Lead Opinion
delivered the opinion of the court:
Defendant, William T. Libberton, appeals from his convictions of driving under the influence of alcohol (DUI) (625 ILCS 5/11— 501(a)(1), (a)(2) (West 2000)) (two counts, one of which was merged into the other) and false report of a vehicle theft (625 ILCS 5/4— 103(a)(6) (West 2000)). We now affirm.
I. BACKGROUND
Defendant was charged by indictment with one count of false report of a vehicle theft and two counts of DUI. His case was tried to a jury. The arresting officer,
Jahncke requested that defendant ride with him to the car. On the way, Jahncke asked defendant if there was anyone with him, and defendant said that he was with his girlfriend, who was in the car sleeping. Jahncke noticed that defendant smelled of alcohol. They arrived at the car, which was well back from the street and behind some buildings. Jahncke asked defendant how he found his vehicle, and defendant said that he was walking to his home in another town when he found it.
Jahncke approached the vehicle and saw a woman in the passenger seat slumped over with her head between her legs. (The woman was later identified as Kimberlee Quire (Quire), who, by the time of trial, had married defendant and changed her name to Kimberlee Libberton.) Jahncke attempted to wake her to have her open the locked door, hut it took her some time to wake up and, when she did wake, she had difficulty opening the door. After Quire answered several questions posed by Jahncke, Jahncke requested that a wrecker be dispatched. Under cross-examination, he explained that, because defendant was claiming that the car had been stolen, the towing company would store the vehicle indoors so that it was protected from tampering and the State Police crime scene investigators would be brought in to process the vehicle. Jahncke identified a number of the photographs of the interior of the car as having been taken by the State Police.
Deputy Casey Folkes of the Jo Daviess County sheriffs department arrived to assist Jahncke, and both defendant and Quire were questioned further. Defendant told Jahncke that the car had been stolen from the lot at Wally’s, a bar, and that he had found it because, when he walked past the complex with the grain bins, it had occurred to him that it was a good place to hide a stolen car, and so he had gone to look. Jahncke asked him if he had been driving, and defendant initially denied that he had, but later stated that he had tried to move the car in an attempt to get it unstuck. Jahncke then asked defendant to undergo field sobriety tests. Two of the three tests indicated probable intoxication. Jahncke and Folkes then transported defendant and Quire to the Stockton police department, where defendant was subjected to a Breathalyzer test. By the testimony of the Breathalyzer operator, defendant’s breath-alcohol concentration was 0.165. Jahncke also asked Quire to give a statement, which he wrote out and she signed. He admitted that he had done the writing because Quire said that she was too drunk to write.
The State introduced a number of photographs of the area in which the car had been left. The officers called by the State used these to indicate that it would have been difficult to see the car from the road.
Quire, called by the State, testified that she had gone with defendant to at least
“Bill [defendant] and I were at Wally’s until approximately 12:45-1:00 A.M. Bill and I had both been drinking. Bill and I left Wally’s, got into his car and drove up to Custom Grain [the location of the grain bins]. I had no idea where I was. After he got the car stuck I fell asleep and the next thing I remember was someone knocking on the window asking me for my license.”
Defendant was the sole defense witness. He testified that he had parked his car near Wally’s, leaving the keys in the ignition, but that when he came out after drinking for a while, the car was not where he had left it. Defendant said that he thought that his friends were playing a joke so he began to search for his car. After searching unsuccessfully, defendant and Quire set out walking toward a friend’s house in another town. Quire was barely able to walk. As defendant passed the grain bins, he noticed his car behind them. He left Quire with the car and, after remembering that he had a friend in the same town, started walking toward that friend’s house. He denied trying to drive the vehicle at any time after leaving Wally’s, but admitted that he had been intoxicated. He stated that he had gone back to the police the Monday after he was arrested to give them a list of items that he thought were missing from the vehicle.
The State, in closing argument, asserted that many aspects of defendant’s testimony were illogical and commented that it was terrible that defendant persisted in claiming that his car had been stolen in order to escape responsibility for his drunk driving.
Defendant’s counsel emphasized defendant’s right to make the State prove its case:
“It’s not a crime, Ladies and Gentlemen, to profess your innocence. It’s your constitutional right to have a trial; we all possess that and that’s all my client’s done. He said ‘I’m not guilty of this’ and his only choice when that decision is made is to come here and have a trial by 12 of his peers.
Now he does have an option, he could waive jury trial and try for [sic] the Court which is called a bench trial, but that’s his decision alone and he made that decision to have the jury trial; and that’s why we’re here today because he professes his innocence on this.”
He then argued that defendant’s version of events should be taken to be the truth because, as a lie to avoid trouble, it was much less sensible than other lies defendant could have told. He argued that Quire’s statement was discredited by her intoxication. He suggested that the State’s photographic exhibits had been deliberately chosen to overstate the difficulty defendant would have had in locating his car from the road. Further, he argued that minor variations in the calibration of the Breathalyzer made the Breathalyzer data unreliable. He stated that there were too many holes in the police evidence for the State to have met its burden of proof.
“[Defendant’s counsel] begins his argument by asking you; there’s no other choice for this Defendant, right? No other choice. He’s got to take this case to trial and profess his innocence. Well, not quite. Okay? There is something that about 80 to 90 percent of Defendants do in this country and that is they be [sic] honest, forthright. They go into the courtroom and plead guilty.
MR. NACK [Defense counsel]: Objection, that’s grounds for mistrial, Judge.
THE COURT: Overruled. Go ahead.
MR. WEBER [State’s Attorney]: It happens every day. You hear about it all the time. Right?
‘You know what? That story I gave was pretty stupid and I think it’s time for me to accept responsibility for my stupidity in driving drunk and filing a false police report and I’ll plead guilty’ ”
He then argued that it is perfectly natural for someone to get tangled in his own lies, stated that defendant’s intoxication was not even at issue because defendant had admitted it, reemphasized the physical implausibility of defendant’s story, and suggested that Quire’s renunciation of her statement could be the result of her bias in favor of her husband.
He suggested that defense counsel was attempting to sow confusion:
“[T]hat’s the defense; that’s the tactic, right. Well, Officer Craft did this and the machine did that and blah-blah, blah-blah, blah. Folks, that is not even an issue in this case. I asked him flat out, ‘Were you over the legal limit?’ ‘Yeah, oh yeah.’ ‘Beyond .08?’ ‘Yeah.’ What do we need a machine for? But see, that’s the way. That’s the tactic, of course, you know let’s get back in the jury room and let’s, convince [s¿c] about the machine and let’s convince [sic] about this and dah-dah-dah-dah-dah, and pretty soon there’s 12 of you and there’s reasonable doubt all over the place because you’re thinking about all sorts of things that have nothing to do with the facts and circumstance and hard evidence in this case.”
In arguing against defense counsel’s claim that defendant’s story was unlikely to be a lie because it was not in his self-interest, he said:
“I’ll tell you why he would [persist in his story], okay? I will answer that question for you. Because he wants to escape responsibility for his crime; because he wants to escape because he wants to walk; because he wants to get back out on the street, back out after the verdict and yuck it up with the officers, ‘Hey-hey, you know, hey look at what I did and got away with it.’ ”
The jury found defendant guilty on all counts, and defendant moved to arrest judgment, for a new trial, and for a judgment notwithstanding the verdict. Issues raised included claims that the indictment for false report of a vehicle theft was inadequate in that it failed to allege that a third party had been harmed by the report, that such an allegation was a necessary element of the offense, and that the State’s proof was inadequate because it failed to make any showing of this same purported element. Defendant did not raise any issue relating to the State’s closing argument. The motions did allege that the State committed a discovery violation by failing to provide information about certain physical evidence to defendant until just before the trial. During oral argument
II. ANALYSIS
On appeal defendant contends that (1) his conviction of the false report of a vehicle theft violated his substantive due process rights under the United States and Illinois Constitutions; and (2) the State’s closing arguments were improper and violated his right to a fair trial. We address each contention.
A. Substantive Due Process
We begin by noting that defendant has cited provisions of both the Illinois Constitution (Ill. Const. 1970, art. I, § 2) and the United States Constitution (U.S. Const., amends. V XIV) in support of his first contention; however, his arguments relate only to the Illinois constitutional provision. Consequently, defendant has waived any argument under the federal constitution (188 Ill. 2d R. 341(e)(7)) and our analysis will be so confined. Defendant argues that because he “told the officer of the theft of his own car in response to questions by the officer, immediately informed the officer that he had located his car, did not accuse another citizen of the purported theft, and did not seek to profit from the conveyance of the false information, the prosecution of [defendant] as a Class-2 felon violated his right to substantive due process.” Defendant contends that his “report” is not the type of report envisioned by the legislature to be within the scope of the offense of falsely reporting a vehicle theft. We disagree.
Defendant directs us to People v. Morris,
“A Class 2 penalty for a person who alters a temporary registration permit for a vehicle which he or she owns or to which he or she is legally entitled is not reasonably designed to protect automobile owners against theft, nor is it reasonably designed to protect the general public against the commission of crimes involving stolen motor vehicles. Such a penalty is violative of the due process clause of our constitution, and may not stand.” Morris, 136 Ill. 2d at 162 .
Applying the analysis from Morris to this case, we must determine whether a Class 2 penalty for a person who falsely reports a theft of his own motor vehicle is reasonably designed to protect automobile owners against theft, or reasonably designed to protect the general public against the commission of crimes involving stolen motor vehicles. We conclude that, under the facts of this case, an application of a Class 2 penalty to defendant is reasonably designed to meet those legitimate state interests.
In this case, defendant’s actions did have harmful consequences, the prohibition of which protects automobile owners against theft and protects the general public from the commission of crimes involving stolen motor vehicles. Contrary to defendant’s contention, his actions caused a misdirection of police resources. It is important to note that although defendant quickly advised Officer Jahncke that the “stolen” vehicle had been recovered, he never retreated from his claim that a theft had occurred. The arresting officer’s testimony makes it clear that defendant’s car was inventoried and processed as a stolen vehicle. It was held indoors so that it could be protected from tampering, and an Illinois State Police crime scene investigator photographed the vehicle. The prosecutor’s comments to the court related that it was also dusted for fingerprints. Defendant’s actions also kept the Warren police involved in the investigation of the possible theft: according to defendant’s testimony, he came to the police station the Monday following his arrest to provide the police with a list of items he thought were missing from his vehicle. Deterring misdirection of police resources advances anti-theft interests; for example, it improves the protection of automobile owners against vehicle theft by increasing the resources that can be expended on solving or preventing actual automobile thefts. Further, the deterrence of such misdirection makes police resources available to investigate, detect, and prevent all crimes that negatively affect the public in general, including crimes involving stolen motor vehicles. Accordingly, the application to defendant of the Class 2 penalty provided for by section 4 — 103(b) for a violation of section 4 — 103(a)(6) did reasonably relate to legitimate state interests and, therefore, did not violate his due process rights.
Defendant points to the State’s closing argument in which the prosecutor referred to defendant’s story as “laughable” and “ridiculous.” Defendant suggests that this characterization is an acknowledgment by the State that defendant’s report was so inane that there was no reason to expend police resources to investigate the theft. We realize that it is possible that a report of a stolen motor vehicle could be so outlandish (e.g., Martians stole my car!) that charging a person with the false report of a stolen vehicle would violate that person’s right to substantive due process guaranteed by the Illinois Constitution. However, this is not such a case. The record indicates that the report was at least plausible and that the police took it seriously enough to impound defendant’s car for investigation and to apply valuable resources to the case, including the time of an Illinois State Police crime scene investigator.
Defendant also argues that People v. Fuller,
The defendant in Fuller, after allowing her former husband to borrow her car, called the police and reported it stolen. The former husband was stopped by police, arrested, and ultimately charged with the theft. Fuller,
As to defendant’s contention that Fuller requires that the defendant’s conduct have a victim, we disagree. We believe that our supreme court simply distinguished Morris and People v. Hamm,
Even if Fuller could be read to include a victim factor, in the due process equation, we believe that it was met in this case. In his trial testimony, defendant related that when he emerged from Wally’s bar and discovered his vehicle was missing, he thought that his friends were playing a joke on him, so he began to search for his car. We would certainly expect that Officer Jahncke of the Warren police department, as well as other law enforcement officers working in the vicinity, could easily ascertain who these “friends” of defendant were and subject them to an investigation regarding this incident. Moreover, defendant potentially exposed persons who had innocently touched his vehicle in the past to a stolen-motor-vehicle investigation. Although no fingerprints suitable for comparison were located on defendant’s vehicle, at the time defendant made the report he did not know that the innocent people who had touched his vehicle in the past would be so fortunate. As the supreme court in Fuller observed, “the defendant’s actions exposed [innocent people] to the uncertainty and expense that will result from being falsely accused of a crime.” (Emphasis added.) Fuller,
For the foregoing reasons, we reject defendant’s contention that the Class 2 felony penalty that was applied to him in
B. The Prosecutor’s Closing Argument
Defendant’s second contention on appeal is that the prosecutor’s closing arguments denied him a fair trial. Defendant notes that this claim was not raised in his posttrial motions, but he claims that the improprieties were serious enough to rise to the level of plain error. Because the standard for reversal of a conviction on appeal due to improper closing argument by the State is much the same as the plain-error standard, the failure to raise this issue before the trial court has little effect. “The standard of review applied to arguments by counsel is similar to the standard used in deciding whether a plain error was made: comments constitute reversible error only when they engender substantial prejudice against a defendant such that it is impossible to say whether or not a verdict of guilt resulted from those comments.” People v. Nieves,
We agree with defendant that certain parts of the rebuttal argument were improper. However, we do not agree that every portion of the rebuttal singled out by defendant is improper, and, more critically, we do not agree that the improper remarks rise to the level of reversible error.
Defendant argues that it was improper for the State to suggest that defense counsel was attempting to confuse the jury. These comments by the State were proper in light of defendant’s remarks that attempted to make much of a minor discrepancy in the calibration of the Breathalyzer used to test him. Comments on the defense’s attempt to use minor discrepancies to discredit the State’s evidence are proper rebuttal. People v. Hudson,
Defendant further argues that it was improper for the State to suggest that defendant and counsel had encouraged his wife to he on his behalf. It is not clear that the State made such a claim, and if it did, it immediately retracted it. The interchange, discussing the use of Quire’s written police statement, was as follows:
“MR. WEBER [State’s Attorney]: And because Defendants attempt to get around [statements made to police] by later bringing in [the persons who made the statements] and having them say T don’t remember. I don’t remember’, okay, that does not—
MR. NACK [Defense Counsel]: I’ll object to that. There’s no indication that we had anything to do with that. The implication is we told her to come in here and lie.
THE COURT: Overruled. Go ahead.
MR. WEBER; Well, I certainly don’t want to leave that impression whatsoever if that’s the impression I gave, I would certainly withdraw it and strike it and I don’t think I was saying that but if I did, I apologize. What I mean is, he’s married to her, okay, and now she comes in here and says I don’t remember.”
Generally, a trial court can correct any error by sustaining an objection and instructing the jury to disregard the remark. People v. Cisewski,
The State made comments which suggest, essentially, that a decent person in defendant’s position would have pleaded guilty. Negative comments about a defendant’s exercise of his or her constitutional rights are improper because they penalize the defendant for the exercise of those rights. People v. Mulero,
The State also commented that defendant’s purpose in lying was to be able to laugh at the police when he was back on the street. It is error for the trial court to permit comments that serve only to arouse the passions of the jury, and particularly comments that attempt to turn the jury’s verdict into a test of its support for law enforcement. People v. Slabaugh,
Generally, improper closing arguments by the State will constitute reversible error only if there is doubt as to whether the jury would have rendered a guilty verdict in the absence of the comments. Nieves,
Defendant also argues that under People v. Blue,
Without diminishing the failings of the State in this matter, we recognize that improper comments in this case were neither as pervasive nor as potentially damaging as those in Ray. The quantity of improper comments in this case does not match the sheer quantity of the inflammatory remarks in Ray. Furthermore, the improper comments in this case lacked the potential of those in Ray to confuse the jury. There, the comments brought to the jury’s attention the existence of excluded evidence and otherwise attempted to mislead the jury as to the evidence that it should have considered, whereas here the improper remarks were simply inappropriate appeals to emotion.
III. CONCLUSION
For the reasons stated, the judgment of the circuit court of Jo Daviess County is affirmed.
BYRNE, J., concurs.
Lead Opinion
SUPPLEMENTAL OPINION ON REHEARING
delivered the opinion of the court:
We allowed defendant’s petition for rehearing that requested that we reconsider our holding as to defendant’s second contention on appeal in light of our supreme court’s recent decision in People v. Johnson,
Johnson involved three consolidated appeals where the State sought review of the appellate court decisions reversing DeAngelo Johnson’s, Clyde Cowley’s, and Jimmie Parker’s convictions and remanding the causes for new trials. Cowley and Parker were codefendants of Murray Blue, the defendant in People v. Blue,
“These consolidated cases come before us in the wake of our decision in People v. Blue,189 Ill. 2d 99 , 138-39 (2000), wherein a unanimous court held that the cumulative effect of prosecutorial misconduct and trial error had deprived the defendant of a fundamentally fair trial and thus warranted reversal notwithstanding overwhelming evidence of defendant’s guilt. In Blue, this court recognized that a pervasive pattern of error, engendered in the main by prosecutorial misconduct, had divested defendant of his right to a fair, orderly, and impartial trial, a substantial right that inures to a criminal defendant ‘ “whether guilty or innocent.” ’ Blue,189 Ill. 2d at , quoting People v. Bull,138 185 Ill. 2d 179 , 214 (1998). In Blue, where the trial was permeated by the presentation of emotionally charged evidence, and the prosecutors ‘encouraged the jury to return a verdict grounded in emotion, and not a rational deliberation of the facts’ (Blue,189 Ill. 2d at 139 ), the members of this court, acting ‘as guardians of constitutional rights and the integrity of the criminal justice system’ (Blue,189 Ill. 2d at 139 ), reversed and remanded for a new trial. Disposition of the instant cases requires that we further delineate the dimensions of Blue, applying the principles and standards of review utilized in that case.” Johnson,208 Ill. 2d at 60 .
Because the court in Johnson relied on its decision in Blue, a detailed discussion of the holding in Blue is warranted. In Blue our supreme court held that cumulative errors deprived the defendant of his due process right to a fair trial (Blue,
The Blue court also identified as errors two improper themes in the prosecutor’s closing arguments. The first was the argument that the jury’s verdict should be a vehicle to vindicate the Doffyn family. The court said that the argument that Officer Doffyn’s father, mother, and child needed to “hear” from the jury was patently immaterial to the defendant’s guilt or innocence and the State’s reference to their loss was an erroneous appeal to the jury’s emotions. Blue,
“[T]he trial court allowed the State to argue two emotion-laden themes to the jury, neither of which was probative of defendant’s guilt for the several crimes charged against him. The nakedly prejudicial nature of the arguments was intensifiedby parallel evidence which, perhaps by design, reinforced the tragedy of the loss suffered in this case by the police force and by the family of Daniel Doffyn. Consequently, we hold that the trial court abused its discretion by permitting the jury to hear these arguments.” Blue, 189 Ill. 2d at 134 .
Next, the court turned to the State’s argument that, irrespective of any error, the evidence against the defendant was so overwhelming that absent the errors the outcome of the case would not have been different. Blue,
“[Prejudice to a defendant’s case is not the sole concern that drives our analysis of defendant’s appeal: ‘A criminal defendant, whether guilty or innocent, is entitled to a fair, orderly, and impartial trial’ conducted according to law. People v. Bull,185 Ill. 2d 179 , 214 (1998). This due process right is guaranteed by the federal and state constitutions. [Citations.]
Additionally, when a defendant’s right to a fair trial has been denied, this court must take corrective action so that we may preserve the integrity of the judicial process. [Citation.] To determine whether defendant’s right to a fair trial has been compromised, we employ the same test that this court uses whenever it applies the second prong of the plain error test. 134 Ill. 2d R. 615(a). We ask whether a substantial right has been affected to such a degree that we cannot confidently state that defendant’s trial was fundamentally fair. [Citations.]
*** [W]hen an error arises at trial that is of such gravity that it threatens the very integrity of the judicial process, the court must act to correct the error, so that the fairness and the reputation of the process may be preserved and protected. Critically, the court will act on plain error regardless of the strength of the evidence of defendant’s guilt.” (Emphasis in original.) Blue,189 Ill. 2d at 138 .
In employing this test the court in Blue concluded:
“In this appeal, we hold that a new trial is necessary in order to preserve the trustworthiness and reputation of the judicial process. We do not disagree that the evidence proving defendant’s guilt is overwhelming. Nonetheless, regardless of the weight of the evidence, as guardians of constitutional rights and the integrity of the criminal justice system, we must order a new trial when, as here, we conclude that defendant did not receive a fair trial.
Each of the errors detailed above, in and of itself, casts doubt upon the reliability of the judicial process. Cumulatively, we find that the errors created a pervasive pattern of unfair prejudice to defendant’s case. [Citations.] The argument by State’s counsel concerning the Doffyn family and the police encouraged the jury to return a verdict grounded in emotion, and not a rational deliberation of the facts. Therefore, by allowing the State to suggest improper considerations to the jury, the trial court errantly allowed the jury to consider ‘evidence’ not relevant to defendant’s alleged crimes.
Combined with the introduction of the dead officer’s bloodied uniform, moreover, the errors assumed a synergistic effect. In particular, if we view together the manner and duration of the uniform’s display, the appeal to the jurors to demonstrate their gratitude to the police force, the introduction of Doffyn’s oath of office and testimony that his staroccupies an honored place at police headquarters, we discern an intent by the State to place the jury’s responsibility as citizens on trial, as much as the State placed defendant on trial. [Citation.]
The State’s overbearing conduct in pursuit of defendant’s convictions was further demonstrated by the assistant State’s Attorneys’ behavior at trial. The tendency of the prosecutors to interject editorializing objections unfairly negated evidence that may have been favorable to defendant. The fact the objections were made— and sometimes sustained — by government representatives suggested that, because knowledgeable authorities found the testimony in question incredible, then the jury should reach the same conclusion.
Under these circumstances, defendant did not receive a fair trial. [Citations.] In sum, the trial court allowed the guilty verdict to rest on considerations other than the evidence alone. Accordingly, we reverse defendant’s convictions and sentence and remand for a new trial.” Blue,189 Ill. 2d at 139-40 .
Returning to our discussion of Johnson, in reversing Cowley’s and Parker’s convictions, the court identified three instances of trial error that occurred in both trials: (1) the admission and display of Officer Doffyn’s bloodied and brain-splattered uniform, (2) the emotionally charged testimony of Officer Doffyn’s father, and (3) the testimony of Commander Delopez that served only to highlight the ceremonies and oath associated with Officer Doffyn’s service and duties as a police officer. Johnson,
As to Parker’s trial, the court identified five instances of improper argument by the prosecution: (1) remarks aimed at the sympathies of the jury implicitly asking the jury to send a message of support of law enforcement (Johnson,
“As in Blue, we see in this case cumulative error and a pervasive pattern of unfair prejudice that denied defendant a fair trial and cast doubt upon the reliability of the judicial process. See Blue,189 Ill. 2d at 139 . We note that the prejudice in this case, as in Blue, was engendered in the main by prosecutorial misconduct. As in Blue, the coalescence of improper, emotion-laden evidence, and inflammatory argument obviously designed to exploit that evidence, created a synergism of parallel errors. See Blue,189 Ill. 2d . As in Blue, a new trial is necessary in this case to preserve and protect the integrity of the judicial process, as ‘the trial court allowed the guilty verdict to rest on considerations other than the evidence alone.’ See Blue,at 134, 139 189 Ill. 2d at 138-40 .” Johnson,208 Ill. 2d at 84 .
When the court turned its attention to Cowley’s trial, it identified the following instances of improper argument during the prosecutor’s closing arguments: (1) unnecessary and irrelevant references to Officer Doffyn’s surviving family members; (2) the same animal metaphor found objectionable in Parker’s trial; (3) the same irrelevant reference to the proximity of a grammar school found objectionable in Parker’s trial; (4) the same improper implied send-a-message-to-the-community theme that was utilized in Parker’s trial; and (5) improperly casting the jury’s decision as one between good and evil. Johnson,
In overturning the appellate court’s reversal of Johnson’s conviction, the court found all of the allegations of trial error (including the admission of gang affiliation evidence; the admission of testimony that allegedly apprised the jury that the defendant had taken and failed a polygraph; and the admission of the defendant’s prior arrests and adjudications of delinquency) to lack merit (Johnson,
“[T]he prosecutor’s comments, quite simply, did not result in substantial prejudice to Johnson under these circumstances, and thus, they do not warrant reversal of Johnson’s convictions. As there was neither cumulative error, nor a pervasive pattern of prosecutorial misconduct and related trial error, the appellate court’s reliance upon Blue was misplaced.” Johnson,208 Ill. 2d at 117 .
We now turn to an analysis of the impact the decisions in Blue and Johnson have on the matter at bar. Ordinarily a prosecutor’s improper comment will not result in the jury’s verdict being disturbed on appeal unless the remark caused substantial prejudice to the defendant, taking into account the content and context of the comment, its relationship to the evidence, and its effect on the defendant’s right to a fair and impartial trial. Johnson,
In Johnson and Blue the court found that the defendants Blue, Cowley, and Parker were deprived of their right to a fundamentally fair trial due to the cumulative effect of prosecutorial misconduct and trial error, warranting reversal notwithstanding overwhelming evidence of their guilt. Johnson,
Defendant’s right to a fair trial, however, was not affected to the same extent that Blue’s, Cowley’s, and Parker’s rights were in Blue and Johnson. Defendant’s trial, like Blue’s, Cowley’s, and Parker’s, involved improper argument by the prosecution in a case where the evidence proving defendant’s guilt was overwhelming. However, defendant’s trial was not like Blue’s, Cowley’s, or Parker’s, where there was cumulative error demonstrating a pervasive pattern of unfair prejudice by the prosecution. Blue’s trial involved four trial errors and the prosecution’s argument of two improper, emotion-laden themes. Cowley’s and Parker’s trials contained three instances of trial error and at least five instances of improper argument by the prosecution. In contrast, this defendant’s trial contained only two improper arguments by the prosecutor during the State’s rebuttal closing argument and not a single allegation of trial error.
The improper arguments in this case were the negative comment regarding defendant’s choice to exercise his constitutional right to have a jury trial, and the comment that defendant’s purpose in lying was to avoid responsibility for his crime and to laugh at the police after he was back on the street. Unlike Blue’s, Cowley’s, and Parker’s trials, these arguments did not coincide with or parallel any emotion-laden evidence improperly admitted at trial. Consequently, there was no synergistic or cumulative effect to the improper argument depriving defendant of a fair trial. Rather, like Johnson’s trial, defendant’s trial did not involve a pervasive pattern of prosecutorial misconduct and related trial error. Accordingly, we conclude that defendant’s substantial right to a fair, orderly, and impartial trial conducted according to law was not affected to such a degree that we cannot confidently state that defendant’s trial was fundamentally fair. See Blue,
Johnson and Blue hold that, even in a case where the evidence of the defendant’s guilt is overwhelming, a defendant is deprived of his right to a fair trial where the prosecution makes improper arguments that are related to improperly admitted, emotion-laden evidence, resulting in a jury verdict grounded in emotion rather than rational deliberation of the facts. Johnson,
The cumulative impact of multiple improper remarks by the prosecutor in closing argument may result in prejudice to a criminal defendant. People v. Whitlow,
Additionally, defendant argues that Johnson mandates a finding that several comments made by the prosecutor that we deemed proper in our original majority
First, defendant points out that Johnson clarified that it is improper for the State to accuse defense counsel of trying to confuse the jury “[ujnless predicated on evidence that defense counsel behaved unethically.” Johnson,
In this case defendant was charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11 — 501(a)(1), (a)(2) (West 2000)) and filing a false police report of the theft of a motor vehicle (625 ILCS 5/4 — 103(a)(6) (West 2000)). There was little dispute that the elements of DUI were established after defendant admitted during his trial testimony that his blood-alcohol content was over 0.08 and there was testimony that defendant admitted to driving the car in an attempt to get it out of the snow. As to the charge of filing a false police report of the theft of a vehicle, the State was required to prove that the report was false (see 625 ILCS 5/4 — 103(a)(6) (West 2000)). As the defense took the position that the report to the police was not false because someone really did steal defendant’s car, the prosecution was certainly entitled to argue to the jury that defendant’s trial testimony so indicating is a lie. After so arguing, the prosecutor made the following remarks:
“[T]he defense wants to say, Well, this is a problem and this is a problem and this is a problem’ because they don’t want you to put all the facts and your common sense together, and amazingly they’ve sat here and argued for a period of time about two issues that I can’t believe they’re even talking about and that is intoxication.
See, and that’s, of course, that’s the defense; that’s the tactic, right. Well, Officer Craft did this and the machine did that and blah-blah, blah-blah, blah. Folks, that is not even an issue in this case. I asked him flat out, Were you over the legal limit?’ ‘Yeah, oh yeah.’ ‘Beyond .08?’ ‘Yeah.’ What do we need a machine for? But see, that’s the way. That’s the tactic, of course, you know let’s get back in the jury room and let’s, convince [sic] about the machine and let’s convince [sic] about this and dah-dah dah-dah dah, and pretty soon there’s 12 of you and there’s reasonable doubt all over the place because your [sic] thinking about all sorts of things that have nothing to do with the facts and circumstances and hárd evidence in this case.
Folks, this is not an issue in this case. When the Defendant confesses on the witness stand to being under the influence aiid above .08, that is not an issue. Okay?”
Rather than an accusation that defense counsel was trying to confuse the jury, by these remarks the prosecutor was merely making the point to the jury that portions of defense counsel’s closing argument focused them on an issue that, as a result of defendant’s trial testimony, was not in dispute. The prosecutor was calling the jury’s attention to defense counsel’s tactic of focusing them on the calibration of the Breathalyzer machine when, irrespective of the accuracy of that machine, defendant had admitted that his blood-alcohol content was over the legal limit. This was not improper argument.
Next, defendant claims for the first time in his petition for rehearing that the prosecutor improperly referred to him as a “rat” in his rebuttal closing argument.
Next, defendant argues that Johnson mandates reversal based on the prosecutor’s comment that indicated that defendant and defense counsel encouraged defendant’s wife to lie on his behalf by claiming that she did not remember what she told the police about the incident on the night in question. As we noted in our original majority opinion, it is not clear that the prosecutor made such a claim. In fact the statement “bringing in [the persons who made the statements] and having them say T don’t remember’ ” was made in a general way in explaining the need for the prior inconsistent statement exception to the hearsay rule. There was no specific reference to defendant or to his counsel.
Defendant cites a portion of the Johnson decision where the court pointed out an improper remark by the prosecutor suggesting that the jury should be suspicious of defense counsel because he asked more questions of the prospective jurors during voir dire than did the State. The Johnson court concluded that “[although the prosecutor did, immediately thereafter, acknowledge that it was not improper to ask additional questions, the ambiguity of the trial court’s ruling on the objection may well have reinforced the impression of defense deception left by the State’s earlier comment.” Johnson,
We need to address one other point raised by defendant in his petition for rehearing. Defendant takes the position that because the prosecutor in this case repeated the same type of misconduct during defendant’s trial as this court had previously admonished him to be improper, the improper remarks made during defendant’s
Defendant’s reference to this court’s prior admonitions to this prosecutor can mean only the admonishment in People v. Slabaugh,
The Johnson court did note that “a pattern of intentional prosecutorial misconduct may so seriously undermine the integrity of judicial proceedings as to support reversal under the plain error doctrine” (Johnson,
Additionally, we believe that the prosecutor’s remarks concerning defendant’s choice to exercise his constitutional right to a jury trial constituted a miscalculated response to a remark by defense counsel that the prosecutor misunderstood. In response to defense counsel’s statement during closing argument that once defendant chose to assert his right to plead his innocence he had no choice but to go to trial, the prosecutor said:
“But Mr. Nack begins his argument by asking you: there’s no other choice, there is no other choice for this Defendant, right? No other choice. He’s got to take this case to trial and profess his innocence. Well, not quite. Okay? There is something that about 80 to 90 percent of Defendants do in this country and that is they be [sic] honest, forthright. They go into the courtroom and they plead guilty.
MR. NACK: Objection. That’s grounds for a mistrial, Judge.
THE COURT: Overruled. Go ahead.
MR. WEBER: It happens everyday. You hear about it all the time. Right?
You know what? That story I gave was pretty stupid and I think it’s time for me to accept responsibility for my stupidity in driving drunk and filing a false police report and I’ll plead guilty.
MR. NACK: Objection, Judge. That is improper argument. He has the constitutional right to a jury trial. It’s improper argument.
THE COURT: It’s argument; it’s overruled. Go ahead.”
Nevertheless, our holding in this case should not be interpreted as approval of the prosecutor’s improper remarks, which our supreme court has aptly observed have become far too common in criminal trials. We simply hold that in this case the two improper comments by the prosecutor did not deprive defendant of a fair trial. We join Justice Hutchinson in urging that trial judges vigorously guard against improper argument and unprofessional conduct.
Affirmed.
Concurrence Opinion
specially concurring:
While I agree with the majority’s conclusion that despite the misconduct of the State’s Attorney, defendant in this case was not denied his right to a fair trial, I reject the conclusion that if there is overwhelming evidence of guilt the prosecutor may play fast and loose with a defendant’s rights.
If, as in the majority opinion, we accept the fact of prosecutorial misconduct and then look to the underlying evidence of guilt to determine whether such conduct should be sanctioned, we, in fact, put the cart before the horse. The State has a greater burden than merely seeking convictions. If prosecution of felonies and misdemeanors becomes a game of “what can I get away with” rather than presenting evidence and making comment within the framework of seeking justice and fairness for all, the justice system has lost sight of its legitimate goals.
I believe that, while the majority reaches the correct result based on the cases cited, the dissent is correct in arguing that prosecutorial misconduct cannot be allowed in any case and that when we affirm convictions such as the one in the instant case, we send a message that such conduct will be allowed in certain circumstances.
So, while I concur with the majority’s result herein, I think that we must continue to examine the issue of when prosecutorial misconduct should be sanctioned and what the threshold for reversal of convictions procured in such an environment should be. To hold that prosecutorial misconduct is permissible when there is overwhelming evidence of guilt is not consistent with the goals and ideals of our justice system.
Dissenting Opinion
dissenting:
I respectfully dissent. I believe that State’s Attorney Glen Weber’s rebuttal argument was so fraught with improper comments that it not only rose to the level of reversible error, it shattered the ceiling of courtroom decorum and professional conduct. I recognize the general principle of affording prosecutors wide latitude in closing argument. See People v. Blue,
In the present case, the first foul blow emanating from State’s Attorney Weber came at the outset of his rebuttal, when he explained to the jury that defendant could have chosen to do what “80 to 90 percent of [d]efendants do in this country” and that is “they be honest [and] forthright,” and “[t]hey go into the courtroom and they plead guilty.” Upon defense counsel’s objection that the remark just attacked defendant’s constitutional right to a jury trial (see U.S. Const., amend. VI), the trial court actually overruled the objection and allowed Weber to continue. Thereafter, Weber repeatedly accused defendant of lying, accused defense witnesses of lying, explained why defendant and defense witnesses would lie, and why defendant and defense witnesses would continue to maintain their lie. Weber explained to the jury that defendant “want[ed] to escape responsibility for his crime,” “get back out on the street, back out after the verdict and yuck it up with the officers.” Weber then concluded by asking the jury to “send [defendant] a message” and say “enough of these lies.” In my view, Weber’s rebuttal argument exceeded all bounds of reasonable and proper comment. The argument was especially harmful due to Weber’s strategic decision to wait until rebuttal to present it, so that defendant would have absolutely no method to substantively counteract the venom of Weber’s comments before the jury retired to deliberate. See People v. Sutton,
Time and again Glen Weber has crossed the line of permissible conduct. See People v. Slabaugh,
In Doll, we noted in a special concurrence that Weber’s comment that the defendant was a “rat in a maze” “served no other purpose than to arouse the passions of the jury.” Doll, slip op. at 15 (Gilleran Johnson and McLaren, JJ., specially concurring). In the present case, Weber, while attempting to explain what a “prior inconsistent statement” was, argued: “you see, because we have [defendants here that are always trying to, you know, they’re like a rat in a maze, you know, okay, let’s see what it looks like in here — zoom, zoom, and try to get out of it.” (Emphasis added.) Just as in Doll, this type of rhetoric served no purpose other than to arouse the passions of the jury and to denigrate defendant and the defense witnesses and is, therefore, highly improper. See Doll, slip op. at 15 (Gilleran Johnson and McLaren, JJ., specially concurring).
Apparently, our past admonitions to Glen Weber have gone callously and cavalierly disregarded as this case more than amply demonstrates. I am further troubled that the majority’s treatment of this issue does nothing to diminish the likelihood that such conduct will recur. Though I am unable to convince my colleagues, I feel compelled to make a public record of Glen Weber’s lack of professionalism and decorum.
In cases such as this, where prosecutorial misconduct has not been deterred through admonition or condemnation, the United States Supreme Court has stated that it “may well so seriously undermine the integrity of judicial proceedings as to support reversal under the plain-error doctrine.” United States v. Young,
For these reasons, I respectfully dissent.
Dissenting Opinion
dissenting:
I continue to dissent. As I stated in my previous dissent, I believe that defendant was denied a fair and impartial trial due to the prosecutorial misconduct that occurred during State’s Attorney Glen Weber’s rebuttal closing argument. The Johnson decision does nothing short of further cementing my belief that defendant is entitled to a new trial. In Johnson, our supreme court applied the principles and standards of review utilized in Blue to determine whether the cumulative effect of alleged prosecutorial misconduct and
In the present case, the trial was all but over. The jury was to hear no more evidence. The jurors had already heard a closing argument from Weber and a responsive closing argument from defense counsel. Their attention turned back to and focused on Weber. Weber approached and began his rebuttal closing argument. The stage belonged to Weber. Free from interruption, free from any surresponse by defense counsel. Whereupon Weber proceeded to attack defendant’s constitutional right to a jury trial (see U.S. Const., amend VI) and arguably his presumption of innocence (see Illinois Pattern Jury Instructions, Criminal, No. 2.03 (4th ed. 2000)) when he told the jury that defendant could have chosen to do what “80 to 90 percent of [defendants do in this county” and that is “they be honest [and] forthright,” and “[t]hey go into the courtroom and they plead guilty.” Next, Weber attacked the veracity of defendant and defense witnesses (see Slabaugh,
One cannot unring a bell. See People v. Rivera,
This case clearly illustrates the problem of “prosecutorial recidivism,” that is, “the tendency of the same prosecutor or office to engage in misconduct repeatedly, even in the face of admonishments from the court.” P. Speigelman, Prosecutorial Misconduct in Closing Argument: The Role of Intent in Appellate Review, 1 J. App. Prac. & Process 115, 120 (1999). Our past admonitions to Weber and his characterization of another defendant in another case as a “rat in a maze” (see People v. Doll, No. 2 — 02—0564 slip op. at 15 (2003) (unpublished order under Supreme Court Rule 23) (Gilleran Johnson, J., specially concurring, joined by McLaren, J.)) lead me to conclude that Weber’s conduct in the present case consisted of nothing less than “a calculated course of action to play upon and incite the emotions *** of the jury.” People v. Williams,
Rather than discussing the quantum of evidence presented supporting defendant’s guilt and applying waiver principles, I submit
I further believe that Weber’s misconduct during his rebuttal argument viewed in its entirety was sufficient in and of itself to require reversal. I believe that defendant was deprived of what he was entitled to receive and what the State was constitutionally required to provide: a fair trial. For the reasons set forth in my original dissent and for these reasons now, I continue to respectfully dissent.