*1 ILLINOIS, Plaintiff-Appellee, THE THE PEOPLE OF STATEOF BAILEY, Defendant-Appellant. L. RANDALL Third District No. 3-91-0907 9, 1993.
Opinion July filed STOUDER, J., dissenting. Office,
Joseph Ehmann, Ottawa, Appellate N. of State Defender’s appellant. Herr, (John Attorney, Gary J. of Aledo X. Breslin
Michael State’s E Gnidovec, Office, Attorneys Appellate both of State’s Prosecutor’s of coun- sel), People. for the *2 SLATER delivered the of the court:
JUSTICE A defendant, convicted the Randall of one count of Bailey, L. attempted aggravated (Ill. murder and two counts Rev. battery 4, 1, 4). Stat. ch. He was thereafter sen- pars. 8— 9— 12— the tenced to 24 murder convic- years’ imprisonment attempted He in vacate part part. tion. We affirm and in appeals. victim, Doug
The the Bailey, record shows that the brother of 25, 1991, Doug January testified that on the the defendant. told the defendant not to call their defendant attacked him when he defendant on his “stomped” mother He stated that the ribs names. knife Doug’s out a and it to pulled and The defendant then held head. stating going throat while to die.” “you’re managed that the victim and escape Other evidence showed a away. make his to a that about mile The weather way house was in and T-shirt. was cold and he was dressed a only jeans The that had a laceration Doug Bailey medical evidence showed face, wrist, nose, his on a left cuts and abrasions his broken surgery his neck. underwent ribs, and scratch on He long bruised and to 30% loss func- repair permanent his wrist suffered 20% tion his left thumb. fought, his that he and brother had but
The defendant testified him on head with hitting had started it the stated that his brother fight, the of the specifics can of He did not remember beer. say not how was pull knew he not a knife. He also could did any injuries. The defendant did not suffer injured severely. so the scene that cans were found at Other showed no beer the the witnesses testified incident. several information and untruthful. defendant an source of was unreliable miscon- argues prosecutorial the defendant first appeal, irrelevant, unsubstantiated, duct when the State introduced occurred in- allegations child molestation and evidence of patently prejudicial occurred misconduct volving He also contends that prosecutorial him. as to opinions his expressed personal repeatedly when the prosecutor strength of the evidence. and witnesses did at trial to the object that the Initially, we note defendant however, did, He raise the complains of on appeal. remarks now the defendant motion. note that while issues We also post-trial evidence, he of the molestation object did at trial to introduction in his motion. The State therefore ar- post-trial did raise the issue are the defendant did not raise gues that issues waived since them both trial in his motion. post-trial that the the defendant agree
We with State and find errors appeal now of on are waived. v. Enoch complains Ill. 2d reverse if 1124.) Accordingly, only we will error, there as error denies the plain was which is defined that either defendant a fair trial a case where evidence is occurs 410, 568 closely People Morgan balanced. 755. that the alleged State errors were harmless since the agree
evidence of the overwhelming. defendant’s We find that the errors were harmless even when viewed their totality. doWe not find error.
We first address defendant’s contention the prosecutor improperly introduced evidence. He that the inflammatory pros- *3 victim, examination of the elicited following testimony: the said, “A. And then—and then said—he ‘You [the defendant] Mom, and Dad are the my gone.’ reasons kids are
Q. And happened what to his kids? Well, A. mom my took and on a put plane them them back to their parents not the to their mom parents when —or —back she found out he had molesting the kids.
DEFENSE COUNSEL: Honor. Objection, Q. And what happened?
THE Anything concerning molesting COURT: the or alleged to molesting is be The disregarded. instructed to disre- jury’s gard. He’s on trial for that.”
Thereafter, of outside the of the the presence jury, defendant mistrial, moved for a which was While court agreed denied. the trial the evidence was that it “so inflammatory, it found was not inflamma- as tory to it impossible make for the to a jurors make decision.”
A prosecutor is to ethically obliged presenting refrain from im- proper or a prejudicial argument. end, prosecutor evidence To this barred from presenting no purpose irrelevant evidence serves (People
to inflame and of the prejudicially passions prejudice the note that (1979), 380.) v. Reimnitz 3d 391 N.E.2d App. We the carries activity erroneous admission of evidence criminal prior (See a risk v. 79 Ill. 2d high prejudice. People Lindgren note child 238.) regarding we that evidence molestation, itself, such high prejudice in and of carries risk of since evidence is highly inflammatory. the overwhelming in this case and to child rise to the
isolated reference molestation did not level the prejudice by error. to the was cured Any .potential court’s the remark. Where jury disregard instructions er objection usually is made trial the court can correct timely at by sustaining objection instructing disregard ror or 365, 373.) We (People Speight (1992), answer remark. v. the trial find that the misconduct was prosecutor’s properly cured of a fair being deprived court and in the defendant this did result argument prosecu- regarding We turn to the defendant’s now argu- nine during closing closing argument. tor’s occasions think,” “I “I when ment, the used the terms believe” of the weight of the witnesses and commenting se per that such comments are not errors evidence. The State prosecu- the case hand because the proper and that they were on the evidence. predicated tor’s comments were prosecutor begins presumed simply Error because cannot prac although note the better language, sentence with such we with “I.” beginning is to from sentences using tice refrain 421.) The comments Baker of are as follows: complained he’s a
*4 “I Randy’s testimony think its obvious from own Randy Bailey. person, violent violence follows Bai- Randy didn’t believe that Sister Camille So it’s obvious Randy should ley, jurors, don’t think that either. find *** is, far and away, the more witnesses. believable two [*] this mind think be doubt any don’t there should Randy Bailey’s three offenses that any
case as to certainly with, that there shouldn’t but I charged believe 83 of his guilt. reason, reasonable doubt And for that I ask that you find the defendant Randy Bailey guilty charges]. all [of
* * * I think find [Doug’s is re- written statement] consistent markably with his trial testimony. [*] [*]
I don’t think that if you look at Bailey, you’ve which do, had a chance to that he looks like the person kind of could drink 18 beers four hours and still drive home.
* * * [Doug] would have died in the snow if he hadn’t made it to Cliff Anderson’s farmhouse.
* * * And I don’t think on this anybody disagree would with me that this knife 3” with a is a deadly weapon, [the blade] this can be used to kill. I certainly it looked like a deadly weapon Doug 25,1991. on January
ISo submit to you that this was great definitely bodily harm. If the thing same happened to I’m sure you would consider it great bodily harm.”
The prosecutor,
as the representative
State,
stands in a
special relation to the
He
must choose his
carefully
words
so that
he does not
place
of his
authority
office behind the
his witnesses.
(People v. Valdery (1978),
375,
65 Ill. App. 3d
381
N.E.2d
He
1217.)
may express
an
if it is based on the record.
(People v.
(1987),
119,
Johnson
119 Ill.
100.)
2d
He may
not, however, state his personal
opinion regarding
veracity of a
witness or vouch
for witness’
v. Wilson
credibility. (People
(1990),
199
792,
3d
App.
It is clear that a prosecutor’s statements should not be taken out of context but should be considered their entirety determine whether are statements of personal belief or are on the based ev idence presented v. Dail App. 139 Ill. 3d 286.) It is not for a to state an opin ion which is based on the record or on a reasonable inference drawn from the evidence. (People v. Baker
N.E.2d 421.) in context, Viewed the statements of the prosecutor based presented and were not improper. We find
84 so they prejudice that not result in substantial to the defendant did circumstances, error deny to him a fair trial. Under the doc- is inapplicable. trine aggravated battery his two
Finally, from the same act as the resulting attempted convictions murder that a agrees, must be vacated. State but denies remand re- sentencing is v. required. People King (1977), Under 363 multiple N.E.2d defendant cannot receive convictions of upon single single based act or set circumstances. The defend aggravated ant’s convictions are vacated. battery accordingly
A to of the record sub leads us the determina judiee review consider the judge substantially tion the trial did not vacated imposition 24-year convictions in his sentence. Remandment is required. (People v. Robinson 493). County of the circuit court of Mercer is judgment Accordingly, part part. affirmed in vacated
Affirmed in part; part. vacated
BARRY, J., concurs. STOUDER, dissenting:
JUSTICE
I must dissent. respectfully case, error occurred
In this the defendant contends reversible testimony prejudicial the State irrelevant when introduced majority the defendant. The allegations involving child molestation intro- case that it was error for the evidence have been this finds harmless, error cured and but finds that the was duced nonetheless guilt. disagree. I evidence of the defendant’s given overwhelming notes, the of evidence As erroneous admission majority go I agree, risk activity high prejudice. criminal carries prior a particu carries of child molestation further and note evidence few crimes There are high risk of the defendant. larly prejudice crimes with a outrage more than sex more heinous and that evoke is inflam such, highly such crimes regarding child victim. As evidence cured a trial unlikely by taint to be prejudicial its matory and As the Illinois Su disregard the evidence. court’s admonishments pull and then a nail into a board long ago, driving noted preme Court Cepek (1934), hole. People does remove the ing out the nail 560, 192 N.E. 573. Accordingly, find the admission of the child molestation evi- dence so substantially prejudicial that its taint could not be cured disregard court’s admonishments to it. also find that the ad- mission of the evidence was not harmless since the of the defendant’s was not so that it overwhelming outweighed the prejudicial effect of the evidence.
Here, the record shows that the evidence of the incident basically brother, consisted of the against defendant’s word that of his the vic- tim. Both testified that parties arguing fight when the started. The defendant testified that his the fight by brother started throwing a beer can at him. He also stated that while did not he re- member the specifics ensuing fight, he knew did not out pull a knife. Lastly, he noted that although he had been in fights past, he never used a weapon. *6 victim, hand, on the other stated that the fight started after
the defendant became angry at him for him telling not to call their mother names. He testified that the defendant knocked him to the floor and “stomped” on his head and ribs. He also stated that it was the defendant who out a pulled knife.
Admittedly, evidence was showing elicited that the defendant may have been an unreliable source of information and untruthful. How- ever, evidence was also elicited showing that the victim had once at- tacked another brother with a wrench when that brother had made a comment the victim did not like. appeal, I note that since both witnesses lacked credibility, the against the defendant cannot be characterized as overwhelming.
I also disagree with the majority’s conclusion that reversible error did not occur during prosecutor’s closing Here, argument. the ma- jority found the prosecutor’s remarks to be proper since based on the evidence presented. Apparently, under the majority’s view, a prosecutor is free to express his opinions personal feelings on any topic long as as there is some basis the record to support the opinion. This is clearly to the contrary law since it improperly places the authority and prestige of the State’s Attorney office behind credibility of witness the evidence.
While acknowledging that a may state his personal opinion regarding the veracity a witness and that a prosecutor should refrain from expressing opinions on judgments that lie within the province of the jury, the majority nonetheless prosecu- allows the tor to do just that in this case. As the following three comments illus- trate, several the prosecutor’s improper. remarks were Bai- Randy
“So it’s that Sister Camille didn’t believe obvious Randy should believe jurors, and don’t ley, either. I think find that *** is, far and away, the more of the two witnesses. believable mind in this doubt any
I don’t think there should be Randy Bailey’s offenses that case as to of the three shouldn’t be a with, certainly that there charged reason, I ask you of his And for guilt. reasonable doubt ***.” Randy Bailey guilty find the defendant his show, expressed prosecutor improperly comments As these im- of the witnesses. two veracity about judgment guilt, the defendant’s opinion regarding properly gave such, I find As province solely lies within clearly the other error. Taken with amounted that these comments regard- of evidence and the admission comments in this case did not receive molestation, I find that the defendant ing the child and re- conviction such, I reverse the defendant’s trial. As would fair the cause for a new mand FRIBERG, Subject to Invol- Alleged to a Person
In re CHRISTOPHER *7 Illinois, Petitioner-Appellee, (The People of the State untary Admission Respondent-Appellant). Friberg, Christopher 2 — 92—0479 Second District No. 9, 1993. August filed
Opinion notes pursued ecutor an irrelevant questioning line of that resulted in the jury being exposed allegations unsubstantiated sexually had molested his own The prosecutor, during children. direct