NO. 4-05-0873 Filed 10/11/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) McLean County TYRONE WILLIAM WALTON, ) No. 04CF368 Defendant-Appellant. ) ) Honorable ) Scott Drazewski, ) Judge Presiding. _________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In June 2005, a jury convicted defendant, Tyrone
William Walton, of predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 2002)). The trial court later sentenced
him to 22 years in prison and imposed a $200 sexual-assault fine
and a $25 fine under the Violent Crime Victims Assistance Act
(725 ILCS 240/10(b) (West 2002)). The court also gave defendant
credit for 182 days served in jail prior to sentencing. Defendant appeals, arguing that (1) he was denied a
fair trial when (a) the State withheld certain evidence related
to deoxyribonucleic acid (DNA), (b) the State withheld certain
evidence that could have been used to impeach the victim, and (c)
the State made improper comments during rebuttal argument; (2) he
is entitled to one additional day of credit against his sentence
for time served; and (3) his $25 fine imposed under the Act (725
ILCS 240/10(b) (West 2002)) should be reduced to $20. Because we
agree only with defendant's last argument, we affirm his convic- tion and sentence as modified and remand with instructions that
the trial court amend the sentencing order to reflect a $20 fine
under the Act.
I. BACKGROUND
A. Pretrial Proceedings
In April 2004, the State charged defendant with preda-
tory criminal sexual assault, alleging as follows:
"[D]efendant, being 17 years of age or over,
knowingly committed an act of sexual penetra-
tion with L.F. who was under 13 years of age
when the act was committed, said act involv-
ing the penis of the defendant and vagina of
L.F."
On May 19, 2004, the State filed its discovery compliance, indicating that all materials pertaining to DNA evidence
discoverable under Supreme Court Rule 417 (188 Ill. 2d R. 417)
were available for inspection or copying or both.
At the conclusion of a late November 2004 hearing,
defense counsel informed the trial court that he and the prosecu-
tor had spoken informally regarding the required production of
DNA-related material under Rule 417. Defense counsel also
requested that the court set a date by which the State had to
comply with defendant's request for such material. The court
ordered that the State provide defendant with the requested
material by December 28, 2004.
At a December 28, 2004, hearing, defense counsel
- 2 - informed the trial court that he had received the State's re-
sponse to his request for DNA-related material under Rule 417.
Counsel also indicated that if he needed additional Rule 417
material, he would "try to work with" the prosecutor.
In mid-May 2005, defense counsel sent the prosecutor an
e-mail, requesting (1) a laboratory worksheet for L.F.'s jeans,
including handwritten notes or drawings indicating the areas
where swatches were cut; (2) a physician's report accompanying
the sexual-assault kit; and (3) a curriculum vitae for Kevin
Zeeb, an Illinois State Crime Laboratory technician. That same
day the prosecutor replied via e-mail, indicating that "[a]ll of
their notes" were in the materials the prosecutor gave defense
counsel, in accordance with Rule 417. Later in May 2005, defen-
dant filed a "motion for additional discovery response," seeking, in pertinent part, (1) a formal supplemental discovery response
identifying Rule 417 materials and (2) the court file in McLean
County case No. 02-JA-76 (in which L.F. was adjudicated a ne-
glected minor), which purportedly included information on a drug
screen performed on L.F. at or near the time of the incident.
Following an in camera review of the juvenile court file, the
trial court denied defendant's request for the court file, upon
determining that the file contained no relevant or material
information.
At an early June 2005 status hearing, the prosecutor
indicated that (1) she had brought to court the "DNA file" that
the crime laboratory had provided the State and (2) defense
- 3 - counsel could look at the State's and "compare exhibit by exhibit
and page numbers." Defense counsel stated that he wanted to make
sure that he had everything the State had.
Two days later, defendant filed a motion in limine,
seeking to bar any reference at trial to semen and DNA-related
evidence. The motion alleged, in pertinent part, that a determi-
nation as to the admissibility of such evidence was not possible
without the State's production of the following items: (1) the
curriculum vitae and job descriptions of certain hospital person-
nel and Zeeb; and (2) reports and memoranda made by hospital
staff in conjunction with the sexual-assault kit that was admin-
istered to L.F. That same day, the State filed a supplemental
answer to its discovery compliance, providing, in part, Zeeb's
curriculum vitae. At a hearing that same day, defense counsel stated that
the State's disclosure of DNA-related material was insufficient.
The prosecutor indicated that the State had disclosed all mate-
rial required under Rule 417. In particular, the prosecutor
stated that material related to Zeeb did not fall under Rule 417
because Zeeb's actions as a forensic technician constituted
"precursor" actions to DNA analyses performed by Illinois State
Police forensic analyst Debra Minton. The trial court determined
that the requirements of Rule 417 applied to both Zeeb and Minton
but not to the hospital personnel. The prosecutor informed the
court that defense counsel "did have the opportunity to go
through our DNA packet [of] compliance[,] and it does match
- 4 - counsel's packet of compliance." Defense counsel agreed with the
prosecutor and stated that the State "has exactly what I had and
[I] had some concerns that there might have been a few more pages
of something floating out there and [the State has] represented
that there weren't and I have matched mine page for page." The
court then denied defendant's motion to bar any reference at
trial to semen and DNA-related evidence.
B. Defendant's Trial
Because the parties are familiar with the evidence
presented at defendant's June 2005 jury trial, we discuss it only
to the extent necessary to place defendant's arguments in con-
text.
Matthew Glim testified that in 2003, he was employed as
a foster-care child-welfare specialist by The Baby Fold (a nonprofit agency that provides services to at-need children and
families). In March 2003, he was the child-welfare specialist
for L.F., who was then 12 years old. On the night of March 20,
2003, Glim received a telephone call informing him that L.F. had
left her foster home earlier that evening without permission.
Later that night, Glim met L.F. at her foster home and noticed
her behaving "very oddly." Glim took her to the hospital, where
L.F. told him that she had had sexual intercourse that evening
with a man (later identified as defendant). Glim asked hospital
personnel to perform a drug screen on L.F., and a physician
informed Glim that the drug screen was "negative."
L.F. testified that on March 20, 2003, she went to The
- 5 - Baby Fold to hang out. She met defendant and began talking with
him. L.F. asked defendant if he wanted to meet later that
evening, and he said "yes" and gave her his phone number. Two or
three hours later, L.F. phoned defendant, and they made plans to
meet at a fast-food restaurant in Normal. L.F. met defendant at
the restaurant, and they left in his car. Defendant drove them
to his friend's residence. After 20 or 30 minutes, L.F. and
defendant got in the backseat of his friend's car, and they drove
to Lake Bloomington. The friend parked the car and got out.
L.F. and defendant stayed in the car and began kissing. Defen-
dant took off L.F.'s blue jeans and underwear, put on a condom,
got on top of L.F., and began having sexual intercourse with her.
After about 10 or 15 minutes, defendant got out of the car, took
off the condom, and walked away from the car. After throwing the condom "somewhere," defendant came back to the car. His friend
then had sexual intercourse with L.F. without using a condom.
After defendant returned L.F. to her foster home, L.F. was taken
to the hospital, where a physician examined her and a nurse
administered a sexual-assault kit.
L.F. also testified that she was currently taking
prescribed medications for depression (Zoloft) and flashbacks
(Resperdal). She denied using illegal drugs "within the month
of" the incident.
McLean County sheriff's department detective Joe
Zoeller testified that on the morning of March 21, 2003, he drove
L.F. to Lake Bloomington. Once there, L.F. eventually identified
- 6 - the parking area where the incident took place and directed
Zoeller to the area defendant had walked toward after having
sexual intercourse with her. Zoeller walked into that area and
found a used condom lying in the grass. He collected the condom
as evidence and delivered it to the Illinois State Police crime
laboratory for examination and DNA testing. Zoeller stated that
authorities were unable to identify L.F.'s second assailant.
Zeeb testified that the condom and the sexual-assault
kit were sent to the crime laboratory, where he screened the
collected evidence and turned some specimens over to the DNA
laboratory for further testing.
After Zeeb's direct testimony and outside the jury's
presence, defendant moved to have DNA-related testimony stricken
because the State had not disclosed L.F.'s signed form granting her consent to release information and evidence to law enforce-
ment. After considering counsel's arguments, the trial court
denied defendant's motion upon determining that although the
material fell within the requirements of Rule 417, the prosecu-
tor's failure to disclose it was not willful.
Zeeb testified on cross-examination that a sexual-
assault kit was normally accompanied by a medical-history report,
which includes a physician's report. (A physician's report
includes (1) the physician's physical findings, (2) the patient's
medical chart and blood-work results, (3) the patient's descrip-
tion of the incident, and (4) release forms.) Such a report
sometimes provides Zeeb with information regarding where to look
- 7 - for specimens on collected evidence. He stated that the physi-
cian's report on L.F. should have been included in the copies of
his biology notes that were provided to the State and he had no
idea why the report was not disclosed to the State and then to
the defense. In examining the blue jeans L.F. had been wearing
during the incident, Zeeb made detailed handwritten notes and
drawings which were not disclosed to the State and then to the
defense.
Outside the jury's presence, the trial court directed
the parties to go through Zeeb's file and determine what docu-
ments were relevant to the DNA discovery issue. The parties did
so, producing a 19-page court's exhibit No. 1. Defense counsel
indicated that he had not previously received 14 pages contained
in that exhibit. Those 14 pages included (1) a "medical/forensic documentation form," which contained L.F.'s description of the
incident and her assailant; (2) the laboratory worksheet, which
included Zeeb's handwritten notes and drawings regarding his
examination of L.F.'s blue jeans; (3) police reports; (4) a
chain-of-custody sheet; and (5) Zeeb's handwritten notes regard-
ing his creation of a blood-standard card for defendant. Counsel
acknowledged that he had previously seen the police reports in
other discovery materials, but he did not know that Zeeb may have
considered those reports in handling evidence. The prosecutor
stated that she also did not know that Zeeb had the police
reports in his file.
Defense counsel then moved to strike all of Zeeb's
- 8 - testimony based on the State's failure to disclose DNA-related
material, pursuant to Rule 417. Counsel declined to request a
continuance because the additional discovery material "will lead
to the need to re[]calculate figures, *** to re[]evaluate
chain[-]of[-]custody issues [and] we are in the middle of a trial
here." Counsel also stated that his consulting expert was
located out of state, and he did not know her availability or if
funds were available to pay her for additional consulting. The
prosecutor reiterated to the trial court that (1) the State and
the defense had received the same DNA-related materials generated
by the crime laboratory and (2) the State had not received the
additional discovery materials. After considering counsel's
arguments, the trial court denied defendant's motion to strike
upon determining that although the materials fell within the requirements of Rule 417, the prosecutor's failure to disclose
them was not willful. Instead, the court ordered that defendant
could recall any State's witness or call any previously non-
disclosed witness on defendant's list and examine that witness
based on the aforementioned material that had not been disclosed
to defendant. In fashioning the remedy, the court stated, in
pertinent part, as follows:
"[I]n evaluating the option[s] available to
the court with reference to documents which
were not produced in discovery, *** there are
a number of options available to the court,
exclusion [of evidence] being one of them,
- 9 - but [that being] the most egregious penalty
or sanction to impose upon a discovery viola-
tion[.] [H]ere there is no evidence that the
[S]tate, and by [S]tate I'm referring to the
[S]tate's [A]ttorney in this matter, or any
assistant[,] withheld any such evidence in a
willful manner.
Each counsel [was] surprised, in es-
sence, by the additional documents which the
court has before it in [c]ourt's [e]xhibit
[No. 1] as contained within [Zeeb's] file.
One of the options available to the court,
besides just admitting the evidence as if
there was no discovery *** problem, is in essence to ignore it and just say
[']tough.[']
That isn't appropriate in this circum-
stance. The court has indicated that another
option is to grant a continuance. [Defense
counsel] has elected not to seek a continu-
ance, the court also has, again, the option
of excluding the evidence, and the court also
has the ability to enter such other orders as
it deems just under the circumstances.
I still feel that the appropriate order
under the circumstances is to allow [defense
- 10 - counsel] to go ahead and either recall any
previously called witness and/or to call any
previously non[]disclosed witness on his list
of witnesses during his case in chief, if it
pertains to information that is contained
within [p]ages 1 through 19 of [c]ourt's
[e]xhibit [No. 1]."
Minton testified that she analyzed DNA found on L.F.'s
underwear, which yielded two DNA fractions, one sperm fraction
and one nonsperm fraction. The sperm fraction contained a mixed
profile of two individuals, one female and one male. Minton
opined that the characteristics of L.F.'s DNA profile and defen-
dant's DNA profile were contained in that mixture. She further
opined that accepting that L.F.'s DNA profile was contained in the sperm fraction, "this mixed DNA profile would be expected to
be seen in the population in one in 2.5 quadrillion black or one
in 2.4 quintillion white or one in 3.5 quadrillion Hispanic
unrelated individuals." (Defendant is black.) Minton's analysis
of the outside of the condom yielded two DNA fractions, and the
nonsperm fraction was a mixed profile of three individuals. The
characteristics of defendant's DNA profile were contained in that
mixture. Minton opined that approximately 57% of black, 47% of
white, and 58% of Hispanic unrelated persons could not be ex-
cluded as having contributed to the nonsperm fraction mixture.
The sperm fraction revealed a partial profile of a two-person DNA
mixture. That mixed DNA profile was consistent with defendant's
- 11 - DNA profile and one other individual, excluding L.F.
Based on the evidence presented, the jury convicted
defendant of predatory criminal sexual assault (720 ILCS 5/12-
14.1(a)(1) (West 2002)).
In early August 2005, the State filed a supplemental
answer to its discovery compliance, which included the results of
a March 21, 2003, drug screen performed on L.F. by hospital
personnel. At a hearing on defendant's motion for a new trial,
which was held a few days later in August 2005, defense counsel
informed the trial court that (1) the State had just disclosed
the results of L.F.'s March 21, 2003, drug screen, which showed
that L.F. tested positive for amphetamines and barbiturates; and
(2) the court's failure to order the State to disclose those
results when defendant requested them in May 2005 resulted in defendant's being deprived of his right to cross-examine L.F. as
to whether those drugs were consistent with her prescribed
medications. The prosecutor informed the court that the State
had received the drug-screen results one week prior to the August
2005 hearing and three days prior to the filing of its supplemen-
tal answer. After considering counsel's arguments, the court
rejected defendant's claim regarding the drug-screen results,
noting that the State did not receive the results until early
August 2005 and after receiving those results, the State immedi-
ately turned them over to defendant. The court then denied
defendant's motion for a new trial and sentenced him as earlier
stated.
- 12 - This appeal followed.
II. ANALYSIS
A. Defendant's Claims That He Was Denied a Fair Trial
1. Defendant's Claim That the State Withheld DNA-Related Evidence
Defendant first argues that he was denied a fair trial
when the State withheld the following documents that contained
DNA-related evidence, as required by Supreme Court Rule 417 (188
Ill. 2d R. 417): (1) Zeeb's laboratory worksheet, which con-
tained his handwritten drawings and notes, (2) the physician's
report that accompanied the sexual-assault kit, (3) police
reports that were included in Zeeb's biology report, (4) Zeeb's
handwritten notes regarding his creation of defendant's blood-
standard card, (5) the chain-of-custody sheet, and (6) the medical/forensic documentation form. Specifically, he contends
that in light of the State's violation of Rule 417, the trial
court should have granted his motion to strike the DNA-related
evidence and testimony thereto. In response, the State argues,
in part, that the complained-of documents do not come within
Supreme Court Rule 417. We need not decide whether the documents
come within the rule because, even assuming that they did and a
discovery violation occurred, we conclude that the court ordered
an appropriate discovery sanction.
Supreme Court Rule 417 requires disclosure of all
relevant materials relating to DNA, including, but not limited
to, "all reports, memoranda, notes, phone logs, contamination
records, and data relating to the testing performed in the case."
- 13 - 188 Ill. 2d R. 417(b)(i). The purposes of the discovery rules
are to (1) prevent surprise or unfair advantage to either party
and (2) aid in the search for truth. People v. Turner, 367 Ill.
App. 3d 490, 499, 854 N.E.2d 1139, 1147 (2006). Sanctions for
violating a discovery rule are intended to accomplish the pur-
poses of discovery, not to punish the offending party. In
addition, sanctions should be fashioned to meet the particular
circumstances of each case. Turner, 367 Ill. App. 3d at 499, 854
N.E.2d at 1147. The sanction of excluding certain evidence is
appropriate only in the most extreme situations and is disfavored
"because it does not contribute to the goal of truth-seeking."
Turner, 367 Ill. App. 3d at 499, 854 N.E.2d at 1147. In choosing
a sanction, the trial court should consider the following fac-
tors: (1) the strength of the undisclosed evidence, (2) the likelihood that prior notice could have helped discredit the
evidence, and (3) the willfulness of the State's violation.
People v. Mullen, 313 Ill. App. 3d 718, 736, 730 N.E.2d 545, 560
(2000).
The determination as to an appropriate sanction for a
discovery violation lies with the trial court's sound discretion.
Thus, we will not disturb the trial court's determination absent
an abuse of that discretion. Turner, 367 Ill. App. 3d at 499,
854 N.E.2d at 1147. "'An abuse of discretion will be found only
where the trial court's ruling is arbitrary, fanciful, unreason-
able, or where no reasonable person would take the view adopted
by the trial court.'" People v. Sutherland, 223 Ill. 2d 187,
- 14 - 272-73, 860 N.E.2d 178, 233 (2006), quoting People v. Hall, 195
Ill. 2d 1, 20, 743 N.E.2d 126, 138 (2000).
The record shows that (1) the evidence of defendant's
guilt was overwhelming, given the DNA evidence and L.F.'s testi-
mony; (2) none of the materials at issue called into question the
strength of either the DNA evidence or L.F.'s testimony that
defendant penetrated her vagina with his penis; (3) the prosecu-
tor opened the State's DNA file to the defense; (4) the State's
DNA file contained the exact same materials that defendant's DNA
file contained, and nothing indicated that more DNA-related
materials existed; and (5) as the trial court found, the State's
failure to disclose the materials was not willful. Accordingly,
reviewing the court's determination as to the appropriate sanc-
tion under the applicable standard of review, we conclude that the court's ruling was neither arbitrary, fanciful, nor unreason-
able. We thus further conclude that the court's determination
did not constitute an abuse of discretion. In so concluding, we
agree with the trial court that the particular circumstances of
this case did not warrant the extreme sanction of excluding the
DNA-related evidence. We also note that by allowing defense
counsel to examine the DNA file provided to the State by the
crime laboratory, the State appeared to have followed an open-
file policy, which not only is good practice, but particularly
helpful when trying to determine whether the State had been
acting in good faith if a discovery problem arises.
- 15 - 2. Defendant's Claim That the State Withheld Impeachment Evidence
Defendant next argues that he was denied a fair trial
when the State failed to disclose until after trial the results
of L.F.'s March 21, 2003, drug screen, which showed that she
tested positive for amphetamines and barbiturates. Specifically,
he contends that the State's failure to disclose the drug-screen
results constituted a Brady violation (Brady v. Maryland, 373
U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963)). We disagree.
"To establish a Brady violation, the undisclosed
evidence must be both favorable to the accused and material."
People v. Barrow, 195 Ill. 2d 506, 534, 749 N.E.2d 892, 910
(2001). Under Brady, favorable evidence is material "'if there
is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been
different.'" People v. Coleman, 183 Ill. 2d 366, 393, 701 N.E.2d
1063, 1077 (1998), quoting United States v. Bagley, 473 U.S. 667,
682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383 (1985). The
materiality determination "turns on whether the '[g]overnment's
evidentiary suppression "undermines confidence in the outcome of
the trial,"'which *** 'is not a sufficiency[-]of[-]the[-]evidence
test.'" Coleman, 183 Ill. 2d at 393, 701 N.E.2d at 1077, quoting
Kyles v. Whitley, 514 U.S. 419, 434, 131 L. Ed. 2d 490, 506, 115
S. Ct. 1555, 1566 (1995), quoting Bagley, 473 U.S. at 678, 87 L.
Ed. 2d at 491, 105 S. Ct. at 3381. The Brady rule has been
codified by Supreme Court Rule 412(c) (134 Ill. 2d R. 412(c)),
which requires the State to "disclose to defense counsel any
- 16 - material or information within its possession or control which
tends to negate the guilt of the accused as to the offense
charged."
Initially, we agree with the State that based on (1)
the trial court's June 2005 determination that juvenile case No.
02-JA-76 contained nothing relevant or material to defendant's
case, (2) Glim's trial testimony that the March 21, 2003, drug-
screen results were negative, and (3) L.F.'s trial testimony that
she had not been using illegal drugs on the night of the inci-
dent, no indication existed that L.F.'s drug-screen results could
be used to impeach L.F. Thus, the State was under no duty to use
due diligence to obtain and disclose those drug-screen results.
Moreover, L.F.'s drug-screen results were not material
under Brady. As stated above, evidence will be deemed material only if a reasonable probability exists that the result of the
proceeding would have been different if the evidence had been
disclosed to the defense. See Barrow, 195 Ill. 2d at 534, 749
N.E.2d at 910 (discussing Brady). In light of the overwhelming
evidence of defendant's guilt, we conclude that no reasonable
probability exists that, even if L.F.'s drug-screen results had
been disclosed to the defense, the result of defendant's trial
would have been different.
3. Defendant's Claim That the State Made Improper Comments During Rebuttal Closing Argument
when the State made improper comments during rebuttal closing
argument. Specifically, he complains of the following remark
- 17 - about defense counsel: "[L]ike a magician, [he] holds up one
hand, keep your eye here, while this is going on here." Citing
People v. Emerson, 97 Ill. 2d 487, 455 N.E.2d 41 (1983), defen-
dant asserts that the comment "exceeded the boundaries of fair-
ness." We disagree.
In rebuttal, the prosecutor made the following perti-
nent comments:
"Ladies and gentlemen, I will respond to
counsel's arguments by telling you that you
will get these written instructions, and one
of the instructions is to consider--to con-
fine your deliberations to the evidence and
to reasonable inferences to be drawn from the
evidence. You are also to consider the evi- dence, all of the evidence, in the light of
your own observation and experience in life.
Why am I mentioning this? Because as
[defense counsel] stood up here and talked to
you, how many times did he focus on the con-
dom and completely ignore the panties where
we have those astronomical frequencies?
None. Because, like a magician, [he] holds
up one hand, keep your eye here, while this
is going on here."
Defendant objected, and the trial court overruled the objection.
Our supreme court has held that "'[u]nless based on
- 18 - some evidence, statements made in closing arguments by the
prosecution which suggest that defense counsel fabricated a
defense theory, attempted to free his client through trickery or
deception, or suborned perjury are improper. [Citations.]'"
(Emphasis in original.) People v. Jackson, 182 Ill. 2d 30, 81,
695 N.E.2d 391, 416 (1998), quoting Emerson, 97 Ill. 2d at 497,
455 N.E.2d at 45. In Emerson, 97 Ill. 2d at 497, 455 N.E.2d at
45, the supreme court concluded that a prosecutor's comments
required reversal where, among other things, the prosecutor
suggested that defense counsel laid down a smokescreen "'composed
of lies and misrepresentations and innuendoes'" and that counsel,
like all defense attorneys, tried to "'dirty up the victim.'"
In this case, the prosecutor's comment, which was
directed toward defense counsel personally, was improper. Nonetheless, we conclude that the impropriety in the prosecutor's
comment does not require reversal. Improper closing remarks
require reversal only if they substantially prejudice a defen-
dant, taking into account (1) the content and context of the
comment, (2) its relationship to the evidence, and (3) its effect
on the defendant'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 demon-
strates that the improper remarks were so prejudicial that real
justice was denied or that the verdict resulted from the error."
People v. Perry, 224 Ill. 2d 312, 347, 864 N.E.2d 196, 218
- 19 - (2007).
The prosecutor's comment was brief and isolated and is
thus clearly distinguishable from the pattern of inflammatory and
prejudicial comments that resulted in a new trial for the defen-
dants in Emerson. In addition, the trial court instructed the
jury that closing arguments are not evidence and any closing
comments made by the attorneys that are not based on the evidence
should be disregarded. When viewed in context and in light of
the overwhelming evidence of defendant's guilt, the complained-of
remark was not so prejudicial as to deprive defendant of a fair
trial or change the outcome of the proceeding.
B. Defendant's Claim That He Is Entitled to One Additional Day of Sentencing Credit
Defendant next argues that he is entitled to one additional day of credit for time served prior to sentencing.
The State responds that defendant is not entitled to credit for
the day on which he was sentenced and remanded to the Department
of Corrections (DOC). We agree with the State.
Section 5-8-7 of the Unified Code of Corrections
provides, in pertinent part, as follows: "The offender shall be
given credit on the determinate sentence *** for time spent in
custody as a result of the offense for which the sentence was
imposed ***." 730 ILCS 5/5-8-7(b) (West 2004). In addition,
under section 110-14 of the Code of Criminal Procedure of 1963,
offenders are entitled to a $5-per-day credit against imposed
fines for time spent in pretrial custody. 725 ILCS 5/110-14
(West 2004).
- 20 - The record shows that defendant is entitled to 182 days
of credit for time served from April 14, 2004, through April 14,
2004, and February 14, 2005, through August 11, 2005. The trial
court properly declined to credit defendant for August 12, 2005,
the day he was sentenced and remanded to DOC. See People v.
Allen, 371 Ill. App. 3d 279, 284-85, 868 N.E.2d 297, 302 (2007)
(holding that a defendant is not entitled to sentencing credit
for the day he is remanded to DOC); People v. Foreman, 361 Ill.
App. 3d 136, 157, 836 N.E.2d 750, 768 (2005) (same holding).
C. Defendant's Claim That His Violent Crime Victims Fine Should Be Reduced to $20
Last, defendant argues that his $25 fine imposed under
the Act (725 ILCS 240/10(b) (West 2002)) should be reduced to
$20. The State concedes that defendant's fine should be reduced, and we accept the State's concession.
Section 10(b) of the Act provides, in pertinent part,
that "there shall be an additional penalty collected from each
defendant upon conviction of any felony *** of $4 for each $40,
or fraction thereof, of fine imposed." 725 ILCS 240/10(b) (West
2002).
In this case, the trial court ordered defendant to pay
a $200 sexual-assault fine. Under section 10(b) of the Act,
defendant was required to pay an additional penalty of $4 for
each $40 of his sexual-assault fine. Thus, the court should have
assessed a $20 fine under the Act, not $25. Accordingly, we
remand with instructions that the court amend the sentencing
order to reflect a $20 fine.
- 21 - III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment as modified and remand with directions. As part of our
judgment, we grant the State's request that defendant be assessed
$50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2004);
see also People v. Smith, 133 Ill. App. 3d 613, 620, 479 N.E.2d
328, 333 (1985), citing People v. Nicholls, 71 Ill. 2d 166, 179,
374 N.E.2d 194, 199 (1978).
Affirmed as modified and cause remanded with direc-
tions.
MYERSCOUGH and COOK, JJ., concur.
- 22 -