NO. 4-05-0151 Filed 6/21/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County MARTEL MONTGOMERY, ) No. 04CF328 Defendant-Appellant. ) ) Honorable ) Patrick W. Kelley, ) Judge Presiding. _________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In September 2004, a jury convicted defendant, Martel
Montgomery, of armed robbery (720 ILCS 5/18-2(a) (West 2004)),
conspiracy to commit armed robbery (720 ILCS 5/8-2(a) (West
2004)), aggravated discharge of a firearm (720 ILCS 5/24-1.2
(West 2004)), and home invasion (720 ILCS 5/12-11(a)(3) (West
2004)). At defendant's December 2004 sentencing hearing, the
trial court determined that defendant's conviction for conspiracy
(count II) merged into his conviction for armed robbery (count I)
and then sentenced defendant to 21 years in prison for home
invasion, 6 years in prison for armed robbery, and 4 years in
prison for aggravated discharge of a firearm. The court also
found that great bodily harm and severe bodily injury occurred
and, accordingly, ordered that (1) defendant's sentences were to
be served consecutively and (2) he was required to serve 85% of each sentence.
Defendant appeals, arguing that (1) he was denied his
constitutional right to retain counsel of his choice; (2) his
trial counsel was ineffective because he failed to inform defen-
dant of the potential punishment for the crimes with which he was
charged; (3) the prosecutor's closing argument was improper; (4)
the trial court erred by failing to conduct an appropriate
examination of his posttrial allegations of ineffective assis-
tance of counsel; (5) the court erred when it determined that
defendant's conduct caused great bodily harm and severe bodily
injury; and (6) assuming that the truth-in-sentencing statute
applies, the court erred when it ordered defendant to serve 85%
of all three of his sentences. We disagree with each of defen-
dant's arguments and affirm.
I. BACKGROUND
Because defendant does not challenge the sufficiency of
the State's evidence to support his convictions, we will discuss
it only to the extent necessary to put his arguments in context.
The evidence at defendant's September 2004 jury trial
showed that defendant, Demario Danley, and his brother, Don
Danley, agreed to rob Nicholas Griffitts at Griffitts' trailer.
Don had previously bought marijuana from Griffitts at the
trailer. On March 19, 2004, defendant and the Danley brothers
went to Griffitts' trailer, and Griffitts let them in after Don
- 2 - said they were there to buy marijuana. Griffitts' friend, Sam
Grant, was also present. Once inside, they discussed a marijuana
purchase. During the discussion, Adrian Brown came to the
trailer to purchase some marijuana.
As the negotiations continued in the trailer's family
room, defendant got up, walked down a hallway, and then walked
back into the family room with a revolver in his hand. He struck
Griffitts on the head with the gun, knocking him to the floor.
Defendant then demanded of him, "Where is your stuff? Where is
your money?" When Griffitts did not respond, defendant repeat-
edly kicked him.
When Griffitts got to his feet, defendant pointed the
gun at him and fired two shots past his head into the trailer
wall. As he did so, defendant yelled, "Where is the money?
Where is the stuff? I know you got it." Defendant then fired a
third shot into the trailer wall.
At that point, Grant, who was lying on the floor in the
family room, told defendant where to find some hidden money.
Demario then located a money box, and defendant grabbed a bag of
marijuana off the table. The Danley brothers and defendant then
began leaving. On his way out, defendant said, "Don't think of
following me," and fired a fourth shot, this time into Griffitts'
television.
Shortly after defendant and the Danley brothers fled
- 3 - the trailer, the police and paramedics were called to the scene.
An officer described Griffitts as having a "large cut or gash to
his head" that was bleeding. Griffitts also appeared "a little
disoriented."
The officer also testified that approximately 10 to 15
minutes after he was dispatched to Griffitts' trailer, the phone
in the trailer rang. The officer answered the phone and identi-
fied himself. The caller stated that his name was Don and
although he had been at the trailer earlier that night, he was
not involved in what happened. The caller claimed he did not
know what was going on and did not want to get his friends
involved.
The officer later went to the hospital to speak with
Griffitts, who informed him that the caller was probably Don
Danley, who lived in a nearby apartment complex. The police went
to that location, found Don, and a short time later he gave a
full statement to the police, which implicated himself, Demario,
and defendant.
Griffitts testified that after defendant struck him in
the head, defendant tried to rip Griffitts' pants off to see if
he had anything in his underwear. While doing that, defendant
kicked him repeatedly, trying to kick Griffitts in the chest and
face. Most of Griffitts' injuries were to his forearms because
he had tried to block defendant's kicks. Defendant kept asking
- 4 - where the money and the rest of the drugs were, but Griffitts
said nothing. Griffitts estimated that the first two shots
defendant fired missed him by five or six inches, while defen-
dant's last shot missed him by three or four inches.
Griffitts further testified that he received 13 staples
in his head and one stitch in his lip. (However, the prosecutor
later conceded that Griffitts' medical records showed he received
only seven staples in his head.) Griffitts explained that these
injuries gave him a headache every day for two weeks, and his
vision was blurry "until right before I got staples in my head at
the hospital."
Don testified as a State's witness and identified
defendant as Demario's closest friend. Don explained that he did
not have any agreement with the State regarding his testifying,
but he hoped that his sentence would be reduced as a result.
Nonetheless, he stated that he was "only here to tell the truth."
He acknowledged that he had been told that if he was "honest, [he
would] receive a benefit," but he did not know what the benefit
would be.
Don described the plan that he, Demario, and defendant
made to rob Griffitts. On March 19, 2004, he asked his "side
girlfriend," Tressa Walsh, to watch his two-year-old daughter so
that he and the others could "go rob Nick."
Walsh, Don, and Don's daughter then drove to pick up
- 5 - Demario and defendant. Defendant's girlfriend, Marqueesha Davis,
also joined them. Demario and defendant had the gun. They all
drove back to Don's apartment and discussed their plan to rob
Griffitts. Don's involvement was necessary because Griffitts did
not know either Demario or defendant and would not have let them
in his trailer. Don then described the events inside the trailer
in detail, substantially corroborating Griffitts' testimony.
After the robbery was over, they went back to Don's
apartment and split up the proceeds--namely, the marijuana and
the money. Don then went to his cousin's house with Walsh, where
he smoked some marijuana in an effort to calm himself down. He
was worried about the police because Griffitts knew him. He
called Griffitts and spoke to a police officer who answered.
Don then took Walsh home and went back to his apart-
ment. When the police came, Don let them in, told them he knew
why they were there, and agreed to an interview, in which he told
the police what had happened. At the time he did so, he had not
spoken to any prosecutors, nor had the police made any promises
of any kind as to what would happen to him.
Walsh substantially corroborated Don's testimony. She
also testified that before Don, Demario, and defendant went to
Griffitts' trailer to rob him, she saw the gun in defendant's
hand. She also heard the three of them talking about how they
were going to commit the armed robbery. After the robbery, Walsh
- 6 - heard defendant say that he had to hit "this guy *** in the head
with the pistol because he wouldn't give his money up." She also
saw them split up the proceeds from the robbery.
Davis testified that she was then in custody because,
despite being subpoenaed, she did not come to court. Davis
testified about conversations she heard on March 19, 2004, and a
few days before that involving defendant, Don, and Demario, in
which they talked about "this white dude with the weed." Her
testimony about the events on March 19, 2004, substantially
corroborated Don's, except that she maintained that Don, Demario,
and defendant all left Don's apartment together "to go buy some
weed." Davis also acknowledged that defendant was the father of
her young child.
Davis also testified that when defendant and Don
returned to Don's apartment, she thought something might be
wrong, but she did not know for sure. As she, Don, Demario,
defendant, Don's baby, and Walsh all drove away from Don's
apartment, she heard some conversation about "the white guy
getting hit in the head and blood going everywhere."
The State's last witness was Deputy United States
Marshal John Beeman, who assisted Springfield police in appre-
hending defendant in Fort Wayne, Indiana. Beeman received
information from Springfield authorities that defendant was
traveling under the name of "Chris Brown" by Greyhound bus to
- 7 - Fort Wayne with his girlfriend, Latoya Morris. On March 27,
2004, Beeman and several other officers went to an address in
Fort Wayne associated with Morris and found defendant hiding in
the attic.
Defendant chose not to testify, and on this evidence,
the jury convicted him of all charges. The trial court later
sentenced him as stated. This appeal followed.
II. ANALYSIS
A. Defendant's Claim That He Was Denied His Constitutional Right To Retain Counsel of His Choice
Defendant first argues that the trial court denied him
his constitutional right to retain counsel of his choice.
Specifically, he contends that the trial court erred by denying
his request to retain counsel of his choice without first (1)
inquiring into the circumstances surrounding his request or (2)
finding that his request was made for purposes of delay. We
disagree.
1. Background
During a recess from jury selection on the first day of
defendant's trial, defendant addressed the trial court and the
following colloquy occurred:
"[THE] COURT: What can I do for you?
[DEFENDANT]: Yes, sir--um--I believe
I'd be better off that I should have a paid
attorney in this case. I don't feel that
- 8 - [appointed counsel is] representing me to his
best ability. I don't think he has my best
interests at heart. I am facing a lot of
time, and I just don't want to give my life
away like that, man. I don't feel comfort-
able.
THE COURT: So what's your point?
[DEFENDANT]: If I could get some time
to get a new lawyer?
THE COURT: No, [your current trial
attorney] is appointed to represent you.
He's an extremely able and competent counsel,
and we have started jury selection. I'm not
going to appoint a new lawyer for you, all
right?
[DEFENDANT]: (Nodding head up and
down)."
2. Analysis
In People v. Segoviano, 189 Ill. 2d 228, 245, 725
N.E.2d 1275, 1283 (2000), the supreme court addressed a defen-
dant's argument that the trial court erred by denying his pre-
trial motion for a continuance to obtain substitute counsel and
set forth the following guidelines for analysis of such claims:
"The determination whether to grant a contin-
- 9 - uance for substitution of counsel is a matter
left to the discretion of the trial court,
and will not be overturned absent an abuse of
that discretion. [Citations.] The factors
to be considered in evaluating a trial
court's exercise of its discretion include
the diligence of the movant, the right of the
defendant to a speedy, fair[,] and impartial
trial, and the interests of justice. [Cita-
tions.] However, it is well established that
a trial court will not be found to have
abused its discretion in denying a motion for
substitution of counsel in the absence of
ready and willing substitute counsel. [Cita-
tions.]"
Applying these principles to the facts before it, the
Segoviano court rejected the defendant's claim and explained as
follows:
"In this case, the motion did not even con-
tain a representation that substitute counsel
had been secured, much less an averment that
such substitute counsel was ready and willing
to enter an appearance in the case. The
trial court thus did not abuse its discretion
- 10 - in denying the motion." Segoviano, 189 Ill.
2d at 245, 725 N.E.2d at 1283.
Defendant cites this court's decision in People v.
Bingham, 364 Ill. App. 3d 642, 847 N.E.2d 903 (2006), for support
of his argument that the trial court abused its discretion by
failing to conduct sufficient inquiry into his request for a
continuance to obtain new counsel. In Bingham, the defendant's
public defender moved for a continuance on the day that the
defendant's trial was set to begin. He told the court that the
defendant had asked him to seek a continuance so that he could be
represented by out-of-town counsel by the name of Earl Washing-
ton. Bingham, 364 Ill. App. 3d at 644, 847 N.E.2d at 906. The
public defender further explained that Washington was already
representing the defendant in other cases. Bingham, 364 Ill.
App. 3d at 644, 847 N.E.2d at 906.
In response to the defendant's motion, the prosecutor
conceded that the defendant had other cases pending in which he
was being represented by Washington. The prosecutor further
indicated that he had tried without success to contact Washington
about those cases although he "'did get a palm message late
yesterday afternoon from Mr. Washington.'" Bingham, 364 Ill.
App. 3d at 644, 847 N.E.2d at 906. The trial court then ruled as
follows: "'Given the representations I've heard, the motion to
continue is denied.'" Bingham, 364 Ill. App. 3d at 644, 847
- 11 - N.E.2d at 906.
This court concluded that the trial court's denial of
the defendant's motion for a continuance to obtain substitute
counsel constituted an abuse of discretion. In so concluding, we
noted that "[t]he trial court should have conducted an inquiry
into the circumstances and the purposes of the motion before
making its ruling." Bingham, 364 Ill. App. 3d at 645, 847 N.E.2d
at 907. We further noted that (1) the defendant identified a
specific attorney whom he wished to hire if the court would grant
a continuance; (2) the attorney was already representing the
defendant on other, unrelated charges; (3) the prosecutor had
been contacted by the attorney the day before trial was set to
begin; (4) the case progressed quickly and had been pending only
three months; and (5) no prior continuances had been granted.
Bingham should be understood as concluding, under the
particular circumstances of that case, that an inquiry by the
trial court might well have disclosed that the attorney the
defendant identified by name (whose involvement in the case the
prosecutor corroborated) would, in fact, be "ready and willing"
substitute counsel. Segoviano, 189 Ill. 2d at 245, 725 N.E.2d at
1283. Bingham did not--indeed, could not--lower the bar set by
the supreme court in Segoviano when it held that no abuse of
discretion occurs when such a motion is denied in the absence of
any representation that "substitute counsel had been secured."
- 12 - Segoviano, 189 Ill. 2d at 245, 725 N.E.2d at 1283.
Defendant's reliance on Bingham is misplaced, given the
pertinent factual distinctions between this case and Bingham.
In this case, defendant did not identify an attorney whom he had
contacted or with whom he had a prior existing relationship.
Instead, the only thing the record shows is a vague hope by
defendant that, if given a continuance, he could hire some
attorney who might do a better job than his court-appointed
counsel. In addition, this case had been pending for several
months and the trial court had previously granted four continu-
ances (two at defendant's request). Moreover, the record con-
tains no indication that defendant had the financial resources to
hire an attorney of his own choice.
We mention defendant's apparent lack of resources
because his ability to hire private counsel would be essential in
order for him to change counsel. That is, despite defendant's
claimed dissatisfaction with his then-current court-appointed
counsel, defendant had no right to pick and choose among counsel
whom the court appoints to represent him. See People v. Wanke,
303 Ill. App. 3d 772, 782, 708 N.E.2d 833, 841 (1999) ("A crimi-
nal defendant has no right to choose his appointed counsel or
insist on representation by a particular public defender"). This
court reached the same conclusion in People v. DeRossett, 262
Ill. App. 3d 541, 544, 634 N.E.2d 1257, 1259 (1994) ("an indigent
- 13 - defendant does not have the right to court-appointed counsel of
his choice [citation], nor does a defendant have the right to
select a particular assistant public defender to represent him").
Despite our conclusion, we nevertheless suggest that it
is always better practice for the trial court--when questions
involving a defendant's representation arise--to engage in a
thorough inquiry, so that reviewing courts will not be forced to
draw inferences from a sparse record. One good reason for a
trial court to do so is that if a reviewing court were to con-
clude, as we did in Bingham, that the trial court abused its
discretion by denying a motion for continuance to obtain substi-
tute counsel, there is no such thing as "harmless error." In
that regard, we reaffirm what we wrote in Bingham--namely, that a
violation of a defendant's right to choice of counsel is not a
"trial error" occurring during the presentation of the case that
can be quantitatively assessed in light of the other evidence.
Bingham, 364 Ill. App. 3d at 649, 847 N.E.2d at 910. "Instead,
it is a fundamental constitutional error affecting a substantial
right that defies harmless-error analysis." Bingham, 364 Ill.
App. 3d at 649, 847 N.E.2d at 910; see also United States v.
Gonzales-Lopez, ___ U.S. ___, ___, 165 L. Ed. 2d 409, 419, 126 S.
Ct. 2557, 2563 (2006) (in which the United States Supreme Court
affirmed the decision of the Eighth Circuit (United States v.
Gonzalez-Lopez, 399 F.3d 924, 934 (8th Cir. 2005)), which Bingham
- 14 - cited approvingly, writing, in part, that "[w]here the right to
be assisted by counsel of one's choice is wrongly denied, *** it
is unnecessary to conduct an ineffectiveness or prejudice inquiry
to establish a [s]ixth [a]mendment violation").
B. Defendant's Claim That His Trial Counsel Was Ineffective for Failing To Correctly Inform Him of the Potential Punishment for the Crimes With Which He Was Charged
Defendant next argues that his trial counsel provided
ineffective assistance when counsel informed defendant that the
minimum sentence he could receive was 27 years in prison, not 31
years. We disagree.
Ineffective-assistance-of-counsel claims are reviewed
under the standard set forth in Strickland v. Washington, 466
U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v.
Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163 (1999). "To
obtain reversal under Strickland, a defendant must prove (1) his
counsel's performance failed to meet an objective standard of
competence and (2) counsel's deficient performance resulted in
prejudice to the defendant." People v. Thompson, 359 Ill. App.
3d 947, 952, 835 N.E.2d 933, 937 (2005). To satisfy the
deficient-performance prong, the defendant must show that counsel
made errors so serious that he was not functioning as the "coun-
sel" guaranteed by the sixth amendment (U.S. Const., amend. VI).
Thompson, 359 Ill. App. 3d at 952, 835 N.E.2d at 937. To satisfy
the prejudice prong, the defendant must show that but for coun-
- 15 - sel's errors, a reasonable probability exists that the outcome of
the proceedings would have been different. Thompson, 359 Ill.
App. 3d at 952, 835 N.E.2d at 937. The failure to satisfy either
Strickland prong will preclude a finding of ineffective assis-
tance of counsel. People v. Young, 347 Ill. App. 3d 909, 927,
807 N.E.2d 1125, 1140 (2004).
In People v. Curry, 178 Ill. 2d 509, 531, 687 N.E.2d
877, 888 (1997), the Supreme Court of Illinois held that "in
order to establish prejudice [under Strickland's second prong],
defendant must demonstrate that there is a reasonable probability
that, absent his attorney's deficient advice, he would have
accepted the plea offer." See also People v. Frieberg, 305 Ill.
App. 3d 840, 850, 713 N.E.2d 210, 218 (1999) (concluding that no
actual prejudice was established where no evidence existed
showing that the defendant would have accepted the State's plea
offer, even if he had known the parameters of the applicable
sentencing statutes).
In this case, nothing in the record suggests that
defendant was prepared to plead guilty had he known that the
minimum sentence was 31 years instead of 27 years in prison.
Defendant has thus failed to establish prejudice under Strick-
land's second prong.
C. Defendant's Claim That the Prosecutor's Remarks During Closing Argument Were Improper
Defendant next argues that he was denied his right to a
- 16 - fair trial when the prosecutor, during closing argument, (1) made
improper comments regarding his failure to testify and defense
tactics and (2) made "inflammatory statements not based on the
evidence." We will address each contention in turn.
1. Prosecutor's Comments Generally
Prosecutors are afforded wide latitude in making
closing remarks and may comment on the evidence and draw all
legitimate inferences from the evidence, even if unfavorable to
the defendant. People v. Taylor, 345 Ill. App. 3d 1064, 1081,
804 N.E.2d 116, 129 (2004). Reviewing courts must consider the
closing argument as a whole, rather than focusing on selected
phrases or remarks. People v. Perry, 224 Ill. 2d 312, 347, 864
N.E.2d 196, 218 (2007). Improper closing remarks require rever-
sal only if they substantially prejudice a defendant, taking into
account (1) the content and context of the comment, (2) its
relationship to the evidence, and (3) its effect on the defen-
dant's right to a fair and impartial trial. People v. Johnson,
208 Ill. 2d 53, 115, 803 N.E.2d 405, 440-41 (2003). In addition,
our supreme court has stated that "[a] reviewing court will find
reversible error only if the defendant demonstrates that the
improper remarks were so prejudicial that real justice was denied
or that the verdict resulted from the error." Perry, 224 Ill. 2d
at 347, 864 N.E.2d at 218.
2. Defendant's Claim That the Prosecutor Improperly Commented on His Failure To Testify
- 17 - During the prosecutor's initial closing argument, he
reviewed in detail the evidence the State had presented and then
stated the following:
"[PROSECUTOR:] So all of these pieces
fit, ladies and gentlemen. All the evidence
in the case points in absolutely one direc-
tion, and one direction only. All of the
witnesses by themselves constitute overwhelm-
ing evidence of this defendant's guilt, and
the question was he there or not, really I
think we can answer pretty quickly, but the
defendant's own actions are really, really
telling of his consciousness of guilt, and
that's the Deputy U.S. Marshall you heard
from at the end of the case.
What explanation consistent with inno-
cence exists for this man's behavior?
[DEFENSE ATTORNEY:] Judge, I'm going to
object to that. My client doesn't have to
explain anything. He has the presumption of
innocence. He does not have to explain any
of his actions, Judge, that's a shifting of
the burden. I would object.
THE COURT: The objection is overruled
- 18 - at this point. The jury is allowed to draw
inferences from your client's behavior."
Along this same line, defendant also complains of the
following statement in the prosecutor's rebuttal closing argu-
ment: "There is no evidence anywhere in this case that would
explain an animosity or a bias to falsely put a case on [defen-
dant]. It doesn't exist."
Defendant contends that these remarks "cross the line
and were intended to point out that [defendant] did not testify."
We disagree.
In People v. Keene, 169 Ill. 2d 1, 21, 660 N.E.2d 901,
911-12 (1995), the supreme court wrote the following:
"The State may not 'point the finger of blame
directly at the defendant for his failure to
testify when it was within his power to en-
lighten the jury.' [Citation.] Such 'prose-
cutorial design' crosses the '"danger line"'
marking the outer boundary of proper commen-
tary. [Citations.] But short of that the
State may comment that evidence is uncontra-
dicted and may do so even if the defendant
was the only person who could have provided
contrary proof."
In this case, the prosecutor's comments clearly did not
- 19 - constitute a comment on defendant's not testifying. The focus of
these remarks was defendant's conduct and reasonable inferences
the jury should draw from it, as the trial court ruled. These
remarks contain no suggestion that somehow the defendant needed
to explain anything.
Having so concluded, we nonetheless suggest that terms
like "explanation," as used by the prosecutor in the above-quoted
portion of his argument, not be used in a prosecutor's closing
argument. A defendant is likely to object to their use at trial,
on appeal, or both, and their use could prove problematic. In
the heat of argument, when a prosecutor uses such a term, he or
she might well inadvertently say something that would in fact
constitute an impermissible comment on a defendant's refusal to
testify. See, for example, People v. Herrett, 137 Ill. 2d 195,
213, 561 N.E.2d 1, 9 (1990) (concluding that the prosecutor
"exceeded the bounds of fair comment when he referred to the
failure of the defendant to explain his presence" at the crime
scene because that comment referred to the defendant's failure to
testify).
3. Defendant's Claim That the Prosecutor Improperly Commented Upon Defense Tactics
Defendant next contends that he was denied a fair trial
when the prosecutor made the following comments in his rebuttal
argument:
"How many times do we have to hear about
- 20 - who is having sex with who, calling people
[']dope heads['] and calling people [']not
very bright['] before we understand what the
defense in this case is all about, smear
tactics and distractions, that's all that
was. Personal attacks, trying to make you
not like witnesses, trying to get you to
disregard the facts of the case, and trying
to distract you from what you should be fo-
cused on, and what you should be focused on
is a simple question, what is the truth, what
are the facts, and what really happened in
this case.
* * *
Do not get distracted from your job,
which is to determine truth about who was
present there, ladies and gentlemen."
Specifically, he contends that Illinois courts have consistently
held that prosecutors are not allowed to claim that defense
counsel is attempting to free his client through trickery or
deception. People v. Kidd, 147 Ill. 2d 510, 542, 591 N.E.2d 431,
446 (1992). Defendant thus asserts that the prosecutor's rebut-
tal argument was similar to arguments the Supreme Court of
Illinois has condemned and that, because of this improper argu-
- 21 - ment, he was denied his fundamental right to a fair trial. We
are far from persuaded.
These remarks were made in rebuttal in response to
defense counsel's characterization of "every single one" of the
State's witnesses as "dope heads." Defense counsel also argued
that Don and Walsh "spearheaded this whole case" against defen-
dant and collaborated to pin it on him. Regarding Don's testi-
mony in particular, defense counsel argued the following:
"[L]et's see, how about taking your
daughter to a robbery planning party, like he
says he did, or how about sleeping with some-
body's brother and then sleeping with him, or
maybe use a girl's apartment to watch her
kids while she goes to work to have sex with
the father of that person's child? Are you
kidding me?"
Defense counsel then characterized Davis as upset and
"clueless." He added the following: "She is not very bright,
and I am sorry to say that, but she is not, but that is just a
piece of a dopey, dopey, dopey, dopey, not so bright girl that
they are using to convict my client."
As the State points out, a prosecutor may comment on
defense characterizations of the evidence. See People v. Jones,
156 Ill. 2d 225, 251-52, 620 N.E.2d 325, 336 (1993) (prosecutor's
- 22 - rebuttal argument that the jury should not "'be fooled by the
defense'" that insinuated beatings, among other things, "was a
proper comment concerning defense characterizations of the
evidence"). As earlier stated, the prosecutor's rebuttal argu-
ment must be considered in the context of the closing arguments
as a whole. Thus, when defense counsel provokes a response, as
here, defendant cannot complain that the prosecutor's reply
denied him a fair trial. People v. Evans, 209 Ill. 2d 194, 225,
808 N.E.2d 939, 956 (2004).
Last, we acknowledge the State's argument that defen-
dant has forfeited this contention because he failed to object at
trial. We also note that defendant urges us to review the matter
under the plain-error doctrine. Because we conclude that the
complained-of argument constitutes no error at all, we need not
do so.
4. Defendant's Claim That the Prosecutor Made Inflammatory Statements Not Based on the Evidence
when the prosecutor made repeated statements that were not based
on the evidence. Specifically, defendant complains of the
prosecutor's statement that this was "a conspiracy case, because
[defendant] was either the participant in a conspiracy to rob
[Griffitts] or he was a victim of one of the most elaborate and
unprobable [sic] conspiracies in the history of the criminal
justice system." Defendant contends the prosecutor improperly
- 23 - continued with this "grand conspiracy" theme when he argued as
"[L]et us consider the witnesses, and let us
consider the things really that would have to
be true in order for this [d]efendant to be
an innocent man, wrongly accused.
The first thing that would have to be
true, [Don] would have had to come in here
and commit one of the most egregious forms of
perjury imaginable.
The second thing that would have to be
true is that [Walsh] also came in here and
committed one of the most egregious acts of
Third, [Grant], who identified the
[d]efendant, had to have either been part of
this grand conspiracy or been mistaken.
[Brown] would have had to have been part
of this grand conspiracy or been mistaken,
and it just so happened that [Grant] and
[Brown] made the same mistake when they both
positively identified the [d]efendant as the
gunman, and then [Davis], a person who has no
connection whatsoever to [Don] in the sense
- 24 - that she is certainly no friend of Don's, she
is certainly no friend of [Walsh's], she is a
person that is closely and intimately related
to this [d]efendant, and what did she tell
you? She corroborated what [Walsh] testified
to, that Don, Demario and [defendant] were
all three together before and all three to-
gether afterward.
For this man to be an innocent man,
wrongly accused, all of those things would
have had to have occurred."
The prosecutor concluded this theme by later arguing as
"[F]or [defendant] to be an innocent
man, wrongly accused, [Brown] would have
either had to have been part of some grand
conspiracy with [Don] or he just coinciden-
tally picked out the same guys that [Grant]
picked out, that Don and [Walsh] somehow are
manufacturing some kind of a grand conspiracy
against. It is totally, totally implausi-
ble."
Defendant also contends that the prosecutor improperly
gave his personal opinion regarding Don's testimony, as follows:
- 25 - "He got confused a couple of times, I would submit, but he was
doing his very best to be honest." Finally, defendant contends
that the prosecutor "even went so far as to inform the jury that
a guilty verdict was 'morally right,'" when he stated the follow-
ing:
"When you consider that testimony, when
[Davis] is so actively trying to protect this
man [(defendant)], there is only one conclu-
sion that you can draw, there is only one
conclusion that's supported by the evidence
in this case, and that conclusion should
drive your verdicts to the only just verdict
in this case, the correct verdict in this
case, the morally right verdict in this case,
and that is a *** verdict of guilty on each
of the counts.
Thank you." (Emphasis added.)
Specifically, defendant contends that the prosecutor's
"grand conspiracy" theme exceeded the bounds of permissible
argument because the Supreme Court of Illinois in People v.
Williams, 181 Ill. 2d 297, 330, 692 N.E.2d 1109, 1126 (1998),
held that a prosecutor must restrict his comments to the facts in
evidence or reasonable inferences to be drawn therefrom. Regard-
ing the "morally right verdict" comment, defendant contends that
- 26 - the only effect of this argument was to arouse the prejudice and
passion of the jury against him without shedding any light on the
paramount question presented to the jury.
To slightly revise a common saying regarding campaign-
ing for elective office, trying felony cases before a jury "ain't
beanbag." These are serious matters with high stakes, and we
expect advocates in our adversary system of justice to use all of
their forensic skills to persuade the jury of the wisdom or
justice of their respective positions. Certainly, defense
counsel in this case vigorously attacked the State's case and the
State's witnesses, and we should expect no less vigor from the
prosecutor. Of course, counsel are not free in their closing
arguments to say anything they might wish. Limitations exist,
but there is no restriction on argument because a party takes
offense to the harshness of the opponent's closing argument.
Not only do we disagree with defendant's claim that the
prosecutor's argument was improper, but we deem that claim as
potentially insulting to the jury. After all, one of the "common
experiences in life" (see Illinois Pattern Jury Instructions,
Criminal, No. 1.01 (4th ed. 2000)) that the members of the jury
bring with them to the jury box is exposure to hortatory language
on an all-too-frequent basis from politicians, salespeople, talk
radio, television commercials, and others. We have difficulty
believing that a jury composed of adults would somehow be in-
- 27 - flamed by the prosecutor's hyperbole that the only just and
"morally right verdict" was guilty on each of the counts. We
consider it more likely that a juror who had not been otherwise
persuaded might think to himself, "So you say, Bub."
In any event, we are disinclined to become the speech
police and to impose unnecessary restrictions upon closing
arguments in criminal cases. In our adversary system, we should
let the lawyers "have at it," and the trial courts and reviewing
courts should step in only when it can truly be said that com-
ments during closing argument "were so prejudicial that real
justice was denied or that the verdict resulted from the error."
Perry, 224 Ill. 2d at 347, 864 N.E.2d at 218. Further, we view
the "morally right verdict" comment as the prosecutor's hyperbole
on the strength of the State's case, and nothing more. See
People v. Cloutier, 178 Ill. 2d 141, 170-71, 687 N.E.2d 930, 943
(1997) (concluding that no error occurred when the prosecutor
argued that the jury was "sworn" to uphold the law by finding the
defendant eligible for the death penalty).
We also note that the prosecutor's remarks, which
defendant on appeal argues were so egregiously improper, were not
even objected to by his trial counsel, who, as the record shows,
was no "shrinking violet." As we indicated earlier, we need not
conduct a plain-error analysis regarding defendant's contentions
concerning the prosecutor's closing argument because we conclude
- 28 - that no error occurred.
Further, we reject defendant's contention that the
prosecutor improperly gave his opinion regarding Don's testimony.
The record shows that the prosecutor did not explicitly state his
personal opinion that Don was a credible witness. Instead, when
read in context, the prosecutor's personal opinion referred only
to Don's getting "confused a couple of times." See People v.
Pope, 284 Ill. App. 3d 695, 707, 672 N.E.2d 1321, 1329 (1996)
(holding that "for a prosecutor's closing argument to be im-
proper, he must explicitly state that he is asserting his per-
sonal views" (emphasis in original)).
D. Defendant's Claim That the Trial Court Erred by Failing To Inquire Into His Posttrial Allegations of Ineffective Assistance of Counsel
Defendant next argues that the trial court erred by failing
to conduct an inquiry into his posttrial claims of ineffective
assistance of trial counsel. We disagree.
After defendant was convicted but before sentencing, he
sent a letter to the trial court that stated in pertinent part as
"I'm writing you asking you to point
[sic] me a new public defendar [sic] to hear
my postrial [sic] motions. I wrote out the
postrial [sic] motions myself because its
- 29 - been allmost [sic] 30 days and I haven't
heard from or seen my [trial counsel]. I
feel that he did not reprasent [sic] good as
he could, and that I did not want to go to
trial with him. In trial there were numerous
amount [sic] of errors and I pray that you
grant me a new trial with another counsal
[sic]. I'm asking that you take my motions
into consideration."
Defendant also filed six pro se posttrial motions of a
similar bent. For instance, he complained that (1) his lawyer
filed no motions; (2) witnesses were not sure about their identi-
fication; (3) he "did not have a trial of [his] pears [sic]"; (4)
"there was bad investigation in my case"; (5) nothing was shown
in court that physically linked him to the scene of the crime;
(6) the jury was racist; and so on. Defendant's trial counsel
also filed a motion for a new trial.
In October 2004, the trial court denied the motion
filed by defense counsel. The court also referred to some of
defendant's pro se motions and denied them. Before doing so, the
court did not inquire into any of defendant's pro se posttrial
claims.
In People v. Moore, 207 Ill. 2d 68, 77-78, 797 N.E.2d
- 30 - 631, 637 (2003), the supreme court explained when a trial court
needs to conduct an inquiry after a defendant presents a pro
se posttrial motion alleging ineffective assistance of counsel
and wrote as follows:
"New counsel is not automatically required in
every case in which a defendant presents a
pro se posttrial motion alleging ineffective
assistance of counsel. Rather, when a defen-
dant presents a pro se posttrial claim of
ineffective assistance of counsel, the trial
court should first examine the factual basis
of the defendant's claim. If the trial court
determines that the claim lacks merit or
pertains only to matters of trial strategy,
then the court need not appoint new counsel
and may deny the pro se motion. However, if
the allegations show possible neglect of the
case, new counsel should be appointed."
In addition, the Moore court explained that "the trial court can
base its evaluation of the defendant's pro se allegations of
ineffective assistance on its knowledge of defense counsel's
performance at trial and the insufficiency of the defendant's
allegations on their face." (Emphasis added.) Moore, 207 Ill.
2d at 79, 797 N.E.2d at 638.
- 31 - Judged in accordance with the foregoing standards, we
conclude that the trial court did not err by failing to conduct
an inquiry into defendant's pro se posttrial complaints. We view
defendant's rambling pro se motions and his letter as a reflec-
tion of the unhappy position in which he found himself, not as
any serious statement of "possible neglect of the case" by
defendant's trial counsel. Moore, 207 Ill. 2d at 78, 797 N.E.2d
at 637. In this regard, we agree with the observation made by
the First District in People v. Ward, 371 Ill. App. 3d 382, 431,
862 N.E.2d 1102, 1147 (2007), where, in rejecting the same
argument that defendant raises here, the court discussed Moore
and noted that "there are still minimum requirements a defendant
must meet in order to trigger a preliminary inquiry by the
circuit court." See also People v. Ford, 368 Ill. App. 3d 271,
276, 857 N.E.2d 871, 876 (2006) (no posttrial inquiry by the
trial court was necessary where defendant's pro se complaints
about his trial counsel were facially insufficient and set forth
in a general and conclusory manner).
E. Defendant's Claim that the Trial Court Erred When it Determined that His Conduct Caused Severe Bodily Injury
Defendant next argues that the trial court erred when
it determined that his conduct caused severe bodily injury. We
Section 5-8-4(a)(i) of the Unified Code of Corrections
(730 ILCS 5/5-8-4(a)(i) (West 2004)) requires the trial court to
- 32 - impose consecutive sentences if "one of the offenses for which
defendant was convicted was first degree murder or a Class X or
Class 1 felony and the defendant inflicted severe bodily injury."
Defendant was convicted of two Class X felonies (armed robbery
and home invasion) and a Class 1 felony (aggravated discharge of
a firearm).
At defendant's December 2004 sentencing hearing, the
State argued that the trial court was required to impose consecu-
tive sentences because defendant inflicted "severe bodily injury"
on Griffitts within the meaning of section 5-8-4(a)(i) of the
Unified Code. The trial court agreed with the State and ex-
plained its decision as follows:
"[T]he threshold question is *** did
this [d]efendant cause great bodily harm or
severe bodily harm to the victim. I think
taking the totality of the circumstances into
account and also the case law I have read,
*** I believe the injuries do constitute
great bodily harm and severe bodily harm, so
I'm going to make that finding here.
We have a victim who was pistol-whipped,
and as a result of that had to have *** at
least seven staples placed in his head in
order to treat the injury.
- 33 - In addition to that, after the pistol-
whipping, this [d]efendant did kick the vic-
tim in the face causing bruises, hematomas,
causing an additional cut to the lip which
required more stitches.
So I think there [are] ample grounds ***
to make a finding that I'm making here today
of great bodily harm and severe bodily harm,
and so I'm going to make that finding.
Having done that, the sentencing in this
case actually becomes fairly simple, because
I'm going to sentence the [d]efendant to the
minimum terms that are available to me based
on that finding, which even with the minimum
are very severe in this case."
Defendant asserts that the appropriate standard of
review for the trial court's determination that defendant in-
flicted severe bodily injury is de novo, but we disagree.
Because the court's determination relied on a factual finding,
this court will defer to the court's decision unless we conclude
that it was against the manifest weight of the evidence. See In
re Katrina R., 364 Ill. App. 3d 834, 842, 847 N.E.2d 586, 593
(2006) (deferring to the trial court's factual findings and
noting that such findings are against the manifest weight of the
- 34 - evidence only when the opposite conclusion is clearly evident or
the findings are unreasonable, arbitrary, and not based on the
evidence presented).
Judged in accordance with the foregoing standards, we
conclude that the trial court's finding of severe bodily injury
was not against the manifest weight of the evidence.
F. Defendant's Claim That the Trial Court Erred by Ordering That the Truth-In-Sentencing Statute Applies to All Three Sentences
Last, defendant argues that the trial court erred by
applying section 3-6-3(a)(2)(iii) of the Unified Code (730 ILCS
5/3-6-3(a)(2)(iii) (West 2004)) to all three of his sentences.
Section 3-6-3(a)(2)(iii) of the Unified Code provides
as follows:
"a prisoner serving a sentence for home
invasion, armed robbery, aggravated vehicular
hijacking, aggravated discharge of a firearm,
*** when the court has made and entered a
finding, pursuant to subsection (c-1) of
[s]ection 5-4-1 of this [Unified] Code, that
the conduct leading to conviction for the
enumerated offense resulted in great bodily
harm to a victim, shall receive no more than
4.5 days of good[-]conduct credit for each
month of his or her sentence of imprison-
ment." (Emphasis added.) 730 ILCS 5/3-6-
- 35 - 3(a)(2)(iii) (West 2004).
At defendant's sentencing hearing, the State asked the
trial court to make a "great[-]bodily[-]harm finding" so that the
provisions of section 3-6-3(a)(2)(iii) of the Unified Code would
apply, requiring defendant to serve 85% of whatever sentence the
court imposed. The court heard arguments from counsel on this
point, ultimately granted the State's request, and made the
great-bodily-harm finding, as earlier quoted.
Defendant specifically contends that the trial court
erred by finding that the conduct leading to the conviction for
all three crimes resulted in great bodily harm to the victim.
According to defendant, however, the evidence at trial clearly
showed "that great bodily harm cannot have occurred during the
commission of all three crimes, but instead only during the
commission of the armed robbery." The State responds that
defendant has forfeited this argument on appeal by failing to
raise it in the trial court, and we agree.
In People v. Rathbone, 345 Ill. App. 3d 305, 308-10,
802 N.E.2d 333, 336-37 (2003), this court deemed a defendant's
sentencing argument on appeal forfeited, pointing out that
section 5-8-1(c) of the Unified Code required a defendant's
challenge to any aspect of sentencing to be made by a written
motion filed within 30 days of the imposition of sentence. 730
ILCS 5/5-8-1(c) (West 2004). We also noted that the Supreme
- 36 - Court of Illinois, in People v. Reed, 177 Ill. 2d 389, 394, 686
N.E.2d 584, 586 (1997), held that the language of section 5-8-
1(c) is mandatory. Citing section 5-8-1(c) and Reed, this court
concluded in Rathbone that the defendant had forfeited the
sentencing argument he raised on appeal, and we explained as
"In so concluding, we note that defendant's
claim is precisely the type of claim the
forfeiture rule is intended to bar from re-
view when not first considered by the trial
court. Had defendant raised this issue in
the trial court, that court could have an-
swered the claim by either (1) acknowledging
its mistake and correcting the sentence, or
(2) explaining that the court did not improp-
erly sentence defendant ***. If the court
did not change the sentence, then a record
would have been made on the matter now before
us, avoiding the need for this court to spec-
ulate as to the basis for the trial court's
sentence." Rathbone, 345 Ill. App. 3d at
310, 802 N.E.2d at 337.
The rationale and holding of Rathbone are equally
applicable in this case. Defendant's failure to raise this issue
- 37 - in the trial court was in violation of section 5-8-1(c) of the
Unified Code and denied that court the opportunity to correct or
clarify its ruling. Accordingly, defendant has forfeited his
truth-in-sentencing argument.
On a final note, we rejected the defendant's request in
Rathbone to apply the plain-error doctrine, and we do likewise
here. In People v. Allen, 222 Ill. 2d 340, 353, 856 N.E.2d 349,
356 (2006), the supreme court explained as follows: "[t]he
plain-error doctrine is not '"a general saving clause preserving
for review all errors affecting substantial rights whether or not
they have been brought to the attention of the trial court."'
[Citations.] Instead, it is a narrow and limited exception to the
general rule of forfeiture." Further, as we noted in Rathbone,
"our supreme court has 'consistently empha-
sized the limited nature of the plain[-]error
exception.' People v. Easley, 148 Ill. 2d
281, 337, 592 N.E.2d 1036, 1061 (1992).
Plain error exists only when the essential
fairness of a trial has been undermined, and
this 'occurs only in situations which "reveal
breakdowns in the adversary system," as dis-
tinguished from "typical trial mistakes."'
People v. Keene, 169 Ill. 2d 1, 17, 660
N.E.2d 901, 909-10 (1995), quoting P.
- 38 - Wangerin, 'Plain Error' and 'Fundamental
Fairness'; Toward Definition of Exceptions to
the Rules of Procedural Default, 29 DePaul L.
Rev. 753, 778 (1980)." Rathbone, 345 Ill.
App. 3d at 311, 802 N.E.2d at 338-39.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State its
statutory assessment of $50 against defendant as costs of this
appeal.
Affirmed.
APPLETON and McCULLOUGH, JJ., concur.
- 39 -