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People v. Townsend

OPINION FILED AUGUST 30, 1985.

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

v.

JOHNNY W. TOWNSEND, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Don A. Moore, Judge, presiding.

JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted of attempted murder, aggravated battery and armed violence. The trial court vacated the convictions for aggravated battery and armed violence and sentenced him to a term of eight years on the attempted murder conviction. On appeal, defendant contends (1) that the jury was improperly instructed and (2) he was denied a fair trial by certain prosecutorial comments made in closing argument.

The charges arose from the shooting of Tamara Clark (Clark) by defendant on June 1, 1983. At trial, Clark testified that on the day of the incident her brother and her friend, Audrey Wesley (Wesley), were living with her and her three children in her apartment in Harvey. Defendant, her boyfriend of about six weeks, also stayed there several nights each week, including the previous night. Shortly after defendant's cousin, Robert "Eddie" Johnson (Johnson), arrived, at about 6 or 7 p.m., he, defendant and Wesley went out to purchase some rum and wine, and after finishing the first bottle of wine, they left again, at about 8 p.m., to buy more. When they returned, she put her children to bed, mixed a glass of rum and cola and shared a marijuana cigarette with Wesley. Sometime later, after repeated accusations by defendant that she did not love him, she took a butcher knife from the kitchen, held it to her chest and asked him in a sarcastic but joking manner whether he wanted her to kill herself to prove her love. When he laughed, she became very upset, asked him to leave and then informed him that she was going for a walk and would return shortly. Defendant followed her, grabbed her by the arm and ordered her not to leave, but she repeated that she wanted to take a walk, and when she slammed the door, causing the glass to break, she heard defendant say, "I'll kill that independent bitch." As she reached the bottom of the stairway, defendant pinned her against the wall, whereupon she suggested they return to the apartment instead of arguing outside. Once inside, she asked Johnson to tell defendant to leave and then went into her bedroom. Seeing that she was upset and crying, Wesley followed her, and while they were talking, defendant knocked and beat on the door, hollering for her to come out. She got up from the bed and, as she walked toward the door, picked up two knives — one being the knife she held to her chest earlier and the other a knife she used while eating in her bedroom. Placing both knives in her right hand, she opened the door with her left hand, and upon exiting the room, holding the knives at her side, she saw defendant and Johnson "tussling" in the bathroom, which was directly across the hallway from where she stood. Defendant was holding a gun he normally carried strapped to his leg, and after raising himself out of the bathtub — into which he apparently had fallen during the fight — he pointed it at her and fired two shots, striking her in the chest and left shoulder. As she fell backward and slumped against the wall, defendant walked out of the bathroom, bent over, placed the gun a few inches from her face and fired it twice more, one bullet penetrating her nostril and mouth and lodging in her neck and the other striking her in her right hand, which she had raised in an attempt to cover her face and push the gun away. Defendant then ran out of the apartment, after which Johnson and Wesley drove her to the hospital.

On cross-examination, Clark stated that she had only one drink and two marijuana cigarettes throughout the entire day and that although she and defendant had been "horsing around" and wrestling earlier that evening, it was not until he returned from his second trip to purchase liquor and accused her of not loving him that they began to argue. She denied jumping on or punching defendant prior to leaving the apartment or taking two knives from the kitchen when she returned. Although she was afraid when she heard him screaming and kicking her bedroom door, she decided, against Wesley's advice, to go out to tell him to leave. She did not raise the knives in a threatening manner or say anything to defendant before he shot her.

Wesley testified to essentially the same version of events, adding that after Clark refused defendant's proposal of marriage, his mood changed and their previously good-natured wrestling became "a little rough." Wesley also testified that when she and Clark exited the bedroom, Clark took only one step out into the hallway, holding the knives at her side, before she (Wesley) heard two gunshots and saw Clark fall back against the wall and then slump to the floor. At that point, defendant — who had been out of her range of vision — came out of the bathroom holding the gun in both hands with his arms extended and fired two more shots at Clark from a distance of 3 or 4 inches. On cross-examination, Wesley could not recall whether she told the investigating officer that defendant had pounded on the bedroom door or that Clark exited the room carrying two knives, but she acknowledged that Clark was angry and upset when she first went into the bedroom.

Officer Newton testified that when he spoke to Wesley at the hospital, she appeared sober. Later that morning, defendant surrendered himself to the police and was advised of his Miranda rights, after which he said that he, Clark and others had been drinking at Clark's house the previous evening; that after an argument with him, Clark went into her bedroom with Wesley; that as he approached the bedroom door, she came out holding one knife at her side in her left hand and another in her right hand elevated to about ear-level; that he immediately fired the .25-caliber semiautomatic gun he was holding two or three times; and that he then ran out of the apartment and threw the weapon away. Defendant also stated that he thought that Clark was already "going down" as he fired the last two shots and that although he had learned how to disarm a person in martial arts training classes, he was not sure he could do so. On cross-examination, Newton acknowledged that defendant also told him that Clark came out of the bedroom cursing and threatening to kill him, which he believed she would do, and that he shot her to protect himself.

Dr. John E. Driscoll, the surgeon who was called in to treat Clark after she was transferred from the emergency room to the intensive care unit of Ingalls Hospital, testified that she sustained two gunshot wounds in her chest — the bullets internally lodging 3 or 4 inches below the location of their entrance, a wound through the joint of her right index finger and wounds through both her palate and tongue resulting from a bullet fired from close range and found lodged in her neck. He characterized the injuries as life-threatening and described her condition at the time of his first examination of her as critical.

On defense, Johnson testified that when he first arrived at Clark's apartment, she was "buzzing," as though she had been drinking. She thereafter consumed at least two or three rum and colas and smoked four or five marijuana cigarettes prior to the argument with defendant, which began because, disliking the smell of marijuana, he refused to sit next to her on the couch while she smoked it. When defendant got up to adjust the radio, Clark jumped on his back, cursing and screaming, and hit him two or three times. After he pulled Clark off of defendant, she went into the kitchen and then came back into the living room carrying two knives, but Wesley intervened and led her into the bedroom where she continued hollering and cursing. When he asked permission to use the bathroom, defendant directed him to it and then waited for him in the hallway outside Clark's bedroom. After he came out, he advised defendant to knock on the door and tell Clark that he (defendant) wanted to talk to her. Defendant did so, whereupon Clark emerged from the room carrying two knives, one at her side and one raised up in her right hand, and walked toward defendant, threatening to kill him. Shortly after defendant backed up into the bathroom, he (Johnson) heard two or three gunshots and saw Clark fall back against the hallway wall. As he bent down to assist her, defendant came out of the bathroom and asked whether he had seen the knives and also if he would take Clark to the hospital. Responding in the affirmative to both questions, he then advised defendant to go to his house and wait there until he returned.

Defendant testified that Clark and Wesley smoked at least three or four marijuana cigarettes during the afternoon, "a couple more" in the evening and that each drank about three glasses of rum and cola. When he refused to sit next to Clark while she smoked the marijuana, she became very upset, jumped on him and hit him several times. She then left the apartment, slamming the door so hard that the glass broke, but he did not follow her. Sometime later, she returned to the apartment, took two knives from the kitchen and came into the living room, cursing at him. Wesley led her into the bedroom, where she continued hollering and cursing at him. He waited in the hallway outside Clark's bedroom while Johnson used the bathroom, and at Johnson's suggestion, knocked on the door — at first lightly and then a little harder — requesting to speak to her. A few seconds later, Clark swung the door open and came out, brandishing a butcher knife in each hand. When he asked her what was wrong, she screamed that she was tired of him telling her what to do and that she was going to kill him. As she came toward him with the knives, he backed into the bathroom and then, believing that she was crazy and would kill him, pulled his gun from his pocket and fired it at her from a distance of about 6 feet, falling into the tub as or just before the last shot discharged. When he got up, Clark was on the floor against the wall and Johnson was attending to her. After asking Johnson to take her to the hospital, he ran out of the apartment and went to Johnson's house, where he remained until the next morning, when he surrendered to the police.

On cross-examination, defendant denied that Clark had asked him to leave the apartment; that he followed her when she attempted to leave, called her an "independent bitch," threatened to kill her or tried to kick in her bedroom door. He stated that he loved her and had asked her to marry him, and that he consumed only three drinks that day and was not intoxicated. Although he had taken six months training in martial arts 15 years earlier, he was unsure of his ability to disarm Clark and felt that his gun was his best defense. He did not tell the police that Clark had jumped on him in the living room, nor did he tell them that he walked out of the bathroom and shot her again as or after she slumped to the floor; however, he did recall saying that the exact details of the shooting were blurry.

On rebuttal, Assistant State's Attorney McGlynn testified that during an interview at the police station, defendant told him that as Clark walked toward him with the knives, he fired two or three shots and then, as she slumped to the floor, he fired another. McGlynn acknowledged, however, that defendant also said that he and Clark had been arguing all day and that when she came out from the bedroom, she was cursing and holding the knives as if to strike him with them.

OPINION

Defendant first contends that the trial court erred in giving IPI Criminal Instructions Nos. 24-25.09 (Initial Aggressor's Use of Force) and 24-25.11 (Provocation of First Force as Excuse for Retaliation) (Illinois Pattern Jury Instructions (IPI), Criminal Nos. 24-25.09, 24-25.11 (2d ed. 1981); see also Ill. Rev. Stat. 1981, ch. 38, par. 7-4(c)), each of which provides, essentially, that a person who initiates or provokes the use of force has only a limited right to thereafter use force in self-defense. He maintains that these instructions, given over his objections, were inappropriate and prejudicial because they may have caused the jury to assume that the trial court believed that the evidence supported a finding that he was the aggressor and/or that he provoked the hostilities which culminated in this shooting when, in fact, the evidence established that Clark was the initial aggressor and that he shot her in self-defense.

• 1 While we agree with defendant that "[i]t is error to submit an instruction to the jury where there is no evidence to support the giving of the instruction" (People v. Shackles (1977), 44 Ill. App.3d 1024, 1026, 358 N.E.2d 1329, 1330), when there is a question as to whether the defendant or the victim was the initial aggressor, submission of an instruction on that issue is proper (People v. Ellis (1982), 107 Ill. App.3d 603, 437 N.E.2d 409).

• 2 Here, according to Clark, whose testimony was substantially corroborated by Wesley, defendant refused to leave her apartment when asked by her to do so and, in an almost unbroken sequence of events leading up to the shooting, grabbed her by the arm, pinned her against a wall and threatened to kill her when she attempted to leave. When she went into her bedroom to get away from him, he followed her, beat on the door and ordered her to come out. Within seconds after she did, he raised the gun which he had already removed from his pocket, pointed it at her and fired two shots. He then came forward and, as she slumped against the wall — wounded from the first two shots — pointed the gun at her face and fired two more shots at point-blank range. Although defendant denied the majority of these allegations and presented, through his and Johnson's testimony, a conflicting account of the shooting and the events preceding it which, if believed, could support a finding that Clark attempted to attack him and that he acted in self-defense, we believe there was sufficient evidence from which the jury could have concluded that defendant initiated or provoked the use of force in this case and that the instructions were proper, particularly since in addition thereto, an instruction on the justifiable use of force in self-defense was also submitted to the jurors, thereby allowing them to resolve the issue on either hypothesis (People v. Ellis (1982), 107 Ill. App.3d 603, 437 N.E.2d 409; People v. Crue (1977), 47 Ill. App.3d 771, 632 N.E.2d 430; People v. Day (1972), 2 Ill. App.3d 811, 277 N.E.2d 745).

Defendant correlatively contends, however, that the jury was not fully instructed on the law relating to the justifiable use of force in self-defense because the trial court omitted, over his objection, a relevant portion (emphasized below) of IPI Criminal 2d No. 24-25.06, which provides:

"A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend [himself] [another] against the imminent use of unlawful force.

However, a person is justified in the use of force which is intended or likely to cause great bodily harm only if he reasonably believes that such force is necessary to prevent [imminent death or great bodily harm to (himself) or (another)] [the commission of a forcible felony]." IPI Criminal 2d No. 24-25.06; see also Ill. Rev. Stat. 1981, ch. 38, par. 7-1.

Citing People v. Easter (1981), 102 Ill. App.3d 974, 430 N.E.2d 612, and People v. Milton (1979), 72 Ill. App.3d 1042, 390 N.E.2d 1306, defendant asserts that it was error for the trial court to refuse his request for inclusion of the provision that deadly force may be used to prevent the commission of a forcible felony. Specifically, he argues that in the light of his and Johnson's testimony, that Clark emerged from her bedroom holding two knives poised to strike him and advanced toward him in a threatening manner — actions which, he maintains, constituted aggravated assault or attempted aggravated battery — omission of the "forcible felony" language deprived him of his right to jury consideration of a "theory which provides a complete defense to the shooting."

Initially, we note that in Milton, evidence was presented at trial through three witnesses that the victim and his friend approached defendant as he was leaving the store where the men had been gambling and threatened to kill him if he did not surrender some of his winnings; that when he refused, they reached into his pocket to take the money; and that during the ensuing struggle, he shot them. In reversing defendant's conviction for voluntary manslaughter, the Milton court noted that the jury may have believed that this evidence established that defendant was resisting a robbery and that although such a finding would have mandated acquittal under the law that deadly force may be used to prevent the commission of a forcible felony, the omission of that language from IPI Criminal 2d No. 24-25.06 "did not permit such a result unless [the jury] also found that defendant was reasonably in fear of death or great bodily harm." (People v. Milton (1979), 72 Ill. App.3d 1042, 1049, 390 N.E.2d 1306, 1311.) Unlike Milton, the record before us contains no evidence, nor does defendant assert, that Clark actually attacked him with the knives or that the shooting occurred during a struggle; and while his account of Clark's actions upon first emerging from the bedroom might arguably have justified the use of force to defend himself from the threatened attack, there was overwhelming evidence that he fired the third and fourth shots — at least one of which was described as "life-threatening" by the physician who treated Clark — from close range as or after she dropped the knives and fell to the floor. Indeed, in his own statements to Officer Newton and Assistant State's Attorney McGlynn, defendant stated that Clark was already "going down" as he fired the last two shots. It is our opinion that this evidence belies defendant's claim that he reasonably believed the shooting was necessary to prevent the commission of a forcible felony, and that the trial court did not err in refusing to give such an instruction. See People v. McGee (1982), 110 Ill. App.3d 766, 443 N.E.2d 1047.

• 3 However, even assuming, arguendo, that the evidence was sufficient to warrant inclusion of that provision, in view of the jury's apparent rejection of defendant's claim that he reasonably believed the degree of force he used against the alleged imminent attack by Clark was necessary to protect himself from imminent death or great bodily harm, we, like the court in People v. Easter (1981), 102 Ill. App.3d 974, 430 N.E.2d 612, on which defendant relies, find it untenable to suggest that the jury would have reached an opposite verdict on the very same evidence had the "forcible felony" language been given, and therefore conclude that any error by the trial court in refusing to give it was harmless.

Defendant's final contention is that he was denied a fair trial by several remarks made by the prosecutor during closing and rebuttal arguments. Specifically, he argues that the prosecutor improperly (a) expressed his personal belief in the credibility of the State's witnesses, (b) accused him of lying, and (c) impugned the integrity of defense counsel.

Concerning (a) he complains of only one comment, stating, "During closing arguments, the assistant State's Attorney summarized the testimony of the State's witness, the complainant and her friend Wesley. Then he stated:

`Mr. Quinn: Audrey Wesley testified essentially the same thing as did the victim, and I believe both those people.

Mr. Sopata: Objection to what counsel believes.

The Court: Continue, Mr. Quinn.

Mr. Quinn: Both of those people were believable.'"

• 4 Although the credibility of witnesses is a proper subject for comment in closing argument (People v. Wallace (1981), 100 Ill. App.3d 424, 426 N.E.2d 1017; People v. Nodal (1980), 89 Ill. App.3d 538, 411 N.E.2d 1087, it is fundamental that an attorney may not interject his personal belief in the veracity of their testimony (People v. Watson (1981), 94 Ill. App.3d 550, 418 N.E.2d 1015). However, it is also well settled that improper prosecutorial remarks do not generally mandate reversal unless they are so prejudicial as to constitute a material factor in defendant's conviction (People v. Baptist (1979), 76 Ill.2d 19, 389 N.E.2d 1200; People v. Bailey (1982), 108 Ill. App.3d 392, 439 N.E.2d 4), or, put another way, that the jury would likely have reached a contrary verdict had they not been made (People v. Witted (1979), 79 Ill. App.3d 156, 398 N.E.2d 68), and each case must be decided on its own facts (People v. Baptist (1979), 76 Ill.2d 19, 389 N.E.2d 1200).

• 5 Unlike People v. Valdery (1978), 65 Ill. App.3d 375, 381 N.E.2d 1217, the case on which defendant relies, wherein the prosecutor's lengthy narrative on the high quality and integrity of the State's witnesses was found to be highly prejudicial because it placed the weight of the State's Attorney's office behind the credibility of the State's witnesses, we do not believe that in view of the strength of the evidence against defendant the remark complained of here, "I believe both those people," though improper, could have constituted a material factor in his conviction. (See People v. Bianchi (1981), 96 Ill. App.3d 113, 420 N.E.2d 1187.) We think that any prejudice which might have resulted from the remark was offset by the admonishments given the jurors at the outset of trial and again during final instructions that they were the sole judges of the credibility of the witnesses and that the statements of the attorneys were not evidence and should be disregarded when not based thereon. See People v. Nodal (1980), 89 Ill. App.3d 538, 411 N.E.2d 1087.

• 6 Concerning (b), defendants states as follows:

"During defendant's closing argument, the following exchange took place:

`DEFENSE: "* * * and Mr. Sopata might have said certain things. He just got into the case the day before yesterday."

PROSECUTOR: "Objection, Judge, That's a lie."'

Then, at the end of defense counsel's closing argument, the State made the following aside to the jury:

`PROSECUTOR: "He defends every case the same way. He doesn't defend them because he's innocent. He defends every case the same way."'

Thus, the State called defense counsel a liar and implied that he did not believe in the innocence of his client, but had some other motive for trying the case.

During the State's closing argument, the prosecutor paraphrased defendant's testimony, highlighting what he saw as inconsistencies. Then he claimed that defendant's testimony differed from defense counsel's opening argument.

`Somebody was lying to Mr. Sopata (defense counsel) before he testified.'

Defense counsel objected to this remark and the trial court sustained his objection."

We note initially that it is not improper to call the defendant a "liar" if conflicts in evidence make such an assertion a fair inference. (People v. Tiller (1982), 94 Ill.2d 303, 319, 447 N.E.2d 174, 182.) Furthermore, our examination of the record reveals that in commenting on the credibility of the State's witnesses, defense counsel stated:

"Clark and Wesley are prime examples of people who testify with a motive for revenge. * * * They lie. They distort the truth. Tamara Clark didn't come here for justice * * * [She] came in here for vengeance, for revenge, because for whatever warped reason, she doesn't feel it was her fault that she was shot. * * * they both lied through their teeth. If you think Tamara Clark lied to you once, then you can't believe a thing she said."

Although the prosecutor's objection was sustained, defense counsel went on to say,

"When did she [Clark] lie to you? When did she start lying to you people?

And Audrey Wesley, the good friend, comes in here and lies through her teeth and the big charade about this, she even admitted that she read all the police reports before she testified."

In addition, defense counsel characterized Clark as "crazy" and several times referred to Officer Newton and Assistant State's Attorney McGlynn as the State's "knights in shining armor." Thus, in our view, the prosecutor's comment that "somebody was lying to [defense counsel] before he testified" was not only provoked by, but also innocuous when compared to, the assailment by defense counsel of the honesty and character of each of the State's witnesses and thus the comment cannot now be advanced as a ground for reversal. As Mr. Chief Justice Burger stated in the recent United States Supreme Court opinion of United States v. Young (1985), 470 U.S. ___, 84 L.Ed.2d 1, 9, 105 S.Ct. 1038, 1043, "`[i]t should be accepted that both prosecutor and defense counsel are subject to the same general limitations in the scope of their argument.'"

Concerning (c), defendant states "The prosecutor denigrated defendant and his counsel by calling them liars." He refers to two comments, the first occurred at the outset of rebuttal argument when the prosecutor stated:

"He [defense counsel] defends every case the same way. He doesn't defend them because he's innocent. He defends every case the same way."

While we agree that such comments are generally improper as tending to disparage the integrity of defense counsel (People v. Starks (1983), 116 Ill. App.3d 384, 351 N.E.2d 1298), we believe that this remark was invited by defendant's attorney when, at the conclusion of his closing argument he stated,

"When you defend somebody that is innocent, you tend to get aggressive. When you defend somebody who you think is getting set up, you defend him aggressively."

It should be noted here that although the comments set forth and discussed above are the only allegations of prosecutorial misconduct asserted by defendant in this appeal, the dissenting justice has searched the record to find other comments made by the prosecutor and has engaged in an extended discussion on them and as to the conduct of the trial judge in relation thereto. It is noted, however, that no objection was made in the trial court and no issue was raised here as to any improper conduct of the trial judge, and while many of the remarks of the prosecutor referred to in the dissent were either not objected to or were invited by comments of defense counsel and objections were sustained as to some of them, the dissenting opinion applied the plain error rule on the basis that due to "the prosecutor's egregious and inflammatory arguments * * * [t]he jury was not allowed to properly resolve the two sharply conflicting versions of the shooting," and would reverse and remand for a new trial.

While it is not the function of this court to act as an advocate for the parties (see People v. Spinelli (1967), 83 Ill. App.2d 391, 227 N.E.2d 779), or to search the record on appeal for unargued or unbriefed reasons to reverse a criminal conviction (People v. Jimerson (1979), 69 Ill. App.3d 403, 388 N.E.2d 10), under Supreme Court Rule 615(a) (87 Ill.2d R. 615(a)), notice may be taken in a criminal action of plain errors in the record which served to deprive defendant of a fair trial but which have not properly been preserved for review (People v. McFarland (1981), 93 Ill. App.3d 136, 416 N.E.2d 769; see also Hux v. Raben (1967), 38 Ill.2d 223, 230 N.E.2d 831). Rule 615(a) does not act as a general savings clause, however, and a conviction will not be reversed on the basis of improper prosecutorial remarks unless they were so prejudicial that real justice was denied (People v. Baptist (1979), 76 Ill.2d 19, 389 N.E.2d 1200), or that they were such a material factor in defendant's conviction that the jury would likely have reached a contrary verdict had they not been made. People v. Carlson (1980), 79 Ill.2d 564, 404 N.E.2d 233.

Here, while it is correct, as the dissenting opinion points out, that defendant and Clark related "sharply conflicting" versions of the shooting, we note that Clark's account was supported not only by Wesley's testimony but also by that of other evidence presented at trial. Specifically, Doctor Driscoll — the physician who treated Clark immediately after the shooting — testified that the entrance wounds from the two bullets fired into Clark's chest were located above the area where the bullets ultimately lodged. This evidence regarding the downward trajectory of the bullets at once supports Clark's assertion that defendant — who, his own testimony established, is 5 inches taller than she — first fired the gun while in a stationary, upright position with his arms extended out from his body toward her as she exited the bedroom. Correspondingly, it tends to discredit defendant's testimony that he removed the gun from his pocket as he was backing up and fired it just before or as he lost his balance and fell into the bathtub, and impugns his counsel's argument that "She probably dropped the knife after she got hit twice. She's reeling back like this. He's backing up like this. The gun's pointing up." Similarly, the fact that one of the .25-caliber bullets, described by defense counsel in closing argument as a "small caliber" that "doesn't blow a hole through you," did in fact pass through the joint of her right index finger and that another passed through the roof of her mouth and then through her tongue before lodging in her neck, lends credence to Clark's testimony that she raised her hand in an effort to push the gun away from her face when, as she sat slumped against the wall after being shot twice, defendant approached her, leaned over, pointed the pistol at her face and fired two more shots from a distance of 3 to 4 inches. In addition, the testimony of Officer Newton and Assistant State's Attorney Glynn, that during an interview at the police station defendant stated that he already had his hand on the gun when Clark opened the bedroom door; that he removed it from his pocket as she exited and fired two or three shots; and that he thought she was "going down" as he fired one or two more shots, also contradicts defendant's trial assertion that he pulled the gun from his pocket as he was backing up, and conflicts with his uncorroborated testimony regarding a conversation he claims to have had with Clark after she exited the bedroom in which he asked her, "Tammy, what's wrong?" to which she responded that she was tired of him telling her what to do and thereupon began cursing and threatening to kill him.

• 7 Although it is the dissent's opinion that we are improperly engaging in the jury function of speculating on these and "other facts" as the basis for affirming defendant's conviction, we believe that since the facts concerning the trajectory of the bullets and the relative positions of defendant and Clark at the time of the shooting were presented through the testimony of various witnesses at trial and were discussed by the attorneys in closing arguments, they are proper subjects of consideration by us in our review of the record in its totality; and on the basis of that review we conclude that there was ample evidence to support the jury verdict and do not believe that it would have been different had the remarks and conduct complained of not occurred, or that, even where improper, the prosecutor's comments or the trial court's rulings thereon were so prejudicial as to require reversal and remandment for a new trial under the plain-error doctrine.

For the reasons stated, defendant's conviction for attempted murder is affirmed.

LORENZ, J., concurs.

JUSTICE PINCHAM, dissenting:

I dissent. The defendant, Johnny W. Townsend, was charged with armed violence, aggravated battery and attempted murder, arising out of the shooting of Tamara Clark. His defense was self-defense. The scenario of this incident placed on one side Tamara Clark and the other State witnesses, and on the other side were the defendant and his witness. On both sides there were the too frequently present ingredients of alcohol and drugs. Somewhere in between were verbal expressions of love, suddenly transformed into hate, a resultant physical attack and attendant fear. The detailed facts are adequately set forth in the majority opinion and need not be here repeated. The State's evidence, although adequate to sustain the conviction, is far from overwhelming. When the veneer and icing are removed, however, there remains the following uncontroverted material facts.

The alleged victim, Tamara Clark (Clark), and her friend, Audrey Wesley (Wesley), imbibed in alcoholic beverages and smoked marijuana during the evening prior to the shooting. The defendant, Johnny W. Townsend (Townsend), and his cousin, Robert "Eddie" Johnson (Johnson), also drank intoxicating beverages before the shooting but they did not smoke any marijuana. The defendant accused Clark of not loving him. Clark went to the kitchen and returned with a butcher knife to the living room, where Wesley, Johnson and the defendant were congregated. Clark held the butcher knife to her chest and asked the defendant, "What do you want me to do, kill myself?" The defendant laughed at this gesture, which prompted Clark to go to her bedroom, get dressed and leave the house. As she departed, Clark slammed the door so hard that she broke the glass pane in the door. Clark came back into the house and entered her bedroom, followed by Wesley, who was trying to calm her down. Shortly thereafter, the defendant knocked on the closed bedroom door and asked Clark to come out. Clark picked up two butcher knives — one that she had gotten earlier from the kitchen, the other one she kept in her bedroom. With the two butcher knives in her possession, Clark opened the bedroom door to come out.

Based on the foregoing undisputed facts, the following conclusions are inescapable: (1) Clark had shown that she was angry; (2) Clark armed herself with two butcher knives while in the safety of her bedroom; and (3) while armed with the two butcher knifes, Clark left her bedroom to go where the defendant was.

The evidence on what occurred as Clark left the bedroom is conflicting. The Clark-Wesley version was that Clark left the bedroom with the two butcher knives in one hand, that the defendant, with a gun in his hand, tussled with Johnson in the bathroom to try to get out, and that the defendant then shot Clark. The defendant-Johnson version was that Clark left the bedroom brandishing a butcher knife in each hand, that Clark approached the defendant with the knives poised and screamed at the defendant, "I'll kill you," and that as the defendant backed away in fear, he pulled his gun and shot Clark four times.

Eddie Johnson, pursuant to the defendant's request, took Clark to the hospital. A few hours later, the defendant surrendered to the police and gave them a statement of the shooting, which statement was substantially the same as his version of the facts as hereinbefore set forth.

Regardless of the strength or weakness of the State's evidence, it should not have been embellished nor should the jury have been persuaded to convict by the prosecutor's egregious and inflammatory arguments. The jury was not allowed to properly resolve the two sharply conflicting versions of the shooting. Reversal and a new trial are therefore demanded.

The majority's condonation of the prosecutor's egregiously prejudicial arguments cannot be reconciled with this court's recent emphatic condemnation of such arguments in People v. Starks (1983), 116 Ill. App.3d 384, 395, 451 N.E.2d 1298, where the court observed that "the volume of cases in which the use of * * * [an] erroneous argument is raised as an issue indicates that it has become a standard arrow in the prosecutorial quiver."

In the pending case, the majority's refusal to reverse the defendant's conviction, in spite of the court's recognition of the gross impropriety of the prosecutor's prejudicial arguments, "encourage[s] its proliferation." (People v. Starks (1983), 116 Ill. App.3d 384, 395.) I cannot accept the "harmless error" and "invited response" concepts upon which the majority approves the prosecutor's improper arguments. Nor can I affix my stamp of approval to such gross prosecutorial misdeeds.

While I wholeheartedly agree with the majority that it is not the function of this court to act as an advocate for the parties, I just as emphatically believe that a reviewing court should not aggressively (or passively) condone flagrant prosecutorial misconduct by blinking at it under harmless error visors. Nor do I believe that a reviewing court should engage in the jury function of speculating on the trajectory of bullets or the relative positions of the victim and the defendant when the shots were fired or on other facts as a basis for affirming a criminal conviction.

The majority asserts that the improper prosecutorial remarks referred to in this dissent were invited by the defense counsel's comments or were not objected to. However, this dissent clearly points out otherwise.

The third ground for reversal urged by defendant in his brief under Points and Authorities and argued in his brief and orally before this court is "Defendant was denied a fair trial where the prosecutor wrongly placed the weight of his office behind the State's witness by stating his personal belief in their credibility, denegrated both defendant and his attorney by accusing defense counsel of lying to the jury and by implying defendant lied to his own counsel." Thus, the majority's assertion that the dissent has sua sponte raised and decided this issue under the plain-error rule, Supreme Court Rule 615(a) (87 Ill.2d R. 615(a)), is inaccurate.

Assistant State's Attorney Patrick Quinn commenced his opening argument to the jury by expressions of gratitude to them for their jury service. He immediately thereafter improperly injected himself into his argument as follows:

"[W]e, as State's attorneys, we represent the People of Illinois [and] cannot choose our victims. Our victims come to us through the police departments after they are injured or harmed in some way.

Our victim in this case was not very articulate. * * *. Crime affects poor people. It affects uneducated people. It is committed by such people, but more often than not, it harms those people and this is one of those cases.

Certainly, we would prefer to have college professors up there being able to talk to you or from whatever background you would be from, we would prefer to have people like that. But unfortunately for us that's not how it works." (Emphasis added.)

Whether justified or not, the general public believes that assistant State's Attorneys have some degree of prosecutorial discretion which is exercised in favor of prosecuting only those cases which, in the judgment of the assistant, merit prosecution. It was improper for the assistant to endeavor to enhance the merits of this case by personally injecting himself into the prosecutorial discretion aspect of the case. As this court has stated, "[T]here is a boundary of propriety which is so easily crossed by the use of this ...


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