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  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Eugene Fulton, Jr., Defendant-Appellant",
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    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. Eugene Fulton, Jr., Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE EBERSPACHER\ndelivered the opinion of the court:\nThis is an appeal by the defendant, Eugene Fulton, Jr., from a judgment of conviction entered by the circuit court of St. Clair County on a jury verdict of guilty to the charge of murder and the sentence of 14 to 20 years imposed thereunder.\nThe defendant raises the following contentions on appeal: (1) that the admission of certain testimony denied him his sixth amendment right to confront the witnesses against him; and (2) that the State\u2019s Attorney\u2019s closing argument constituted prejudicial error. We find the failure of defendant\u2019s retained counsel to raise any timely objection in the trial court waives each of these contentions.\nIn anticipation of the possible application of the waiver rule, the defendant cites two cases in support of his contention that a violation of his right to confront witnesses is plain error of which this court should take notice. Since both of these cases reached the same conclusion under similar factual situations we only find it necessary to discuss the more recently decided case of People v. Hopkins, 124 Ill.App.2d 415, 259 N.E.2d 577. In Hopkins, Ronald Hopkins and Marvin Martin were jointly tried and convicted of theft from a person. Defendant Martin signed a written statement admitting that he, defendant Hopkins,\" and a third person had been together on the day in question. Martin further admitted that he drove to a grocery store, wherein the offense allegedly occurred, but claimed that he remained outside while Hopkins and his other companion entered the store. Martin stated that the two returned with a bag containing a large quantity of money, which they said they had found. This statement was introduced against both defendant Hopkins and Martin. Martin did not testify during the trial. This court held that this statement was inadmissible hearsay and that its admission violated Hopkins\u2019 right to cross-examination secured by the confrontation clause of the Sixth Amendment. Citing People v. Scott, 100 Ill.App.2d 473, 241 N.E.2d 579, we held the admission of this statement to be plain error.\nThe factual situation presented in the instant case does not, however, require that we reach a similar conclusion. Unlike Hopkins, the defendants in the instant case were given separate trials, no written statements were admitted into evidence, the defendant was present when his accomplice allegedly made the challenged statement, the defendant took the witness stand on his own behalf, and the challenged statement was-, at least arguably, not excludable as hearsay. The defendant\u2019s alleged accomplice purportedly made the incriminating statement shortly after having committed an armed robbery and having shot two individuals. Enmeshed in the alleged accomplice\u2019s utterances admitting his own guilt were declarations which implied that the defendant assisted in the perpetration of the crimes.\nFrom the foregoing it appears as if all of these statements were made at a time when the declarant\u2019s excited state of mind had rendered his normal reflective processes inoperative, thus minimizing the possibility of reflective self-interest influencing his declarations. This is partially evidenced by how freely the declarant admitted his own guilt. It is further evidenced by the magnitude of the event and the declarant\u2019s involvement therein. Thus, even if the defendant had objected on the basis of hearsay, the trial court could have, in its discretion, concluded that the inculpatory declarations were excited utterances, an exception to the hearsay rule. (See People v. Poland, 22 Ill.2d 175, 174 N.E.2d 804; People v. Parisie, 5 Ill.App.3d 1009, 287 N.E.2d 310.) Also significant is the \"fact that the defendant was present when the alleged declarations were made and availed himself of the opportunity to testify on his own behalf. In view of these distinctions, which tend to ameliorate the denial of defendant\u2019s right to confront witnesses, we decline to consider the admission of such declaration to be within the rule allowing for the recognition of plain error (Supreme Court Rule 615(a), Ill.Rev.Stat. 1973, ch. 110A, par. 615(a)). Furthermore, since the defendant\u2019s privately retained counsel failed to interpose an objection to this testimony during the trial and further failed to suggest such error in his written motion for a new trial we will not entertain defendant\u2019s objection on appeal, deeming such objection to have been waived. (People v. Hairston, 46 Ill.2d 348, 246 N.E.2d 869, cert. denied, 402 U.S. 972, 29 L.Ed.2d 136, 91 S.Ct.1658; People v. Davis, 18 Ill.App.3d 793, 310 N.E.2d 682.) We take into consideration too, the fact that our reading of the record leads us to the conclusion that there was other sufficient evidence of defendant\u2019s participation in the armed robbery which resulted in the murder, from which reasonable men could conclude, that beyond a reasonable doubt defendant was guilty of the charge.\nA similar analysis yields a like conclusion with respect to defendant\u2019s remaining contention that the State\u2019s Attorney\u2019s reference to \u201cmug shots\u201d during his closing argument was prejudicial error. (People v. Moore, 55 Ill.2d 570, 304 N.E.2d 622; People v. Dailey, 51 Ill.2d 239, 282 N.E.2d 129; People v. Simmons, 21 Ill.App.3d 310, 315 N.E.2d 226.) No objection was raised to this comment by defendant\u2019s privately retained counsel. Under such circumstances the objection should be deemed waived unless it is so prejudicial and inflammatory as to deprive the defendant of a fair trial. (People v. Smothers, 55 Ill.2d 172, 302 N.E.2d 324.) While we find this reference improper, we do not find its effect to be so prejudicial as to deny the defendant a fair trial. People v. Killebrew, 55 Ill.2d 337, 303 N.E.2d 377.\nAfter reviewing the entire record we have discovered no plain error affecting any of the defendant\u2019s fundamental rights, the deprivation of which prevented the defendant from receiving his constitutional right to a fair trial. On the basis of this review we affirm the judgment entered by the circuit court of St. Clair County.\nJudgment affirmed.\nJONES and CARTER, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE EBERSPACHER"
      }
    ],
    "attorneys": [
      "James Streicker and Martin Carlson, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.",
      "Robert H. Rice, State\u2019s Attorney, of Belleville (Robert L. Craig, Assistant State\u2019s Attorney, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Eugene Fulton, Jr., Defendant-Appellant.\n(No. 73-205;\nFifth District\nDecember 4, 1975.\nJames Streicker and Martin Carlson, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRobert H. Rice, State\u2019s Attorney, of Belleville (Robert L. Craig, Assistant State\u2019s Attorney, of counsel), for the People."
  },
  "file_name": "0984-01",
  "first_page_order": 1012,
  "last_page_order": 1015
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