No. 3--95--0810
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IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) for the 10th Judicial Circuit
) Peoria County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 95--CF--667
)
THOMAS WALTER MCGEE, ) Honorable
) Robert E. Manning,
Defendant-Appellant. ) Judge Presiding
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JUSTICE HOMER delivered the opinion of the court:
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The defendant, Thomas Walter McGee, was convicted of
aggravated discharge of a firearm (720 ILCS 5/24--1.2 (West 1994))
and sentenced to six years in prison. On appeal, he claims that
the prosecutor made improper comments during closing arguments and
that the trial court considered an improper factor in aggravation
in determining his sentence. We affirm.
FACTS
Some of the facts surrounding the offense are not in dispute.
The defendant, his girlfriend and their 10-month-old child went to
the home of Taronn Bell in an attempt to obtain money from Bell to
pay for repairing his girlfriend's car which had been damaged by
Bell's nephew. The defendant approached Bell's home. After
speaking to someone, he got into his car and began to leave. After
the defendant backed out of Bell's driveway, he stopped the car on
the street. The defendant then got out of the vehicle and fired a
gun several times over the roof of the car before returning to the
car and driving away.
Details of the defendant's encounter with Bell differ among
the various witness accounts. Bell testified that he was upstairs
in his home when a man came to the door. Bell's wife spoke to the
man, and Bell came down the stairs just as the conversation was
ending. Bell stated that he went outside and was on the porch when
the man was getting into his car. The man backed his car out of
the driveway and stopped on the street in front of Bell's house.
Then Bell heard shots, so he ran. Bell testified that he would not
recognize the shooter because he did not see the shooter's face.
Bell's wife testified that the defendant came to the door of
her home, identified himself as a gang member, flashed a gun, and
demanded payment for the damage done to his girlfriend's car by
Bell's nephew. She stated that she told the defendant that she and
her husband were not responsible for the damage. Her conversation
with the defendant lasted approximately 10 minutes. At the end of
that time, Bell came to the door and spoke with the defendant.
According to Bell's wife, the defendant stopped his car on the
street and then fired a gun at least four times in her direction
and that of Bell and their three children. She admitted that she
had a criminal history arising out of her having previously given
a false name to the police.
One of Bell's neighbors testified that he was at home when he
heard gunshots from outside. He went to his front door and saw a
man standing with his arm extended over the roof of a car firing a
gun between the buildings across the street. He heard a few shots,
then a pause and then more shots. All the shots sounded the same.
The neighbor observed three small children playing in the area
toward which the shooter was firing, so he called the police.
After placing the phone call, the neighbor went back to his door
and saw that the man was still there and was still firing his gun
over the roof of his car. Shortly thereafter, the man drove away.
The neighbor then saw two men come out of the building across the
street. Each man carried a gun, but the neighbor did not see
either of them fire his weapon. Following the shooting, the neigh-
bor went into the street and retrieved 15 shell casings which he
gave to the police.
The defendant's girlfriend testified that she was with the
defendant when he went to Bell's home to obtain money from Bell to
repair the damage to her car which had been caused by Bell's
nephew. According to the defendant's girlfriend, as the defendant
approached Bell's home, Bell's wife answered the door. A man
appeared at an upstairs window, and he and the defendant proceeded
to have a conversation. The defendant returned to his vehicle, and
the man from the window came out of the home brandishing a gun.
This man fired several shots at the defendant's car which prompted
the defendant to retrieve a gun from under the seat and return the
gunfire. Then the defendant drove away. The defendant's
girlfriend further testified that there were bullet holes in her
car as a result of the shots fired from the other man. An
investigating police officer confirmed the existence of bullet
holes in the vehicle on the date of the occurrence. However, he
could not determine whether the holes had been made that day, and
he testified that the defendant's girlfriend refused to allow the
police to examine the holes further to determine whether they were
fresh.
The defendant testified that when he approached Bell's home,
Bell spoke to him from an upstairs window. After Bell refused to
pay for the damage to the car, the defendant got into his car to
leave. As he was leaving, Bell came out of the home with a gun and
began to fire at the defendant. The defendant was scared and
feared that his girlfriend or his child might be hurt, so he
stopped the car, reached under the seat for a gun, got out of the
car and fired the gun into the air. Then he drove away. The
defendant testified that he could not just drive away from the
scene because there was something wrong with the car and it would
have stalled if he had tried to speed away.
During closing arguments, the prosecutor suggested to the jury
that the testimony of witnesses provided by the State and by the
defense could not be reconciled and further suggested that the jury
would have to determine which account was true. Thereafter, the
prosecutor remarked at some length on the defendant's failure to
leave the scene of the shooting, saying, inter alia: "Could the
defendant have driven away? Of course. Did he? No. Why not? I
suggest to you that's because his story of what happened is
implausible here."
The prosecutor further commented on the criminal history of
Bell's wife and suggested that the defendant and his girlfriend
engaged in worse behavior because they had lied to the police and
to the jury. Next, the prosecutor addressed the testimony that
following the shooting there were bullet holes in the car used by
the defendant. He noted that there was no objective or scientific
evidence that the bullet holes were fresh. He reminded the jury
that the defendant's girlfriend had not allowed the police to
determine the age of the holes.
The prosecutor also noted that the defendant had not produced
Bell's nephew, who occasionally resided with the defendant, as a
witness to verify any portion of the defendant's story. The
defendant objected, and the trial court instructed the jury to
disregard the prosecutor's remark. Finally, the prosecutor stated
that the defendant had fired his weapon in the direction of Bell
and Bell's wife and children.
The jury returned a verdict of guilty. At the sentencing
hearing, the trial judge remarked that he had considered all the
statutory factors in aggravation and mitigation. He found in
mitigation that the defendant did not have a history of prior
criminal activity. In aggravation, he found that the defendant's
acts threatened serious physical harm to other persons. The court
sentenced the defendant to six years' imprisonment.
PROSECUTOR'S CLOSING ARGUMENT
In his post-trial motion, the defendant claimed that he had
been prejudiced by the prosecutor's closing argument but
specifically noted only the prosecutor's comment regarding the
defendant's failure to call Bell's nephew as a witness.
On appeal, the defendant points to five examples of how he was
denied a fair trial by the prosecutor's closing argument: (1) the
prosecutor improperly implied that the defendant had a duty to
retreat, contrary to established law, thereby diminishing his claim
of self-defense; (2) the prosecutor improperly impugned the
credibility of the defendant and his girlfriend by stating they had
given false stories to the police and the jury, equating their
conduct with that of Bell's wife who had been previously convicted
of giving a false name to a police officer; (3) the prosecutor
improperly expanded the nature of the charge, thereby diminishing
the burden of proof by arguing that the defendant had fired in the
direction of Bell, his wife and his children when the defendant had
only been charged with firing his weapon in Bell's direction; (4)
the prosecutor improperly commented upon the defendant's failure to
present expert testimony to prove the bullet holes in the
defendant's car were fresh; and (5) the prosecutor improperly
commented upon the defendant's failure to call Bell's nephew as a
witness.
We find that the defendant has waived any alleged error with
regard to the first four examples by failing to object at trial or
to raise these issues in his post-trial motion. See People v.
Burrows, 148 Ill. 2d 196, 592 N.E.2d 997 (1992). Thus, we can
reverse only if the prosecutor's comments amounted to plain error.
People v. Whitehead, 116 Ill. 2d 425, 508 N.E.2d 687 (1987). Plain
error is error of such magnitude that it denied the defendant a
fair proceeding or error in a trial where the evidence is closely
balanced. Whitehead, 116 Ill. 2d 425, 508 N.E.2d 687. Following
our careful review of the record, we find that none of these
comments by the prosecutor, taken individually or cumulatively, was
of such magnitude to deny the defendant a fair trial.
Although a defendant has no duty to retreat when attacked with
deadly force, a prosecutor may properly argue a defendant's failure
to easily extricate himself from a dangerous situation as a comment
on the credibility of the defendant's testimony that he was afraid
and that the use of deadly force was necessary. People v. White,
265 Ill. App. 3d 642, 638 N.E.2d 314 (1994); People v. Wilburn, 263
Ill. App. 3d 170, 635 N.E.2d 877 (1994). The jury, in the case at
bar, was properly instructed with regard to the issues of self-
defense, and we find the prosecutor's argument about the
defendant's actions to be permissible commentary on the credibility
of the defense witnesses. Further, we note that the jury was
properly instructed regarding the elements of the charged offense,
so no prejudicial error resulted from the prosecutor's comments
about the defendant shooting in the direction of Bell's wife and
the children, as well as at Bell. See People v. Hobley, 159 Ill.
2d 272, 637 N.E.2d 992 (1994) (improper comment may be cured by
providing proper instructions of law). Moreover, we do not agree
that the prosecutor's comment relative to a lack of objective or
scientific evidence was directed toward the defendant's failure to
call an expert witness. Rather, it was a reference to the
girlfriend's alleged lack of cooperation with the crime scene
personnel. As such, the comment was intended to impeach the
credibility of the girlfriend, which is allowable. Additionally,
we do not find that the evidence in this case was closely balanced.
The testimony of the only independent eyewitness, Bell's neighbor,
corroborated Bell's version of the events and that of Bell's wife.
Therefore, we do not find plain error.
Finally, with regard to the prosecutor's comment about the
defendant's failure to call Bell's nephew as a witness, we note
that the trial court sustained the defendant's objection and
admonished the jury to disregard the prosecutor's remark. When a
defendant's objection is sustained and the jury is properly
admonished, any potential error is generally deemed cured. People
v. Gonzalez, 265 Ill. App. 3d 315, 637 N.E.2d 1135 (1994). We find
that the trial court properly responded to the defendant's
objection, and thus, any error stemming from the prosecutor's
remark was cured.
SENTENCING
The defendant argues next that the trial court considered the
threat of harm as an improper aggravating factor in determining his
sentence.
Again, the defendant has waived this error by failing to
object at the sentencing hearing (see People v. Lybarger, 198 Ill.
App. 3d 700, 555 N.E.2d 1264 (1990)) and by failing to file a
written motion to reduce sentence (see People v. McCleary, 278 Ill.
App. 3d 498, 663 N.E.2d 22 (1996); People v. Moncrief, 276 Ill.
App. 3d 533, 659 N.E.2d 106 (1995)).
Moreover, we find that any error did not amount to plain
error. Plain error arises in a sentencing proceeding when the
evidence is closely balanced or when the alleged error is so
fundamental that it may have deprived the defendant of a fair
sentencing hearing. People v. Beals, 162 Ill. 2d 497, 643 N.E.2d
789 (1994). The defendant stood convicted of a Class 1 felony for
which he received a six-year prison sentence. We find that any
consideration by the trial judge of the threat of harm imposed by
the defendant's conduct, beyond that implicit in the charge itself,
did not result in a greater sentence than would have been imposed
absent such consideration. See People v. Ward, 243 Ill. App. 3d
850, 611 N.E.2d 590 (1993). Therefore, we uphold the sentence
imposed by the trial court.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Peoria County is affirmed.
Affirmed.
LYTTON, P.J., and MICHELA, J., concur.