of remarks were made in rebuttal and in response to defense counsel's argument. Defense counsel had recounted the testimony of George Hopkins regarding racial tension and previous confrontations in the jail tier between the blacks and the whites and advised the jury to "keep in mind what is going on in Greg Dixon's mind." In response, the prosecutor stated:
"You also heard [defense counsel] tell you during his closing argument to keep in mind what was happening in Greg Dixon's mind about this racial fear and so forth.
Do you know what was happening in Gregory Dixon's mind? Did you hear any testimony whatsoever of what was going on in Gregory Dixon's mind?"
The trial judge sustained defense counsel's objection. Defendant argues that this comment was a direct, unambiguous reference to his decision not to testify. We do not agree.
The appropriate test for determining whether a defendant's right to remain silent has been violated is whether "the reference [was] intended or calculated to direct the attention of the jury to the defendant's neglect to avail himself of his legal right to testify." (People v. Hopkins (1972), 52 Ill.2d 1, 6; People v. Mentola (1971), 47 Ill.2d 579, 582; People v. Mills (1968), 40 Ill.2d 4, 8; People v. Wollenberg (1967), 37 Ill.2d 480, 488.) The prosecutor may comment on the uncontradicted nature of the State's case (People v. Skorusa (1973), 55 Ill.2d 577, 584; People v. Norman (1963), 28 Ill.2d 77, 81), and, where motivated by a purpose of demonstrating the absence of any evidentiary basis for defense counsel's argument rather than a purpose of calling attention to the fact that defendant had not testified, such argument is permissible (People v. Jones (1970), 47 Ill.2d 66, 67-70). Moreover, a defendant cannot ordinarily claim error where the prosecutor's remarks are in reply to and may be said to have been invited by defense counsel's argument. (People v. Vriner (1978), 74 Ill.2d 329, 344, cert. denied (1979), 442 U.S. 929, 61 L.Ed.2d 296, 99 S.Ct. 2858; People v. Zuniga (1973), 53 Ill.2d 550, 558; People v. Bey (1972), 51 Ill.2d 262, 266.) We believe that the prosecutor's comment here, in the context in which it was made, was proper rebuttal invited by defense counsel's argument and was not made for the purpose of calling attention to the defendant's failure to testify. (People v. Bey (1972), 51 Ill.2d 262, 266; see also United States v. Bright (5th Cir. 1980), 630 F.2d 804, 828; Sanchez v. Heggie (10th Cir. 1976), 531 F.2d 964, 966-67, cert. denied (1976), 429 U.S. 849, 50 L.Ed.2d 122, 97 S.Ct. 135.) We note, too, that the court instructed the jury pursuant to defense counsel's request that "the fact that a defendant did not testify should not be considered by you in any way in arriving at your verdict." In our judgment the prosecutor's invited remarks in these circumstances did not deprive defendant of a fair trial. People v. Bey (1972), 51 Ill.2d 262, 266-67; see also United States v. Reicin (7th Cir. 1974), 497 F.2d 563, 572.
The State urges that the appellate court should have remanded the cause for the imposition of sentence on either defendant's mob-action or disorderly-conduct conviction. The jury was instructed on disorderly conduct as a lesser included offense of mob action, and the State concedes that defendant may not be sentenced concurrently for both crimes. The defendant argues, however, that the appellate court is without jurisdiction to entertain an appeal by the State from a non-final order where the defendant has not raised any issue concerning its propriety. We note that there is a conflict in the appellate court on this issue. Compare People v. Gum (4th Dist. 1980), 85 Ill. App.3d 298, and People v. Dixon (2d Dist. 1981), 96 Ill. App.3d 1201 (Rule 23 order), with People v. Riley (1st Dist. 1980), 89 Ill. App.3d 438, and People v. Dean (5th Dist. 1978), 61 Ill. App.3d 612.
We agree that the final step in a criminal judgment is the sentence (In re J.N. (1982), 91 Ill.2d 122; People v. Allen (1978), 71 Ill.2d 378, 381), and that in its absence an appeal ordinarily cannot be entertained because the judgment is not final (People v. Lilly (1974), 56 Ill.2d 493, 496; People ex rel. Filkin v. Flessner (1971), 48 Ill.2d 54, 56). In cases somewhat similar to this, however, the absence of a sentence has not been thought to preclude action by the reviewing court. In People v. Lilly (1974), 56 Ill.2d 493, the defendant had been found guilty of rape and indecent liberties with the same victim based upon a single act. The trial judge had entered judgment on both verdicts but sentenced defendant only on the rape conviction. On appeal, the defendant argued that his sentence was improper and that the trial court erred in entering a judgment of conviction on the indecent-liberties charge. This court agreed that there could be but one conviction where both charges were predicated on a single act and vacated the indecent-liberties conviction, holding that there was no jurisdictional bar to vacating the judgment despite its non-final character because the case was properly before the court on appeal with regard to defendant's rape conviction. 56 Ill.2d 493, 496.
Following Lilly, in People v. Scott (1977), 69 Ill.2d 85, this court held that the appellate court had authority to remand for the imposition of sentence on defendant's aggravated-kidnaping conviction where defendant had appealed that conviction seeking its reversal. The court noted that "Rule 615(b) specifically authorizes the reviewing court to modify the judgment or order from which the appeal is taken," and held that "in ordering the imposition of a sentence on the conviction on which no sentence had previously been imposed the appellate court did not increase defendant's punishment." (69 Ill.2d 85, 88.) In so holding, the court rejected the defendant's contention that such action expanded the State's right to appeal beyond that provided for in our rules (see 58 Ill.2d R. 604), pointing out that the issue before it was not whether the State could appeal the refusal to impose sentence, for it was the defendant who had appealed. While those cases do not resolve the issue of the State's right to seek a remand here, they do indicate that the absence of sentence on one of two or more defendant-appealed convictions is not a jurisdictional defect.
The issue here differs in that the defendant has not appealed from the mob-action and disorderly-conduct convictions. Because he did not appeal those convictions, defendant urges that remanding for the imposition of sentence would effectively broaden the right of the State to appeal. We do not agree. The situation before us is an anomalous one in that the trial judge's failure to impose sentence on defendant's convictions for mob violence and disorderly conduct stemmed from his belief that they merged into the other two offenses upon which he did impose sentence. The armed-violence, aggravated-battery, mob-action, and disorderly-conduct charges ...