People v. Baker, 4-89-0462

• Decision Date: 28 March 1990
• Docket Number: No. 4-89-0462,4-89-0462
• Court: United States Appellate Court of Illinois
• Parties: , 142 Ill.Dec. 71 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William L. BAKER, Defendant-Appellant.

Page 421

552 N.E.2d 421

195 Ill.App.3d 785, 142 Ill.Dec. 71

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William L. BAKER, Defendant-Appellant.

No. 4-89-0462.

Appellate Court of Illinois,

Fourth District.

March 28, 1990.

Rehearing Denied April 27, 1990.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Karen Munoz, Asst. Defender, Springfield, for defendant-appellant.

Roger Simpson, State's Atty. and Leonard R. Rumery, Asst. State's Atty., Monticello, for plaintiff-appellee.

Justice STEIGMANN delivered the opinion of the court.

Defendant, William L. Baker, was convicted after a jury trial of unlawful restraint and battery (Ill.Rev.Stat.1987, ch. 38, pars. 10-3, 12-3). Defendant appeals his convictions, claiming that the prosecutor's remarks during closing argument deprived him of a fair trial. In addition, defendant maintains that the trial court's recoupment order requiring him to pay $200 to the county for the services of his public defender must be vacated.

We affirm.

Defendant contends that the prosecutor's closing argument denied him a fair trial because the prosecutor (1) expressed his personal opinion, and (2) accused the defendant of "fogging" the issues during defendant's closing argument.

With regard to the first allegation, defendant argues that the following passages constitute improper argument:

"That substantiates and provides the proof, I believe, beyond a reasonable doubt, as her testimony is uncontroverted in this case, on the battery charge. * * *

* * * * * *

Judge Shonkwiler is going to read to you certain instructions that you have already indicated that you will follows [sic]. * * *

Number one is unlawful restraint. 'A person commits the offense of Unlawful Restraint when he knowingly and without legal authority, detains another person.' If ever there was a situation where a person was detained, I think it was demonstrated by the testimony of Theresa Taylor. * * * I think it could be reasonably inferred from the evidence, she feared for herself and the safety of her young child, and yet she was not allowed to remove herself from that situation."

In his rebuttal argument, the prosecutor made the following remarks, which defendant again claims are improper argument:

"I live on the west side of Monticello, and from time to time I drive into town early in the morning, and there is a fog over our town, over our community, and as the sun gets higher, the fog burns and the outline of the city becomes clearer. I think [defense counsel] is attempting to drop a fog on this particular trial, and the facts when he says, hey, after all this is just kind of a domestic dispute, after all they have kind of forgiven each other and we should just let them go on and live their lives. * * *

The fact that we are dealing with two people who continue to live together, commonly, where it is commonly known as a domestic dispute is not relevant. It is a fog, and I submit you should not consider that when weighing the evidence in this particular case."

Defendant, however, failed to object to the prosecutor's closing argument at trial. Unless the prosecutor's remarks constitute plain error, defendant has waived consideration of this issue on appeal. (People v. Hall (1986), 114 Ill.2d 376, 418, 102 Ill.Dec. 322, 340, 499 N.E.2d 1335, 1353, cert. denied (1987), 480 U.S. 951, 107 S.Ct. 1618, 94 L.Ed.2d 802.) Because we do not find the prosecutor's closing argument to be inappropriate, we find no plain error.

A prosecutor may state an opinion which is based on the record or on a legitimate inference derived from the record. (People v. Johnson (1987), 119 Ill.2d 119, 143, 115 Ill.Dec. 575, 586, 518 N.E.2d 100, 111, cert. denied (1988), 486 U.S. 1047, 108 S.Ct. 2027, 100 L.Ed.2d 629.) In the present case, the prosecutor expressed opinions as to the proof offered against the defendant. These opinions were legitimate inferences based on the trial record. While it might be good practice for prosecutors to refrain in argument from using sentences beginning with, "I believe" or "I think," we reject defendant's argument that any time a prosecutor does so error results.

Defendant similarly failed to object to the prosecutor's allegation that defendant was "fogging" the issues during his closing arguments. Once again, these comments will be considered on appeal only if they constitute plain error; and, once again, because these remarks are not improper, no error, much less plain error, is present.

While prosecutors must refrain from personal attacks on defense counsel, they need not refrain from attacking defendant's case as presented in the defendant's closing argument. This distinction is particularly important where, as here, the prosecutor's argument is mere rhetorical flourish.

Our supreme court recently found a prosecutor's closing argument to be not prejudicial in a capital case where the prosecutor's descriptions of the defendant's argument were much harsher than the rather mild metaphors used in the present case. See People v. Franklin (1990 ), 135 Ill.2d 78, 112, 142 Ill.Dec. 152, 163, 552 N.E.2d 743, 754 (prosecutor's characterization of defendant's closing argument as "shocking," "bunk," "abominable," and "insulting" did not prejudice defendant).

Defendant also claims that the trial court's order under section 113-3.1 of the Code of Criminal Procedure of 1963 (Code) (Ill.Rev.Stat.1987, ch. 38, par. 113-3.1), requiring him to pay the county $200 for the services of the public defender, was improper. The trial court ordered that this $200 assessment be taken from the $300 cash bond defendant had previously posted. Defendant argues that the court, prior to the entry of the order, failed to consider his ability to pay the $200.

We first note that no objection was raised by the defendant on this or any other ground to the payment order entered by the trial court. Accordingly, we find ourselves once more in a position in which a defendant seeks to have this court review and reverse actions by the trial court which the defendant is questioning for the first time on appeal. Because of defendant's failure to object to this alleged procedural deficiency at any point during the trial court proceedings, defendant has waived this issue on appeal unless the plain error rule applies. See 107 Ill.2d R. 615(a).

Among the last cases in which the supreme court discussed the plain error rule are People v. Szabo (1986), 113 Ill.2d 83, 100 Ill.Dec. 726, 497 N.E.2d 995, cert. denied (1987), 479 U.S. 1101, 107 S.Ct. 1330, 94 L.Ed.2d 181, and People v. Enoch (1988), 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 109 S.Ct. 274, 102 L.Ed.2d 263. Interestingly, both cases involved defendants who received the death penalty, and in both cases the supreme court refused to apply the plain error rule with regard to unobjected-to issues being raised for the first time on appeal. (Szabo, 113 Ill.2d at 94-96, 100 Ill.Dec. at 730-31, 497 N.E.2d at 999-1000; Enoch, 122 Ill.2d at 198-99, 119 Ill.Dec. at 276-77, 522 N.E.2d at 1135-36.) These issues arguably affected the guilty verdicts or the imposition of the death penalty or both. In Enoch, the supreme court went even further and held that merely objecting at the trial level was not enough to preserve trial court errors for appeal; a post-trial motion had to be filed as well. Enoch, 122 Ill.2d at 185-92, 119 Ill.Dec. at 270-73, 522 N.E.2d at 1129-32.

In Szabo, the supreme court described the plain error rule as " 'a narrow and limited exception to the general waiver rule' [citation], to be invoked only when the error alleged is 'so substantial as to deprive defendant of a fair trial' [citation]." (Szabo, 113 Ill.2d at 94, 100 Ill.Dec. at 730, 497 N.E.2d at 999.) Similar language was used in Enoch. Enoch, 122 Ill.2d at 198-99, 119 Ill.Dec. at 276-77, 522 N.E.2d at 1135-36.)

Given these recent holdings by the supreme court in these death penalty cases, there is no basis for the defendant's argument that the plain error rule is applicable to issues on appeal concerning this recoupment order. Even if technical deficiencies were present in the procedures used by the trial court when it entered the recoupment order under section 113-3.1 of the Code, those deficiencies can hardly be "so substantial as to deprive defendant of a fair trial."

If the defendant does not bother to complain of procedural or technical deficiencies at the trial level, he should be barred from doing so on appeal.

The plain error rule means precisely what the supreme court says it means. It is to be invoked only when the error alleged is so substantial as to deprive a defendant of a fair trial. It is not a "catch-all" provision permitting the supreme court, much less this court, to review any order or judgment of the trial court simply because this court may think the trial court erred.

In the context of the present case, not only is the plain error rule not applicable, it has nothing whatsoever to do with whether defendant received a "fair trial." He sat on his rights at the trial level; he should not be permitted to challenge the court's recoupment order at this stage.

In so holding, we are not unmindful of the recent decision of this court in People v. Atwood (1990), 193 Ill.App.3d 580, 140 Ill.Dec. 490, 549 N.E.2d 1362, but we believe Atwood to be the exceptional case and distinguishable on its facts. In Atwood, this court considered arguments concerning section 113-3.1 of the Code that defendant raised for the first time on appeal. One of the distinguishing features in Atwood was the circumstance that defense counsel in that case would likely be paid out of whatever sum the court ordered the defendant to pay for reimbursement of court-appointed counsel.

"[I]f here defense counsel was required, in order to preserve error, to take some step in the trial court to point out such error, we are most reluctant to impose a waiver...