People v. McGee

                            No. 3--95--0810

   _________________________________________________________________

                                IN THE

                      APPELLATE COURT OF ILLINOIS

                            THIRD DISTRICT

                              A.D., 1997

THE PEOPLE OF THE STATE OF      )  Appeal from the Circuit Court

ILLINOIS,                       )  for the 10th Judicial Circuit

                               )  Peoria County, Illinois

    Plaintiff-Appellee,        )

                               )

    v.                         )  No. 95--CF--667

                               )

THOMAS WALTER MCGEE,            )  Honorable

                               )  Robert E. Manning,

    Defendant-Appellant.       )  Judge Presiding

_________________________________________________________________

JUSTICE HOMER delivered the opinion of the court:

_________________________________________________________________

    The defendant, Thomas Walter McGee, was convicted of

aggravated discharge of a firearm (720 ILCS 5/24--1.2 (West 1994))

and sentenced to six years in prison.  On appeal, he claims that

the prosecutor made improper comments during closing arguments and

that the trial court considered an improper factor in aggravation

in determining his sentence.  We affirm.

                                  FACTS

    Some of the facts surrounding the offense are not in dispute.

The defendant, his girlfriend and their 10-month-old child went to

the home of Taronn Bell in an attempt to obtain money from Bell to

pay for repairing his girlfriend's car which had been damaged by

Bell's nephew.  The defendant approached Bell's home.  After

speaking to someone, he got into his car and began to leave.  After

the defendant backed out of Bell's driveway, he stopped the car on

the street.  The defendant then got out of the vehicle and fired a

gun several times over the roof of the car before returning to the

car and driving away.

    Details of the defendant's encounter with Bell differ among

the various witness accounts.  Bell testified that he was upstairs

in his home when a man came to the door.  Bell's wife spoke to the

man, and Bell came down the stairs just as the conversation was

ending.  Bell stated that he went outside and was on the porch when

the man was getting into his car.  The man backed his car out of

the driveway and stopped on the street in front of Bell's house.

Then Bell heard shots, so he ran.  Bell testified that he would not

recognize the shooter because he did not see the shooter's face.

    Bell's wife testified that the defendant came to the door of

her home, identified himself as a gang member, flashed a gun, and

demanded payment for the damage done to his girlfriend's car by

Bell's nephew.  She stated that she told the defendant that she and

her husband were not responsible for the damage.  Her conversation

with the defendant lasted approximately 10 minutes.  At the end of

that time, Bell came to the door and spoke with the defendant.

According to Bell's wife, the defendant stopped his car on the

street and then fired a gun at least four times in her direction

and that of Bell and their three children.  She admitted that she

had a criminal history arising out of her having previously given

a false name to the police.

    One of Bell's neighbors testified that he was at home when he

heard gunshots from outside.  He went to his front door and saw a

man standing with his arm extended over the roof of a car firing a

gun between the buildings across the street.  He heard a few shots,

then a pause and then more shots.  All the shots sounded the same.

The neighbor observed three small children playing in the area

toward which the shooter was firing, so he called the police.

After placing the phone call, the neighbor went back to his door

and saw that the man was still there and was still firing his gun

over the roof of his car.  Shortly thereafter, the man drove away.

The neighbor then saw two men come out of the building across the

street.  Each man carried a gun, but the neighbor did not see

either of them fire his weapon.  Following the shooting, the neigh-

bor went into the street and retrieved 15 shell casings which he

gave to the police.

    The defendant's girlfriend testified that she was with the

defendant when he went to Bell's home to obtain money from Bell to

repair the damage to her car which had been caused by Bell's

nephew.  According to the defendant's girlfriend, as the defendant

approached Bell's home, Bell's wife answered the door.  A man

appeared at an upstairs window, and he and the defendant proceeded

to have a conversation.  The defendant returned to his vehicle, and

the man from the window came out of the home brandishing a gun.

This man fired several shots at the defendant's car which prompted

the defendant to retrieve a gun from under the seat and return the

gunfire.  Then the defendant drove away.  The defendant's

girlfriend further testified that there were bullet holes in her

car as a result of the shots fired from the other man.  An

investigating police officer confirmed the existence of bullet

holes in the vehicle on the date of the occurrence.  However, he

could not determine whether the holes had been made that day, and

he testified that the defendant's girlfriend refused to allow the

police to examine the holes further to determine whether they were

fresh.

    The defendant testified that when he approached Bell's home,

Bell spoke to him from an upstairs window.  After Bell refused to

pay for the damage to the car, the defendant got into his car to

leave.  As he was leaving, Bell came out of the home with a gun and

began to fire at the defendant.  The defendant was scared and

feared that his girlfriend or his child might be hurt, so he

stopped the car, reached under the seat for a gun, got out of the

car and fired the gun into the air.  Then he drove away.  The

defendant testified that he could not just drive away from the

scene because there was something wrong with the car and it would

have stalled if he had tried to speed away.

    During closing arguments, the prosecutor suggested to the jury

that the testimony of witnesses provided by the State and by the

defense could not be reconciled and further suggested that the jury

would have to determine which account was true.  Thereafter, the

prosecutor remarked at some length on the defendant's failure to

leave the scene of the shooting, saying, inter alia:  "Could the

defendant have driven away?  Of course.  Did he?  No.  Why not?  I

suggest to you that's because his story of what happened is

implausible here."

    The prosecutor further commented on the criminal history of

Bell's wife and suggested that the defendant and his girlfriend

engaged in worse behavior because they had lied to the police and

to the jury.  Next, the prosecutor addressed the testimony that

following the shooting there were bullet holes in the car used by

the defendant.  He noted that there was no objective or scientific

evidence that the bullet holes were fresh.  He reminded the jury

that the defendant's girlfriend had not allowed the police to

determine the age of the holes.

    The prosecutor also noted that the defendant had not produced

Bell's nephew, who occasionally resided with the defendant, as a

witness to verify any portion of the defendant's story.  The

defendant objected, and the trial court instructed the jury to

disregard the prosecutor's remark.  Finally, the prosecutor stated

that the defendant had fired his weapon in the direction of Bell

and Bell's wife and children.

    The jury returned a verdict of guilty.  At the sentencing

hearing, the trial judge remarked that he had considered all the

statutory factors in aggravation and mitigation.  He found in

mitigation that the defendant did not have a history of prior

criminal activity.  In aggravation, he found that the defendant's

acts threatened serious physical harm to other persons.  The court

sentenced the defendant to six years' imprisonment.

                      PROSECUTOR'S CLOSING ARGUMENT

    In his post-trial motion, the defendant claimed that he had

been prejudiced by the prosecutor's closing argument but

specifically noted only the prosecutor's comment regarding the

defendant's failure to call Bell's nephew as a witness.

    On appeal, the defendant points to five examples of how he was

denied a fair trial by the prosecutor's closing argument:  (1) the

prosecutor improperly implied that the defendant had a duty to

retreat, contrary to established law, thereby diminishing his claim

of self-defense; (2) the prosecutor improperly impugned the

credibility of the defendant and his girlfriend by stating they had

given false stories to the police and the jury, equating their

conduct with that of Bell's wife who had been previously convicted

of giving a false name to a police officer; (3) the prosecutor

improperly expanded the nature of the charge, thereby diminishing

the burden of proof by arguing that the defendant had fired in the

direction of Bell, his wife and his children when the defendant had

only been charged with firing his weapon in Bell's direction; (4)

the prosecutor improperly commented upon the defendant's failure to

present expert testimony to prove the bullet holes in the

defendant's car were fresh; and (5) the prosecutor improperly

commented upon the defendant's failure to call Bell's nephew as a

witness.

    We find that the defendant has waived any alleged error with

regard to the first four examples by failing to object at trial or

to raise these issues in his post-trial motion.  See People v.

Burrows, 148 Ill. 2d 196, 592 N.E.2d 997 (1992).  Thus, we can

reverse only if the prosecutor's comments amounted to plain error.

People v. Whitehead, 116 Ill. 2d 425, 508 N.E.2d 687 (1987).  Plain

error is error of such magnitude that it denied the defendant a

fair proceeding or error in a trial where the evidence is closely

balanced.  Whitehead, 116 Ill. 2d 425, 508 N.E.2d 687.  Following

our careful review of the record, we find that none of these

comments by the prosecutor, taken individually or cumulatively, was

of such magnitude to deny the defendant a fair trial.

    Although a defendant has no duty to retreat when attacked with

deadly force, a prosecutor may properly argue a defendant's failure

to easily extricate himself from a dangerous situation as a comment

on the credibility of the defendant's testimony that he was afraid

and that the use of deadly force was necessary.  People v. White,

265 Ill. App. 3d 642, 638 N.E.2d 314 (1994); People v. Wilburn, 263

Ill. App. 3d 170, 635 N.E.2d 877 (1994).  The jury, in the case at

bar, was properly instructed with regard to the issues of self-

defense, and we find the prosecutor's argument about the

defendant's actions to be permissible commentary on the credibility

of the defense witnesses.  Further, we note that the jury was

properly instructed regarding the elements of the charged offense,

so no prejudicial error resulted from the prosecutor's comments

about the defendant shooting in the direction of Bell's wife and

the children, as well as at Bell.  See People v. Hobley, 159 Ill.

2d 272, 637 N.E.2d 992 (1994) (improper comment may be cured by

providing proper instructions of law).  Moreover, we do not agree

that the prosecutor's comment relative to a lack of objective or

scientific evidence was directed toward the defendant's failure to

call an expert witness.  Rather, it was a reference to the

girlfriend's alleged lack of cooperation with the crime scene

personnel.  As such, the comment was intended to impeach the

credibility of the girlfriend, which is allowable.  Additionally,

we do not find that the evidence in this case was closely balanced.

The testimony of the only independent eyewitness, Bell's neighbor,

corroborated Bell's version of the events and that of Bell's wife.

Therefore, we do not find plain error.

    Finally, with regard to the prosecutor's comment about the

defendant's failure to call Bell's nephew as a witness, we note

that the trial court sustained the defendant's objection and

admonished the jury to disregard the prosecutor's remark.  When a

defendant's objection is sustained and the jury is properly

admonished, any potential error is generally deemed cured.  People

v. Gonzalez, 265 Ill. App. 3d 315, 637 N.E.2d 1135 (1994).  We find

that the trial court properly responded to the defendant's

objection, and thus, any error stemming from the prosecutor's

remark was cured.

                               SENTENCING

    The defendant argues next that the trial court considered the

threat of harm as an improper aggravating factor in determining his

sentence.

    Again, the defendant has waived this error by failing to

object at the sentencing hearing (see People v. Lybarger, 198 Ill.

App. 3d 700, 555 N.E.2d 1264 (1990)) and by failing to file a

written motion to reduce sentence (see People v. McCleary, 278 Ill.

App. 3d 498, 663 N.E.2d 22 (1996); People v. Moncrief, 276 Ill.

App. 3d 533, 659 N.E.2d 106 (1995)).

    Moreover, we find that any error did not amount to plain

error.  Plain error arises in a sentencing proceeding when the

evidence is closely balanced or when the alleged error is so

fundamental that it may have deprived the defendant of a fair

sentencing hearing.  People v. Beals, 162 Ill. 2d 497, 643 N.E.2d

789 (1994).  The defendant stood convicted of a Class 1 felony for

which he received a six-year prison sentence.  We find that any

consideration by the trial judge of the threat of harm imposed by

the defendant's conduct, beyond that implicit in the charge itself,

did not result in a greater sentence than would have been imposed

absent such consideration.  See People v. Ward, 243 Ill. App. 3d

850, 611 N.E.2d 590 (1993).  Therefore, we uphold the sentence

imposed by the trial court.

                               CONCLUSION

    For the foregoing reasons, the judgment of the circuit court

of Peoria County is affirmed.

    Affirmed.

    LYTTON, P.J., and MICHELA, J., concur.