{ "id": 521018, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS WALTER McGEE, Defendant-Appellant", "name_abbreviation": "People v. McGee", "decision_date": "1997-05-02", "docket_number": "No. 3\u201495\u20140810", "first_page": "1049", "last_page": "1054", "citations": [ { "type": "official", "cite": "287 Ill. App. 3d 1049" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "611 N.E.2d 590", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "243 Ill. App. 3d 850", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5109198 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/0850-01" ] }, { "cite": "643 N.E.2d 789", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "162 Ill. 2d 497", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477543 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-2d/162/0497-01" ] }, { "cite": "659 N.E.2d 106", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "276 Ill. App. 3d 533", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927700 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/0533-01" ] }, { "cite": "663 N.E.2d 22", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "278 Ill. App. 3d 498", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156840 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0498-01" ] }, { "cite": "555 N.E.2d 1264", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "198 Ill. App. 3d 700", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2473266 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0700-01" ] }, { "cite": "637 N.E.2d 1135", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "265 Ill. App. 3d 315", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 872538 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/265/0315-01" ] }, { "cite": "637 N.E.2d 992", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "improper comment may be cured by providing proper instructions of law" } ], "opinion_index": 0 }, { "cite": "159 Ill. 2d 272", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781338 ], "year": 1994, "pin_cites": [ { "parenthetical": "improper comment may be cured by providing proper instructions of law" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0272-01" ] }, { "cite": "635 N.E.2d 877", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "263 Ill. App. 3d 170", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5365714 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0170-01" ] }, { "cite": "638 N.E.2d 314", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "265 Ill. App. 3d 642", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 872542 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/265/0642-01" ] }, { "cite": "508 N.E.2d 687", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "116 Ill. 2d 425", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543305 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-2d/116/0425-01" ] }, { "cite": "592 N.E.2d 997", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "148 Ill. 2d 196", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3283395 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-2d/148/0196-01" ] } ], "analysis": { "cardinality": 646, "char_count": 13321, "ocr_confidence": 0.761, "pagerank": { "raw": 5.159551614682296e-08, "percentile": 0.32484210469413466 }, "sha256": "ccab12bbcf015705303dac8f0ee8f79ad22721863183b3eb4642d9211f0d40c9", "simhash": "1:b02638ee338e0e18", "word_count": 2264 }, "last_updated": "2023-07-14T19:23:12.186621+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. THOMAS WALTER McGEE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOMER\ndelivered the opinion of the court:\nThe defendant, Thomas Walter McGee, was convicted of aggravated discharge of a firearm (720 ILCS 5/24\u20141.2 (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.\nFACTS\nSome 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\u2019s car, which had been damaged by Bell\u2019s nephew. The defendant approached Bell\u2019s home. After speaking to someone, he got into his car and began to leave. After the defendant backed out of Bell\u2019s 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.\nDetails of the defendant\u2019s 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\u2019s 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\u2019s house. Then Bell heard shots, so he ran. Bell testified that he would not recognize the shooter because he did not see the shooter\u2019s face.\nBell\u2019s 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\u2019s car by Bell\u2019s 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\u2019s 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.\nOne of Bell\u2019s 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 neighbor went into the street and retrieved 15 shell casings,' which he gave to the police.\nThe defendant\u2019s girlfriend testified that she was with the defendant when he went to Bell\u2019s home to obtain money from Bell to repair the damage to her car that had been caused by Bell\u2019s nephew. According to the defendant\u2019s girlfriend, as the defendant approached Bell\u2019s home, Bell\u2019s 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\u2019s car, which prompted the defendant to retrieve a gun from under the seat and return the gunfire. Then the defendant drove away. The defendant\u2019s 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\u2019s girlfriend refused to allow the police to examine the holes further to determine whether they were fresh.\nThe defendant testified that when he approached Bell\u2019s 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.\nDuring 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\u2019s 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\u2019s because his story of what happened is implausible here.\u201d\nThe prosecutor further commented on the criminal history of Bell\u2019s 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\u2019s girlfriend had not allowed the police to determine the age of the holes.\nThe prosecutor also noted that the defendant had not produced Bell\u2019s nephew, who occasionally resided with the defendant, as a witness to verify any portion of the defendant\u2019s story. The defendant objected, and the trial court instructed the jury to disregard the prosecutor\u2019s remark. Finally, the prosecutor stated that the defendant had fired his weapon in the direction of Bell and Bell\u2019s wife and children.\nThe 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\u2019s acts threatened serious physical harm to other persons. The court sentenced the defendant to six years\u2019 imprisonment.\nPROSECUTOR\u2019S CLOSING ARGUMENT\nIn his post-trial motion, the defendant claimed that he had been prejudiced by the prosecutor\u2019s closing argument but specifically noted only the prosecutor\u2019s comment regarding the defendant\u2019s failure to call Bell\u2019s nephew as a witness.\nOn appeal, the defendant points to five examples of how he was denied a fair trial by the prosecutor\u2019s 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\u2019s 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\u2019s direction; (4) the prosecutor improperly commented upon the defendant\u2019s failure to present expert testimony to prove the bullet holes in the defendant\u2019s car were fresh; and (5) the prosecutor improperly commented upon the defendant\u2019s failure to call Bell\u2019s nephew as a witness.\nWe 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\u2019s 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.\nAlthough a defendant has no duty to retreat when attacked with deadly force, a prosecutor may properly argue a defendant\u2019s failure to easily extricate himself from a dangerous situation as a comment on the credibility of the defendant\u2019s 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\u2019s argument about the defendant\u2019s 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\u2019s comments about the defendant shooting in the direction of Bell\u2019s 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\u2019s comment relative to a lack of objective or scientific evidence was directed toward the defendant\u2019s failure to call an expert witness. Rather, it was a reference to the girlfriend\u2019s 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\u2019s neighbor, corroborated Bell\u2019s version of the events and that of Bell\u2019s wife. Therefore, we do not find plain error.\nFinally, with regard to the prosecutor\u2019s comment about the defendant\u2019s failure to call Bell\u2019s nephew as a witness, we note that the trial court sustained the defendant\u2019s objection and admonished the jury to disregard the prosecutor\u2019s remark. When a defendant\u2019s 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\u2019s objection, and, thus, any error stemming from the prosecutor\u2019s remark was cured.\nSENTENCING\nThe defendant argues next that the trial court considered the threat of harm as an improper aggravating factor in determining his sentence.\nAgain, 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)).\nMoreover, 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 posed by the defendant\u2019s 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.\nCONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.\nAffirmed.\nLYTTON, P.J., and MICHELA, J., concur.", "type": "majority", "author": "JUSTICE HOMER" } ], "attorneys": [ "Joseph N. Ehmann, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Kevin W. Lyons, State\u2019s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS WALTER McGEE, Defendant-Appellant.\nThird District\nNo. 3\u201495\u20140810\nOpinion filed May 2, 1997.\nJoseph N. Ehmann, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nKevin W. Lyons, State\u2019s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1049-01", "first_page_order": 1067, "last_page_order": 1072 }