Appeal from the Circuit Court of Cook County; the Hon.
Lawrence I. Genesen, Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
The defendant, Edward Cooper, was charged by information with attempted murder, aggravated battery and armed violence. On January 9, 1981, defendant's first trial ended in a mistrial based on a deadlocked jury. Following a second jury trial, defendant was convicted of aggravated battery and sentenced to an extended term of nine years. The defendant contends on appeal that (1) the trial court erred in not granting his motion for a mistrial based on a comment by the prosecutor on the defendant's failure to testify; (2) the trial court erred in allowing the prosecutor to indicate to the jury that the defendant had filed a motion to exclude his palm prints from evidence; (3) the trial court erred in denying the defendant's motion to dismiss the information based on the constitutional prohibition against double jeopardy; (4) the trial court improperly indicated to the jury favoritism to the prosecution; (5) the trial court erred in denying defense counsel's request to impeach the victim by demonstrating that she adjusted her testimony in the second trial based on defense counsel's attack of her credibility during closing argument in the first trial; and (6) the statute under which he was sentenced, section 5-5-3(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b)(2)), is unconstitutionally vague.
At trial, the victim, Vanessa Cooper, testified that she was married to the defendant for 13 years until their December 1980 divorce. They resided in a house at 8945 South Wallace Street, Chicago. In October 1979, the victim visited the defendant in a hospital, where he was recovering from an accident. She told him she wanted a divorce. A few days later, the defendant telephoned her and said he was being released from the hospital. He asked her to accompany him on a weekend trip to Michigan to work on a friend's car. When she refused, the defendant told her he was going anyway.
On the following Tuesday, October 23, 1979, the defendant phoned the victim. She had not seen him since her hospital visit. She told him that their three children were going to the circus and she was going roller skating. The children went out at 6:30 p.m. At about 8:50 p.m., the victim left the house through the basement door, leaving it unlocked. The front and back doors to the house were locked. She walked to the garage and tried to open the overhead door with her automatic opener. Although it had worked earlier that day, the door would not open. She unlocked the padlock and door lock at the service door and entered the garage. Since it was dark inside, the victim flipped the light switch on the wall. It had worked properly a few days earlier, but the light did not go on. Light from the garage next door and the alley light shone into her garage through the door and a window. She was able to see various objects in the garage.
As the victim stepped into the garage, she was hit twice on the back of the head with a heavy object. The blows knocked off her eye-glasses and broke some of her teeth. The victim, who was nearsighted, turned around, saw the defendant, and hollered, "Ed." As the defendant came toward her, she grabbed his hand. He was holding a hammer or bat. A scuffle ensued, with the victim falling on the car. They tumbled to the floor. She screamed; the defendant pleaded with her to be quiet and said he was sorry. She stood up, declared that she was going for help, and ordered the defendant to pick up her glasses.
The defendant followed her through the basement door into the house, carrying her glasses. She switched on two lights and started to telephone her parents. The defendant snatched the phone from her hand. He told her to go upstairs, saying that he would go get help. He returned and shot the victim in the left shoulder. An argument ensued, during which he shot her in the left breast. Neither shot knocked her down. She repeatedly asked the defendant what was wrong with him. She then began to get dizzy and asked if he was going to help her. He told her that he would get help only if she went upstairs. She crawled to the top of the stairs and fainted. She woke up in Cook County Hospital in November 1979.
The victim testified that, as a result of the incident, she suffered a broken finger, a broken jaw, and lost teeth; she had a speech impediment and did not yet have full use of her left arm. She underwent nine operations as a consequence of her injuries. Nothing was taken from her home or her person.
David Dioguardi, a detective with the Chicago police department, testified that on October 23, 1979, he examined the doors and locks on the Coopers' house and garage and found of sign of forced entry. Officer Dioguardi later arrested the defendant at the home of his sister.
James Dunbar of the Chicago police department, assigned to the crime laboratory mobile unit, testified that on the night of October 23, 1979, he examined the car in the Cooper garage, and found blood on its side and palm prints on its hood. He saw no blood prints or blood-smudged prints. Officer Dunbar recovered two bullets in the house on the basement floor.
The jury returned a guilty verdict of aggravated battery against the defendant. The defendant appeals.
• 1, 2 The defendant first contends that the trial court erred in not granting his motion for a mistrial based on the prosecutor's comment on the defendant's failure to testify. The allegedly improper remark by the prosecutor occurred during defense counsel's closing argument:
"[DEFENSE COUNSEL]; * * * [The police] asked [the defendant] to account for the week of October 22nd. And he begins doing that. He told Dioguardi he was with Dock on Tuesday morning in Indiana to help with the car. * * * What else does he say, ladies and gentlemen. He also says, `Yeah, I've been going to the Triester Clinic. Was she injured while I was at the clinic because I was at the clinic too.'
[PROSECUTOR]: Objection. No testimony of Officer Gioguardi saying that.
[DEFENSE COUNSEL]: Well, strike that. I stand corrected. Cooper told Officer Dioguardi that.
[PROSECUTOR]: Objection. No testimony as to that either.
The defendant didn't testify, we know that.
[DEFENSE COUNSEL]: Judge, objection to that comment.
THE COURT: The objection will be sustained. It will be stricken and I'll instruct you not to do something like that again, Mr. [Prosecutor].
All right, the objection is overruled. Proceed with your argument."
A prosecutor may not comment on a defendant's failure to testify because to do so would violate the self-incrimination clause of the fifth amendment. (Griffin v. California (1965), 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229.) The 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. Dixon (1982), 91 Ill.2d 346, 438 N.E.2d 180.) Expressed another way, the test of whether the comment was aimed at highlighting defendant's failure to testify is simply this: has the prosecutor suggested to the jury that its attention should be focused on the defendant's failure to take the stand? (People v. Thomas (1980), 89 Ill. App.3d 592, 411 N.E.2d 1076.) 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 comment is permissible. (People v. Dixon (1982), 91 Ill.2d 346, 438 N.E.2d 180; People v. Jones (1970), 47 Ill.2d 66, 264 N.E.2d 189.) 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. Dixon (1982), 91 Ill.2d 346, 438 N.E.2d 180; People v. Vriner (1978), 74 Ill.2d 329, 385 N.E.2d 671.
• 3 In the instant case, the prosecutor's comment regarding the failure of the defendant to testify was made in response to defense counsel's statement relating something that the defendant had said to Officer Dioguardi. Since Officer Dioguardi had not so testified, and the defendant had not testified at all, defense counsel was speaking of something not in evidence. The prosecutor responded with an objection and the complained-of remark. There is no indication that this response was intended or calculated to direct the jury's attention to the defendant's failure to testify; rather, it is apparent that the prosecutor was pointing out the lack of any evidence to support defense counsel's argument. As the comment was in reply to and invited by defense counsel's argument, the defendant cannot claim error. Furthermore, the trial court sustained defense counsel's objection to the remark and ordered it stricken. The defendant also complains that the impact of the prosecutor's comment was exacerbated by the trial court's "inadvertently [overruling] the objection, intending to sustain it." From our reading of the record, it appears that the trial court sustained defense counsel's objection, admonished the prosecutor, and then overruled the prosecutor's objection. The trial court properly denied defendant's motion for a mistrial based on the State's comment on the defendant's failure to testify.
• 4 The defendant next argues that the trial court erred in allowing the prosecutor to "blatently [sic] misrepresent" to the jury that the defense had filed a motion to exclude palm prints from evidence. On the first day of trial, the State made a motion to order the taking of the defendant's palm prints. Defense counsel complained that while the State had a right to obtain the prints, its request was untimely as it was made on the first day of trial, and he would need the opportunity prior to trial to examine the prints. The trial judge denied the motion, indicating that he would have granted it only if the State had agreed to a continuance. This topic was addressed during defense counsel's closing argument:
"[DEFENSE COUNSEL]: He found a palmprint that was on the hood of the car as the picture will indicate, right here near the antenna. Right here, that palmprint where it was recovered. Wouldn't ...