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People v. Beasley

OPINION FILED SEPTEMBER 22, 1982.

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

v.

SHAWN BEASLEY ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Romie Palmer, Judge, presiding.

PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 19, 1982.

After a jury trial, defendants, Shawn Beasley and Larry Banks, were found guilty of burglary and sentenced to the Illinois Department of Corrections for terms of six years. On appeal, they contend: (1) that improper cross-examination of defense witnesses and improper rebuttal closing argument by the prosecution deprived them of a fair trial; (2) that the trial court erred when it admitted photographic evidence of fingerprints into evidence without sufficient foundation; and (3) that the trial court abused its discretion when it denied defendant Banks' petition for treatment under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1979, ch. 91 1/2, par. 120.1 et seq.).

I

Defendants first argue that several errors made by the prosecution in cross-examination and closing argument deprived them of a fair trial. These alleged errors can be classified in 10 categories: (1) cross-examination of defense witnesses as to whether other witnesses were lying or were wrong; (2) failure by the prosecution to prove up its impeachment of defendant Banks; (3) cross-examination as to defendant Banks' post-arrest silence; (4) cross-examination of defendant Banks' alibi witnesses as to why they had not informed authorities that they were with Banks on the evening of the crime; and (5) closing argument comments which (a) allegedly deprecated the reasonable doubt standard; (b) allegedly disparaged the presumption of innocence; (c) allegedly suggested to the jury that it was allied with the State in the prosecution of crime; (d) allegedly informed the jury that it was not to be concerned with the rights of defendants; (e) allegedly misrepresented the evidence; and (f) allegedly impugned the integrity of defense counsel. Defendants contend that these alleged errors, when viewed cumulatively, amounted to reversible error. Significantly, except for alleged errors falling within the fourth category, no objection was made at trial to the allegedly improper cross-examination and closing argument. Moreover, neither defendant raised any of these alleged errors in his written motion for new trial.

Failure to make a timely objection at trial to the admission of evidence operates as a waiver of the right to consider the question on review. (People v. Baynes (1981), 88 Ill.2d 225, 230, 430 N.E.2d 1070; People v. Carlson (1980), 79 Ill.2d 564, 576, 404 N.E.2d 233.) And if a defendant fails to make a timely objection at trial to allegedly improper closing argument, such error is deemed waived. (People v. Lucas (1981), 88 Ill.2d 245, 250, 430 N.E.2d 1091; People v. King (1977), 66 Ill.2d 551, 559, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L.Ed.2d 181, 98 S.Ct. 273.) Moreover, failure by a defendant to raise an issue in his written motion for a new trial constitutes a waiver of that issue. People v. Lucas (1981), 88 Ill.2d 245, 250; People v. Pickett (1973), 54 Ill.2d 280, 282, 296 N.E.2d 856.

However, the waiver rule is not absolute, and error that rises to the level of plain error may be considered by a reviewing court despite the defendant's failure to preserve properly the record for review. (People v. Baynes (1981), 88 Ill.2d 225, 230; People v. Jackson (1981), 84 Ill.2d 350, 359, 418 N.E.2d 739.) This exception to the waiver rule is embodied in Supreme Court Rule 615(a) (73 Ill.2d R. 615(a)), which provides:

"Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court."

Our supreme court has established the following test for applying the plain error doctrine:

"The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial." (People v. Lucas (1981), 88 Ill.2d 245, 251; People v. Carlson (1980), 79 Ill.2d 564, 576-77.)

The evidence here was not closely balanced as to either defendant. See People v. Carlson (1980), 79 Ill.2d 564, 576.

Erbie Wadlington, co-owner of Community Grocery and Liquor Store located at 1018 East 93d Street in Chicago, testified that he arrived at his store at approximately 12:30 a.m. on August 22, 1979, and observed that screen bars covering the front window had been removed, that front and rear windows of the store had been broken, that liquor bottles were out of place, and that a box which was kept near the liquor counter and contained approximately $150 was missing.

Darren Bloomingberg testified that on August 22, 1979, shortly after midnight, he was walking east on 93d Street to his home when he observed defendants Beasley and Banks standing in front of the store. Bloomingberg was acquainted with both defendants. He noticed that the store's window had been broken and asked defendants what they were doing. Banks replied that they were trying to take some money. Then Bloomingberg walked away. After walking a short distance, Bloomingberg heard what he described as a "large sound like snatched bars off the window." Bloomingberg turned around and saw both defendants placing bars from the window on the ground. Then he saw Beasley crawl into the store through a hole in the window, and after this, he saw Banks bend down near the hole. At this point, Bloomingberg turned around and continued to walk home. He did not see Banks enter the store. Later that day, Bloomingberg returned to the store and spoke to one of the owners about the break in.

Fingerprint evidence corroborated Bloomingberg's testimony. A Chicago police officer testified that latent prints found on the window of the ...


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