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October 12, 1994


Appeal from the Circuit Court of Cook County. Honorable Daniel J. Kelley, Judge Presiding.

Greiman, Rizzi, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Following a jury trial, defendant Robert Brown was convicted of vehicular invasion for his participation with codefendant Anthony King in a smash and grab robbery and received an 11-year sentence in prison. Prior to defendant's trial, King pleaded guilty to the crime and received a four-year sentence.

Defendant now appeals his conviction on the grounds that the State improperly cross-examined the only defense witness (King) about his prior use of aliases and engaged in prosecutorial misconduct during rebuttal closing argument.

Defendant also appeals his sentence on the grounds that the trial court erred by denying his request for an examination to determine his eligibility for drug treatment under the Alcoholism and Other Drug Dependency Act (Act) (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 6351-1 et seq., now codified at 20 ILCS 305/1-101 et seq. (West 1993)) and that impermissible disparity exists between his 11-year sentence and the 4-year sentence imposed on codefendant King.

We affirm the conviction but vacate the sentence because defendant met the criteria for consideration of drug treatment under the Act. We file this opinion pursuant to Supreme Court Rule 23(a)(1) (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, effective July 1, 1994) to explain the effect of an amendment to the Act which deleted material upon which a defendant might have relied.

First, as correctly conceded by defendant, he has waived his contention that the State improperly elicited testimony regarding King's use of aliases because defendant failed to object at trial and to assert this claim in his post-trial motion. ( People v. Coleman (1994), 158 Ill. 2d 319, 339, 633 N.E.2d 654, 198 Ill. Dec. 813 (waiver of the use of alias evidence).) We decline defendant's suggestion to invoke the plain error doctrine since the evidence was not closely balanced and the admission of the challenged alias evidence did not deny defendant a fair trial. Coleman, 158 Ill. 2d at 339; see also People v. Childress (1994), 158 Ill. 2d 275, 300, 633 N.E.2d 635, 198 Ill. Dec. 794 ("the plain error exception does not operate as a general savings clause").

Second, defendant waived his challenge to the State's comments in rebuttal closing argument by failing to identify the alleged improper remarks in his post-trial motion. The general and vague allegation stated in defendant's post-trial motion is not sufficient to overcome waiver. ( People v. Buchanan (1991), 211 Ill. App. 3d 305, 312, 570 N.E.2d 344, 155 Ill. Dec. 831.) Moreover, the prosecutor is allowed wide latitude in closing argument and may respond in rebuttal to statements made by the defense in closing argument where the defense invites such response by his own argument. E.g., People v. Nitz (1991), 143 Ill. 2d 82, 118, 572 N.E.2d 895, 157 Ill. Dec. 431; People v. Davis (1992), 236 Ill. App. 3d 233, 243, 603 N.E.2d 635, 177 Ill. Dec. 565; People v. Petrusel (1992), 238 Ill. App. 3d 683, 690-91, 606 N.E.2d 547, 179 Ill. Dec. 715.

Third, defendant asserts that the trial court was required to order a substance abuse evaluation pursuant to the Act based on defense counsel's following statement at the start of defendant's sentencing hearing:

"It has to do with (defendant's] alcohol and drug history. And after talking with [defendant, he] has indicated that he was somewhat ashamed of his prior drug use and he informed me in fact at the time of the incident he had been drinking regularly and heavily, and had been using cocaine on a daily basis in addition to smoking marijuana. And based upon that, your honor, we would be asking that [defendant] be examined under [the Act] for drug treatment."

Defendant relies on this court's decisions in People v. Henry (1990), 203 Ill. App. 3d 278, 560 N.E.2d 1205, 148 Ill. Dec. 608, and People v. Beasley (1982), 109 Ill. App. 3d 446, 440 N.E.2d 961, 65 Ill. Dec. 106.

The State maintains that defense counsel's representation is insufficient to trigger an evaluation under the Act and that the Henry and Beasley cases were wrongly decided and are factually distinguishable from the present case.

The purpose of the Act is to prevent drug abuse and encourage treatment and rehabilitation by allowing eligible defendants to elect rehabilitative treatment instead of traditional sentencing. ( People v. Bender (1992), 226 Ill. App. 3d 940, 590 N.E.2d 532, 168 Ill. Dec. 895.) To achieve these purposes, the ...

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