*1 (No. 67605 .
THE PEOPLE OF THE STATE OF ILLINOIS, Appel
lee, v. MICHAEL E. HERRETT, Appellant.
Opinion May 23, filed 1990. Rehearing denied1, October 1990.
CALVO, J., part. took no
CLARK, J., dissenting. Defender, and Stephen Agostinelli, Deputy
Robert of the State Defender, of Office Omolecki, Assistant Defender, Ottawa, for appellant. Appellate General, of Springfield Hartigan, Attorney Neil F. M. General, and Terence Ruiz, Solicitor J. (Robert Bindi, Gen- Attorneys and David E. Assistant Madsen for the counsel), People. eral, Chicago, of the court: WARD delivered opinion JUSTICE trial in circuit court of St. Clair Following jury defendant, Herrett, was con- Michael E. County, im- victed of armed and sentenced to robbery years’ 3d 1167 (171 App. court prisonment. appellate affirmed the conviction order)) pursuant (unpublished 23). granted Rule Ill. 2d R. We Court Supreme (107 to appeal. the defendant’s for leave petition his partici- is the result of defendant’s conviction Cahokia, of a in the armed pation pawnshop the clerk on 1986. who May George Bailey, on the tes- robbery, at the working pawnshop day that, He at approximately tified for the State. stated 31, 1986, a white man entered the 9:15 a.m. on May *5 he to look at a lady’s and said that wanted pawnshop later, man (the Five minutes a black ring. younger defendant, State entered the and said charges) shop the that he to a examined the ring. wanted As pawn Bailey him to go the man drew a and ordered ring, gun black the white man a began filling the back of store. The safe, with from an while the bag open pawned jewelry $1,000 the reg- black man took from cash approximately man took ister and it in his The black also put pockets. left from Before the two men billfold. money Bailey’s store, the ankles and the black man bound Bailey’s duct tape. Shortly wrists and covered his eyes thereafter, himself and called the Bailey police. freed trial,
At the the black described Bailey thirties, five-eight, man as in his five- “probably early nine, beard, hair.” He testi- build, medium kind of bushy that the man “carcoat” that fied black wore yellow went his knee and looked like down between and hip a raincoat. further two or three Bailey testified Missouri, the of- police after days robbery, Maplewood, ficer came to his home and showed him seven photo- if he the of black men see could black graphs identify man that he out picked who him. testified Bailey robbed one of an- two one of the defendant and photographs, other black He not either man. could positively identify one. the defendant’s Bailey thought photograph like hair in the robbers, looked one of the although looked different. also testified that the offi- photo Bailey cer him men that he showed of white pictures able from the pho- the white robber positively identify stating concluded his tographs. Bailey testimony by he was sure” that the defendant was percent “ninety the black robber. cross-examination, testified that he
On saw Bailey black man’s face for a few seconds and that in the was dim. He also lighting admitted pawnshop he had not told that the black man wore police a hat during robbery and that the black man’s hair was protruding from underneath the hat. He did recall man’s as a describing black coat baseball-type jacket, rather than a he raincoat. He also testified that had told police that of the defendant looked photograph like the him, black man who robbed but that hair in looked different than thé hair. photograph robber’s State,
Another witness Michael Springer, oper- *6 ated a near business the He pawnshop. that, testified after 9 a.m. on the of shortly morning the he robbery, noticed an a older white man and black man drive up to the in a 1977 Chevrolet pawnshop silver-gray Impala plates. Missouri license Because the men were act- in manner, a he wrote the ing suspicious down license their plate number of He saw the men automobile. go the into and their pawnshop observed automobile leave the area 5 to 10 minutes later. When the arrived police the at the pawnshop, a Springer gave police description the seen, of he automobile had its license including plate number. was Springer persons unable to the in identify the automobile.
The State then called a of number officers to police their testify concerning investigation of the robbery. Their established traced testimony police the li- cense plate number and learned that the vehicle be- longed Shigemura, Marie a resident of Maplewood, Missouri, a a town about 15-minute drive from Cahokia. Police officers from and Maplewood Cahokia went residence within an hour of Shigemura at robbery, 9:52 a.m. and approximately observed in the vehicle The hood of the vehi- suspected driveway. warm, cle was as car had though the been recently man, driven. Oriental came Shigemura, Edward an out police house and told the automobile was his and that it had not been driven. He also recently said He then placed
that no one else was the house. under arrest. number then called the residence’s police phone afterward, Shigemura. Shortly they Mrs. spoke to the door of the house. Ap- with her in at
spoke person Herrett came later, to seven minutes five proximately hair rolled to his tightly scalp out of the house. His five minutes (“corn-rowed”). Approximately braids man, matched the later, description an older white who robber, came Both men arrested. of the white out. the Shige- obtained search warrant police 1:30 residence, p.m. mura which was executed about items found numerous search, During police as later identified the items taken which were jewelry similar Two of duct tape from rolls pawnshop. and a pair Mr. raincoat that used to Bailey, yellow bind worn matched the description pants which pants found. the white were also No during man residence, Shigemura in the cash or were found weapons person. in the or on automobile any testimony The defense rested without presenting arguments, other defense During closing evidence. counsel the fact that Herrett was stressed *7 that he residence did not Shigemura morning prove the cash the black robber. Counsel noted that was in the were which black robber’s gun possession also out the never The defense attorney pointed found. of robber discrepancy description between Bailey’s fact Herrett’s hair having as hair and the bushy braided, “corn-rowed,” or at the time of tightly rebuttal, In arrest. remarked several prosecutor times that no testimony there was explanation residence Shigemura Herrett presence stated, found Herrett morning. guilty As jury affirmed the con- armed and the court appellate viction.
In this the defendant first claims that his con- appeal, viction must be reversed because the evidence did not prove his doubt. guilt beyond pre- reasonable When sented a challenge to the of the evi- sufficiency “ dence, if, this court must affirm the conviction ‘after the evidence in the most viewing favorable light prosecution, conclude rational trier of fact any [we that] could have found the essential elements of the crime be- ” yond reasonable doubt.’ v. Collins People (1985), 106 237, Ill. 2d 261, quoting Johnson v. Virginia (1979), 307, 319, U.S. 61 L. 560, 573, Ed. 2d 2781, 99 S. Ct. 2789.
The defendant claims that a different standard of re view case, applies because the evidence against him was circumstantial. He entirely claims that when a conviction rests solely upon evidence, circumstantial it must be if reversed the evidence is consistent with any “reasonable hypothesis” innocence. v. (People Lewel len (1969), 78; 43 Ill. 74, 2d v. People Willson (1948), 68, 401 Ill. 79.) This court recently rejected the conten tion that a different standard of review governs cases involving circumstantial evidence. v. (People Pintos 286, 133 Ill. 2d Pintos, In this court held the reasonable test doubt should be to re applied view the sufficiency evidence in all cases, criminal whether the evidence is direct or circumstantial. (People v. Pintos 133 Ill. 286, 291; 2d see also People Eyler (1989), 133 Ill. 173, 2d 191-92.) Moreover, the evi dence against Herrett was not entirely circumstantial. His conviction based, in part, upon Bailey’s identifi cation of Herrett as the black robber. Such identification testimony direct clearly evidence. Jones 307; People v. Hancock (1986), 143 App. 1031. Viewing evidence in the light most favorable we prosecution, conclude that a rational trier of fact *8 204 robbery of armed be- guilty
could have found Herrett at trial The evidence introduced reasonable doubt. yond Shigemura Herrett arrested at the established that man after the who robbery, residence one hour white matched the of the description jewelry robber. the residence in the was found inside robbery stolen and used the was found the automobile where defendant of residence. In in the outside the parked addition, the victim of Herrett was identified court crime man who the pawnshop. as the robbed however, identification
Herrett argues, Bailey’s did weight Bailey is not entitled to because testimony as the robber. The Herrett black identify positively that a does defend- identify fact witness not positively in- however, testimony ant at not render his trial, does it 437, 475); sim- (People valid v. Kubat of will give affects the the trier fact ply weight (People App. evidence Jackson depends of 584). testimony identification reliability witness’ factors, including oppor- a number of upon crime, at the to view the time tunity perpetrator attention, of of wit- accuracy the witness’ degree criminal, length time prior description ness’ identification, crime and witness’ between the exhibits certainty making the witness degree Ill. 2d (People the identification. v. Slim that he Here, trial demonstrates Bailey’s testimony to see defendant under had sufficient opportunity identification. Bailey a reliable circumstances permitting an the as- he had to observe opportunity testified that sailant’s face for several seconds when robber He to cover his with duct testi- tape. reached down eyes from feet the assailant’s fied face was two the defend- that he certain that such time and was 90% Furthermore, him. two man who robbed ant was the pho- chose the defendant’s after the days robbery, Bailey *9 as simi- looking from most tograph police photo display lar to the who robbed him. person
The fact that
the black robber’s hair
Bailey described
in
as
while Herrett’s hair was
braided
bushy
tightly
destroy
“corn rows” at the time of his arrest did not
of
A
need not
Bailey’s identification.
witness
credibility
describe the
discrepan
offender with complete accuracy;
of
cies and omissions
of
credibility
detail
affect the
witness and the
which
trier of fact will
weight
his
give
(1989),
v.
testimony. (People
Slim
302, 308; People v. Johnson
114
2d
(1986),
170, 190.)
Ill.
in this case
jury
have
concluded that
may
rationally
Herrett’s hair was
the time
as
bushy
robbery,
Bailey told
and that Herrett had
his
police,
braided
hair
the time between the
and the arrest.
robbery
The decisions which Herrett cites as
support
his
claim that
the evidence here is insufficient to
prove
guilt
reasonable
beyond
(Peo
doubt are distinguishable.
v.
ple
502;
Cullotta
Ill.
32
2d
v. McGee
440;
21
Ill. 2d
v.
117
People Byas (1983),
App.
Cullotta,
In
Byas,
McGee and
the defendants’
convictions were overturned because the evidence was
found
prove
insufficient to
beyond reasonable doubt
was
person who committed the crime.
case,
In each
the only evidence which the State intro
duced
against
defendant
vague, uncertain
and doubtful identification
of a
testimony
witness. There
was no
evidence
corroborate the witness’ identifica
tion of
addition,
the accused. In
in each case there was
compelling evidence to
contradict
trial
find
court’s
ings
guilt.
v.
(People
Cullotta
defendant).) circumstantial by compelling Herrett was corroborated that an automobile established This evidence evidence. matched the number color, make and license plate whose used the robbery of the automobile description less than an residence Shigemura outside parked warm, as and its hood was robbery hour after been recently would had hood of an automobile residence Shigemura inside the driven. Herrett was of the white the description male who matched a white Jewelry to the police. Bailey gave which robber inside the found in the other items stolen searched the prem- the police residence when Shigemura the infer- to disregard was not required ises. jury *10 from this evidence. flow reasonably ences which would cash and the stolen that the fact that Herrett claims found supports never robbery used in gun man robbed that a different black the defense theory gun and the the cash and then with escaped pawnshop residence. the Shigemura arrived police before the have committed might person that another Speculation raise reason- however, necessarily not offense, does v. (People accused. of the as to the guilt able doubt in this 290.) The jury 131 Ill. App. Holloway (1985), explanation possible to accept any case not required was it and elevate innocence the defendant’s compatible Arndt v. (People doubt. of reasonable to the status rationally have 390, 396.) may jury 50 Ill. 2d toway on gun that Herrett disposed concluded cash a hid the stolen residence Shigemura will This court not find it. could where the police place the dis- weight to the as not its judgment substitute (People fact. the trier of that of evidence for puted the facts 170, 190.) Viewing Johnson cannot we to prosecution, most favorable light unreasonable, improbable so the evidence was say that no trier of fact could have unsatisfactory rational found Herrett reasonable doubt. guilty beyond
The defendant next contends that reversible error oc- curred when a for the gave witness State testimony which suggested that the defendant had been jury incarcerated. Terrence McFarland tes- previously Officer on tified redirect examination the State: by “I rights advised Mr. Herrett of his constitutional per Miranda, and I him if asked he had been involved in the armed in Cahokia me and he informed that he Cahokia, had been in never he knew that Cahokia Illinois, was in thought and that if I that I going going scare him into I prison, couldn’t scare him. He said he knew prison.” about
Evidence which suggests committed crimes other than the one charged inadmissi generally ble, unless relevant to some issue in the case. (People Lindgren (1980), Ill. 2d The State concedes that the defendant’s criminal record not relevant here. It however, argues, the officer’s testimony regarding the defendant’s statement that he knew prison about was ambiguous and not an reference to impermissible the defendant’s criminal record. The defendant may have been referring knowledge prison about acquired friends, from books and television, and not necessarily from personal experience. issue, We need decide the however, because the defendant waived the right to raise error alleged on to make appeal failing timely *11 objection statement at (People trial. v. Johnson 119 119, 138-39; Ill. 2d v. Hall People 376, 418.) Moreover, even if it could said be that was testimony improper, that the possibility jury concluded from the officer’s that the defend testimony ant had a criminal record and that the testimony preju diced the defendant too to entirely speculative be viewed as error. reversible See v. Yates People (1983), 98 Berlin (a 502; jury
Ill. 2d name assumed associate an automatically would a criminal background). in clos-
Herrett contends that finally prosecutor, Herrett’s commented upon ing argument, improperly trial. The and failure testify silence post-arrest objects during comments to which Herrett occurred re- argument. prosecutor, rebuttal prosecutor’s that argument to defense counsel’s sponse closing man other Herrett committed robbery, black than refer statement, spe- made two sentences which himself and others cifically omissions by could have which refer to omissions evidence other witnesses: supplied by Shigemuras been robbery the armed “If Mr. Herrett wasn’t involved in house, a half he at the what Cahokia an hour before was doing Why was he there? You have no tes- he there? was male being another residence. timony about black testimony There is no other You have no as to evidence. why he he was There’s one reason was why there. there, robbery. he in the was involved armed
* * * there another rob- theory that [Defense counsel’s] robber, is not the —if there was another ber borne out is no evidence of an- why jewelry? did he There leave that. And the testimony other robber. There’s no about reason, why you shouldn’t believe his biggest reason Mr. version, why no Herrett given is that there is reason house, Why doesn’t there. was he was at he live he in Cahokia earlier. there? He was there because well, was another police, Did Mr. Herrett there tell No, ago? left minutes he man here and he ten black do if you would you didn’t tell them that. Is what you thought were innocent of an armed He didn’t tell you I think would. going charged? that. them
* * * It’s more than coinci- There is no doubt. reasonable
209 explain presence to dence. There is no evidence Shigemura residence].” [the statement, and the
The counsel objected defense finally the objection. prosecutor court overruled stated: coincidence, than a
“You have no evidence it’s more being partici- him there other than his explanation no for robbery.” in the armed pation failed to ob-
The record discloses that trial. It is clear that a to all one comment at ject but trial and objection defendant must make a timely in a must renew the for written ground objection post- trial an error for review. v. (People motion preserve 176, 122 Ill. 2d The failure to make a (1988), Enoch at trial and to it in a post-trial renew timely objection motion as a waiver of the to raise the is- right operates sue as a for reversal on review. John- ground People 119, 138-39; (1986), son 119 Ill. 2d v. Hall People 376, 114 Ill. 2d 418. however, a lim- 615(a), Court Rule
Supreme provides R. That rule (107 615(a).) ited this. Ill. 2d exception affecting errors substantial provides plain rights noticed on to at trial may though objected be appeal, and in a motion. The error rule plain permits post-trial court to consider a trial error not reviewing properly First, review in two circumstances. where preserved balanced, in a criminal re- evidence case closely court consider a claimed error not viewing may properly so as to preserved argument preclude possibility that an innocent man have been convicted. may wrongly A court (People 576-77.) v. Carlson Ill. 2d if the evidence is will examine the record to see If is no need to con- not, it is there “closely balanced.” for re- sider an error was not properly preserved which (Ryan, view. Green J., concurring). specially as regarded here cannot reasonably evidence stated, As of the balanced. victim
closely circumstances for identifi- testified that under favorable certain that the defendant was cation he was 90% him. In addition to this direct identifi- man who robbed *13 circumstantial evi- evidence, compelling cation there was the defendant’s conviction Her- (e.g., dence to support residence one hour Shigemura rett’s presence occurred, with a man the de- matching after robber, and the of the white the stolen jewelry scription to con- car used in the There was no evidence robbery). A gratui- tradict the conclusion that Herrett was guilty. man committed the tous that another black speculation offense did not make the evidence of the defendant’s Thus, less the first guilt convincing. prong plain in this case. error rule is not satisfied The error rule also be invoked where plain may such that the magnitude error is so fundamental and of denied a fair trial. The rule is invoked accused was where it preserve integrity ju- is necessary a fair trial. v. Carlson (People dicial process provide case, 564, Ill. In this we will first 576-77.) 79 2d (1980), whether er- examine the mistakes to ascertain alleged then and, so, rors occurred if determine whether they rose to the error. plain level com- prosecutor’s
The defendant first argues ments directed the attention to his erroneously jury’s failure to The State testify. responds prosecu- attention to the tor’s comments did not direct the jury’s informed the failure to but testify, simply defendant’s the de- there was no evidence substantiate jury fense theory. as constitutional not to right testify
An accused has a
in
v.
(Griffin
a witness
his own behalf.
California
106,
1229;
Ct.
609, 14 L. Ed. 2d
85 S.
380 U.S.
(1965),
As stated, several of the prosecutor’s comments re- *14 ferred to omissions in that could have been testimony witnesses supplied by defendant, other than the such as the Shigemuras. These comments did not di- necessarily rect the jury’s attention to the defendant’s failure to tes- and, tify hence, were not improper. United States v. (2d Armedo-Sarmiento Cir. 545 F.2d 1976), 793 stress (prosecutor the lack of contradiction of may gov- ernment witnesses where testi- possibly contradictory was available from mony witnesses other than the see also defendant); United States ex rel. Adkins v. Greer (7th Cir. 791 F.2d 598 1986), (prosecutor’s comments that the defense no offered explanation witness as to testimony why defendant was in pos- session of the murder victim’s im- property were since someone other than proper the defendant might have offered such explanation).
From our record, review of the however, we conclude the prosecutor’s statements, which referred defendant’s failure to his explain at presence the Shige- mura residence, constituted an impermissible comment on the defendant’s failure to testify. comments here People v. Arman are similar to those held improper (1989), 131 Ill. 2d There, 115. the defendant was con- victed of narcotics racketeering. evidence introduced at trial included a series of police surveillance photo- graphs showed the defendant with an undercover police officer in the lot of a parking restaurant allegedly (Arman, 131 Ill. 2d at in a engaged transaction. drug 122.) As in case, this the defendant did not introduce any evidence in his own Instead, behalf. his ar- attorney gued closing argument photographs showing at the restaurant did not establish that there was a completed narcotics transaction. The prose- cutor, in rebuttal, referred three times to the failure of the defense to offer any explanation the defendant’s presence the restaurant where the surveillance crew photographed with an meeting undercover De- agent. fense counsel comments; to all three objected the trial overruled judge the first but objection sustained the sec- Arman, ond and third 2d at objections. 122. As in case, this the State argued prosecu- tor’s comments referred to the simply uncontradicted ev- (Arman, idence of the defendant’s guilt. Ill. 2d at This court rejected argument, that, al- holding though prosecutor state that the evidence of a may in Ar- uncontradicted, guilt prosecutor man exceeded the bounds of such comment fair when he referred to the failure of the defendant to provide any for the defendant’s explanation restau- presence *15 rant. Although court concluded that constitutional error occurred when the on the commented prosecutor defendant’s failure to it held that the error was testify, doubt, the evi a reasonable because harmless beyond Ar overwhelming. dence of the defendant’s guilt man, 131 Ill. at 127-28. Arman, we con-
In view of this court’s decision clude that in this case exceeded prosecutor bounds of fair comment when he referred failure of explain presence Shige- mura residence.
The
defendant also
clos-
argues
prosecutor’s
attention to
ing argument
directed the
improperly
jury’s
of
defendant’s
silence
violation
post-arrest
Doyle
91,
610,
Ohio
426 U.S.
49 L. Ed. 2d
96 S. Ct.
2240. In
Court
Doyle,
Supreme
every
observed
silence
post-arrest
ambiguous,
because
inherently
taken into
must
advised of his
person
right
be
custody
remain silent. Silence in the wake of Miranda warnings
be
more than the arrestee’s exercise of his
may
nothing
not to
The
right
court concluded that it would be
speak.
unfair and a
fundamentally
violation
due
to al-
process
low the
to use
silence
prosecution
post-arrest
against
criminal defendant at
trial.
Doyle
Ohio
610, 49 L.
91,
U.S.
Ed. 2d
The here within prosecutor’s remarks issue fall In Doyle. argument, ambit said: closing prosecutor well, “Did Mr. Herrett tell the there was another police, No, black man here and he left ten minutes he ago? didn’t tell them that. Is that what would do if you you were innocent of an armed thought you *** charged? He didn't tell them that.” going remarks prosecutor’s invited to view the jury silence as a tacit post-arrest admission guilt. The remarks constituted error. State, Anderson v. Charles citing 2180,
U.S. 65 L. Ed. 2d 100 S. Ct. argues here, does not Herrett not re- Doyle because did apply Instead, main he silent arrest. he stated that knew upon *16 214
Cahokia there, Illinois but had never been and that he would not frightened into further making any In Anderson, statements. the defendant told the police officer him who arrested that he had stolen a certain au- tomobile from a location two miles from a local bus sta- At trial, however, tion. the defendant testified that he had stolen the automobile from a parking right lot next the to bus station. The then cross-examined prosecution the defendant inconsistent regarding prior statement he made at the time of his arrest. Anderson held that Doyle Supreme Court does
not bar State from a defendant who cross-examining testifies at trial regarding inconsistent statements prior Anderson, made at Here, time of his arrest. unlike the defendant not Furthermore, did at trial. testify statements the defendant made at the time of his arrest were not inconsistent with the defense at theory trial. we conclude that Accordingly, remarks prosecutor’s were an comment impermissible upon silence, in violation of Doyle. post-arrest Although we conclude that the prosecutor improperly commented the defendant’s upon post-arrest silence and failure to in his testify trial, own defense at must we also determine whether these errors rise to the level of error. As plain stated, here, unlike the in Arman, defendant did not to the object prosecutor’s indirect references to his failure to trial. He testify also comment object failed on his si- post-arrest lence. rule,
The second of the error prong aspect plain is, than the other aspect requirement balanced, evidence be is invoked in those ex closely where, ceptional despite circumstances the absence of of the rule is objection, application necessary preserve (Peo and of the integrity reputation judicial process. ple Green 74 J., (Ryan, spe- v. Burson see, concurring); e.g., cially case raised se in a murder the record (where Ill. 2d 360 the time of sanity to the defendant’s rious doubts as even though of the error trial, the court took notice the trial and review, stating properly preserved of due is a violation of an insane defendant sentencing relief under A court will reviewing grant process).) if the error is so fun error rule only of the prong plain so process damental integrity judicial court could not to the defendant that trial prejudicial *17 instructing an or sustaining objection cure the error by v. Carlson disregard (People to the error. jury Otherwise, counsel 564, 577.) 79 Ill. 2d defense (1980), conviction, sim could a reversal of a defendant’s obtain the trial to and ply by failing object by design depriving or correct the error. court of the to opportunity prevent 564, v. Carlson 79 Ill. 577. People (1980), Here, the errors of involve con- although complained of such stitutional are not a character rights, they the second of the error rule must be invoked prong plain to and integrity reputation judicial preserve This court has that a comment held process. upon is silence, defendant’s while not an post-arrest improper, error of such as to defend- magnitude clearly deprive ant of a fair v. 104 Ill. 2d (People (1984), trial. Stewart 463, 488; 245, v. 88 Ill. 2d 252.) Lucas this court has held that an reference Similarly, improper in to the accused’s failure to his own behalf testify it trial is not an error which is so substantial de- (People the accused of a fair and trial. prives impartial It 116 Ill. 2d is to be re- Whitehead that the rule is to be a limited ex- membered error plain v. Carlson (People doctrine waiver ception that, as it was in Peo- 578) 79 Ill. 2d put 7, 16, “Rule does 615(a) ple Precup (1978), clause savings not in the nature of a operate general review all preserving errors substantial affecting rights whether or not have been they brought at- tention of the trial court.” The rule therefore may in invoked this case. Accordingly, we hold that defendant is barred procedural default from rais- ing errors grounds as for reversal.
For the reasons given, the judgment of the appellate court, affirming Herrett, conviction Michael is af- firmed.
Judgment affirmed.
JUSTICE CALVO took no
part
the consideration
decision
this case.
JUSTICE CLARK, dissenting:
The majority correctly concludes “that
the prosecutor
***
improperly commented
upon
failure
in his own
testify
defense
trial.”
(
to review an error which has not been properly pre- served for (1) review where the is evidence closely bal- anced, or where the error is of such (2) magnitude that (People Carlson the defendant was denied a fair trial. I 576-77.) As will explain, both prongs the test have been met here.
A
primary purpose
error
rule is to
plain
guard
the
against
that
an innocent
“possibility
person may
have
due to
error
been convicted
some
which is obvious
record,
(Carlson,
the
from
but
properly preserved.”
criminal
the evidence
576.)
In
cases where
is
it is
the defend-
guilt
overwhelming,
unlikely
“mi-
relatively
ant’s conviction could be attributable to
the
hand,
nor” error that occurred at trial. On
other
conclusive,
the
less
where
evidence in
is
support
guilt
i.e.,
balanced,”
the
is
there
where
evidence
is a
“closely
much
that even a so-called “minor”
greater probability
error at trial was
causal factor in the defendant’s con-
Thus,
viction.
in cases where the evidence of
is
guilt
balanced,
court
the
closely
will invoke
error
plain
doctrine to
whether an
determine
error at
unobjected-to
trial
Carlson,
constituted reversible error.
I fail to understand how the can majority conclude here evidence cannot reasonably regarded “[t]he as balanced” closely (137 210). Ill. 2d at According to the the majority, store clerk’s uncertain identification testimony, fact the defendant was with a man who matched the description of the white robber one hour after the robbery occurred, and fact that defendant did not introduce any evidence contradict the State’s claim defendant all guilty point conclusion that “convincing” defendant (137 Ill. 2d at I am not convinced. guilty.
As the recognizes, store clerk’s testi- majority is far On mony cross-examination, from conclusive. clerk that he only admitted saw the black face robber’s one or two seconds and that light the pawn- at the shop time he saw the black robber “kind of dim.” The clerk that, also testified two three af- days occurred, ter he was unable positively the black from a identify robber series of photographs he all Instead, was shown. that the clerk could at that say time was that the robber black was either defendant or another man Even trial, shown photographs. *19 the clerk was not certain of his identification as he testi- fied that he was that the “ninety sure” percent defendant was one of the men who robbed him. It is true that “the fact that a witness does not posi- *** a defendant trial does render not
tively identify invalid” Ill. 2d at such testimony (137 204), that uncertain can a reason- testimony guilt beyond establish (see People Slim able doubt 127 Ill. 2d However, 309). as the the fact that majority recognizes, an an identification is uncertain does have effect upon the weight should be accorded identification. v. Strother People 204; (137 Ill. 2d at see also Jackson 95, 100-01; 2d 161 Ill. App. I described, As have the clerk in this case 584.) was never certain in his identification of the defendant. All that he could with is that one of say any certainty in case was a Such uncertain robbers this black man. believe, identification I should not accorded testimony, in attributed to it determin- weight majority whether the evidence in this case is balanced. ing closely also finds it majority opinion significant one hour after at a robbery defendant was found with man fit description house who white (137 robber. Ill. 2d at Also found at the house were in the stolen and the car that was used rob- jewelry bery. case, even
The circumstantial evidence when the clerk’s identifi- viewed uncertain conjunction I cation, is far from conclusive. note stolen and the used in the found gun money the house where the defendant was found. Further- more, possessed there is no evidence that it in the or even knew that stolen property house. its conclusion that the evi- also bases majority on the fact convincing
dence of the guilt was no evidence to contradict the conclu- “[t]here *20 sion (137 that Ill. 2d at guilty.” [the defendant] statement, however, This correct. entirely is not It is true that the defendant did not introduce ev- any idence that contradicted the State’s case. How- directly ever, counsel, cross-examination, defense through estab- lished that the clerk’s identification of the defendant could have been erroneous. Defense counsel also estab- lished that the stolen and in gun cash used the rob- were not bery found. Both lines of cross-examination the conclusion that support a black man other than the defendant crime, committed the and therefore “contra- dict the conclusion that was guilty.” [the defendant] case, sum, evidence in this in only establishes the following any (1) a black man certainty: and a white man committed the later, one hour robbery; (2) defendant, man, a black at a present house with the white man who committed the robbery; (3) some of the stolen and property the car used in the robbery were house; also at and (4) victim of the robbery thought, but was not sure, that the defendant could have been the black I robber. While with the agree majority that the here, evidence when viewed the light most fa- vorable to the prosecution, is sufficient to support the ju- verdict, I ry’s think that it is I certainly close case. therefore would address the defendant’s claim regarding the prosecutor’s comments under the first of the prong error doctrine. plain if
Even the evidence in this case was not bal- closely anced, this court’s prior decisions make clear that prosecutor’s comments this case concerning defendant’s failure to testify constitute error under plain the second of the prong error test. Under this plain sec- ond this court prong, errors, will review trial despite absence of “of objection, are such magnitude
the commission thereof denies the accused a fair and im-
Carlson,
trial.”
Having prosecutor’s constitute testify defendant’s failure concerning I error, turn now to the of whether plain question reversed. Prosecutorial conviction should be references to a defendant’s failure to such as testify, comments made in this fifth case, violate the amendment to the United States Constitution. (Griffin California 609, 613-14, 106, 109-10, 380 U.S. 14 L. Ed. S. 1232-33.) Ct. Because com- prosecutor’s ments in this case constituted Federal constitutional er- ror, the defendant’s conviction must be reversed unless the comments were “harmless a beyond reasonable Chapman doubt.” 18, 24, 386 U.S. California 705, 710-11, 17 L. Ed. 2d Ct. 824, 87 S. 828.
As I have facts of which we can explained, certain this case are that one of relatively the rob- bers a defendant, was black man and that a black man, robber, with man, the other a white one hour occurred, after the at a house robbery where some the items taken during present. store clerk thinks that the defendant be the might black man who committed crime.
Defendant’s defense is he did not commit the crime. He claims that the fact man in- black he, volved in robbery, and that man, black hap- pened to be the house with white robber hour one after the crime occurred does that he commit- prove ted the crime. Such a defense is with the consistent store clerk’s uncertain identification. It is also quite plausible that the defendant could have been at house where he was found for number reasons any other than that he had there the white gone robber after the crime. committing *22 prosecutor’s comments this improper case
called attention to fact that defendant not did In testify. particular, comments the fact emphasized did explain not he was at the why house. Such comments were in that improper they may have caused the jury to infer that the defendant’s failure an testify constituted admission of See guilt. Griffin 613-14, 609, 14 L. Ed. 2d 380 U.S. California
106, 109-10, 1229, 85 S. 1232-33. Ct. case,
In evidence directly tying defendant to the crime was the store clerk’s suspect ' Thus, State’s case depends largely identification. defendant, upon assumption reason hour after the crime man, black the house one in the was committed was that he had been involved crime. I context, In this do believe the prosecu- fail- comments, tor’s which the defendant’s implied an for the house being ure explanation provide there he an admission that he was because constituted harmless robbery, beyond involved I would Accordingly, doubt. reverse reasonable and remand to the trial court conviction a new trial.
(Nos. 67732, 67747 cons . SMITH, v. ELI LILLY & COM SANDRA Appellee, al., Appellants.
PANY et on Opinion July denial 1990 . Modified filed rehearing 1990. October