People v. Brown

641 N.E.2d 948, 267 Ill. App. 3d 482, 204 Ill. Dec. 518, 1994 Ill. App. LEXIS 1327
Appellate Court of Illinois·Decided October 12, 1994·No. No. 1—93—0029·Published·Cited by 1 cases

Opinion

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 Illinois Alcoholism and Other Drug Dependency Act (Act) (Ill. Rev. Stat. 1991, ch. 111½, par. 6351 — 1 et seq. (now 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, eff. 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 (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 ("[t]he 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.) 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; People v. Davis (1992), 236 Ill. App. 3d 233, 243, 603 N.E.2d 635; People v. Petrusel (1992), 238 Ill. App. 3d 683, 690-91, 606 N.E.2d 547.

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, and People v. Beasley (1982), 109 Ill. App. 3d 446, 440 N.E.2d 961.

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.) To achieve these purposes, the provisions of the Act must be liberally construed. 20 ILCS 305/1 — 102 (West 1993).

The Act mandates that the trial court must advise a defendant of his option to elect treatment once the court is given a reason to believe an otherwise eligible defendant is an addict or alcoholic. (People v. Meeks (1992), 236 Ill. App. 3d 193, 196-97, 603 N.E.2d 757.) If the defendant chooses to undergo treatment, the Act requires the court to order a substance abuse evaluation "by a designated program to determine whether he is an addict or alcoholic and is likely to be rehabilitated through treatment.” 20 ILCS 305/10 — 102 (West 1993).

The provision of the Act which determines whether or not a substance abuse evaluation is required has undergone several alterations from the versions encountered in the Henry and Beasley cases. Notwithstanding the present parties’ silence as to the statutory language change in the Act, we are obligated to presume that every amendment to a statute has a purpose and must consider the language of the changed statute in light of the need for the amendment. People v. Richardson (1984), 104 Ill. 2d 8, 15, 470 N.E.2d 1024 (changing the word "may” to "shall” in a preceding version of the present Act required the trial judge to inform every defendant whom he knows or has reason to believe is an addict of the possibility of treatment under the Act).

To invoke the mandate of the Act to order a substance abuse evaluation, the Henry and Beasley cases were presented with a version of the then applicable statutory provision which provided in pertinent part:

"If a court has reason to believe that an individual convicted of a crime is an addict or the individual states that he is an addict.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 111½, par. 6323 (the Henry case); Ill Rev. Stat. 1979, ch. 91½, par. 120.10 (the Beasley case).

Subsequently, the italicized portion of the statute was deleted by the General Assembly, and the provision at issue in the present case and in its current statutory form provides in relevant part:

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People v. Brown, 641 N.E.2d 948, 267 Ill. App. 3d 482, 204 Ill. Dec. 518, 1994 Ill. App. LEXIS 1327 (Ill. Ct. App. 1994).

641 N.E.2d 948 (People v. Brown) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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