{ "id": 5393100, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DENNIS PEARSON, Appellant", "name_abbreviation": "People v. Pearson", "decision_date": "1972-09-20", "docket_number": "No. 42645", "first_page": "260", "last_page": "278", "citations": [ { "type": "official", "cite": "52 Ill. 2d 260" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "147 N.E.2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "13 Ill.2d 63", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2776029 ], "weight": 3, "year": 1958, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/13/0063-01" ] }, { "cite": "40 Ill. 2d 392", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2855718 ], "weight": 2, "pin_cites": [ { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0392-01" ] }, { "cite": "414 Ill. 398", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5314520 ], "weight": 2, "pin_cites": [ { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/ill/414/0398-01" ] }, { "cite": "410 Ill. 87", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5310833 ], "weight": 2, "pin_cites": [ { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/ill/410/0087-01" ] }, { "cite": "15 Ill.2d 130", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2765426 ], "opinion_index": 0, "case_paths": [ "/ill-2d/15/0130-01" ] }, { "cite": "329 Ill. 398", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5201253 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/329/0398-01" ] }, { "cite": "15 Ill.2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2765967 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/15/0514-01" ] }, { "cite": "392 Ill. 542", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2516012 ], "weight": 2, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/ill/392/0542-01" ] }, { "cite": "5 Ill.2d 474", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2702767 ], "weight": 2, "pin_cites": [ { "page": "485-486" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/5/0474-01" ] }, { "cite": "27 Ill.2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5361772 ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0510-01" ] }, { "cite": "18 Ill.2d 453", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5328355 ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0453-01" ] }, { "cite": "47 Ill.2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2904464 ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0289-01" ] }, { "cite": "4 Ill.2d 414", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2701566 ], "opinion_index": 0, "case_paths": [ "/ill-2d/4/0414-01" ] }, { "cite": "29 Ill.2d 306", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2823127 ], "pin_cites": [ { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/29/0306-01" ] }, { "cite": "33 Ill.2d 394", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2885689 ], "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0394-01" ] }, { "cite": "25 Ill.2d 451", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5351323 ], "weight": 2, "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/25/0451-01" ] }, { "cite": "38 Ill.2d 245", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2863453 ], "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0245-01" ] }, { "cite": "14 Ill. 2d 491", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2770640 ], "pin_cites": [ { "page": "500-501" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/14/0491-01" ] }, { "cite": "29 Ill. 2d 283", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2824574 ], "pin_cites": [ { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/29/0283-01" ] }, { "cite": "39 Ill.2d 40", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2856902 ], "weight": 2, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0040-01" ] }, { "cite": "395 U.S. 238", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771759 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/395/0238-01" ] }, { "cite": "397 U.S. 337", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054264 ], "weight": 5, "pin_cites": [ { "page": "343" }, { "page": "343-344" } ], "opinion_index": 0, "case_paths": [ "/us/397/0337-01" ] } ], "analysis": { "cardinality": 1260, "char_count": 33957, "ocr_confidence": 0.87, "pagerank": { "raw": 2.441432127353336e-07, "percentile": 0.8030977867821637 }, "sha256": "8df633899a1f2fabe6109c233dbf86b5952f9c2633cba0e16d78466941fd5b5d", "simhash": "1:cee6d12f566a9dda", "word_count": 5691 }, "last_updated": "2023-07-14T17:03:26.982632+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DENNIS PEARSON, Appellant." ], "opinions": [ { "text": "MR. JUSTICE WARD\ndelivered the opinion of the court:\nThe defendant, Dennis Pearson, who had been indicted with Nelson Weaver for aggravated kidnaping, rape, theft, armed robbery and attempted murder, was tried separately in the circuit court of Cook County and found guilty of all the charges except that of armed robbery. Concurrent sentences of 100 to 125 years for aggravated kidnaping, 100 to 125 years for rape and 5 to 10 years for theft were imposed. He was sentenced to a term of 10 to 15 years for attempt and it was ordered that this sentence was to be consecutive to the other sentences.\nThe principal witness for the People was the victim, Mrs. Sally Heaton. She testified that after finishing work at the Kalamazoo office of the Michigan Bell Telephone Company at 11:00 P.M. on October 22, 1968, she went to the Capri Lounge in Kalamazoo where she planned to meet several co-workers who had been bowling that evening. Shortly after her arrival, she and her friends were joined at their table by Weaver and the defendant.\nAt 2:00 or 2:30 A.M. the defendant, Weaver, Mrs. Heaton and the other women decided to leave the lounge. Mrs. Heaton, who lived in Mattawan, Michigan, testified that she was asked by one of her friends, Mrs. Mildred Van Tyne, to drive the defendant and Weaver to Mattawan, where they were planning to stay with a friend. She said that she agreed reluctantly and only after Mrs. Van Tyne had assured her that there was no reason to be apprehensive of the two men.\nWhen Mrs. Heaton reached Mattawan she drove down a dead-end street towards a trailer park on the instructions of Weaver and the defendant. When they reached the end of the street, Weaver produced a revolver and told her that he and the defendant were going to take her car. She was forced into the back seat by the defendant, who then struck her several times, forcibly removed her clothing and raped her. He and Weaver then told Mrs. Heaton that they were going to Chicago. The defendant and Weaver stopped at Benton Harbor, Michigan, where Mrs. Heaton was again raped, first by the defendant and then by Weaver. Later that morning, in the vicinity of Barrington Road and the Northwest Tollway in Cook County, Illinois, the victim was again raped by the defendant and Weaver. Weaver then attempted to strangle Mrs. Heaton. She fought back and he pulled her from the auto. She testified that Weaver said that \u201cshe was a tough, ornery bitch.\u201d The defendant replied: \u201cWell, you know what has to be done.\u201d She said she asked the men to let her go \u2014 that she had a husband and family whom she loved and that sh\u00e9 wanted to go home to them. The men said, she testified, that they couldn\u2019t let her go; that they would rather shoot it out with the police. At that, she said, Weaver put the gun to the back of her head and shot her. She lost consciousness and later learned that she had been shot four times. She had been shot twice in the head and bullet fragments remained in her head. Another bullet entered the right side of her neck and passed completely through to the left side. She had also been shot in the right hand. She regained consciousness and found herself \u201call covered with straw and hay.\u201d She was about three-quarters of a mile from a highway and started toward it. Richard Ashby, a motorist, saw Mrs. Heaton stumbling through a field adjacent to the highway. He took her to the Northwest Community Hospital in Arlington Heights.\nDr. Frederick Volini, a pathologist and the director of laboratories at the Northwest Community Hospital, told the court and jury that vaginal swabs taken from Mrs. Heaton contained sperm.\nDorothy Lamb and Rita Roberts, who had been with the victim in the Capri Lounge, testified that when the party left the Capri Lounge they saw Weaver entering Mrs. Heaton\u2019s auto and Pearson standing at the passenger door.\nThe only defense evidence presented was the defendant\u2019s testimony, in which he denied the crime. He admitted that he had been at the Capri Lounge with Weaver on October 22, 1968, but he testified he was alone when he left the lounge. He said that he had phoned a friend named Dochany, who gave him a ride home. No further identification of this person was given.\nAt trial the defendant had available the advice of two attorneys, one from the public defender\u2019s office and one who was a private practitioner. Before trial, the defendant had expressed dissatisfaction with the public defender who had been appointed to represent him, and requested the court to appoint an attorney from the local bar association to represent him. The court then appointed the other attorney. Later, the defendant informed the court that he had decided to represent himself, and that he did not desire counsel. The court advised the defendant that he had a right to represent himself, but urged him to accept counsel. The defendant told the court that he would receive advice from counsel, but insisted on conducting his own defense. Before trial began, however, he changed his mind, and agreed to accept representation by both counsel, and was so represented until the prosecution had completed the direct examination of its final witness. Then the defendant again informed the court that he would conduct his own defense. The trial judge after unsuccessfully urging him to continue to be represented granted the defendant\u2019s request, but ordered the attorneys to remain in the courtroom to be able to advise the defendant.\nThe defendant first contends that he was improperly excluded from the courtroom during the instruction of the jury and during final arguments.\nThe record discloses that after the prosecution had completed the direct examination of its final witness, the defendant rose and began shouting vituperative and obscene epithets at the judge and jury. When this occurred the judge ordered the bailiff to escourt the jury from the courtroom. Then, after a brief colloquy between counsel and the court, the defendant was told by the court that he could not remain in the courtroom if he engaged in disruptive outbursts, and that counsel would be appointed to represent his interests in his absence. The defendant apologized for his behavior, and promised the trial judge that he would \u201c*** conduct [himself] like a gentleman from now on ***.\u201d\nWhen the trial resumed, the defendant immediately began another diatribe against the court, prosecutor and jury, again using obscene and insulting language. The court, after removing the jury and the defendant from the courtroom, announced that it had concluded that the defendant would continue his outbursts, and it directed the attorneys to assume active conduct of the defense. Too, on the motion of defense counsel, the court ordered a behavior clinic examination of the defendant. Dr. William Haines conducted the examination and reported his findings to the court before the trial resumed. The report stated that, \u201cWhen asked why he [the defendant] broke out this morning, he replied it was a cold deliberate attempt to force the judge to give me a mistrial \u2014 I [the defendant] have heard of it being done before.\u201d Dr. Haines\u2019 evaluation was that the defendant \u201cknows the nature of the charge and is able to cooperate with his counsel.\u201d\nPrior to the resumption of the trial a bailiff, Walter Makowski, testified that after the defendant had been taken from the courtroom following his second outburst, the defendant told him, \u201c \u2018 [W] hen I get back into the courtroom, stay far away from me because I don\u2019t want to hurt you. *** [W] hen I get out there, I am going to hurt somebody.\u2019 \u201d\nThe attorneys for the defendant requested the court at the time of the second incident to exclude the defendant from the courtroom for the balance of the proceedings, and also asked the court to refuse to permit the defendant to testify. The trial court, however, permitted the defendant to testify but directed that he be secured, apparently by handcuffs, to the witness stand. Before he testified, the court again warned him several times that he would be removed if there were any further outbursts.\nAlthough the court permitted the defendant to testify, it ordered that at the conclusion of his testimony the defendant would be excluded from the courtroom for the balance of the trial proceedings. The court expressly stated that its decision to exclude was grounded upon its own independent conclusion that the defendant would engage in further disruptive behavior and not in response to the motion of the defense counsel that the defendant be barred from the courtroom for the remainder of the proceedings.\nBefore testifying, the defendant announced \u201ca blanket objection to these proceedings,\u201d and then he apologized to the jury saying \u201cThe jury only, I apologize to.\u201d He testified as has been described and without incident. After he had testified he was removed from the courtroom and final arguments were heard and the jury instructed. There was no request made after the defendant\u2019s testimony that he be permitted to remain in the courtroom.\nThe defendant does not here challenge the correctness of his exclusion from the courtroom after his two outbursts. Nor is there any complaint of the defendant\u2019s having- been restrained during his testimony. He does contend that by refraining from any disruptive behavior while testifying, he effectively reclaimed his right to be present during the balance of the proceedings. In claimed support of his position he cites Illinois v. Allen (1970), 397 U.S. 337, 25 L.Ed.2d 353, 90 S.Ct. 1057, where the Supreme Court held that an unruly defendant could properly be excluded from the courtroom. He relies upon the court\u2019s observation that \u201c[ojnce lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.\u201d [Allen, 397 U.S. at 343.) But in Allen the court also observed that \u201cthere are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen,\u201d including \u201c[taking] him out of the courtroom until he promises to conduct himself properly.\u201d (397 U.S. at 343-344.) Here the defendant did not ask to be allowed to resume his place in the courtroom and, of course, he did not \u201cpromise to conduct himself properly\u201d following the second disturbance. Rather, before testifying he said he was apologizing to the jury alone, which could hardly be considered an assurance that his behavior toward the court would be corrected. The defendant\u2019s own attorneys, with his interest in mind, had asked that he be barred from the courtroom and not be permitted to testify as well. It may be concluded that they had no doubt that the defendant would persist in his disruptive behavior and prejudice his cause. We certainly cannot say that the defendant had restored his right to be present in the courtroom.\nCiting Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709, the defendant adds that the trial court had a duty after the defendant had finished testifying \u201cto ascertain on the record if the defendant wished to waive his further presence until the reading of the verdicts.\u201d\nThere is no parallel here to Boykin. There the concern was whether the defendant had knowingly waived constitutional rights. Here the defendant did not voluntarily absent himself from the courtroom; there is no question of waiver. The record shows that the court repeatedly told the defendant that if he did not behave properly he would be removed from the courtroom and the trial would proceed in his absence. After the first disruptive episode, the defendant was permitted to return to the courtroom upon promising to conduct himself properly. But he immediately engaged in further disruptive behavior. There was evidence from the testimony of the bailiff that it was likely the defendant would engage in more disorderly conduct, and the report of the physician from the behavior clinic gave evidence that the defendant was bent on deliberately causing a mistrial. The trial judge was placed in a vexing and sensitive position. We judge he acted with admirable restraint and patience in his efforts to insure a proper trial of the accused. Considering the circumstances the court had ho obligation to ascertain whether the accused, as the defendant puts it, \u201cwished to waive his further presence.\u201d See generally ABA Project on Standards for Criminal Justice (Tentative Draft 1971), Standards Relating to The Judge\u2019s Role in Dealing With Trial Disruptions.\nThe second contention of error the defendant makes is that he was denied a fair trial, and to support this claim he points to six instances of alleged prejudice.\nFirst, he asserts that the victim\u2019s husband sat beside her while she testified on direct examination, and that this tended to arouse the sympathies of the jury to his prejudice. It appears, however, from the supplemental record filed here that the victim\u2019s husband did not sit beside her. The trial judge and the two assistant State\u2019s Attorneys executed affidavits in which they stated that the victim\u2019s husband did not stand or sit next to her. One of the defense attorneys, in an affidavit stated that Mrs. Heaton, who was wearing a neck brace, was assisted to the witness stand by her husband, who then took a chair next to the wall on the jury\u2019s left approximately eight feet from the witness stand, where he remained during the direct examination. The attorney said he made no objection because he did not wish to call the jury\u2019s attention to the victim\u2019s husband. He did claim that he did object to Mr. Heaton\u2019s presence next to the wall when he observed him grimace, but the record shows neither that the husband grimaced nor any objection. An objection was made to the husband\u2019s location during a recess and sustained. Thereafter Mr. Heaton occupied a seat in the spectator\u2019s area.\nThat the husband was seated as described during his wife\u2019s direct testimony was ill advised but no objection was made at the time to his position. Objection could have been made outside of the jury\u2019s presence. We consider the objection was waived. (People v. Long, 39 Ill.2d 40.) When objection was made, the trial court took corrective action. We do not find error.\nThe defendant also complains that he did not receive a fair trial because of references by the prosecutor to the victim\u2019s family during the closing argument. In the first reference the assistant State\u2019s Attorney said: \u201cSally Heaton was kidnaped, kidnaped in Mattawan, Michigan, when they pulled that gun and they told her even though she wanted to go home to her wife \u2014 strike that \u2014 to her husband and family, that she couldn\u2019t go, that she was going to Chicago with them.\u201d In the second, he commented: \u201c *** Sally Heaton did whatever was humanly possible to resist what happened to her, to resist being kidnaped, to resist being taken out of her home, away from her family ***.\u201d And finally he observed: \u201c *** maybe it takes the strength of a woman, a mother, a wife \u2014 to get up off the ground after you have been shot four times and walk three-quarters of a mile ***.\u201d\nThe record shows that no objection was made to any of now complained-of references and we need not consider them. When a defendant fails to object \u201c *** the irregularities [in the closing argument] *** complained of must be deemed to have been waived. [Citations.] \u201d People v. Donald, 29 Ill. 2d 283, 287. The references were certainly not, under the circumstances of this case, such as to require us to assess their possible effect despite the absence of objection. People v. Fort, 14 Ill. 2d 491, 500-501.\nThe defendant also says there was prejudicial error in the admission of evidence showing the extent of the victim\u2019s injuries and by the assistant State\u2019s Attorney\u2019s reference to these injuries in closing argument. He cites various references to the injuries, some of which were made during the giving of testimony and some of which were made during closing argument. The references in argument to Mrs. Heaton\u2019s injuries related to a small part of the testimony given, and there was no objection offered to them. The references or descriptions of the injuries during testimony were brief, or stated incidentally, and objections were made to only two of them. The result of that is \u201c *** we need consider only those remarks objected to at trial since statements not objected to are waived.\u201d [People v. Underhill, 38 Ill.2d 245, 252.) \u201cThe fact that defendant was appearing pro se cannot be used as an excuse for failing to object ***.\u201d People v. Long, 39 Ill.2d 40, 43.\nIn the objected-to instances, Richard Asby, the passing motorist who took the victim to the hospital, was asked by the assistant State\u2019s Attorney to describe the condition of her clothing, and over the objection of defense counsel the witness answered, \u201cThe condition of the clothing, it was bloody.\u201d Dr. Keith Wurtz, a physician who examined Mrs. Heaton at the hospital, first testified without objection that she sustained wounds and bruises and lacerations. He was then asked to describe \u201cher physical condition at the time that he saw her other than these multiple bruises and lacerations and the bullet wounds.\u201d Over objection, he responded: \u201cShe was critically injured and near death.\u201d\nThe defendant argues that in a trial for attempted murder, it is error to bring in evidence showing the extent of the victim\u2019s injuries. He points particularly to People v. Nickolopoulos, 25 Ill.2d 451, where a conviction for assault with a deadly weapon with intent to commit murder was reversed because of prejudice through the introduction of evidence of the victim\u2019s injuries. But there it appears there was a deliberate effort, with prejudicial results, to focus the jury\u2019s attention upon the victim\u2019s pathetic condition. We noted: \u201cOver the objection of the defendant, the officer testified that when he lifted Kallianiotis he observed blood on the floor and that when he removed him from the stretcher at the hospital he observed blood on the stretcher. Over objections of the defendant, Kallianiotis was permitted to testify that as a result of the shooting he was paralyzed in his left leg and had 7 holes in his intestines. The defendant was asked on cross-examination whether, when he saw Kallianiotis at the hospital, he was being fed intreveneously and had tubes down his nose. An objection to this question was sustained.\u201d 25 Ill.2d at 453.\nHere, we consider the references to the victim\u2019s injuries were unstudied. We would note, too, that the defendant was charged with rape. Force is an element of that offense, and the \u201ccondition of her clothing\u201d (cf. People v. Walls, 33 Ill.2d 394, 399) was not irrelevant to the question of whether force was involved.\nAs to Dr. Wurtz\u2019s observation that \u201cshe was critically injured, near death,\u201d the record shows there was no development or elaboration of the observation. The witness was excused immediately thereafter. We do not judge the remark was seriously, if at all, prejudicial. Considering the evidence, the condition of Mrs. Heaton should have been self-evident. We cannot reasonably attribute to the jury an opaqueness that would make it unaware that the victim\u2019s condition would have been critical.\nThere is no substance to the complaint that statements made by the trial court during closing arguments reflected a lack of impartiality which prejudiced the defendant. During closing argument, the defense attorney had said that the victim was in the company of single women on the night concerned. The assistant State\u2019s Attorney objected that this was not her testimony, since she had testified there were married women in the group she met that night by prearrangement. The court sustained the objection, and cautioned defense counsel to \u201cgive the facts.\u201d Shortly thereafter the court sustained another objection by the prosecutor to a statement by defense counsel that the victim had danced with the defendant. Since this remark was contradicted by testimony in the record, the court again cautioned defense counsel to give the facts. No objection was made to these cautions by the court. We said in People v. Jones, 29 Ill.2d 306, 309, where a similar claim of prejudice was made: \u201cComplaint is also made of *** a cautionary remark to [defense counsel] during his closing argument to confine himself to the evidence. The [remark was] not of such a nature as to prejudice the defendant in the eyes of the jury nor were any objections made.\u201d The court here was simply requiring counsel to limit his comment to the evidence.\nThe defendant says, too, he was prejudiced by the argument of the assistant State\u2019s Attorney in rebuttal. In response to the defense counsel\u2019s statements in closing argument which we have just discussed and to which the prosecutor had objected, the assistant State\u2019s Attorney began his rebuttal by remarking:\n\u201cLadies and gentlemen, I will be brief. If you will permit me, when we began the selection of this jury, each and every attorney who examined you, who talked to you and his Honor, Judge Romiti, advised you that comments made by myself or the defense lawyers at the beginning or close of the trial is not evidence, and should not be considered as evidence. I think now the reason for such an admonishing, the reason for the law being the way it is is obvious, because just as [the defense attorney] stood up here and made up facts in his arguments\u2014\nDefense Counsel: Objection.\nThe Court: Proceed.\nProsecutor: \u2014 I could do the same thing if I wanted to. [The defense attorney] did not get on the witness stand and he didn\u2019t subject himself to cross-examination. He wasn\u2019t there October the 22nd and the 23rd, nor was I. I can\u2019t make up facts, I can\u2019t add facts any more than he should be able to.\u201d\nIt is claimed that, in effect, the assistant State\u2019s Attorney said defense counsel had been untruthful and that it is improper for an attorney to make opposing counsel the object of derogatory comments. (People v. Freedman, 4 Ill.2d 414.) Though to some measure at least the comments were provoked by misstatements in the defense argument, the comments may well have exceeded the limits of proper argument. But on this record, one cannot say that the defendant was prejudiced to an extent which made his trial unfair. We observed in People v. Palmer, 47 Ill.2d 289, 300: \u201cAlthough it is improper for the State to make statements about the defense counsel\u2019s conduct solely to inflame the prejudices of the jury, we have concluded in previous cases, as we do here, that from the entire record and the entire argument of counsel the personal attacks on the defense attorney were not of such magnitude as to justify a reversal. (People v. Berry, 18 Ill.2d 453, People v. Burnett, 27 Ill.2d 510.)\u201d\nAnother claim of error is that the assistant State\u2019s Attorney referred to a matter not in evidence when he objected to a point in the closing argument of the defense. Mrs. Heaton had testified that she had given the defendant and Weaver a ride on the assurances of Mrs. Millie Van Tyne, who was with her that night at the Capri Lounge, that there was no reason to fear the two men. During his argument, defense counsel said: \u201c[The victim] said that Mrs. Van Tyne had told her that she knew these fellows and they were O.K. But Mrs. Van Tyne was never brought into this courtroom.\u201d In the course of objecting successfully to this comment the prosecutor remarked: \u201c *** counsel knows why she wasn\u2019t brought into court.\u201d\nThe record shows that there was a discussion in chambers regarding whether Mrs. Van Tyne would be a witness. Defense counsel told the court that the defendant had wished to call Mrs. Van Tyne as a witness, but that he had been unsuccessful in his efforts to reach her. He also said, \u201c *** I understand she would have been of no benefit to the defense.\u201d The assistant State\u2019s Attorney informed the court that the State had intended to call Mrs. Van Tyne, but that he had learned from persons in Kalamazoo that she was on vacation at some unknown place for the summer, and that he had been unsuccessful in his attempts to communicate with her. Both defense attorneys were present when the assistant State\u2019s Attorney gave his explanation for not producing Mrs. Van Tyne.\nUnder the circumstances it was improper for the defense to comment on the absence of Mrs. Van Tyne, and the court properly sustained the prosecutor\u2019s objection. We do not consider, in the light of what occurred, that the defendant can with grace or validity complain of the comment, \u201c *** counsel knows why she wasn\u2019t brought into court.\u201d What was said in People v. Wheeler, 5 Ill.2d 474, is relevant: \u201cThe remarks of the State\u2019s Attorney were invited by the remarks of defendant\u2019s counsel and defendant cannot claim he was prejudiced by the reply.\u201d 5 Ill.2d at 485-486.\nThe defendant also argues that his sentence on the attempted murder conviction was not properly ordered to be consecutive to the sentences for the other convictions. The defendant was found guilty of aggravated kidnapping, rape, theft, and attempted murder. The trial court first imposed concurrent sentences of 100-125 years for aggravated kidnapping, 100-125 years for rape, and 5-10 years for theft. The trial court\u2019s order continued: \u201cOn the charge of attempted murder, you are sentenced to the penitentiary for not less than 10 nor more than 15 years, this sentence to be consecutive to the three sentences already imposed.\u201d\nDefendant complains that this language was inappropriate to impose a consecutive sentence, and the sentences must be deemed to be concurrent. He cites People v. Wooten, 392 Ill. 542, 544; People v. Kessler, 15 Ill.2d 514; and People ex rel. Clancy v. Graydon, 329 Ill. 398, in presumed support of his position.\nGraydon, 329 Ill. 398, simply concerned the undisputed proposition that multiple sentences will run concurrently if there is no direction in the judgment that they are to be consecutive.\nPeople v. Wooten, 392 Ill. 542, is also distinguishable because of the \u201cextreme indefiniteness, vagueness and uncertainty\u201d in two of the sentences concerned. There is no such problem here. In People v. Horodecki, 15 Ill.2d 130, the defendant in November, 1949, was found guilty of armed robbery, and sentenced to a term of 25-40 years. The trial court\u2019s order read: \u201cThe same to run consecutively with the sentence heretofore imposed on this defendant.\u201d Neither the order or the record in the case, however, reflected any other conviction which would have preceded the sentence for armed robbery. However, in a previous trial in February, 1949, he had been convicted and sentenced to 20 years for murder. In holding that could not be considered consecutive this the court observed: \u201cThe People concede that the judgment is not sufficiently definite and certain to make it run consecutive to the murder sentence, but is otherwise valid.\u201d (15 Ill.2d at 136.) There is an obviously different factual situation here.\nPeople v. Kessler, 15 Ill.2d 514, does not support the position of the defendant. There, the defendant, who had been convicted of five distinct forgery offenses and one charge of assault to commit murder, was given consecutive sentences on each conviction. His contention was that the language of the trial judge was so ambiguous and unclear that the sentences must be deemed to be concurrent as a matter of law. This court rejected that contention, saying: \u201cThe sentences in question are not so ambiguous and uncertain that they would require the aid of a court to construe them, nor would those required to execute them be unable to tell from the wording when one begins and the other ends. It is clear from the record that the trial judge intended the sentences to be served consecutively. People v. Ferguson, 410 Ill. 87. \u201d 15 Ill.2d at 516.\nHere undoubtedly the trial court intended that the sentence for attempted murder was to be consecutive to the three concurrent sentences imposed for rape, aggravated kidnaping, and theft, and its language expressed that intent with certainty. The court was not required to specify the date on which the consecutive sentence would commence. People v. Ferguson, 410 Ill. 87, 92.\nArguing in the alternative, the defendant says that should it be held that the sentence on the attempted murder charge is to be served consecutively to the other sentences, the imposition of a consecutive sentence was invalid, because the attempted murder offense \u201crose out of the same transaction\u201d as the other offenses. It is incorrectly said that the holding in People v. Stingley, 414 Ill. 398, supports this contention. First, the factual setting of Stingley was quite different from the one here. In Stingley there was a single physical assault upon the victim, after which he was charged and found guilty of assault with intent to rape and with assault with intent to murder. It was ordered that the sentence imposed for assault with intent to murder was to be consecutive to the one imposed for assault with intent to rape. This court in holding that a consecutive sentence was not warranted, noted that the issue pertained \u201cto consecutive sentences upon separate convictions for independent felonies arising out of the same transgression and charged in the same indictment.\u201d (414 Ill. at 400.) Here the \u201ctransgression\u201d or the conduct of attempted murder was separate and different from the conduct in the other offenses of which the defendant was also convicted.\nTo explain, our statute concerning consecutive sentences provides: \u201cWhen a person shall have been convicted of 2 or more offenses which did not result from the same conduct, either before or after sentence has been pronounced upon him for either, the court in its discretion may order that the term of imprisonment upon any one of the convictions may commence at the expiration of the term of imprisonment upon any other of the offenses.\u201d (Ill.Rev.Stat. 1967, ch. 38, par. l-7(m).) Thus, this section \u201c *** literally authorizes consecutive sentences when a person has been convicted of 2 or more offenses which did not result from the same conduct ***.\u201d People v. Raby, 40 Ill. 2d 392, 404.\nSection 2 \u2014 4 of the Criminal Code of 1961, defining \u201cconduct\u201d states: \u201c \u2018Conduct\u2019 means an act or a series of acts, and the accompanying mental state.\u201d Article 4 (Criminal Act and Mental State), sections 4 \u2014 1 to 4 \u2014 9 inclusive, of the Code considers mental states. Section 4 \u2014 4, in referring to intent, provides: \u201cA person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.\u201d\nThe Committee Comments to subsection (m) of section 1 \u2014 7 of the Code, are: \u201cSubsection (m) is intended to codify the holding in People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316 (1958), by the implicit converse of the provision stated, i.e., if the offenses resulted from the same conduct the defendant may not be sentenced on both, either concurrently or consecutively. \u2018Conduct\u2019 is defined in section 2 \u2014 4 and is used in the sense of \u2018the same transaction\u2019 discussed in Schlenger, supra.\u201d S.H.A. ch. 38, sec. 1 \u2014 7, p. 37.\nIn Schlenger, 13 Ill.2d 63, referred to in the Committee Comments, the defendant had pleaded guilty to an indictment of two counts which charged armed robbery and grand larceny. He received a sentence of 5 to 15 years on the first count of armed robbery and a sentence of 5 to 10 years on the larceny count. It was ordered by the trial court that the latter sentence was to run concurrently with the robbery sentence. This court upheld the defendant\u2019s contention that the crimes of robbery and larceny were \u201crelated to a single transaction\u201d and should have been charged in a single count. It was observed \u201cthat armed robbery necessarily involves an unlawful taking *** [and] the second sentence for larceny is unnecessary [and] superfluous ***.\u201d 13 Ill.2d at 66.\nApplying what we have said to the defendant\u2019s argument, it is clear that the trial court was authorized to order that the sentence for attempted murder was to run consecutively to the concurrent sentences for kidnaping, rape and theft. As in People v. Raby, 40 Ill.2d 392, those other offenses had been completed before the attempt at murder was begun and there was no necessary relationship between the attempt and the preceding offenses. The act or \u201cconduct\u201d in the murder attempt and the mental state which accompanied it were different from the prior acts or conduct and the prior mental states involved in the other crimes of kidnaping, rape and theft.\nThe concept underlying section 1 \u2014 7(m) of the Criminal Code is that it would be plainly unconscionable to permit double punishments to be successively served for the same conduct. Hence, our statute will permit consecutive punishments only when the offenses of which the accused has been found guilty did not result from the same conduct. Here the conduct for which the consecutive sentence was imposed was based on conduct different from that in the other offenses for which he had been sentenced. The trial court\u2019s imposition of a consecutive sentence for the offense of attempted murder was proper under section 1 \u2014 7(m).\nFor the reasons we have given, the judgment of the circuit court is affirmed.\nJudgment affirmed.", "type": "majority", "author": "MR. JUSTICE WARD" } ], "attorneys": [ "GERALD W. GETTY, Public Defender, of Chicago (JOHN T. MORAN, JR., and JAMES J. DOHERTY, Assistant Public Defenders, of counsel), for appellant.", "WILLIAM J. SCOTT, Attorney General, of Springfield, and EDWARD V. HAN RAH AN, State\u2019s Attorney, of Chicago (JAMES B. ZAGEL, Assistant Attorney General, and ROBERT A. NOVELEE and JAMES N. KARAHALIOS, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 42645.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DENNIS PEARSON, Appellant.\nOpinion filed September 20, 1972.\nGERALD W. GETTY, Public Defender, of Chicago (JOHN T. MORAN, JR., and JAMES J. DOHERTY, Assistant Public Defenders, of counsel), for appellant.\nWILLIAM J. SCOTT, Attorney General, of Springfield, and EDWARD V. HAN RAH AN, State\u2019s Attorney, of Chicago (JAMES B. ZAGEL, Assistant Attorney General, and ROBERT A. NOVELEE and JAMES N. KARAHALIOS, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0260-01", "first_page_order": 282, "last_page_order": 300 }