People v. Kirk

491 N.E.2d 78, 141 Ill. App. 3d 971, 96 Ill. Dec. 264, 1986 Ill. App. LEXIS 2007
CourtAppellate Court of Illinois
DecidedMarch 14, 1986
DocketNo. 83—2521
StatusPublished
Cited by2 cases

This text of 491 N.E.2d 78 (People v. Kirk) 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. Kirk, 491 N.E.2d 78, 141 Ill. App. 3d 971, 96 Ill. Dec. 264, 1986 Ill. App. LEXIS 2007 (Ill. Ct. App. 1986).

Opinion

JUSTICE MURRAY

delivered the opinion of the court:

Following a jury trial, defendant, L. C. Kirk, a/k/a L. C. Shines, was convicted of the crime of aggravated battery and sentenced to a term of five years in the penitentiary. His term was to run consecutively to an unrelated two-year term for a conviction under indictment No. 82 — 12051 for theft.

The incident resulting in the conviction in this case occurred in the county jail on February 16, 1983. According to the trial testimony, Kirk, while an inmate in the jail, assaulted Robert Sawyer, a correctional officer, causing an eye injury.

Kirk’s appeal is based on the following grounds: (1) a failure of the trial judge to comply with the sentencing requirements of the Illinois Uniform Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 6—1(a)); (2) prosecutorial misconduct during final argument; (3) the exclusion of black jurors, allegedly violating Kirk’s State and Federal constitutional rights to due process of law; and (4) an alleged error in making Kirk’s five-year sentence for aggravated battery to run consecutively to the two-year term imposed in indictment No. 82— 12051 upon Kirk’s conviction for theft.

This court must affirm defendant’s conviction and sentence.

Kirk’s assertion that the trial court failed to follow the provision of the Illinois Unified Code of Corrections is based on a charged failure of the trial judge to mention Kirk’s eligibility for probation during the imposition of his sentence. The Unified Code of Correetions provides in part at section 5 — 6—1(a) (Ill. Rev. Stat. 1983, ch. 38, par. 1005-6-l(a)):

“Except where specifically prohibited by other provisions of this Code, the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that
(1) his imprisonment or periodic imprisonment is necessary for the protection of the public; or
(2) probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.”

Kirk contends that this section places a duty on a sentencing judge to state which exception he or she relied on in imposing a sentence other than probation or conditional discharge, citing People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541, and People v. Kuesis (1980), 83 Ill. 2d 402, 415 N.E.2d 323.

The State contends that defendant waived the issue by failing to object at the sentencing hearing or by raising the issue in his post-trial motion. The State also asserts that the trial court complied with the requirements of section 5 — 6—1(a) by expressing a feeling of sympathy for defendant’s plight and stating, “because your conduct is such that the protection of the public and further criminal conduct from you for the time being requires this sentence under section 584, so, this sentence will run consecutively to the sentence in No. 82— 12051.”

The holdings in People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541, and People v. Kuesis (1980), 83 Ill. 2d 402, 415 N.E.2d 323, requires express compliance with the provision of the afore-cited Code in sentencing. However, they do not require any magical language. All that is required is substantial compliance. Substantial compliance may exist even if the court does not specifically state “imprisonment is necessary for the protection of the public,” or that “probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be iticonsistent with the ends of justice.” (People v. Cox (1980), 82 Ill. 2d 268, 281, 412 N.E.2d 541, 548.) If the trial court record discloses a substantial compliance with the provisions of section 5 — 6—1(a), a reviewing court may alter the sentencing judge’s disposition only upon a showing of an abuse of discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Here, the record does expressly demonstrate that the trial judge substantially followed the provisions of section 5 — 6—1(a) of the Illinois Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 6—1(a)).

The able trial judge expressed his sympathy to Kirk and his frustration and stated:

“In this instance, the guard in question, as you pointed out, seemed to be a nice gentleman and the harm that was done to him was certainly wrong. I’m going to sentence you, accordingly, in the charge of aggravated battery in No. 83 — 2726 to five years in the Illinois Department of Corrections to be given credit for 245 days already served. *** [BJecause your conduct is such that protection of the public and further criminal conduct from you for the time being, requires this sentence under section 584, so, this sentence will run consecutively to the sentence in No. 82 — 12051.”

The defendant’s argument with respect to noncompliance with the provision of section 5 — 6—1(a) is without substantive merit.

The defendant also argues that the assistant State’s Attorneys’ arguments on closing and rebuttal were so egregious as to justify a reversal. It is well-settled law in this State that a prosecutor has a great latitude in making his closing argument. (People v. Oliger (1975), 32 Ill. App. 3d 889, 336 N.E.2d 769.) Furthermore, reviewing courts are reluctant to set aside a verdict on the grounds of remarks made during closing argument and do so only when these remarks are clearly extreme, such as attacks on the defendant or his counsel which are inflammatory. People v. Starr (1976), 37 Ill. App. 3d 495, 346 N.E.2d 410.

Finally, prosecutorial remarks are grounds for reversal only when such remarks, considered in the light of all the evidence, constitute a material factor in a conviction or when the verdict would have been different had the language not been used. (People v. Panczko (1980), 86 Ill. App. 3d 409, 407 N.E.2d 988.) Based on this rather rigid standard, this court cannot find that the closing arguments of the assistant State’s Attorneys were so prejudicial as to constitute a basis for reversal.

The aggravated assault case against defendant was quite strong. Three correctional officers testified that defendant refused a lawful order to return to his cell and to go on lockup status. Each testified that defendant spun out of the grip of one officer (Lieutenant Holley) who was attempting to guide defendant to his cell. Each testified that after defendant began moving toward his cell, he suddenly spun around and struck Sergeant Sawyer in the face.

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Related

People v. Stevenson
562 N.E.2d 330 (Appellate Court of Illinois, 1990)
People v. Monk
528 N.E.2d 1063 (Appellate Court of Illinois, 1988)

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Bluebook (online)
491 N.E.2d 78, 141 Ill. App. 3d 971, 96 Ill. Dec. 264, 1986 Ill. App. LEXIS 2007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kirk-illappct-1986.