Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois No. 96--CF--376 Honorable Scott A. Shore, judge Presiding
The opinion of the court was delivered by: Justice McCUSKEY
On April 2, 1997, a jury found the defendant, Mark E. Lee, guilty of armed robbery (720 ILCS 5/18--2 (West 1994)). He was subsequently sentenced to six years' imprisonment. On appeal, the defendant argues that his conviction should be reversed because: (1) the indictment was defective in that it did not allege a mental state; (2) the jury relied upon improper comments made by the prosecutor; and (3) the State did not prove all of the elements of armed robbery beyond a reasonable doubt. Alternatively, the defendant asks this court to reduce the charge for which he was convicted in accordance with Supreme Court Rule 615(b). 134 Ill. 2d R. 615(b). After a careful review of the record, we affirm.
On August 22, 1996, the defendant was indicted with the offense of armed robbery. The indictment charged:
"That on or about August 2, 1996, at or near No. 14 Valley Forge Plaza, Washington, Tazewell County, Illinois, said defendant, Mark E. Lee committed the offense of armed robbery (Class X) in that said defendant while armed with a dangerous weapon, a knife, took property, being U.S. Currency, from the presence of Judith K. Wilder, by threatening the imminent use of force in violation of 720 ILCS 5-18-2(a)."
Prior to trial on March 31, 1997, the defendant filed a motion to dismiss the indictment which was denied by the trial court as was his motion to reconsider filed on April 1, 1997. The jury trial therefore proceeded on April 1, 1997.
At trial, the testimony of Hester Lee, Lindie Lee, and Judith Wilder established the following facts. On August 2, 1996, Hester and Lindie were at the Complexions Beauty Shop in Washington, Illinois when the defendant entered the shop with a knife having a blade approximately four to five inches long. After telling Hester to open the cash register, the defendant proceeded to beat on the cash register with the knife. Upon learning that Hester was unable to open the register, he told Lindie to open it. She too, however, was unable to do so, and she therefore called for Judith, the owner of the shop.
When Judith came up the stairs from the back of the shop, the defendant was at the top of the stairs and put the knife one foot in front of her face. He then demanded that she open the cash register, which she did. The defendant then removed $49 from the register, fled the shop, and was later apprehended in a cornfield by the police.
The defendant testified on his own behalf. He stated that he entered the shop with his pocket knife, demanded the cash, but never threatened anyone.
During closing argument, the prosecutor made two statements to which defense counsel objected. The first comment was as follows:
"Now, in this matter, in this case, this specific case here, you are also going to be instructed on a charge of theft, which is what we call a lesser included offense of the charge of armed robbery."
Following this comment, defense counsel made an objection which was sustained by the trial court, although the defense's motion for a mistrial was denied. Instead, the trial court instructed the jury as follows:
"The objection raised by the defense is sustained. The offense of armed robbery and the offense of theft are to be considered by the jury as having equal weight, and the instruction that is to be given to the jury in this regard is as follows. The defendant --and I will be reading this again if you will permit me, as I read the instructions to you. The defendant is charged with the offense of armed robbery. The defendant has pleaded not guilty. Under the law, a person charged with armed robbery may be found, number one, not guilty, or number two, guilty, or number three, guilty of theft, and from that point, if counsel will continue his argument."
Notwithstanding the trial Judge's admonition, the prosecutor later made a second, similar statement to which the defendant objected. Once again, the trial court sustained ...