Appeal from the Circuit Court of Cook County; the Hon. Robert
L. Sklodowski, Judge, presiding.
JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a joint jury trial, Lawrence Poree, also known as Charles Porce (defendant), and three co-defendants were found guilty of armed robbery stemming from the holdup of a gasoline service station. Each defendant was sentenced to an extended term of 60 years' imprisonment. Defendant Poree appeals from the judgment. We affirm.
The following issues are raised on appeal: (1) whether the trial court erred in refusing to grant Poree's motion for a mistrial; (2) whether Poree was denied a fair trial by introduction of evidence of his involvement in other criminal offenses; (3) whether the prosecutor's characterization of the evidence in closing argument constituted reversible error; and (4) whether the court erred in imposing an extended-term sentence.
The convictions of Leroy Sanford, James Lewis and Edward James, Poree's co-defendants, were recently considered by this court in People v. Sanford (1983), 116 Ill. App.3d 834, 452 N.E.2d 710. We adopt the statement of facts there presented and summarize the facts pertinent to this appeal as follows: On August 7, 1979, at 4:15 a.m., a Mercedes Benz containing four men entered the gas lane at the Concord Gas Station in Chicago. The men got out of the car, proceeded to rob the employees of the station, and demanded that an employee open the safe or be killed. One of the men wore a black stocking mask and carried what looked like a machine gun and was later viewed in a police lineup and identified as Poree. This man ordered a station employee to lie on the floor and not look at him or he would be shot. The masked man then took from the employee a money belt and coin changer, an additional $60 in cash and a check payable to Percy Powell. Defendants' vehicle was chased by police into an alley whereupon the occupants escaped on foot. The police conducted an organized search of the area during which Poree was apprehended. United States currency and a check made out to Percy Powell were found in his possession. The purported machine gun, actually a semi-automatic carbine, and two masks were found nearby. Poree furnished police with the names of our other people allegedly involved. Poree and co-defendant Sanford gave statements to an assistant State's Attorney. Sanford named four other participants and recounted the planning and execution of the robbery and the ensuing events. Poree's statement was essentially the same. He had worn a nylon stocking mask and had carried the carbine which he hoped would appear to be a machine gun. The trial court instructed the jury to consider Poree's statement only against him and Sanford's statement only against him and not against any other defendant.
The following evidence also was adduced at trial. Reverend Mary Davis Brown testified that she saw Poree at the tavern owned by her daughter at 6 p.m. the evening before the robbery and that she believed he remained there all evening although she did not see him until approximately 4 the next morning in the apartment above the tavern, where he stayed until 5:30 or later. Other testimony placed Poree in the tavern on August 6, 1979, from 10:30 p.m. until 5:30 the next morning.
A further discussion of events which occurred at trial is necessary to our disposition of this appeal. Poree made no pretrial motion for severance. At trial, co-defendant James, testifying on his own behalf, was questioned regarding his relationships with the other defendants whereupon counsel for Poree objected on grounds that such testimony was antagonistic to Poree's defense and moved for a mistrial or, in the alternative, severance. Counsel for James then made an offer of proof concerning James' proposed defense: that Poree knew James was out of town at the time of the robbery and named him as an accomplice only to protect his real accomplices. The court denied Poree's motion for severance or mistrial but granted an in limine order barring James' testimony in this regard.
During examination, assistant State's Attorneys made reference to defendants' involvement in offenses other than the instant offense. In closing argument the prosecutor characterized the evidence against Poree as "uncontradicted, unrebutted and undenied" and referred to the defendants as "professionals" engaged in a "reign of terror." Defense counsel for James, in closing argument, theorized that James was on trial only because he had been named by Poree in order to protect Poree's real accomplices.
Defendants were found guilty of armed robbery and each was sentenced to an extended term of 60 years' imprisonment. Poree appeals.
The first issue raised is whether the trial court erred in refusing to grant a mistrial. Poree contends, generally, that his case should have been severed from co-defendant James' because James' defense was antagonistic to his own and further contends that the trial court erred in refusing to grant a mistrial because the closing statements of James' counsel caused him prejudice. We will address these contentions in turn.
• 1 The general rule is that defendants jointly indicted should be jointly tried; separate trials are only required where the defenses are "so antagonistic that a fair trial can be had only by severance" (People v. Yonder (1969), 44 Ill.2d 376, 386, 256 N.E.2d 321, cert. denied sub nom. Guido v. Illinois (1970), 397 U.S. 975, 25 L.Ed.2d 270, 90 S.Ct. 1094). (People v. Murphy (1981), 93 Ill. App.3d 606, 417 N.E.2d 759.) The granting of a severance falls within the sound discretion of the trial court. (Yonder.) "Antagonistic defenses have been confined to those instances where one or more co-defendants testify implicating the other." (People v. Murphy (1981), 93 Ill. App.3d 606, 609, 417 N.E.2d 759.) In the instant case there was no showing of an antagonistic defense until James' offer of proof. At that time the court granted Poree's motion in limine and thereby barred James' testimony regarding an antagonistic defense. As there was no testimony regarding an antagonistic defense, there was, therefore, no prejudice as to Poree. Severance at that time was made unnecessary to assure Poree a fair trial because of the granting of the motion in limine and the court, therefore, did not err in its refusal to then grant a severance.
• 2 Nonetheless, the court has a continuing duty at all stages of trial to grant severance if prejudice appears. (See People v. Lee (1981), 87 Ill.2d 182, 429 N.E.2d 461.) Poree further complains that the closing arguments of James' counsel required that their cases be severed. However, we are unable to find that defendant Poree was prejudiced by the closing argument of James' counsel. The trial court's action in sustaining defendant's objections and instructing the jury to disregard the argument cured any prejudicial error which may have resulted. (People v. Jodie (1979), 79 Ill. App.3d 348, 352, 398 N.E.2d 595.) Since Poree was not prejudiced, the court did not err in refusing to grant Poree a severance.
• 3 Poree next argues that the court erred in refusing to grant a mistrial following James' counsel's assertion during closing argument that James had been named as a participant in the robbery by one of the other defendants in an attempt to protect the actual participants in the robbery, thus inferring the guilt of Poree. "It is well settled in Illinois that even though every defendant is entitled to a trial that is free from improper comments or arguments that engender prejudice, his conviction will not be disturbed on review unless such remarks (1) constitute a material factor in his conviction, or (2) result in substantial prejudice to the accused." (People v. Witted (1979), 79 Ill. App.3d 156, 165, 398 N.E.2d 68.) The trial court herein sustained Poree's objections to the remarks of James' counsel at closing argument, instructed the jury to disregard these comments and, in addition, instructed the jury that argument by counsel does not constitute evidence and that any argument not based on evidence should be disregarded. Furthermore, sufficient evidence was produced at trial to sustain defendant Poree's conviction. Poree was arrested in possession of proceeds from the robbery, he was identified as a perpetrator by an eyewitness and there was testimony that he had admitted participating in the crime. In view of the foregoing, we find that his co-defendant's closing argument neither constituted a material factor in Poree's conviction nor resulted in substantial prejudice which would require a reversal herein.
Poree argues that the presentation of an antagonistic defense at closing argument increased the resultant prejudice as he was denied the right to cross-examine the "witness" against him. (See People v. Lee (1981), 87 Ill.2d 182, 429 N.E.2d 461.) We find, however, that the trial court's action in sustaining the objection and instructing the jury to disregard the remarks cured any prejudicial error which may have resulted. (People v. Jodie (1979), 79 Ill. App.3d 348, 352, 398 N.E.2d 595.) A court of review will not reverse a conviction merely because error has been committed "unless it appears that real justice has been denied or that the verdict of the jury may have resulted from such error." (People v. Tranowski (1960), 20 Ill.2d 11, 17, 169 N.E.2d 347, cert. denied (1960), 364 U.S. 923, 5 L.Ed.2d 262, 81 S.Ct. 290.) In view of the strength of the prosecution's case, we are ...