People v. McGee , 2015 IL App (1st) 130367 ( 2016 )

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Appellate Court Date: 2016.01.26
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People v. McGee, 2015 IL App (1st) 130367
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ANTHONY McGEE, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-13-0367
Filed October 29, 2015
Decision Under Appeal from the Circuit Court of Cook County, No.
Review 09-CR-14267-(02); the Hon. Mary Margaret Brosnahan, Judge,
presiding.
Judgment Affirmed in part; reversed in part and remanded with instruction.
Mittimus corrected.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Kathleen Weck, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for the
People.
Panel JUSTICE COBBS delivered the judgment of the court, with opinion.
Justices Howse and Ellis concurred in the judgment and opinion.
OPINION
¶1 Defendant Anthony McGee was convicted of first degree murder pursuant to section
9-1(a)(1) of the Criminal Code of 1961 (Code) (720 ILCS 5/9-1(a)(1) (West 2008)) and
aggravated kidnapping pursuant to section 10-2(a)(3) of the Code (720 ILCS 5/10-2(a)(3)
(West 2008)) and sentenced to consecutive terms of 60 years and 25 years in prison. On appeal,
defendant contends that: (1) the trial court erred when it denied his pretrial motion to dismiss
the first degree murder charge; (2) the trial court erred in refusing to instruct the jury that it had
to find beyond a reasonable doubt that the murder was committed either wholly or partly
within Illinois; (3) the State failed to meet its burden of showing that defendant was lawfully
arrested; (4) the trial court erred in issuing a jury instruction on causation in homicide cases
where it was not an issue at trial; (5) the State in this case committed misconduct in closing
argument when it erroneously tried to define the reasonable doubt standard for the jury,
misstated the law regarding the presumption of innocence, and impermissibly shifted the
burden of proof to defendant; (6) the general verdict form for first degree murder prejudiced
defendant and trial counsel was ineffective for failing to request separate verdict forms
supporting the three different forms of first degree murder; and (7) the fines, fees, and costs
should be reduced. For the reasons that follow, we reverse defendant’s first degree murder
conviction and remand for resentencing and modify the mittimus to reflect a $610 assessment
balance.
¶2 On September 7, 2007, defendant was arrested for the aggravated kidnapping, aggravated
battery, aggravated unlawful restraint, and attempted murder of Frentsi Bridges. At the time of
his arrest, defendant asserted his rights under the Speedy Trial Act (725 ILCS 5/103-5 (West
2008)), demanding trial during his first appearance at bond court. In December 2007,
defendant and codefendant Danyale Moody1 were formally charged. Defendant was released
on bail in May 2008 after spending more than 240 days in custody. On July 15, 2009, he was
rearrested after the State filed new charges of first degree murder. On August 7, 2009, the State
brought a new indictment against defendant and codefendant, charging the men with all three
forms of first degree murder (felony, intentional, and strong probability) and aggravated
kidnapping of Bridges. The State nol-prossed the original indictment, and proceeded to trial on
the new indictment. Defendant and codefendant were separately represented but tried jointly
before the same jury.
¶3 Prior to trial, defendant filed a motion to dismiss the first degree murder counts on speedy
trial grounds. In his motion, defendant argued that because the State was aware of all the
relevant facts alleged in the subsequent indictment at the time of the original indictment, and
because all of the offenses were within the jurisdiction of the criminal court of Cook County,
the State was required to join the offenses in a single prosecution pursuant to section 3-3 of the
Code. 720 ILCS 5/3-3 (West 2008). Defendant further argued that because the State was
required to join the charges, but did not, the time within which the trial was to begin on the
murder charges was subject to the same statutory speedy trial period as applied to the original
charges. As none of the continuances obtained in connection to the original charges could be
attributed to defendant with respect to the subsequent murder charges, because they were not
1
Codefendant is not party to this appeal, however we note that he has an appeal under case
No. 1-13-0071, which is related to this case.
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before the court when the continuances were obtained, the State violated his right to a speedy
trial with respect to the murder charges. The State responded that it was not required to join the
murder charges in the original indictment because the jurisdiction over the murder of Bridges
lay within the jurisdiction of more than one court. The court denied defendant’s motion to
dismiss, finding that the murder charges were not subject to compulsory joinder with the 2007
charges because the state of Indiana could also have charged defendant with Bridges’ murder.
¶4 Defense counsel also filed a motion to quash arrest and suppress evidence of the lineup
identifications of defendant that followed his arrest. At the hearing on the motion, defense
counsel argued that the suppression motion should be granted because the State had failed to
present some evidence that the police had a legitimate reason to pull the car over in which
defendant was riding as a passenger. Defendant testified that, at the time of his first arrest on
September 7, 2007, he was a passenger in a car driven by Robert Kelly. At some point the
police stopped the car, ordered defendant out of the car, and handcuffed him. Defendant was
taken to the police station, where he was put into a lineup the next day. Kelly also testified that
he did not know why the police had stopped his car. The police handcuffed Kelly after
stopping his car but never charged him with anything. He did not know why the police arrested
defendant.
¶5 Detective John Fassl testified for the State that at some point before defendant’s arrest, a
man named Leonardo Johnson told him that defendant picked him up and drove him to a
building located at 116 West 114th Place. Johnson also told Detective Fassl that he watched as
defendant and a man he knew as “Little G” beat and tortured Bridges in the basement of that
building. Detective Fassl showed Johnson a videotape of the victim being kidnapped on May
14, 2007, and Johnson identified defendant. On July 13, 2007, Detective Fassl also spoke with
Lezly Reeves, the owner of the building, and her brother, Tyson Jackson. Reeves and Jackson
were at the building on the day of the kidnapping to fix a broken window when they observed
defendant carrying a bound person to a van. Fassl showed a photo array to Reeves and Jackson,
and both identified defendant as one of the two offenders. After Johnson, Reeves, and Jackson
made the identification, Fassl submitted an investigative alert of probable cause to arrest
defendant. Defendant was arrested September 7, 2007, and then placed in several lineups.
Following arguments on the motion, the court found that, based on the investigative alert, the
police had probable cause to arrest defendant. Further, the court determined that the State did
not have to call the arresting officer to testify at the suppression hearing. The court denied
defendant’s motion to quash arrest and suppress evidence. The following facts were adduced at
trial.
¶6 Mark Cohill, fire investigator for the Indiana fire department, testified that on May 14,
2007, around 12:37 p.m., Bridges’ body was discovered in an abandoned garage at 2274
Adams Street in Gary, Indiana, after fire fighters extinguished a fire that had been set to the
garage. He examined the exterior of the abandoned brick garage. Cohill noted that the fire
could not have been started by electricity or gas because there were no utilities hooked up to
the building. He examined the interior of the structure and observed a body under a chair.
Cohill did not know how long the body had been in the structure prior to the fire. The concrete
floor under the body had spalling which was caused by extreme heat and acceleration from an
accelerant such as an ignitable liquid like gasoline. Cohill also observed heavy charring on the
ceiling and noted that the flames near the area of the chair and body had been very hot. The
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water used to extinguish the fire was discolored with a rainbow pattern which demonstrated
that an ignitable liquid was used. Cohill concluded that the fire was set intentionally.
¶7 Dr. Young Kim, an Indiana medical examiner and expert in the field of forensic pathology,
performed an autopsy on Bridges in May 2007. An external examination revealed five
lacerations on the right side of the back of the head, one laceration on the left side of the back
of the head, and a depressed fracture at the back of the skull. Dr. Kim retracted Bridges’ scalp
and observed a subdural hemorrhage, a subarachnoid hemorrhage, and a subgaleal
hemorrhage. He also observed hemorrhaging in the jaw area and the right chest, a laceration of
the lip, and three broken teeth. He opined that based on the extensive burns to the face and
body, Bridges was facedown and not moving when the fire began. Upon internal examination,
Dr. Kim found soot in Bridges’ mouth and scant soot in his distal bronchi. He opined that when
the body was dropped facedown in the garage in Indiana, the pressure from falling could have
caused the soot to be deposited in the mouth and the lungs. His coroner’s verdict report
indicated that the cause of death was “extensive craniocerebral injuries associated with facial
and thoracic injuries related to blunt force trauma” and “extensive burns and charred body.”
¶8 At trial, Dr. Kim testified on direct examination that he could not be certain whether
Bridges was dead or alive when the fire started. He noted that the absence of carbon monoxide
in Bridges’ body indicated that he was not alive when the fire started; however, he also noted
that Bridges’ lungs contained fluid which could have been caused by smoke inhalation,
indicating that he was alive when the fire started. However, he stated that the cause of death
was “extensive head injuries, also facial and chest injuries due to blunt forced [sic] trauma.”
On cross-examination, codefendant’s attorney asked Dr. Kim if he recalled having a
conversation with her and a colleague in August or September of 2009, where he opined that
defendant was already deceased at the time of the fire. Dr. Kim responded that he recalled the
conversation, but stated that his final opinion regarding the cause of death never changed from
his initial autopsy report and indicated that the cause of death was “blunt force trauma and
extensive burn, together.” He also indicated that Bridges’ wounds were fresh, occurring within
two to three hours of his death and were likely caused by being hit with a blunt object such as a
board.
¶9 Mariah Price testified that in May 2007 she was dating Bridges. One week before Bridges
was kidnapped, she was with him and a man named George. Price, Bridges, and George went
to a house, and Bridges told Price and George to wait on the corner. Bridges walked through a
side gate and down the gangway to the side of the house.2 Later, Price noticed that Bridges had
marijuana that she had not seen him with prior to entering the house. She spent the night of
May 13, 2007, with Bridges at the home of a woman named Seka. Bridges introduced Seka as
his sister. The next morning, around 10 a.m., Price and Bridges were picked up in a Grand Prix
by two men that Bridges knew, but she did not know. They drove to the dollar store at 111th
Street and Michigan Avenue. Price remained in the car while the front seat passenger and
Bridges went into the store. When Bridges came out of the store, Price observed him speaking
with a man with a green hat. The man in the green hat then punched Bridges in the face. When
Bridges tried to escape, a shorter man in a white T-shirt came up and tried to grab Bridges and
punched him in the ribs. The man in the green hat picked up Bridges and walked him toward a
2
The house was later identified at trial as the home of a woman named Latoya, codefendant’s
girlfriend.
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van that was around the corner, and the van pulled away. Price testified that neither she nor the
men in the Grand Prix got out of the car. The men took Price back to Seka’s house. Price told
Seka what happened. Seka’s mother, whom Bridges had introduced as also being his mother,
told Price not to call police. Price gave Seka a phone that Bridges had left in the backseat of the
Grand Prix.
¶ 10 The next day, Price learned that Seka’s mother was not Bridges’ mother. Price then called
Bridges’ mother, Keena Thompson. A few days later, the police contacted Price; she gave a
statement to the police regarding the kidnapping, and she described the two people she saw
take Bridges. Price also accompanied a detective to the scene where Bridges was taken and
showed him where the car she was in was located and where the van was during the incident. In
September 2007, Price viewed a lineup and identified defendant as the shorter man in the white
T-shirt who had run up and punched Bridges. She never identified the man wearing the green
hat because she was not able to see his face clearly. Price identified a surveillance video from
outside the dollar store as depicting what she saw had happened to Bridges on May 14, 2007.
The video was also played for the jury.
¶ 11 Leonardo Johnson testified that he lived in a home at 36 West 112th Street with his mother,
sisters, and defendant. Defendant was the father of his sister’s baby. The State elicited
testimony that Johnson had a 2012 conviction for felony delivery of cannabis, and at the time
of his testimony he had a pending drug case. Johnson had met codefendant, whom he knew as
“Little G,” through defendant. On May 9, 2007, defendant asked Johnson if he knew Bridges,
and Johnson said that he did. He told Johnson that Bridges had stolen some marijuana and an
iPod from Latoya’s house. Latoya was codefendant’s girlfriend. Johnson told defendant that
Bridges had asked him if he wanted to steal some marijuana from codefendant, and Johnson
told him no.
¶ 12 On May 14, 2007, around 10 a.m., defendant awakened Johnson by shouting up to his
bedroom from the front yard and told him to come down and take a ride with him. Defendant
was driving a van and drove Johnson to Latoya’s house on 114th Place. They entered the
building and went to the basement where codefendant and Bridges were located. Defendant
was wearing a white shirt and blue pants, and codefendant was wearing a white shirt, blue
pants, and a green cap. Bridges was on his back, on the ground, and his hands and feet were
tied. Co-defendant was standing over Bridges and repeatedly hitting him in the mouth with a
two-by-four board. Bridges was crying and pleading with defendant. Bridges’ mouth was
bleeding and his teeth were coming out. Defendant went up the internal stairs and returned
with a silver eating utensil wrapped in a towel. He stuck the utensil on the left side of Bridges’
chest and Bridges yelled that it was hot. Bridges said he would give back the marijuana, the
money he got from selling some of the marijuana and some guns if they would let him go.
Codefendant responded, “we supposed to be homies *** how you my homey [sic] and you
stealing my [stuff].” Bridges asked for water, and defendant and codefendant sprayed Bridges
with hot water from a hose hooked up to the laundry tub. Defendant untied Bridges, turned him
on his stomach, and tied his arms to a pole. He then placed a bag of dry concrete on Bridges’
neck. Johnson told defendant that he was ready to leave and defendant drove him home.
Bridges was alive when Johnson left. Johnson never saw Bridges again, nor did he speak to
defendant about what he had seen. He did not call the police because he was afraid of
defendant and codefendant.
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¶ 13 On July 8, 2007, Johnson and defendant got into an argument at home about cleaning the
house. Defendant told Johnson that “y’all little niggers already know how we get down. We
some beasts. Y’all already know what we do.” Johnson thought the comment was referring to
Bridges and he felt threatened. The police arrived at the house during the argument. Johnson
told one of the officers that he knew about a kidnapping, and the officer took Johnson to the
station. A detective then showed Johnson a surveillance video obtained from the dollar store at
11136 South Michigan Avenue. Johnson identified Bridges, defendant, and a person he knew
as Little G in the video. On September 9, 2007, Johnson gave a handwritten statement to the
police and an assistant State’s Attorney. He also identified a photo of codefendant as a photo of
Little G and identified the van defendant had used to drive him to Latoya’s house. Initially,
Johnson told police that he had never seen the van defendant used to drive him to Latoya’s
house. However, he later revealed that he had occasionally rented the van from a guy named
“Mike the Crackhead” in exchange for crack. He stated that he had lied because he did not
want to tell the police that he had given someone crack to rent the van. He identified
codefendant in court as the person he knew as Little G.
¶ 14 Lezly Reeves testified that in May 2007 she owned a two-flat building at 116 West 114th
Place. Reeves rented the first floor apartment to Latoya. On May 14, 2007, Reeves and her
brother, Tyson Jackson, went to the building to fix a window that Latoya had reported broken
when someone broke into her apartment. They drove to the back of the building where Reeves
observed a light blue minivan in the backyard and several men in the backyard and on the back
porch. As she approached the back porch, Reeves observed Latoya’s boyfriend, later identified
as codefendant, walk to the side of the building, “chirp” on his phone, and state that the
landlord was there. Reeves and Jackson went into the enclosed back porch, and Jackson began
fixing the broken window. Reeves then heard someone say help me from inside the building.
She also heard some tussling coming from the front of the apartment. Reeves saw Latoya’s
cousin, later identified as defendant, walking from the front of the first floor apartment toward
the rear. The man was breathing heavily and appeared to have blood on his hand. Reeves asked
him about the sound and he claimed that he had been wrestling with the second floor tenant’s
grandson. Reeves did not believe him, and she walked through the apartment to the front living
room to see what was happening. When she got there, she observed Latoya’s boyfriend
“straddling” a man who was on the floor on his back. The man’s face was covered with a
T-shirt and he did not have on a shirt. He was bleeding from his torso area. Latoya’s boyfriend
told her that the man had broken into Latoya’s apartment and taken some electronics. He also
told her that he had called the boy’s mother to come and pick him up.
¶ 15 When Latoya arrived, Reeves met her on the sidewalk in front of the building to talk to her
about what was happening. She told Latoya, who had been living in the apartment for less than
a year, that she needed to move out. Reeves went back inside the building and noticed that
everyone had left. She also noticed that the blue van was gone. Reeves and Jackson left the
building and went directly to the police station at 111th Street and reported the incident. The
police told Reeves that if she did not know the names of any of the people involved, they could
not do anything. Reeves later called the FBI and told them what she had seen. On July 13,
2007, the police showed Reeves a photo array consisting of six photos. Reeves identified a
photo of defendant as Latoya’s cousin. Reeves viewed a lineup in September 2007 and again
identified defendant. She viewed a second lineup in December 2007 and indicated that one of
the participants closely resembled Latoya’s boyfriend, but she couldn’t be sure because the
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perpetrator was wearing a hat and had facial hair at the time. She made an in-court
identification of defendant as Latoya’s boyfriend and codefendant as Latoya’s cousin.
¶ 16 Detective Fassl testified that on July 8, 2007, he spoke with Johnson about Bridges’
kidnapping. Detective Fassl showed Johnson some photographs and Johnson identified
defendant. Fassl also showed Johnson the video surveillance taken outside the dollar store at
11136 S. Michigan Avenue, and Johnson identified defendant, Little G, and Bridges. On
September 9, 2007, Detective Fassl and assistant State’s Attorney Susan Jakubiak met with
Johnson, and Johnson signed a prepared statement detailing his knowledge of the kidnapping.
On that date, Johnson identified a photograph of codefendant as the man he knew as Little G.
Codefendant was arrested on December 12, 2007. Detective Fassl also interviewed Reeves
about the incident she witnessed in her building. On July 13, 2007, Detective Fassl received
Reeve’s permission to search her basement. Upon entering the basement, he noted that it was
partially flooded. Detective Fassl saw a two-by-four against a wall which appeared to have
blood stains and teeth imprints on it, a large bag of concrete, and a kitchen spoon. He contacted
the crime lab to process the scene.
¶ 17 Donald Fanelli, a former forensic investigator with the Chicago police department,
processed the basement. He photographed the exterior of the building and the interior of the
basement. Fanelli collected and inventoried a spoon, a two-by-four that had possible blood on
it, a bag of concrete, a sample of what appeared to be blood on a wall in the basement, and a
sample of what appeared to be blood spatter on one of the two furnaces in the basement. He
noted that the spoon was discolored, indicating that it has been subjected to heat.
¶ 18 The parties stipulated that the DNA from the bloodstains found on the two-by-four and the
furnace matched the DNA of Bridges. No fingerprints could be recovered from the
two-by-four. The court admitted the State’s exhibits into evidence and the State rested.
¶ 19 The court heard and denied defendant’s motion for a directed verdict. Defendant waived
his right to testify, asked the court to admit a photo of defendant without witness identification
marks, and rested without presenting further evidence.
¶ 20 Following closing arguments, the jury found defendant guilty of aggravated kidnapping
and murder. The court subsequently denied defendant’s motion for a new trial. After a
sentencing hearing, the court sentenced defendant to 60 years in prison for murder and 25 years
in prison for kidnapping, to run consecutively. Defendant’s motion to reconsider his sentence
was denied.
¶ 21 ANALYSIS
¶ 22 Motion to Dismiss
¶ 23 First, defendant contends that the trial court erred when it denied his motion to dismiss,
claiming that the State violated the Speedy Trial Act by charging defendant with first degree
murder 18 months after defendant was charged with attempted murder, aggravated battery,
aggravated kidnapping, and unlawful restraint. The State responds that the trial court properly
denied defendant’s motion to dismiss the indictment where it was not required to join the
murder charges at the time the original charges were brought because the State was not aware
that the acts that caused the victim’s death occurred in Illinois and the murder fell within the
jurisdiction of more than one court. We agree with defendant and reverse his conviction for
first degree murder.
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¶ 24 We note that because we reverse defendant’s conviction for the first degree murder charge
on this issue, we need not address defendant’s contention regarding whether the jury was
properly instructed that jurisdiction was an essential element of the offense of first degree
murder. Additionally, because the causation instruction regarding murder was not related to
defendant’s aggravated kidnapping conviction, we need not address defendant’s contention
that the trial court erred when it tendered a jury instruction on causation in homicide cases.
¶ 25 Criminal defendants possess both constitutional (U.S. Const., amends. VI, XIV; Ill. Const.
1970, art. I, § 8) and statutory (725 ILCS 5/103-5 (West 2008)) rights to a speedy trial.
Although these provisions address similar concerns, the statutory right and the constitutional
right are not coextensive. People v. Woodrum, 223 Ill. 2d 286, 298 (2006); People v. Gooden,
189 Ill. 2d 209, 216-17 (2000). Whether a defendant’s statutory right to a speedy trial has been
violated is a question of law reviewed de novo. People v. Van Schoyck, 232 Ill. 2d 330, 335
(2009). In the case at bar, defendant asserted solely a violation of his statutory right to a speedy
trial and did not raise a constitutional issue.
¶ 26 Under the speedy-trial statute, every person charged with an offense shall be tried within
either 120 or 160 days, depending on his custodial status, unless delay is occasioned by the
accused. 725 ILCS 5/103-5 (West 2008). A defendant not tried within the statutory period
must be released from his trial obligations and have the charges dismissed. 725 ILCS
5/103-5(d), 114-1(a)(1) (West 2008). Where a defendant is charged at different times with
multiple factually related offenses, as in the instant case, the speedy-trial guarantee is tempered
by compulsory joinder principles. People v. Williams, 204 Ill. 2d 191, 198 (2003).
¶ 27 The compulsory joinder provision of the Code provides in relevant part:
“(a) When the same conduct of a defendant may establish the commission of more than
one offense, the defendant may be prosecuted for each such offense.
(b) If the several offenses are known to the proper prosecuting officer at the time of
commencing the prosecution and are within the jurisdiction of a single court, they must
be prosecuted in a single prosecution *** if they are based on the same act.” 720 ILCS
5/3-3 (West 2008).
¶ 28 Thus, under the compulsory joinder rule, multiple charges against a defendant must be
joined in a single prosecution if the following three conditions are satisfied: (1) the multiple
charges are known to the prosecutor when the prosecution begins; (2) the charges are within
the jurisdiction of a single court; and (3) the charges are based upon the same act. People v.
Kazenko, 2012 IL App (3d) 110529, ¶ 12. Whether charges are subject to compulsory joinder
is an issue of law and thus subject to de novo review when, as here, none of the relevant facts
are in dispute. See, e.g., People v. Hunter, 2012 IL App (1st) 092681, ¶ 2 (using de novo
review in similar circumstances). Here, the parties do not dispute that the charges were based
upon the same act. However, the parties disagree on whether the State had the requisite
knowledge that the acts that caused Bridges’ death occurred in Illinois at the time of the first
indictment and whether the murder charges fell within the jurisdiction of a single court.
¶ 29 The State contends that “additional information” came to light in the form of a
conversation with Dr. Kim in August or September 2009 which revealed that Bridges was
already dead at the time that the fire was started and triggered its decision to finally charge
defendant with first degree murder. Our review of the record reveals that the “additional
information” about which the State refers comes from the trial cross-examination of Dr. Kim
by codefendant’s attorney. On cross-examination, defense counsel questioned Dr. Kim
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regarding a prior conversation in which he rendered an opinion that Bridges may have been
dead before the fire started. There is no indication from the record that the State even knew that
this conversation had taken place prior to trial. Clearly, Dr. Kim’s testimony at trial could not
possibly have prompted the State’s pretrial decision to charge defendant with murder. Even so,
our review of the record supports the conclusion that the State had ample knowledge to charge
defendant with first degree murder in December 2007, when the initial indictment was filed.
¶ 30 In People v. Luciano, 2013 IL App (2d) 110792, ¶ 78, this court defined “knowledge” in
context of section 3-3 as “the conscious awareness of evidence that is sufficient to give the
State a reasonable chance to secure a conviction.” Here, in Dr. Kim’s coroner’s verdict report,
dated August 14, 2007, he indicated that Bridges’ cause of death was “extensive craniocerebral
injuries associated with facial and thoracic injuries related to blunt force trauma” and
“extensive burns and charred body.” At trial, he testified that his opinion regarding Bridges’
cause of death never changed from his initial autopsy report. In her initial statement to police,
Price stated that two men had kidnapped Bridges from a dollar store located in Chicago on the
morning of May 14, 2007. In Johnson’s initial statements to police, he stated that he observed
defendant and codefendant violently and repeatedly torture and beat Bridges in the mouth with
a two-by-four in a Chicago basement located just blocks away from where Bridges was
kidnapped. A few hours later, Bridges’ was found dead in Gary, Indiana, approximately 25
minutes from where he was kidnapped. Thus, although the State points out that when a victim
is not found in Illinois it is presumed that a state other than Illinois has jurisdiction over the
murder case (720 ILCS 5/1-5(b) (West 2008)), this presumption was rebutted here because the
State had knowledge that at least part of the injuries that caused Bridges’ death (i.e., the blunt
force trauma) occurred in Illinois. See 720 ILCS 5/1-5(a)(1) (West 2008) (Illinois has
jurisdiction over a crime that occurred “wholly or partly within the State”); see also 720 ILCS
5/1-5(b) (West 2008) (An offense is committed partly in Illinois if either the conduct or a result
that constitutes an element of the offense occurs within Illinois.).
¶ 31 Although not a compulsory joinder case, we find People v. Alexander, 354 Ill. App. 3d 832
(2004), instructive on this issue. In Alexander, a group of gang members, including the
defendant, severely beat the victim before driving him to a highway in Missouri, where he was
ultimately struck by a vehicle and killed. Id. at 833. The indictment alleged that the defendant
committed the offense of first degree murder in Illinois by beating the victim with “ ‘the intent
to do great bodily harm to [him] *** and then left [the victim] [on a highway in] St. Charles
County, Missouri, where he would be struck by vehicles, thereby causing the death of [the
victim].’ ” (Emphasis in original.) Id. at 838. The defendant challenged whether the State
could bring murder charges in Illinois where the injury that ultimately caused the victim’s
death took place in Missouri. Id. at 839. This court held that it was clear that the severe beating
that the victim sustained in Illinois was “a contributing cause of [the victim’s] death,” and,
therefore, Illinois could properly exercise jurisdiction over the murder charge although the
victim was found, and presumptively, died, in Missouri. Id. Similarly, in the instant case,
although Bridges’ body was found in Indiana, the 2007 coroner’s verdict report, coupled with
the initial statements of Price and Johnson, indicates that the beating in Illinois was at least a
contributing cause of his death. This information was known to the State at the time of the
initial indictment and nearly two years before its conversation with Dr. Kim. Thus, we reject
the State’s contention that it did not have sufficient knowledge to prosecute the crime because
“it was not readily apparent that the murder occurred in Illinois.” Rather, the evidence
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demonstrates a causal connection between Bridges’ severe beating in Illinois and his death in
Indiana and establishes that the murder occurred partly in Illinois.
¶ 32 Additionally, we note that the State’s knowledge that the beating in Illinois was a
contributing cause of Bridges’ death could have supported a first degree murder charge under a
felony, intentional, or strong probability theory. See 720 ILCS 5/1-5(a)(1) (West 2008); see
also People v. Pugh, 261 Ill. App. 3d 75, 77 (1994) (holding that defendants are responsible for
any death precipitated by their initial criminal acts provided it was their criminal acts which set
in motion the events which ultimately resulted in death). Accordingly, we find that at the time
of the original indictment the State had a “conscious awareness of evidence that is sufficient to
give the State a reasonable chance to secure a conviction.” Luciano, 2013 IL App (2d) 110792,
¶ 78. Thus, we reject the State’s contention that it did not have sufficient knowledge to charge
defendant with murder in its initial indictment.
¶ 33 Moreover, on July 14, 2009, a month or two before Dr. Kim spoke to codefendant’s
attorneys and discovered the alleged “new evidence” which supported the State’s new
indictment, the State informed the court that it anticipated defendant’s case was “going to be
upgraded to murder.” Additionally, in the hearing on defendant’s motion to dismiss, the State
acknowledged that the coroner’s report revealed that the murder was committed at least partly
in Illinois, stating that “the beating occurred in [Illinois] and the coroner’s office in their report
from Lake County, Indiana indicated that the cause of death was blunt trauma. He’s observed
being struck repeatedly with a two-by-four, there’s blood in the basement that matches the
victim’s blood at 116 West 14th [sic] Street in Chicago.” These comments further support our
finding that the State had sufficient knowledge to prosecute defendant for murder.
¶ 34 It is for this reason that we reject the State’s reliance on People v. Ursery, 364 Ill. App. 3d
680 (2006). In Ursery, following the shooting death of the victim, the defendant was arrested
and charged with aggravated discharge of a firearm and aggravated unlawful use of a weapon.
Id. at 684-85. These charges were in part based on the defendant’s statement admitting that he
fired a gun at the victim in self-defense, but claiming that he fired only two shots, dropped the
gun, ran away, and, while fleeing, heard more shots. Id. at 684. A witness testified that he had
heard eight or nine rapidly fired shots without a pause after the first two shots. Id. at 681. The
defendant was placed into the county jail, and, about a month later, the defendant bragged to
his cell mate, who happened to be a friend of the victim, that he had used gloves in the
deliberate shooting of the victim so he could not be tied to the crime. Id. at 685. About two
months later, the State charged the defendant with murder, and, following a trial, the defendant
was convicted of murder. Id. The defendant appealed and argued that the State failed to timely
institute the murder prosecution, violating the compulsory joinder requirements of section 3-3
of the Code.
¶ 35 The appellate court reasoned that, at the time the defendant was initially charged with the
weapons offenses, the State only had enough evidence to suspect that the defendant intended to
kill the victim and did not have enough evidence to “know” that the defendant intended to kill
him. Id. at 690. Thus, the State was not required to join the murder charge to the weapons
charges pursuant to the compulsory joinder provision. Id. It was not until the State learned that
the defendant had bragged about killing the victim and explained that he planned the offense so
as not to leave any evidence that the State had sufficient knowledge of the offense of murder
for purposes of the compulsory joinder provision. Id. Accordingly, the murder charge was not
prosecuted untimely or in violation of the defendant’s speedy-trial rights.
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¶ 36 In contrast, in the instant case, although the State argues that it charged defendant with first
degree murder “upon learning that the murder occurred, wholly or partly, within Illinois,” as
detailed above, this information was already known to the State through the contents of the
coroner’s verdict report and the initial statements given to the police by Price and Johnson.
Thus, unlike in Ursery, the State had tangible evidence that supported a first degree murder
charge at the time of the initial indictment.
¶ 37 We next address whether the murder charges were “within the jurisdiction of a single
court” for purpose of the compulsory joinder statute. The parties disagree on the meaning of
the phrase. Defendant contends that the plain meaning of the phrase is simply that the same
court must have jurisdiction over all of the offenses that would be joined under the statute. The
State argues that the phrase was intended to limit compulsory joinder to cases where only one
state has the power to decide the merits of the case. We find no case law on point to support
either party’s interpretation of the provision. Therefore, we begin our analysis by interpreting
the statute.
¶ 38 The interpretation of a statute presents a question of law and is reviewed de novo. People v.
Marshall, 242 Ill. 2d 285, 292 (2011). We begin our analysis with the following settled
principles in mind. The fundamental objective of statutory construction is to ascertain and give
effect to the intent of the legislature, presuming it did not intend to cause absurd, inconvenient,
or unjust results. People v. Lewis, 234 Ill. 2d 32, 44 (2009) (citing People v. Christopherson,
231 Ill. 2d 449, 454 (2008)). “We give the language its plain and ordinary meaning [citation],
and we read the statute as a whole and consider all relevant provisions together.” People v.
Olsson, 335 Ill. App. 3d 372, 374 (2002). We do not depart from the plain statutory language
by reading into it exceptions, limitations, or conditions that conflict with the expressed intent.
People v. Evans, 405 Ill. App. 3d 1005, 1008 (2010).We may also consider the consequences
that would result from construing the statute one way or the other. Marshall, 242 Ill. 2d at 293.
In giving effect to legislative intent, the court should consider, in addition to the statutory
language, the reason for the law, the problems to be remedied, and the objects and purposes
sought. People v. Haywood, 118 Ill. 2d 263, 271 (1987).
¶ 39 In this case, we believe that the plain meaning of “jurisdiction of a single court” does not
preclude the State from bringing charges when another court also has jurisdiction over the
alleged crime. Although the State argues that “multi-state criminal episodes” are excluded
from the reach of the compulsory joinder statute, it does not present any support for this
assertion. The plain language of the compulsory joinder provision requires that the State bring
all charges that fall under its jurisdiction, and nothing in the statute indicates that the State is
precluded from bringing all possible charges that it has jurisdiction over when another State
also has jurisdiction over the charges.
¶ 40 Additionally, the State’s interpretation of the provision is in direct conflict with the concept
of dual sovereignty, which permits successive prosecutions by separate sovereigns. Bartkus v.
Illinois, 359 U.S. 121, 135-36 (1959). That is, even if both Illinois and Indiana had jurisdiction
over the murder charge, dual sovereignty allows for each state to prosecute the crime without
regard to the other. See Heath v. Alabama, 474 U.S. 82, 93 (1985) (“The Constitution leaves in
the possession of each State ‘certain exclusive and very important portions of sovereign
power.’ [Citation.] Foremost among the prerogatives of sovereignty is the power to create and
enforce a criminal code.”). Thus, regardless of whether Indiana ever decided to pursue a
murder charge against defendant, the State was required to join all known offenses, which
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included the murder charges, at the time of the initial indictment pursuant to the mandate of the
compulsory joinder statute. 720 ILCS 5/3-3 (West 2008).
¶ 41 Moreover, a consideration of the purpose of the compulsory joinder statute supports this
conclusion. Our supreme court has held that the purpose of the compulsory joinder statute is
“to prevent the prosecution of multiple offenses in a piecemeal fashion and to forestall, in
effect, abuse of the prosecutorial process.” People v. Quigley, 183 Ill. 2d 1, 7 (1998). A
prosecutor might otherwise harass a defendant through successive prosecutions of multiple
offenses and put a defendant through the expense of several trials until the prosecutor obtains a
result that satisfies him. See People v. Kennedy, 161 Ill. App. 3d 197, 199 (1987). Further, our
supreme court has found that delays in bringing more serious charges after an initial indictment
hinders the defendant when preparing a defense and also presents defendant with a “Hobson’s
choice between a trial without adequate preparation and further pretrial detention to prepare for
trial.” Williams, 204 Ill. 2d at 207. Thus, all charges that could be brought within a single
jurisdiction must be timely commenced in order to mitigate potential prosecutorial abuse.
¶ 42 Therefore, if we were to find that the murder charges were not subject to compulsory
joinder in this case, defendant would be vulnerable to exactly the type of prosecution that the
compulsory joinder statute seeks to prevent. Specifically, if the State were not required to join
the first degree murder charges in its initial indictment, and it did not secure a guilty verdict on
the other charges, the State would still have the discretion to bring the murder charges in a
subsequent proceeding. Additionally, defendant spent 240 days in custody and was released on
bail while awaiting trial on the initial charges before he was rearrested nearly 14 months later
on the new charges. He also spent nearly two years preparing for trial on the original charges
before the State decided to charge him with first degree murder. Once defendant was alerted to
the first degree murder charges, he spent another three years preparing to defend against the
new charge. Clearly, the compulsory joinder statute was intended to prevent this exact
scenario.
¶ 43 Because the murder charges arose from the same set of facts as the original charges, the
State had knowledge of these facts at the beginning of the proceedings and nothing prevented
the State from exercising jurisdiction over the murder charges at that time, we find that the
murder charges were subject to compulsory joinder. Thus, the time within which the trial was
to begin on the new charges was subject to the same statutory limitations that were to be
applied to the original charges. People v. Williams, 94 Ill. App. 3d 241, 248-49 (1981). Further,
although delay occasioned by the accused can toll the time for a speedy trial, this court has held
that continuances obtained in connection with the trial of the original charges cannot be
attributed to defendants with respect to new and additional charges when these new and
additional charges were not before the court when those continuances were obtained. Id. at
249. Therefore, none of the continuances obtained by defendant in this case between his initial
indictment and the new indictment can be attributable to him.
¶ 44 Thus, we find that the trial court erred when it denied defendant’s motion to dismiss the
murder charges against defendant for violation of defendant’s right to a speedy trial. Having
found that defendant’s murder conviction cannot stand, we reverse his conviction and exercise
our authority under Illinois Supreme Court Rule 615(b)(3) (eff. Jan. 1, 1967) to enter a
conviction on the lesser-included charge of aggravated battery, as originally charged in 2007,
and remand the cause to the trial court for resentencing. See People v. Knaff, 196 Ill. 2d 460,
477-78 (2001) (noting that state appellate courts “have long exercised the power to reverse a
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conviction while at the same time ordering the entry of a judgment on a lesser-included
offense”).
¶ 45 Motion to Quash Arrest and Suppress Evidence
¶ 46 Next, defendant contends that the trial court erred when it denied his motion to quash arrest
and suppress evidence of the lineup identifications that followed his arrest because the State
failed to show that he was lawfully arrested. Specifically, defendant argues that the trial court
erred when it found that the State was not required to call the arresting officer to testify during
the suppression hearing and relied only on Detective Fassl’s testimony that he had issued an
investigative alert based upon probable cause. The State responds that the court properly
denied the motion where the evidence established that at the time that defendant was taken into
custody and placed in a lineup, an investigative alert which was based upon probable cause to
arrest defendant had been issued by the Chicago police department.
¶ 47 On a motion to suppress evidence, the defendant generally bears the burden of showing
that the search and seizure were unlawful. See, e.g., People v. Janis, 139 Ill. 2d 300, 308
(1990); People v. Neal, 109 Ill. 2d 216, 218 (1985); People v. Hoskins, 101 Ill. 2d 209, 212
(1984). A warrantless arrest is valid if the police have probable cause to arrest. See People v.
Sims, 192 Ill. 2d 592, 614 (2000); see also People v. Wetherbe, 122 Ill. App. 3d 654, 657
(1984) (holding that while a warrant is generally required for arrest, a warrantless arrest is
proper if probable cause exists). Probable cause to arrest exists when the facts known to the
officer at the time of the arrest are sufficient to lead a reasonably cautious person to believe a
crime has occurred and that the person to be arrested committed the crime. See People v. Wear,
229 Ill. 2d 545, 563-64 (2008). Whether probable cause existed is not a legal or technical
determination, but one of practicality and common sense which analyzes the totality of the
circumstances at the time of arrest. See Sims, 192 Ill. 2d at 615; see also People v. Love, 199 Ill.
2d 269, 279 (2002) (finding that “totality of the circumstances” is the central focus for
determination of existence of probable cause).
¶ 48 A motion to suppress involves mixed questions of law and fact. People v. Pitman, 211 Ill.
2d 502, 512 (2004). Because the trial court is in a superior position to determine the credibility
of witnesses, findings of historical fact will be upheld on review unless they are against the
manifest weight of the evidence. Id. However, a reviewing court is also free to undertake an
independent assessment of the facts in relation to the issues presented. Id. The ultimate
question of whether the evidence should be suppressed is reviewed de novo. Id.; see also
People v. Luedemann, 222 Ill. 2d 530, 542 (2006).
¶ 49 In this case, we do not find that the trial court erred in denying defendant’s motion to quash
arrest and suppress evidence. Here, defendant was arrested pursuant to an investigative alert.
In cases where an arrest is predicated on information received in an official police
communication by a commanding officer, this court has held that “the State must demonstrate
that the circumstances known to other, nonarresting officers, whose report or directions were
relied upon by the officer in making the arrest, were sufficient to establish probable cause to
arrest the defendant.” People v. Crowell, 94 Ill. App. 3d 48, 49-50 (1981). Accordingly, the
State’s burden in this case was to establish that the investigative alert relied on by the arresting
officer was supported by probable cause. Because the alert was issued by Detective Fassl, it
was proper for the court to rely on his testimony instead of calling the arresting officer to
testify.
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¶ 50 Further, we find that Detective Fassl’s testimony at the suppression hearing established
that the underlying facts of the investigative alert provided probable cause to arrest defendant.
Detective Fassl testified that Johnson informed him that defendant was involved in the
kidnapping of Bridges. Johnson told Detective Fassl that he observed defendant and another
man beat and torture Bridges in the basement of an apartment building. He further testified that
Reeves, the owner of the building, and her brother, Jackson, were at the building the day of the
kidnapping to fix a broken window. Both told Detective Fassl that they observed defendant
carrying a bound person to a van. Johnson, Reeves, and Jackson positively identified
defendant. Based on this information, Detective Fassl issued an investigative alert of probable
cause to arrest defendant. We find that Detective Fassl’s testimony established that at the time
of defendant’s arrest, sufficient facts existed “to lead a reasonably cautious person to believe
that the arrestee has committed a crime.” Wear, 229 Ill. 2d at 563-64. Thus, the trial court did
not err in denying defendant’s motion to quash arrest and suppress evidence.
¶ 51 Moreover, we find defendant’s reliance on People v. Moncrief, 131 Ill. App. 2d 770
(1971), misplaced. In Moncrief, the defendant was charged with possession of marijuana found
in two suitcases which he had checked with an airline as personal baggage as he purchased his
flight ticket at the airline’s office in the airport. Id. at 771. After airline employees notified the
sheriff’s office, a deputy sheriff responded, observed the marijuana in the open suitcases,
located the defendant in the airport, and arrested him without a warrant. Id. The defendant filed
a pretrial motion to suppress the marijuana as evidence on the ground that his warrantless arrest
for the charged offense had been made without probable cause. Id. Neither the arresting officer
nor the airline official who called the sheriff’s office testified in the cause. Id. at 772. This court
held that the motion to suppress should have been granted because the State failed to present
evidence that showed that the arresting officer had probable cause to arrest the defendant
without a warrant. Id. at 774. Unlike Moncrief, in the instant case, defendant was arrested
pursuant to an investigative alert. Detective Fassl then provided testimony that sufficiently
established probable cause to arrest defendant. Thus, Moncrief is inapposite.
¶ 52 Because we establish that defendant was lawfully seized, we find that the lineup
identifications were properly admitted into evidence.
¶ 53 Closing Arguments
¶ 54 Next, defendant contends that he was denied the right to a fair trial where the State
erroneously attempted to define the reasonable doubt standard for the jury, misstated the law
regarding the presumption of innocence, and impermissibly shifted the burden of proof to
defendant. He argues that the cumulative effect of these errors caused a “pervasive pattern of
prosecutorial misconduct.” Defendant further argues that any failure by trial counsel to
preserve his closing argument claims of error was ineffective assistance of counsel. The State
responds that a review of the evidence and the closing arguments in their entirety shows that
each of the complained-of comments was not only proper as based on the evidence presented,
but also occasioned directly by defense counsel’s own closing argument.
¶ 55 Initially, we note that the parties disagree about the proper standard of review in regard to
remarks made during closing argument. A review of the case law reveals a conflict among
Illinois Supreme Court cases. In both People v. Wheeler, 226 Ill. 2d 92, 121 (2007), and People
v. Sims, 192 Ill. 2d 592, 615 (2000), our supreme court suggests that we review this issue de
novo, because the prosecutor’s statements are reflected in the transcripts and are therefore
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undisputed, leaving only a legal question. Conversely, in People v. Hudson, 157 Ill. 2d 401,
441 (1993), our supreme court suggests that the trial court is in a better position to rule on
objections during closing argument, and the standard is therefore abuse of discretion. We need
not take a position in this case, as defendant’s claim fails under either standard. See People v.
Johnson, 385 Ill. App. 3d 585, 603 (2008) (“[W]e do not need to resolve the issue of the
appropriate standard of review at this time, because our holding in this case would be the same
under either standard.”).
¶ 56 It is well established that prosecutors are afforded wide latitude in closing argument, and
improper remarks will not merit reversal unless they result in substantial prejudice to the
defendant. People v. Kitchen, 159 Ill. 2d 1, 38 (1994) (citing People v. Pittman, 93 Ill. 2d 169,
176 (1982)). During closing argument, the prosecutor may properly comment on the evidence
presented or reasonable inferences drawn from that evidence, respond to comments made by
defense counsel which clearly invite response, and comment on the credibility of witnesses.
People v. Rader, 178 Ill. App. 3d 453, 466 (1988). However, it is improper for a prosecutor to
argue inferences or facts not based upon the evidence in the record. People v. Johnson, 208 Ill.
2d 53, 115 (2003). Typically, a timely objection and an instruction to the jury to disregard the
improper evidence are sufficient to cure the error. People v. Wolf, 178 Ill. App. 3d 1064, 1067
(1989). In reviewing whether comments made during closing argument are proper, the closing
argument must be viewed in its entirety, and remarks must be viewed in context. Kitchen, 159
Ill. 2d at 38.
¶ 57 We first address defendant’s contention that the State erroneously attempted to define the
reasonable doubt standard for the jury. “Attempts to explain the reasonable-doubt standard
have been disfavored by the courts because ‘no matter how well-intentioned, the attempt may
distort the standard to the prejudice of the defendant.’ ” People v. Burney, 2011 IL App (4th)
100343, ¶ 67 (quoting People v. Keene, 169 Ill. 2d 1, 25 (1995)). However, both the prosecutor
and defense counsel are entitled to “discuss reasonable doubt and to present his or her view of
the evidence [presented] and to suggest whether the evidence supports reasonable doubt.”
People v. Laugharn, 297 Ill. App. 3d 807, 811 (1998). “A prosecutor may argue that the State
does not have the burden of proving the guilt of the defendant beyond any doubt, that the doubt
must be a reasonable one. Such an argument does no more than discuss the grammatical fact
that the word ‘reasonable’ modifies the word ‘doubt.’ ” (Emphasis in original.) People v.
Carroll, 278 Ill. App. 3d 464, 467 (1996).
¶ 58 Defendant acknowledges that he failed to object to the alleged improper comment at trial,
thus our review of this issue is limited to whether plain error occurred. Plain error review is
appropriate where the evidence is closely balanced or the error affects a substantial right.
People v. Herron, 215 Ill. 2d 167, 178-79 (2005). A plain error analysis begins with the
determination of whether error occurred. Id. at 184.
¶ 59 In regard to the burden of proof, the prosecutor in this case stated:
“The burden of proof is always with us. We welcome the burden of proof. And the
burden is beyond a reasonable doubt. It’s not beyond all doubt. It’s not beyond a
shadow of a doubt. It’s not beyond a scintilla of a doubt. It’s beyond a reasonable
doubt. It is up to you collectively to decide what that is.”
¶ 60 We do not find that the prosecutor committed reversible error when it discussed the
reasonable doubt standard during closing arguments. The focus of the comment was the fact
that the word “doubt” is modified by “reasonable,” and therefore finding defendant guilty
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“beyond all doubt,” “a shadow of a doubt,” or a “scintilla of a doubt” was not necessary to
sustain a conviction. See Carroll, 278 Ill. App. 3d at 467. We find no impropriety in these
comments. Moreover, we note that several similar statements have been found not to
impermissibly diminish or shift the burden of proof. See People v. Thompson, 2013 IL App
(1st) 113105, ¶ 90 (“ ‘beyond a reasonable doubt isn’t any doubt in the world, any crazy
doubt’ ” (emphasis omitted)); Burney, 2011 IL App (4th) 100343, ¶ 66 (“ ‘ [“]beyond a
reasonable doubt[”] does not mean [“]beyond all doubt[”] ’ ” and “ ‘Don’t raise that bar higher
than it needs to be ladies and gentlemen for the State to prove. It’s not beyond all doubt.’ ”);
Laugharn, 297 Ill. App. 3d at 810 (“ ‘Now, that’s not beyond all doubt or any doubt, but
beyond a reasonable doubt.’ ” (Emphasis omitted.)); People v. Renslow, 98 Ill. App. 3d 288,
295 (1981) (“ ‘Well it’s not beyond all doubt; it’s beyond a reasonable doubt.’ ”). Here, the
prosecutor sought to discuss the reasonable doubt standard in similar terms. These statements
did not diminish the prosecution’s burden of proof.
¶ 61 Defendant relies on People v. Burman, 2013 IL App (2d) 110807, to argue that the
prosecutor’s comments were improper. In Burman, the prosecutor told the jury that “ ‘[w]e
have to prove [defendant’s guilt] beyond a reasonable doubt. However, it’s not beyond all
doubt. It’s not beyond an unreasonable doubt.’ ” Id. ¶ 40. The appellate court admonished the
prosecution for its remarks, finding that they improperly defined reasonable doubt by
“describing what it was not.” Id. ¶ 44. We note that the holding in Burman stands in direct
contrast to the several cases noted above; however, the Burman court held that a mere
misstatement of the burden of proof, to any extent, does not amount to plain error, absent a
finding that the comments were “either so inflammatory that the defendant could not have
received a fair trial or so flagrant as to threaten a deterioration of the judicial process.” (Internal
quotation marks omitted.) Id. ¶ 45. Thus, even if we were to find the comments improper under
Burman, defendant fails to show how these comments were egregious enough to amount to
reversible error.
¶ 62 We further reject defendant’s reliance on People v. Turman, 2011 IL App (1st) 091019,
and People v. Franklin, 2012 IL App (3d) 100618, to show that the prosecutor’s comment that
reasonable doubt is “up to you to collectively decide” was an improper comment. In Turman,
the jury asked for a “ ‘more explicit, expansive definition of reasonable doubt,’ ” and the
circuit court responded: “ ‘[R]easonable doubt is not defined under Illinois law. It is for the
jury to collectively determine what reasonable doubt is.’ ” Turman, 2011 IL App (1st) 091019,
¶ 19. The appellate court held that this instruction constituted error. Id. ¶ 25. Similarly, in
Franklin, the circuit court informed prospective jurors during voir dire that “ ‘[beyond a
reasonable doubt is] what each of you individually and collectively, as 12 of you, believe is
beyond a reasonable doubt.’ ” Franklin, 2012 IL App (3d) 100618, ¶ 4. The appellate court
majority in Franklin held that this instruction “was constitutionally deficient because, by
telling jurors that it was for them to collectively determine what reasonable doubt meant, there
is a reasonable likelihood that the jurors understood the instruction to allow a conviction based
on proof less than [beyond] a reasonable doubt.” Id. ¶ 28.
¶ 63 However, in People v. Downs, 2015 IL 117934, our supreme court recently found that the
trial court’s instructions to the jury that “ ‘[w]e cannot give you a definition[;] it is your duty to
define,’ ” was an “unquestionably correct” statement of law. Id. ¶¶ 17, 23-24. Quoting this
court’s decision in People v. Thomas, 2014 IL App (2d) 121203, the supreme court found both
Turman and Franklin “unpersuasive” on the point that “simply instructing jurors that they
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must determine the meaning of ‘reasonable doubt’ is (1) a violation of the Illinois Supreme
Court’s proscription against providing a definition or (2) reversible error per se.” (Internal
quotation marks omitted.) Downs, 2015 IL 117934, ¶ 23. In accordance with our supreme
court’s holding in Downs, we find no error with the prosecutor’s comment.
¶ 64 We next address the contention that the prosecutor misstated the law on the presumption of
innocence in this case when the prosecutor commented that the evidence in this case “removed
the cloak of innocence.” A prosecutor may not misstate the law during closing arguments, as it
can be grounds for reversal. People v. Young, 347 Ill. App. 3d 909, 925 (2004). We note that
defendant failed to object to this comment at trial, and thus we review for plain error.
¶ 65 In discussing the presumption of innocence in this case, the State commented:
“In their opening statements a couple of days ago counsel for each defendant came
up here and told you that their clients were innocent. And technically they’re absolutely
correct, because you’ve been told more than once that as they sat here when this trial
started they are presumed innocent. Absolutely. Absolutely correct in that regard. But
just like the heat of that garage fire as it burned away the hair from Frentsi’s scalp, as it
burned away the skin from Frentsi’s shoulders and arms, leaving only bone and muscle,
as it literally burned off at least one of his extremities, the evidence in this case, it’s like
the heat that removes the cloak of innocence. With the witnesses that you’ve heard
form over the last couple of days, witness by witness, that presumption of innocence
that they started this trial with has been slowly burned away with each of them,
exposing the true, vicious, violent criminals they were on May 14, 2007. “
¶ 66 We cannot agree with defendant that the prosecutor’s statements were misstatements of the
presumption of innocence. Rather, they were statements that defendant was guilty, worded in
such a way as to respond to defendant’s opening statement and in anticipation of his closing
argument. See People v. Cisewski, 118 Ill. 2d 163, 178 (1987) (Finding no error where the
prosecutor stated, “ ‘Now is the time, Ladies and Gentlemen, to remove the cloak of innocence
from this defendant ***.’ ”); People v. Tomes, 284 Ill. App. 3d 514, 522-23 (1996) (Finding no
misstatement regarding the presumption of innocence where, in response to defense counsel’s
argument that defendant was “ ‘wearing the presumption of innocence,’ ” the prosecutor
stated, “ ‘It’s correct that [the defendant] was presumed innocent before the trial began, he was
cloaked in innocence as he sat over there. That was before you heard the evidence. The
evidence is in ladies and gentlemen.’ ”). Therefore, we cannot find that the prosecutor’s
comments were improper. Because there was no error, plain error does not apply. Defendant’s
argument fails.
¶ 67 Further, we reject defendant’s reliance on People v. Keene, 169 Ill. 2d 1 (1995), and People
v. Brooks, 345 Ill. App. 3d 945 (2004). In Keene, the prosecutor stated that the defendant’s
presumed “ ‘cloak of innocence’ ” had been “ ‘shredded and ripped and pulled [off]’ ” to
reveal guilt. Keene, 169 Ill. 2d at 24. Our supreme court found that “the theatrical description
of the stripping away of [the defendant’s] presumption of innocence” was a misstatement of
the law. Id. at 25-26. In contrast to Keene, in the instant case, the prosecutor did not simply say
that the cloak of innocence was gone. Instead, the prosecutor told the jury that “the evidence in
this case *** removes the cloak of innocence.” Thus, the prosecutor accurately indicated that
the presumption of innocence could be overcome by the evidence.
¶ 68 In Brooks, this court found that the prosecution misstated the law regarding the
presumption of innocence when the prosecutor stated to the jurors in closing argument,
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“ ‘When you go back into the jury room, the presumption of innocence which [the trial court]
told you about as you were being selected as jurors and which you will receive in your jury
instructions[,] that presumption, that cloak of innocence is gone.’ ” Brooks, 345 Ill. App. 3d at
950. The Brooks court noted that the prosecutor “did not indicate that after hearing the
evidence the defendant was no longer cloaked in innocence,” but rather, simply told the jury
that the “ ‘presumption, that cloak of innocence [was] gone.’ ” Id. Here, in contrast, the
prosecutor explicitly referred to the evidence overcoming the presumption of innocence.
Therefore, Brooks is distinguishable.
¶ 69 Next, we address the contention that the State attempted to shift the burden of proof. It is
axiomatic that an accused is presumed innocent and that the burden of proof as to his guilt lies,
at all times, with the State. People v. Lopez, 152 Ill. App. 3d 667, 677 (1987). Consequently,
the failure of the defendant to call, as witnesses, persons who may be aware of facts material to
the question of his guilt or innocence cannot be commented upon by the State. People v. Beller,
54 Ill. App. 3d 1053, 1058 (1977). As a general rule, it is improper for the prosecution to
comment on a defendant’s failure to present witnesses when such witnesses are equally
accessible to both parties. People v. Eddington, 129 Ill. App. 3d 745, 777 (1984).
¶ 70 In this case, the prosecutor stated:
“Do you remember the other two people in that car that were in the front seat; one
was named Lionel, and one, we have no idea who the name was. Mariah said, I don’t
know him, I don’t know Lionel. I only heard that name when they referred to each
other. I don’t know him and I’ve never seen him before. And the other person, Mariah
said I’d never seen him before either. And the driver was fiddling on his phone,
obviously setting up the kidnapping with those two people, and bringing him over to
the dollar store so those two people could come and abduct him. Mariah is just there
watching, not knowing at all. So the two people who could have told us specifically
who the defendants were at that moment on May 14 at 10:00 o’clock in the morning,
well, the defendant may [have] known them; unfortunately, the person who knew them
in the car is dead, Frensti Bridges.”
¶ 71 Here, we find that it was improper for the State to comment on the absence of testimony
from the two men who were in the car when Bridges was kidnapped from the dollar store.
However, defendant’s attorney objected and the trial court sustained the objection and
reminded the jury that “the burden always remains with the State.” Thus, we find that the trial
court effectively cured any prejudice to defendant. See Wolf, 178 Ill. App. 3d at 1067.
¶ 72 Finding only one isolated instance where the prosecutor in this case made an improper
comment during closing argument, we reject defendant’s argument that a pervasive pattern of
prosecutorial misconduct deprived him of a fair trial. As a final note, even if we found that the
prosecutor’s comments were improper, we acknowledge that immediately preceding closing
arguments, the trial court instructed the jury that, “Closing arguments are made by the
attorneys to discuss the facts and circumstances in the case and they should be confined to the
evidence and to reasonable inferences to be drawn from the evidence. Neither opening
statements nor closing arguments are evidence, and any statement or argument made by the
attorneys which is not based on the evidence should be disregarded.” Thus, we cannot say that
these remarks affected the outcome of defendant’s trial, as the court provided sufficient
instructions to preempt consideration of potentially improper comments as evidence. See
People v. Garcia, 231 Ill. App. 3d 460, 469 (1992) (jury instruction regarding fact that
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arguments are not evidence tends to cure any prejudice from improper remarks); see also
People v. Taylor, 166 Ill. 2d 414, 438 (1995) (“The jury is presumed to follow the instructions
that the court gives it.”).
¶ 73 Alternatively, defendant contends that any failure by trial counsel to preserve his closing
argument claims of error was ineffective assistance of counsel. To prove a claim of ineffective
assistance of counsel defendant is required to show both that his attorney’s performance was
deficient and that, but for counsel’s unprofessional errors, there is a reasonable probability that
the results of the proceeding would have been different. Strickland v. Washington, 466 U.S.
668, 687 (1984). The failure to satisfy either prong of the Strickland test precludes a finding of
ineffective assistance of counsel. People v. Patterson, 192 Ill. 2d 93, 107 (2000). Here, we do
not find that counsel was ineffective because the record reveals that counsel made prompt and
reasonable objections to potentially improper statements made by the prosecutor, specifically,
the only comment that we found improper. Moreover, we find that any failure of counsel to
include a specific improper comment in a posttrial motion was likely due to the fact that the
comment did not amount to error or the trial court effectively cured any potential for prejudice
to defendant. Accordingly, the defendant’s ineffective assistance claim fails under Strickland’s
first prong.
¶ 74 Verdict Forms
¶ 75 We next address defendant’s contention that his aggravated kidnapping conviction and
sentence must be vacated because the jury was not tendered separate verdict forms on the
different theories of murder. Specifically, he argues that if the jury was tendered a specific
verdict form on felony murder, there would have been at least a reasonable probability for
conviction on that charge. Defendant further argues that had the jury found him guilty of
felony murder, the aggravated kidnapping verdict would have merged with the murder verdict,
and the court could have ordered the 25-year sentence for the aggravated kidnapping
conviction to run concurrently with his 60-year sentence for murder, instead of consecutively.
Alternatively, he argues that trial counsel was ineffective for failing to request separate verdict
forms on the different theories of murder. However, because we reverse defendant’s murder
conviction, defendant’s arguments are no longer germane to the disposition of this appeal.
Moreover, we note that because the jury properly convicted defendant of aggravated
kidnapping, independent of the murder charge, we find no reason to vacate the conviction.
¶ 76 Cost and Fees
¶ 77 Finally, defendant argues, and the State agrees, that the trial court improperly ordered $59
in fines, fees, and costs that should be corrected.
¶ 78 The propriety of an order imposing fines and fees is a matter of statutory interpretation,
which we review de novo. People v. Price, 375 Ill. App. 3d 684, 697 (2007).
¶ 79 In this case, defendant was in custody for several years before sentencing and was entitled
to a $5 credit toward his fines for every day he spent in presentence custody, which may be
applied to any eligible fines assessed against him. 725 ILCS 5/110-14 (West 2012). A
defendant is entitled to credit, against certain fines, of $5 a day for each day that he is in
custody before sentencing on a bailable offense, but the credit may not exceed the total fines.
725 ILCS 5/110-14(a) (West 2012). Thus, defendant is entitled to apply this credit toward his
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$30 Children Advocacy Center fine, $5 drug court fine, the $5 youth diversion/peer court fine,
and the $10 mental health court fine.
¶ 80 Next, we vacate the $5 electronic citation fee because defendant was not convicted of
violating the Vehicle Code for which this fee can be imposed. See 705 ILCS 105/27.3e (West
2012) (a $5 fee “shall be paid by the defendant in any traffic, misdemeanor, municipal
ordinance, or conservation case”).
¶ 81 Lastly, the order assessing fines and fees contained two unidentified $2 assessments that
were handwritten on the form. One of the assessments is for “St fund,” and the other is for “PD
fund.” However, no statutory authority exists for these assessments, thus these assessments
should be vacated. People v. Wade, 116 Ill. 2d 1, 6 (1987).
¶ 82 Pursuant to Illinois Supreme Court Rule 615(b)(1) (eff. Jan. 1, 1967) and our authority to
correct a mittimus without remand (People v. Rivera, 378 Ill. App. 3d 896, 900 (2008)), we
order the clerk of the circuit court to correct the fines and fees order to reflect the vacation of
the $5 electronic citation fee and the offset of the $59 in the above mentioned fines, resulting in
an assessment balance of $610.
¶ 83 CONCLUSION
¶ 84 For the foregoing reasons, we reverse the trial court’s conviction for first degree murder,
enter a conviction for the lesser charge of aggravated battery, and remand for sentencing. We
also modify the mittimus to reflect an assessment balance of $610.
¶ 85 Affirmed in part; reversed in part and remanded with instruction. Mittimus corrected.
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