Appeal from the Circuit Court of Cook County. Honorable Patrick Grossi, Judge Presiding.
Rehearing Denied July 19, 1995. Released for Publication August 16, 1995.
The Honorable Justice McCORMICK delivered the opinion of the court: Scariano, P.j., and DiVITO, J., concur.
The opinion of the court was delivered by: Mccormick
JUSTICE McCORMICK delivered the opinion of the court:
Defendant Terry Bridges and codefendant Jason Phillips were tried by a single jury for armed robbery and attempted first degree murder. Defendant was found guilty of both charges and sentenced to concurrent terms of 20 years in prison for attempted first degree murder and 10 years for armed robbery. Codefendant Phillips was sentenced to 10 years for armed robbery. On appeal, defendant contends as follows: (1) the trial court improperly admitted evidence of the circumstances of defendant's arrest, which suggested that he was involved in an offense unrelated to the crime charged; (2) the trial court erred in admitting the gun retrieved at the time of defendant's arrest into evidence; (3) two of defendant's alibi witnesses were improperly impeached; (4) the prosecutor's comments during closing argument and on rebuttal were unfairly prejudicial and denied defendant a fair trial; (5) the cumulative effects of the prosecutor's remarks violated defendant's right of due process; and (6) defendant's sentence for attempted first degree murder was excessive in light of his background and rehabilitative potential. *fn1 For the reasons set forth below, we affirm defendant's convictions and sentences.
The record discloses that on September 23, 1990, at approximately 7:15 p.m., the victims, Sandra Valentino and her daughter, Kim Kruswicki, were unloading packages from Kruswicki's car at the corner of Lexington and Ada Streets in Chicago when defendant and codefendant Jason Phillips approached them. Valentino saw that the man directly in front of her, later identified as defendant, had a gun. Defendant said to Kruswicki, "Give me your purse or it will be murder." At that moment, a neighbor, Julio Montilla, passed by and asked, "What's going on there?" According to the victims, Montilla startled defendant and Phillips. Phillips grabbed Kruswicki's purse and he and defendant ran away. Montilla and Kruswicki chased the men into nearby Arrigo Park. Once through the park, the men split up. Montilla followed defendant southbound on Ada Street and into a housing development just beyond the park. Near Taylor street, defendant stopped and fired three shots at Montilla. Montilla was not hit and continued chasing defendant to Taylor Street. At Taylor, defendant fired another shot at Montilla. As Montilla turned to leave the area, defendant fired four more shots at him. Again, Montilla was not hit.
Officer Daniel Leahy testified that the victims described their assailants as black men, in their early to mid-20's. They described the gunman as medium-dark, weighing approximately 135 lbs., wearing a Raiders' jacket, dark pants and white gym shoes. The other man they described as dark, approximately 5'10", and weighing 145 lbs. Based upon the damage to nearby automobiles, Officer Leahy and his partner surmised that the gun used in the shooting was a .32 caliber automatic.
Defendant was arrested the day after the attack for a different incident. At separate lineups, Valentino and Kruswicki identified defendant as the assailant holding the gun and codefendant Phillips as the other assailant. Montilla also identified defendant as the gunman, but could not positively identify Phillips at the lineup. At trial, Valentino, Kruswicki and Montilla made in-court identifications of defendant.
Before addressing the issues raised on appeal by defendant, we note that they were not preserved in a post-trial motion. The law is well settled that where a defendant fails to raise alleged points of error in a written motion for a new trial, the issue is waived on subsequent appellate review. ( People v. Enoch (1988), 122 Ill. 2d 176, 185, 522 N.E.2d 1124, 119 Ill. Dec. 265; People v. Spears (1993), 256 Ill. App. 3d 374, 381, 628 N.E.2d 376, 194 Ill. Dec. 879.) Defendant acknowledges this, but argues that the questions raised before this court are issues of plain error and, thus, are excepted from the doctrine of waiver.
The plain error doctrine is an exception to the rule of waiver and is applicable "where the record clearly shows that an alleged error affecting substantial rights was committed" or "where the error occurs in cases in which the evidence is closely balanced." People v. Young (1989), 128 Ill. 2d 1, 46, 538 N.E.2d 461; People v. Odle (1988), 128 Ill. 2d 111, 134, 538 N.E.2d 428, 131 Ill. Dec. 53.
We do not believe the evidence in this case was closely balanced. However, since most of the issues defendant raises go to constitutional issues involving substantial rights, we will address the issues raised by defendant on the merits as plain error.
The first issues raised by defendant, that the trial court erred in admitting into evidence the circumstances of his arrest and the gun retrieved at the time of his arrest, are interwoven and are best discussed together.
Officer James Hall testified at trial that around noon after the robbery he and his partner, Officer Thomas Newton, patrolled the area where the robbery had taken place. A man ran up to Officer Hall and told him that someone was chasing him with a gun. Officer Hall observed defendant, with a gun in his hand, approaching the man. When Officers Hall and Newton identified themselves, defendant and codefendant Phillips, who was alongside defendant, turned around and began to run in opposite directions. Officer Hall chased defendant into an apartment building, arrested him and retrieved a .38 caliber gun that he had observed defendant discard into an incinerator. Phillips was arrested by another officer, Maureen McMohn, who came to the officers' assistance.
Whether evidence is relevant and admissible is a determination within the discretion of the trial court. ( People v. Jackson (1990), 195 Ill. App. 3d 104, 111, 551 N.E.2d 1025, 141 Ill. Dec. 682.) A reviewing court will not disturb a determination that evidence is admissible unless the record fails to demonstrate a sufficient basis for the trial court's decision. ( Jackson, 195 Ill. App. 3d at 111.) "Evidence of other crimes is not admissible merely to show how the investigation unfolded. Such evidence, in order to be admissible, must be relevant and specifically ...