{ "id": 3631679, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISAIAH GREEN, Defendant-Appellant", "name_abbreviation": "People v. Green", "decision_date": "1984-07-12", "docket_number": "No. 4\u201483\u20140554", "first_page": "734", "last_page": "748", "citations": [ { "type": "official", "cite": "125 Ill. App. 3d 734" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "457 N.E.2d 1202", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. 2d 135", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163788 ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0135-01" ] }, { "cite": "431 N.E.2d 344", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "353" } ], "opinion_index": 0 }, { "cite": "88 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082585 ], "weight": 2, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0482-01" ] }, { "cite": "338 N.E.2d 880", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. 2d 114", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2971537 ], "opinion_index": 0, "case_paths": [ "/ill-2d/62/0114-01" ] }, { "cite": "430 N.E.2d 1091", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. 2d 245", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3083259 ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0245-01" ] }, { "cite": "418 N.E.2d 739", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "84 Ill. 2d 350", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3046232 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/84/0350-01" ] }, { "cite": "410 N.E.2d 1163", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. App. 3d 808", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3171370 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0808-01" ] }, { "cite": "288 N.E.2d 363", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "52 Ill. 2d 374", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5394202 ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0374-01" ] }, { "cite": "70 N.E.2d 591", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "395 Ill. 439", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2468482 ], "opinion_index": 0, "case_paths": [ "/ill/395/0439-01" ] }, { "cite": "163 U.S. 662", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 468196 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/163/0662-01" ] }, { "cite": "6 L. Ed. 165", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 1421261 ], "opinion_index": 0, "case_paths": [ "/us/22/0579-01" ] }, { "cite": "289 N.E.2d 601", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. 2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2927578 ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0062-01" ] }, { "cite": "158 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill. 2d 364", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2760556 ], "opinion_index": 0, "case_paths": [ "/ill-2d/16/0364-01" ] }, { "cite": "192 N.E.2d 359", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "28 Ill. 2d 322", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5363613 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/ill-2d/28/0322-01" ] }, { "cite": "367 N.E.2d 422", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 963", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3384832 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0963-01" ] }, { "cite": "370 N.E.2d 265", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 903", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3399759 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0903-01" ] } ], "analysis": { "cardinality": 1361, "char_count": 33027, "ocr_confidence": 0.755, "pagerank": { "raw": 1.328423713376578e-07, "percentile": 0.6284354802152557 }, "sha256": "58d01df7e03a94e460bfde54a6d54840014126008384a569cf98dcd2cece3444", "simhash": "1:0e19c29642222e2f", "word_count": 5699 }, "last_updated": "2023-07-14T15:49:19.537276+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISAIAH GREEN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WEBBER\ndelivered the opinion of the court:\nDefendant, Isaiah Green, together with John Pickens and Dennis Scott, were charged by information in the circuit court of Sangamon County with the offenses of murder and armed robbery in violation of sections 9 \u2014 1(a)(1), 9 \u2014 1(a)(2), 9 \u2014 1(a)(3), and 18 \u2014 2(a) of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, pars. 9-l(a)(l), 9-l(a)(2), 9 \u2014 1(a)(3), 18 \u2014 2(a).) Defendant\u2019s case was severed from the others, and he was tried twice. The first trial ended with a hung jury and consequent mistrial. On the second trial, the jury returned general verdicts of guilty of murder and armed robbery. The trial court sentenced defendant to 15 years\u2019 imprisonment for armed robbery and to an extended term of 60 years\u2019 imprisonment for murder, the sentences to run concurrently.\nOn appeal defendant raises a variety of issues: (1) reasonable doubt, (2) double jeopardy, (3) evidentiary error in admitting prior consistent statements of Pickens and Scott, (4) plain error in the prosecutor\u2019s closing argument, (5) excessive sentence, and (6) improperly constituted jury.\nSince the question of reasonable doubt has been raised, some recital of the evidence produced at the second trial is necessary. Further facts will be developed as needed for an understanding of the other issues in connection with those issues.\nThe victim was Fritz Havrilka, the owner and operator of Fritz\u2019s Wagon Wheel, a restaurant in Springfield. Pickens was a former employee of that establishment. At approximately 12:50 a.m. on December 12, 1982, Havrilka and the head waitress closed the restaurant and Havrilka got into his automobile to drive to his home in New Berlin, which is located about 8 to 10 miles west of Springfield. As was his custom, Havrilka took the night\u2019s proceeds from the restaurant with him in a paper bag.\nShortly before 1 a.m. on December 12, 1982, Kay Skerston, Havrilka\u2019s stepdaughter, and Mike Reichart, her boyfriend, were present in the kitchen of the Havrilka residence. Reichart and Sker-ston heard dogs barking outside. After the dogs had been barking for about five minutes, they heard five or six gunshots. They looked out of the window and saw a car sitting in the driveway. Its lights were off and the engine was running. Looking down the road, Skerston saw the taillights of a car driving away. The taillights were horizontal and appeared to belong to a large car. Skerston woke up her mother. Mrs. Havrilka called the sheriff\u2019s department. When she made the phone call she looked at the clock. It was 1:10 a.m.\nWhen police officers arrived at the scene, they found Havrilka\u2019s body lying face-down in the driveway. An examination of the body showed that Havrilka had been shot five times with a .22-caliber weapon. The cause of death was a shot to the head which had probably been fired from a distance of six to eight inches. Four shots were fired into the body. Expert testimony established that the wounds were consistent with a factual setting in which Havrilka was shot once in the face, fell to the ground, and was shot four more times as the assailant stood over him.\nFour .22-caliber casings were recovered at the crime scene. All four cartridge cases exhibited extractor and ejector marks, used in semiautomatic or automatic pistols or any type of weapon that has only one chamber, such as a rifle. An examination of the bullets recovered from Havrilka\u2019s body established that the murder weapon could have been a Colt firearm.\nDennis Scott, an original codefendant, testified that on December 11, 1982, he spent the day with defendant and John Pickens. At about 8:30 p.m., they helped a friend, James Willie, set up equipment for a party in his apartment at the John Hay Homes in Springfield. At about 11:30 p.m., Scott, Pickens, and defendant left the party with Ruthie Scott. They drove around in Scott\u2019s automobile until they ran out of gasoline. They went to defendant\u2019s mother\u2019s house at about 12. Mrs. Green lent Pickens three dollars to buy gasoline. The four drove to Tommy Harris\u2019 house. Defendant went inside for about five minutes while the others waited in the car. Scott dropped Ruthie off and then drove with Pickens and defendant to Fritz\u2019s Wagon Wheel to pick up Pickens\u2019 paycheck. He was dismissed for failing to report for work.\nScott continued that he, Pickens, and defendant arrived at the Wagon Wheel just as Havrilka was pulling out. They followed. When Havrilka got outside of town, Scott began honking his horn and blinking the lights of the car. He pulled alongside of Havrilka, and Pickens asked Havrilka if he could have his job back. Havrilka told Pickens to come and see him on Monday morning. Pickens told Scott to continue to follow Havrilka. Scott followed Havrilka to his home and pulled into the driveway behind him.\nHavrilka got out of his car and walked back to the passenger\u2019s side of Scott\u2019s car. Pickens grabbed Havrilka by his coat collar and held him as Green drew a gun and climbed out of the back seat. Scott backed out of the driveway, turned his car around, and moved 50 feet down the roadway. Meanwhile, Pickens, Havrilka, and defendant were engaged in a struggle next to Havrilka\u2019s car. Defendant climbed into the car and emerged with a paper sack. Defendant and Pickens walked away. Havrilka followed, yelling, \u201cGive me back my money.\u201d Defendant turned and shot Havrilka once in the face. Havrilka fell to the ground; defendant shot four more rounds into the body.\nContinuing, Scott testified that Pickens and defendant re-entered the car and the trio drove away. Scott and Pickens asked defendant why he had shot Havrilka. Defendant responded that Havrilka knew Pickens and could identify him. Scott drove back into Springfield and stopped at a gas station. They filled the car tank with gas, using $21 of the money from the paper sack. They then returned to the John Hay Homes. Sometime between 2 and 2:30 a.m., after dividing the proceeds of the robbery, they returned to the party at James Willie\u2019s house, and stayed for about 21k hours when, at defendant\u2019s insistence, they decided to drive to St. Louis.\nIn St. Louis, Scott sold his car to defendant. Defendant had paid Scott $150 on the car in August; while in St. Louis he paid him another $150 to close the deal. Scott and Pickens returned from St. Louis three or four days later by bus.\nOn cross-examination, Scott acknowledged that he owned two other cars besides the Cadillac which he drove on the night of the murder. Each of the other cars, a 1976 Chevrolet and a 1978 Buick Regal, had horizontal taillights, four to five inches wide. The Cadillac had vertical taillights which were only about two inches wide.\nJohn Pickens, the other original codefendant, testified that in November and December 1982, he worked at the Wagon Wheel restaurant. On more than one occasion, he, Scott, and defendant had discussed plans to rob the restaurant. The last time they discussed such plans was on December 11 at about 6:30 p.m. According to the plan, Pickens was to drive; Scott and defendant were to go inside and rob Havrilka as he was closing the Wagon Wheel.\nOn the evening of December 11, Pickens, Scott, and defendant were present at James Willie\u2019s while preparations were made for a party. Scott, Pickens, and defendant left the party with Ruthie Scott at about 10:05 p.m. They drove around in Scott\u2019s Cadillac, Scott driving, and stopped by Tommy Harris\u2019 house at a little after 12. Defendant went inside for about two or three minutes while the rest of the party waited in the car. After dropping Ruthie Scott off, they drove to the Wagon Wheel restaurant.\nPickens continued: they arrived at the Wagon Wheel restaurant at about 12:30 or 12:40 a.m., and Havrilka was pulling out just as they arrived. They followed Havrilka to his home and pulled into the driveway behind him.\nHavrilka walked back to the passenger\u2019s side of Scott\u2019s car. Pick-ens asked Havrilka if he could have his job back. Havrilka told him to come in on Monday morning.\nPickens, further testifying, stated that defendant stuck a gun out the window and told Havrilka that it was a \u201cstick-up.\u201d Havrilka ran back towards his car. Pickens opened the car door and let defendant out of the back seat. Defendant followed Havrilka and struggled with him next to Havrilka\u2019s car. Defendant took a paper bag out of Havrilka\u2019s car. As defendant and Pickens walked away, Pickens slightly ahead of defendant, Pickens heard a shot. He turned around as Havrilka was falling to the ground. Defendant fired several more shots into Havrilka\u2019s body. Pickens asked defendant why he had shot Havrilka. Defendant responded, \u201cThe man knew me.\u201d Pickens claimed that he never touched Havrilka during the robbery.\nPickens and defendant re-entered Scott\u2019s car. The car was parked at the end of the driveway, a little over 15 feet away from Havrilka\u2019s car. They drove back into town, and, after filling the car with gasoline, they split up the proceeds of the robbery, about $1,700. Scott and Pickens each received about $450 to $500. Defendant received more because he shot Havrilka. They went by Tommy Harris\u2019 house so that defendant could return the pistol which he had borrowed. Scott and Pickens each gave defendant $50 to pay Harris for the use of the weapon.\nPickens\u2019 further testimony was that he, Scott, and defendant returned to the party at about 1:50 or 2 a.m. A dance contest was starting just as they returned. The winner of the contest was awarded a fifth of Yukon Jack Whiskey, and defendant bought the bottle for $10. He, Scott, and defendant left the party at about 2:30 or 3 a.m. to drive to St. Louis.\nIn St. Louis, defendant bought Scott\u2019s Cadillac with money which he won as the three of them gambled together. Scott and Pickens re-tuned from St. Louis two days later by bus.\nVincent Cooper testified that he was at a party at James Willie\u2019s on the morning of December 12, 1982. Cooper testified that Pickens told him that Pickens and defendant had robbed a man. Pickens also told him that defendant had killed the man. Cooper testified that he did not see John Pickens at James Willie\u2019s party until 1:45 a.m. on December 12, 1982. Cooper shot dice with defendant at the party at about 3 a.m. and won $15 from him.\nTommy Harris testified that in December 1982 he lived at the John Hay Homes. Sometime in the latter part of November or first part of December 1982, Harris loaned defendant a .357 Magnum. Defendant never returned the gun. Harris eventually retrieved the weapon from defendant\u2019s cousin or uncle. Harris stated that on the night James Willie gave a party, defendant came to the Metro, a tavern in Springfield, and asked to borrow the Magnum again. Harris refused to loan defendant the Magnum but told him he could loan him a .22-caliber Colt automatic pistol. Defendant agreed and went to Harris\u2019 home to get the weapon. When defendant returned the gun, he paid Harris $100. Harris guessed defendant returned the gun two or three days later and did not think it was returned the same night he loaned it. On cross-examination, he admitted testifying at defendant\u2019s first trial that he could not recall the specific date in December when he loaned defendant the gun.\nDefendant, testifying on his own behalf, stated that he was not involved in either the robbery or the murder of Fritz Havrilka. He testified that he arrived at James Willie\u2019s party at about 8:30 p.m. He went home at about 10 or 10:30 p.m. to change clothes and check on his son and was not gone more than about 20 minutes. There was a dance contest held at the party. Shortly before it began, defendant attempted to go to the liquor store. Sam Bailey was to drive Robert Joiner\u2019s car. Joiner did not want defendant to drive the car since he did not have a license. They did not go because Sam Bailey realized that it was too late to go. The liquor store was closed. They returned to the party and the dance contest shortly thereafter. Defendant testified that the winner of the dance contest, Salina Cave, sold him a fifth of whiskey which she received as a prize from the contest. At about 2:30 or 3 a.m., defendant left the party. He, Pickens, and Scott drove together to East St. Louis. The three apparently continued their drive to St. Louis because defendant claimed that he gambled with Scott and Pickens there. With his winnings, he purchased Scott\u2019s Cadillac. Defendant attested that Scott and Pickens were with him when he borrowed a gun from Tommy Harris sometime in December. Defendant persuaded Harris to loan him the weapon for protection because several men were threatening him with a gun.\nOn cross-examination, defendant admitted that he testified at his first trial that he went to sleep in the back seat of Scott\u2019s car as soon as they left Springfield for St. Louis. He also acknowledged testifying previously that he borrowed the gun from Harris because someone had threatened him with a knife.\nSalina Cave testified that the dance contest at James Willie\u2019s party commenced at about 1:30 a.m. on December 12 and lasted approximately 30 minutes. She did not see defendant, Pickens, and Scott until after the dance contest ended. Cave received a bottle of Yukon Jack for winning the dance contest. Defendant offered to buy the liquor from her for $8.\nSam Bailey testified on behalf of defendant. Bailey was the doorman at James Willie\u2019s party. At about 1:15, defendant asked Bailey to take him to the liquor store. They were to go in Robert Joiner\u2019s car. Robert Joiner testified that he lent his car keys to defendant. Bailey testified that he and defendant walked out to Robert Joiner\u2019s car, which was parked about 15 feet from the door to the party. Bailey looked at his watch and told defendant that there was no point in going to the liquor store because it was closed. Bailey testified that he and defendant returned to the party just before the dance contest started.\nDefendant\u2019s sister, Diane Green, testified on rebuttal that her sister reported defendant came home at midnight on December 11, 1982, to borrow $3 from his mother.\nRuthie Scott testified on rebuttal that defendant transported her to her cousin\u2019s house in Dennis Scott\u2019s Cadillac at about 10:45 p.m. on December 11, 1982. Defendant stopped at his mother\u2019s house for about 15 minutes to get some money for gasoline. Scott, Pickens, and defendant left her at her mother\u2019s house between midnight and 12:30 a.m. before they purchased gasoline.\nRebuttal witness Detective Tom Murphy testified that on December 22, 1982, defendant informed him that on the night of the party he walked to Alby\u2019s Liquors by himself but returned because it was closed.\nThat was substantially all the evidence in the case. Defendant\u2019s chief argument concerning reasonable doubt centers on the testimony of Scott and Pickens, his codefendants. He notes (1) that they were substantially rewarded for their testimony, and (2) that their stories are inconsistent and unbelievable.\nThe record does demonstrate that each of them entered pleas of guilty to the offense of armed robbery and each received a prison sentence of 15 years therefor. Murder charges against them were dismissed. Defendant contrasts this with his 15-year term for armed robbery and 60-year term for murder. However, the jury was thoroughly informed of the lenity which had been extended to Scott and Pickens and was instructed as to how to deal with the testimony of accomplices. Illinois Pattern Jury Instructions (IPI), Criminal, No. 3.17 (2d ed. 1981).\nThe principles governing the use of accomplice testimony are familiar. Uncorroborated testimony of an accomplice is competent but received with caution. (People v. West (1977), 54 Ill. App. 3d 903, 370 N.E.2d 265.) Infirmities in such testimony, such as hopes of leniency or reward, go to the credibility of the witness and his testimony, not to its admissibility. If the jury is satisfied by such testimony that the defendant is guilty beyond a reasonable doubt, then a reviewing court should not disturb the verdict unless it is plainly apparent that such a degree of proof is lacking. (People v. Sheridan (1977), 51 Ill. App. 3d 963, 367 N.E.2d 422; People v. Hansen (1963), 28 Ill. 2d 322, 192 N.E.2d 359.) Material corroboration of accomplice testimony is entitled to great weight. People v. Baker (1959), 16 Ill. 2d 364, 158 N.E.2d 1.\nAs we have already noted, the jury was informed of the status of Scott and Pickens and knew of the lenity which had been extended to them. Without rehashing all of their testimony set forth above, we find that it is largely parallel and corroborated by other evidence. Both testified that defendant was in their company almost constantly throughout December 11 and 12; their versions of the shooting parallel: that there was a single shot to Havrilka\u2019s head and then additional rounds into his body after he fell to the ground. While there were minor discrepancies concerning times and locations both before and after the shooting, the immediate events at the time of the homicide were described consistently. Furthermore, the testimony of the pathologist and the firearms expert, which was received during the trial, concerning the number and location of the wounds, the type of weapon used, and the range from which it was fired, was entirely consistent with the testimony of the accomplices.\nMost telling, however, was the testimony of Tommy Harris, who stated that he had loaned defendant a .22-caliber Colt automatic on the night of the party at James Willie\u2019s house and received $100 from defendant for its use when he returned it. The firearms expert testified at trial that the bullets recovered from the body of Havrilka and at the scene more likely than not came from a Colt firearm.\nWe find no basis for disturbing the jury\u2019s verdict on this record.\nDefendant\u2019s issue of double jeopardy arises out of events which occurred at his first trial. A jury was selected on May 16, 1983, and evidence commenced the next day, May 17, and continued through May 18. On May 19 the jury returned for closing arguments and instruction. The record does not reflect the hour at which they retired to consider a verdict. However, shortly before 5 p.m. on May 19 the trial court returned the jury into open court and the following colloquy took place:\n\u201cTHE COURT: The Court wishes to inquire if you\u2019re making any progress.\nWithout telling me how you stand, are you making progress?\nFOREMAN OF THE JURY: I can\u2019t tell you that we\u2019re nearing \u2014 I feel that we\u2019re making progress, but I can\u2019t tell that we\u2019re reaching \u2014 that we\u2019re coming close to reaching a decision.\nTHE COURT: Do you think that if you have additional time you could reach a decision?\nFOREMAN OF THE JURY: I think it\u2019s entirely possible.\nTHE COURT: Do you have an indication of how much more time you\u2019d like?\nFOREMAN OF THE JURY: I can \u2014 I\u2019m quite sure that it will be more than a couple of hours, but beyond that I can\u2019t say and I can\u2019t \u2014 I can\u2019t predict what will happen after two hours.\nTHE COURT: But you feel that you are making sufficient progress, that more time may assist you in arriving at a verdict?\nFOREMAN OF THE JURY: Yes.\nTHE COURT: All right, take the jury back.\u201d\nThe jury was allowed to continue its deliberations until shortly before 8 p.m. When the jury was returned to the courtroom, the foreman stated that he believed they were making progress toward reaching a verdict. The court then gave them the Prim People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601) instruction.\nThe jurors were recalled to the courtroom a third time. The court determined that they had reached an impasse:\n\u201cTHE COURT: Court\u2019s in session. Mr. Foreman, since our last time out here have you made any more progress at all?\nFOREMAN OF THE JURY: I would say that we\u2019re making very slow progress.\nTHE COURT: Do you think if you had more time that you would be able to reach a verdict?\nFOREMAN OF THE JURY: I think that if we have enough time I think it\u2019s probable that we would be able to reach a verdict.\nTHE COURT: What are you talking about, \u2018time?\u2019\nFOREMAN OF THE JURY: I-I can\u2019t say. Right now-.\nTHE COURT: Don\u2019t tell me in numbers.\nFOREMAN OF THE JURY: Uh-yes. Uh-right now we\u2019re all very fatigued from all the discussion and deliberation, and our thoughts and discussions are going very, very slowly.\nIt seems that we\u2019ve been making some progress in the last few minutes \u2014 hour\u2014.\nTHE COURT: But you are fatigued, aren\u2019t you?\nFOREMAN OF THE JURY: Yes.\nTHE COURT: It\u2019s this Court\u2019s opinion that you\u2019ve had this case for approximately eleven hours, and it was a short trial, two-day trial, and I feel that because of fatigue setting in that it would be improper to let you continue discussing this case any more.\nThis Court\u2019s going to declare a mistrial and discharge the jury.\u201d\nDefendant argues that the trial court was too hasty in declaring a mistrial; that the record indicates that the jury was about to reach a verdict; that no reason existed why, if the jury were fatigued, it could not be sequestered overnight and resume deliberations the next day.\nThe rule governing a declaration of mistrial by a court sua sponte was first laid down in United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165, and has been generally followed ever since. In that case the Supreme Court stated that a mistrial resulting from a hung jury did not bar retrial and that a court may not declare a mistrial without the consent of the defendant unless there is a manifest necessity for the act. The court cautioned that the trial judge should exercise sound discretion on the subject.\nIn the case at bar we are of the opinion that the matter has been waived by the defendant. He raised no objection at the time of the declaration of mistrial, and more significantly, he raised no objection at the start of the second trial. Defendant misconceives the nature of double jeopardy. The prohibition is not against double punishment, but against being put twice in jeopardy. (Ball v. United States (1896), 163 U.S. 662, 41 L. Ed. 300, 16 S. Ct. 1192.) It is thus incumbent that the question be raised before the second trial commences. It is at this time that jeopardy, if at all, will attach.\nEven if the matter were to be considered on its merits, we could find no abuse of discretion by the trial judge. It is apparent that the jury was making little, if any, progress; the issue was straightforward-credibility. Compare People v. DeFrates (1946), 395 Ill. 439, 70 N.E.2d 591, where after 45 minutes of deliberation following a three-day trial, a mistrial was declared. The supreme court indicated that it thought the trial judge had acted hastily but refused to interfere with his discretion.\nDefendant\u2019s next issue concerns the admission into evidence of prior consistent statements made by his accomplices, Scott and Pickens. These were recounted by two detectives who took the statements from them on December 22, 1982. The statements were substantially parallel to their trial testimony.\nThe general rule is that a prior consistent statement may not be introduced to bolster the in-court testimony of a witness. (People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363.) There are some limited exceptions: (1) it may be introduced to refute a charge that the in-court testimony is of recent fabrication; or (2) if it is contended that the witness has a positive motive to testify falsely, it may be introduced to show that the witness told the same story when the motive did not exist. People v. Tidwell (1980), 88 Ill. App. 3d 808, 410 N.E.2d 1163.\nDefendant\u2019s contention is that the motive to testify falsely arose before the statements were made to the police. On December 22, when the statements were made, the investigation had centered upon Scott, Pickens, and defendant through information \u201cleaked\u201d to the police from the John Hay Homes, a housing project where they resided. We agree. At that time it must have been apparent to them that they were prime suspects and faced with criminal liability for armed robbery and murder. The motive to place the onus on defendant must have been present.\nIt follows that the statements were inadmissible and it was error to allow them in. However, it does not follow that the error was of such magnitude as to require reversal. It will be recalled that a statement to Vincent Cooper, a guest at the Willie party, was also made on the night of the homicide by Pickens. He told Cooper that defendant had robbed and killed a man. Clearly, no motive to falsify existed at that time, and the statement to Cooper was thus admissible. Defendant argues that the falsification arose immediately upon the homicide; that Scott and Pickens concocted the entire story at that time. The argument is purely speculative and self-serving.\nSince the statement to Cooper was properly before the jury, the further statements to the police, although inadmissible, could have had little measurable impact on the verdict. We conclude that the admission of the prior consistent statements to the police was error, but harmless error.\nDefendant next complains that numerous statements made by the prosecutor in his closing argument constitute plain error. Initially we note that this contention is raised for the first time on appeal. Generally, unless objection is made at the time and in the post-trial motion, error in closing argument is considered waived. (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.) An exception to the rule is that of plain error, but such error may be noticed for the first time on appeal only where the evidence is closely balanced and of such magnitude that the defendant was deprived of a fair trial. People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091.\nWe have examined with care the portions of the argument cited to us, and while we find most of them inappropriate and ill-advised, we do not find plain error. The most troublesome of them are the repeated statements that defendant was a liar. Some examples taken from the record are:\n\u201cEither this man [defendant] was at a party the whole time or he has tried to build an alibi to cover a murder he committed. There is no middle ground here. Either he\u2019s a partier or he\u2019s a murderer. He\u2019s either telling you the truth or he isn\u2019t.\n* * *\nSo even-consider *** the way this man [defendant] lied to you, because he has been shown to be a liar time after time in his testimony.\nLet\u2019s look at the truth that you heard in here and let\u2019s look at the lies he told you.\n* * *\nHe lied about when he left the party and he lied about leaving the party.\n* * *\nEvery time Isaiah Green tells a story of what happened that night he tells it different, because every time he tells it he gets caught in another lie. And every time he gets caught in another lie he sits up there and he tries to get out of it by saying, \u2018You never asked me that,\u2019 or T don\u2019t recall that,\u2019 or this or that.\nIt\u2019s like if he sits up there and wriggles around he can make his lies become truth; he can catch the truth someplace in the air.\nBut he can\u2019t because he\u2019s a \u2014 he\u2019s lying, and we\u2019ve shown him to be a liar at every turn he takes.\n* * *\nI\u2019d like to plant a concept with you and I\u2019ll get back to it a little later.\nIt\u2019s not original with me. It involves a term that really is not very often in my vocabulary, but I think it fits. It applies to human nature today as well as it did in 35 A.D. when the Roman statesman Marcus Quintillian said, \u2018A liar should have a good memory. A liar should have a good memory.\u2019\n* * *\nSo he told us two completely different stories about even how he got his grub stake to get into the [dice] game.\nA liar should have a good memory if .he\u2019s going to get away with it.\n* * *\nNow, other telling points that I\u2019d like you to consider is the matter of his statement that he didn\u2019t leave that party from be-\nfore 11:00 until after 1:00. If you believe that, he\u2019s a party-goer. If you don\u2019t believe that, he\u2019s a murderer.\n* * *\nA few more telling points on the issue of truth. A liar should have a good memory.\n\u2018Why did you get the gun the first time from Tommy Harris?\u2019\n\u2018Well,\u2019 he says, \u2018the first time he told us he said somebody was after him with a knife.\u2019\nStory B: \u2018Because some guys were after me with a gun.\u2019\n\u2018Okay, how about the trip to East St. Louis? How\u2019d that go?\u2019\nOkay, the first time he says, T went to sleep right when we left Springfield.\u2019\nYesterday he tells us, \u2018Well I drove down by Litchfield.\u2019\n\u2018What was the condition of your sobriety?\u2019\nHe told Tom Murphy in December he was drunk. He told us yesterday he was sober.\n* * *\nA liar, Mr. Green, should have a good memory.\n* * *\nA liar should have a good memory. Fortunately, for justice in our community Isaiah Green does not have a good memory.\u201d\nWhile we will not be understood as condoning these remarks, they have some basis in the record. Defendant\u2019s testimony was largely discredited by the State\u2019s witnesses and he himself was impeached with his prior inconsistent statements. In this context, the instant case is distinguishable from People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880. In that case the prosecutor called the defendant a habitual criminal when it was undisputed that he had no criminal record and also stated that the judge knew that the defendant was guilty. No such flagrant allegations were made here.\nDefendant\u2019s remaining issues may be dealt with somewhat more summarily since they attempt to plough legal ground which is already well tilled. He claims that an extended term on the murder conviction was an abuse of discretion, arguing that there was nothing about this homicide to set it apart from any other. He also points to his age, 18, and his lack of prior convictions, arguing that the sentence ignores his potential for rehabilitation.\nUnder section 5 \u2014 5\u20143.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 5\u20143.2(b)(2)), a trial court may impose an extended sentence if it finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. In People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, the supreme court stated that the statutory requirement did not demand torture or unnecessary pain upon the victim. The court stated:\n\u201c \u2018Heinous\u2019 is defined by Webster\u2019s Third New International Dictionary (unabridged) as \u2019hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal\u2019; \u2018brutal\u2019 includes \u2018grossly ruthless,\u2019 \u2018devoid of mercy or compassion: cruel and cold-blooded.\u2019 \u201d 88 Ill. 2d 482, 501, 431 N.E.2d 344, 353.\nWe believe that the facts in the instant case fit within this definition. The defendant talked about the robbery only hours before the crime occurred and obtained a firearm in order to insure its success. As Havrilka lay on the ground, mortally wounded, the defendant fired off four more rounds into his body. He left Havrilka\u2019s body in a place where his family was certain to view it in a gruesome state. He received an extra portion of the proceeds of the robbery for having been the trigger man. He committed the homicide only to obscure identification of himself as the robber \u2014 a most senseless and wanton act.\nWe find no basis for interfering with his sentence.\nFinally, defendant argues that the prosecution\u2019s use of peremptory challenges to exclude black jurors deprived him of equal protection and of a jury representing a fair cross-section of the community. Thirty-eight jurors, two of whom were black, were examined; six were peremptorily excused by the State, including the two blacks; one of the blacks was excused when she revealed that her sister had been charged with forgery in Marion County. The jury was all white, the defendant was black, the victim was white.\nDefendant accepted 12 jurors without objection. Defense counsel made a short statement for the record which only summarized the composition of the panel and the peremptories used by the State, all as detailed above.\nThis issue has been adversely decided to the defendant by the supreme court in People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202, where the court held that the use of peremptory challenges to exclude black jurors does not offend equal protection unless it can be shown that there was a systematic and purposeful exclusion of blacks from the venires in case after case. There was no such showing in Payne and there has been none here. The argument is without merit.\nFor all the foregoing reasons, the judgment and sentence of the circuit court of Sangamon County is affirmed.\nAffirmed.\nMILLS, P.J., and GREEN, J., concur.", "type": "majority", "author": "JUSTICE WEBBER" } ], "attorneys": [ "Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "J. William Roberts, State\u2019s Attorney, of Springfield (Robert J. Biderman and Denise M. Paul, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISAIAH GREEN, Defendant-Appellant.\nFourth District\nNo. 4\u201483\u20140554\nOpinion filed July 12, 1984.\nDaniel D. Yuhas and Jonathan Haile, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJ. William Roberts, State\u2019s Attorney, of Springfield (Robert J. Biderman and Denise M. Paul, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0734-01", "first_page_order": 756, "last_page_order": 770 }