{
  "id": 5541164,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIM I. MARTINSON, Defendant-Appellant",
  "name_abbreviation": "People v. Martinson",
  "decision_date": "1980-10-06",
  "docket_number": "No. 79-470",
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    "date_added": "2019-08-29",
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    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIM I. MARTINSON, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE WOODWARD\ndelivered the opinion of the court:\nDefendant, Tim Martinson, was convicted in a jury trial of armed robbery and was sentenced to six years\u2019 imprisonment. The basis for defendant\u2019s appeal is the alleged error created by the prosecution in cross-examining a defense witness in an attempt to impeach him regarding the witness\u2019 post-arrest silence and the alleged error arising from the prosecutor\u2019s comment in closing argument in relation to the silence of this witness.\nThe defendant and Brett Erickson (the defense witness) were both charged with an armed robbery which occurred on October 2, 1978. Erickson was arrested on the night of the robbery, while the defendant was arrested about one week later. On January 5, 1979, the defendant here was granted a severance from his co-defendant, Erickson. Martinson was tried by a jury on January 17 and January 18, 1979. At this time the case against the co-defendant, Erickson, had not yet been tried.\nThe testimony at defendant\u2019s trial established that defendant and Erickson spent most of the day and evening of October 2,1978, together and that late in the evening Erickson stopped at the home of a relative and returned to the car with a gun; that Erickson then drove to the \u201cStop and Go\u201d food store in Rockford; Erickson then went into the store and at gun point robbed the cashier on duty of $29; while Erickson was in the store, defendant moved into the driver\u2019s seat of the car; Erickson came out of the store, got into the passenger\u2019s seat, and defendant drove the car away; about an hour later, they were chased by a police car; the defendant got out of the car and fled; defendant was not captured at that time, but was arrested one week later. Defendant acknowledged his participation in the events of October 2, but attempted to disclaim responsibility by testifying that he did not know about nor did he share Erickson\u2019s intent to rob the store. Erickson testified for the defense and essentially corroborated defendant\u2019s story that defendant had no knowledge of his intent to rob the store prior to the occurrence.\nDuring the State\u2019s cross-examination of Erickson, the following exchange occurred:\n\u201cQ. You and your friend, Tim Martinson, have both been in custody since that happened on October 2,1978 or shortly thereafter, have you not?\nA. Yes.\nQ. When you were arrested by the police and they asked you about this, you didn\u2019t tell them anything about Tim Martinson that you\u2019ve told this jury today, did you?\nA. No, I didn\u2019t.\nQ. In fact, you didn\u2019t tell them anything at all when you were asked what you did or what Martinson did, did you?\nA. I always heard you\u2019re supposed to have a lawyer present when you talk to the police.\nQ. But that\u2019s for your rights. Why, if this man is innocent and he\u2019s your friend, why didn\u2019t you tell the police what you told this jury?\nMR. SWANSON: Objection.\nTHE COURT: Objection sustained.\u201d\nThereafter, defense counsel did not request that an admonishment be given to the jury. During the prosecutor\u2019s closing argument, he stated as follows:\n\u201c* * \u00b0 He\u2019s the same young man who told the police nothing about the supposed innocence of his buddy, Tim Martinson. When Erickson was arrested, he didn\u2019t try to get him off the hook, then. Which, I am saying to you, I think he would have done if he knew Martinson was innocent.\nMR. SWANSON: Your honor, I\u2019ll object.\nTHE COURT: Overruled, proceed.\u201d\nWe note initially that defendant has failed to include the alleged error as part of either a written or oral post-trial motion, as neither was filed, and accordingly we deem that consideration of his argument on appeal has been waived. (People v. Schoo (1977), 55 Ill. App. 3d 163,371 N.E.2d 86.) We additionally believe that it is not proper to review this point under the \u201cplain error\u201d rule (111. Rev. Stat. 1979, ch. 110A, par. 615(a)), because it did not result in a substantial prejudice to defendant\u2019s right to a fair trial, as we shall discuss hereafter.\nFirst, defendant\u2019s attorney did object to the complained-of cross-examination of the defense witness, and the trial judge sustained the objection. Although defense counsel did not submit a request that the jury be admonished to disregard the questions or answers, we note that People\u2019s Instruction No. 1, which was given to the jury, did instruct the jury to disregard questions to which objections were sustained. Accordingly, we conclude that no prejudice attached to defendant from the questions asked, as an objection was sustained, and the jury was given a general instruction to disregard such testimony.\nSecond, we consider any possible error involved in the reference in the State\u2019s closing argument. The State\u2019s reference here was again objected to, but this time the trial court overruled the objection. Since the earlier testimony had been objected to and sustained, the State\u2019s reference in closing argument was accordingly a statement which was not based on properly admitted evidence, and it was accordingly error to overrule defendant\u2019s objection to the reference. However, we do not believe that defendant was prejudiced by this reference for the following reasons. People\u2019s Instruction No. 3, which was given to the jury, instructed the jury that closing arguments are not evidence and that the jurors should disregard statements by the attorneys which are not based on the evidence. Additionally, we believe that there was sufficient evidence before the jury to convince them beyond a reasonable doubt of defendant\u2019s guilt, such as the evidence that defendant knew that Erickson entered the store with a gun; that Erickson had told defendant that he was going to rob the store; that defendant drove the escape car and left the store\u2019s parking lot with the lights off on the car; and that defendant fled so as to elude the police who had given chase. Furthermore, there was evidence before the jury impeaching Erickson\u2019s credibility by proof of a prior conviction for theft over $150. We accordingly conclude that the error in the State\u2019s closing argument was at most harmless error beyond a reasonable doubt.\nDefendant also claims support for his position in People v. Godsey (1978), 74 Ill. 2d 64, 68, 383 N.E.2d 988, 990, where the supreme court stated that \u201c[t]he danger of prejudice to a criminal defendant also exists when the person impeached by prior silence is a defense witness.\u201d We agree that such a danger exists, but it is our opinion that Godsey is inapplicable because the attempted impeachment questions were objected to and the objection was sustained by the trial court and because, as we have indicated above, we do not believe that defendant was prejudiced by the brief improper remark in the prosecutor\u2019s closing argument. Further, Godsey is distinguishable on its facts in that the silence of the witness in Godsey was predicated on the assertion of her fifth amendment privilege before a grand jury where she could not be sure as to whether or not she was the object of the investigation; in contrast, the silence of the witness in the present case was only discussed to the degree that it related to the culpability of the defendant.\nFurthermore, as pointed out above, defendant failed to raise the point now exclusively relied upon for reversal in a post-trial motion. It is difficult to fairly conclude that the prejudice now asserted rises to the level of \u201cplain error\u201d when objected to by trial counsel as in this case and never asserted as the basis of a post-trial motion. The trial judge, who was in the best position to observe and determine the extent of the claimed prejudice here, has never had an opportunity to pass on this issue. (Godsey, dissent.) The absence of claiming the error in the post-trial motion further distinguishes this case from Godsey.\nDefendant\u2019s conviction is accordingly affirmed.\nAffirmed.\nUNVERZAGT and VAN DEUSEN, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE WOODWARD"
      }
    ],
    "attorneys": [
      "Mary Robinson and Donna R. Palm, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.",
      "Daniel D. Doyle, State\u2019s Attorney, of Rockford (Phyllis J. Perko and William L. Browers, 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. TIM I. MARTINSON, Defendant-Appellant.\nSecond District\nNo. 79-470\nOpinion filed October 6, 1980.\nMary Robinson and Donna R. Palm, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nDaniel D. Doyle, State\u2019s Attorney, of Rockford (Phyllis J. Perko and William L. Browers, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
  },
  "file_name": "0066-01",
  "first_page_order": 88,
  "last_page_order": 91
}