People v. Baylor

443 N.E.2d 1137, 111 Ill. App. 3d 286, 67 Ill. Dec. 13, 1982 Ill. App. LEXIS 2593
CourtAppellate Court of Illinois
DecidedDecember 28, 1982
Docket81-751
StatusPublished
Cited by4 cases

This text of 443 N.E.2d 1137 (People v. Baylor) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Baylor, 443 N.E.2d 1137, 111 Ill. App. 3d 286, 67 Ill. Dec. 13, 1982 Ill. App. LEXIS 2593 (Ill. Ct. App. 1982).

Opinion

JUSTICE NASH

delivered the opinion of the court:

Defendant, Lawrence Baylor, was found guilty of attempted murder (Ill. Rev. Stat. 1979, ch. 38, pars. 8—4(a) and 9—1(a)(1)) after trial by jury and was sentenced to a term of 30 years imprisonment. He appeals, contending: (1) improper argument by the prosecutor was prejudicial; (2) the trial court abused its discretion in imposing the maximum term sentence of 30 years; and (3) cumulative errors denied him a fair trial.

A North Chicago police officer testified at trial that at 1:30 a.m. on May 1, 1981, he was patrolling in an area known as the “strip” near the Great Lakes Naval Base. He had stopped a car for a minor traffic violation in which two black men and a white man were riding. While seeking to determine the ownership of the car, the officer received a radio call regarding another matter in which someone had been injured. He then advised the two black men to return to Chicago in the car and the white man to go back to the base. At trial, the officer identified defendant as the driver of the car.

James Egan testified he was in the Navy on May 1, 1981, stationed at Great Lakes Naval Base. He had been paid on April 30 and, while visiting bars near the base, met an acquaintance named Sikes who introduced him to defendant. Egan asked for a ride back to the Sheraton Hotel and as the three men were driving they were stopped by an officer. The officer told Egan to go back to the base and he walked off in that direction. Shortly thereafter the men drove up to him in the car and Egan rejoined them. After driving around for about an hour, the car stopped on a road in a dark area near an apartment complex. The driver went back to the trunk and opened it and Egan followed him.

The driver, who Egan identified in trial as defendant, removed an object from the trunk and pointed it at Egan telling him to drop his wallet. Egan then attempted to kick defendant with his right foot and was shot; he turned and started to run, then lost consciousness. A doctor testified Egan had been injured by a shotgun fired from close range and sustained a four-inch wide chest wound and loss of his left kidney. There were pellet wounds to the stomach, colon, diaphragm and lung and a colostomy was performed; further surgery will be required.

Officers Steven Anderson and Timothy Neimietz testified they interviewed defendant on May 5, 1981, and, after advising him of his Miranda rights, defendant signed a rights waiver form and subsequently signed a written confession. A motion to suppress the confession was heard during trial outside the presence of the jury. Defendant there testified he signed the confession because one of the officers yelled at him and he was grabbed by the neck, struck and his head hit against the wall. Defendant also stated he was threatened with a 20 to 40 year sentence if he did not sign the confession and thought he would “get off” if he did so. The officers also testified denying the use of force or threats against defendant and the trial court denied the motion to suppress.

Officers Anderson and Neimietz testified before the jury that defendant told them he knew the end of the month was payday for the Navy and he could get money by robbing a sailor. He and Lawler Sikes borrowed a car and drove to Waukegan from Chicago after stopping at defendant’s home to put his sawed-off shotgun in the trunk of the car. In Waukegan they picked up a sailor and later were stopped by police; when the police left the sailor got back in the car. The three men drove around; then defendant found a dark road and got out of the car, saying he was going to get marijuana the sailor wanted. At the trunk of the car defendant pointed the shotgun at the sailor and told him to drop his wallet; when the sailor backed up quickly, defendant said he pointed the gun at his abdomen and pulled the trigger. Defendant put the shotgun back in the car trunk and drove to a friend’s house in Waukegan, returning to Chicago the next day. Although it was not included in the written confession, Office Neimietz testified defendant had also said, “I did it on purpose.”

Defendant testified in trial that he and Sikes came to North Chicago on the night of April 30 to meet friends. They stopped at a club where a man approached and inquired if defendant wanted to sell some marijuana. After leaving the club with the man they were stopped by police who told defendant to return to Chicago and the sailor to return to the base. Defendant testified he next saw Egan in court and had not attempted to rob him or shoot him. Defendant also testified he had made the statement to Officers Anderson and Neimietz and signed the typewritten confession involuntarily because of physical and mental force applied to him.

Defendant contends first that in argument the assistant State’s Attorney’s comments that defendant had presented inconsistent defenses was improper and prejudicial. Defendant failed, however, to preserve that issue for review by first raising it in his post-trial motion for consideration by the trial court. (People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091, 1093; People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739, 743.) Nor does the fact defendant objected to the alleged erroneous argument when made in trial preserve it for review when such claim of error was not also included in his post-trial motion. People v. Tannenbaum (1980), 82 Ill. 2d 177, 181, 415 N.E.2d 1027, 1029-30; Wilson v. Clark (1981), 84 Ill. 2d 186, 189, 417 N.E.2d 1322, 1324, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140.

We need not consider whether this issue may be reviewed under the plain error doctrine of Supreme Court Rule 615(a) (73 Ill. 2d R. 615(a)), although waived, as in our view the disputed argument was fair and responsive comment directed to the evidence and argument made by defendant’s counsel.

Defendant had testified he was not present during the commission of the offense and his counsel argued to the jury that, even if he had been present, under the evidence it was not shown defendant had the requisite intent to Mil necessary to his conviction. Reasonably enough, the prosecutor pointed out in final argument that the jury was being tendered inconsistent defenses from which to choose. Where defendant’s argument invites or provokes an obvious response from the prosecutor, he may not complain he was thereby prejudiced. People v. Vriner (1978), 74 Ill. 2d 329, 344, 385 N.E.2d 671, 677, cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858; People v. McElroy (1980), 81 Ill. App. 3d 1067, 1073-74, 401 N.E.2d 1069, 1074.

Defendant next contends that in imposing the maximum 30 year sentence of imprisonment for attempted murder (Ill. Rev. Stat. 1979, ch. 38, pars. 8—4(c)(1), 1005—8—1(a)(3)), the trial court abused its discretion by failing to consider or give adequate weight to the evidence of defendant’s potential for rehabilitation as is required by the constitution (Ill. Const. 1970, art.

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Bluebook (online)
443 N.E.2d 1137, 111 Ill. App. 3d 286, 67 Ill. Dec. 13, 1982 Ill. App. LEXIS 2593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-baylor-illappct-1982.