People v. Romero ( 2008 )

FOURTH DIVISION
JULY 24, 2008
No. 1-06-3736
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 02 CR 6639
)
FRANCISCO ROMERO, ) Honorable Dennis A. Dernbach,
) Judge Presiding.
Defendant-Appellant. )
JUSTICE MURPHY delivered the opinion of the court:
Defendant, Francisco Romero, was charged with first degree murder (720 ILCS 5/9-
1(a)(1) (West 2004)) for the July 28, 2001, shooting death of 12-year-old Francisco Macias.
Following a jury trial, on August 7, 2006, defendant was found guilty of two counts of first
degree murder. The trial court denied defendant’s motion for a new trial and sentenced
defendant to 40 years’ imprisonment for first degree murder (730 ILCS 5/5-8-1(a)(1)(a) (West
2004)) and an additional 25 years’ imprisonment for personally discharging a firearm in the
commission of the crime pursuant to the sentence enhancement statute (730 ILCS 5/5-8-
1(a)(1)(d)(iii) (West 2004)). Defendant asserts three issues on appeal. Defendant first argues
that the jury verdict was not supported by the evidence. Defendant also contends that the trial
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court erred in failing to properly voir dire the jury after a jury member saw defendant being led
through the courthouse before trial wearing shackles and a Department of Corrections jumpsuit.
Finally, defendant argues that he was prejudiced by prosecutorial misconduct during closing
arguments. For the following reasons, we affirm.
I. BACKGROUND
At trial, the State presented evidence revealing that on July 28, 2001, the victim and his
11-year-old friend Edgar Jimenez (Edgar) were walking down West 48th Street in Chicago,
Illinois, when they happened upon their 10-year-old friend Ivan Diaz (Ivan). Ivan was with his
brother Jesus Diaz (Jesus), Jeffery Hooper (Jeffery), and Jose Cepeda (Jose) in front of the Diaz
residence at 1714 West 48th Street. The residence was located within the territory of the Latin
Souls street gang and Jesus, Jeffery, and Jose were all members of the Latin Souls.
At the time of the shooting, Jesus was sitting on a chair in front of the house. Jesus had a
clear view to the west, but his eastern view was obstructed by a wall next to the gangway that
extended alongside the house. The gangway continued back to a coach house and then to the
alleyway. The gate to the gangway is approximately six feet tall and, at the time of the shooting,
it was closed and locked. Jeffery was standing in the doorway to the house, Ivan was in front of
Jesus, Jose was standing in front of the gate to the gangway, and the victim and Edgar were
standing farther away, southwest of Jesus. Just prior to the shooting, Jose made a motion to
move away from the gate and moved onto the porch. Jesus was talking to the victim when he
heard a shot fired, smelled smoke, and saw a bullet enter the right side of the victim’s head.
The victim fell to the ground and Jesus ran inside the house and shut the door for a
moment. After realizing what had happened, Jesus opened the door and went to see the victim
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who was on the ground bleeding and shaking. Jesus told Jeffery to call 911. Jesus testified that
he then saw a man with a gun exit the church across the street. He was concerned until the man
flashed a police badge and Jesus called him over. Jesus also told Jose to get a towel to place over
the victim.
Edgar testified that, at the time of trial, he was a member of the La Raza street gang and
that they were at war with every other gang, including the Latin Saints. In addition, Edgar was
on probation in juvenile court for possession of a gun. However, at the time of the shooting,
Edgar was not affiliated with a gang. Edgar testified that on the day of the shooting, he saw
defendant run up the gangway, shake the gate with both hands, and look at Edgar over the fence
for a couple of seconds. Edgar noticed that defendant had a teardrop tattoo under his left eye, a
shag haircut with a tail in the back and was wearing a baby blue and white shirt, the colors of the
Latin Saints. When asked by defense counsel, Edgar admitted that he told the police he saw a
teardrop tattoo under the shooter’s right eye, but he denied that he told the police he had a bad
complexion.
Edgar testified that defendant had a pistol in his right hand which he reached out through
the gate and then shot the victim. Edgar testified that he fled to a nearby house, ran up to the
second floor and asked some ladies in the house to call an ambulance. Edgar returned to the
scene to find the victim with blood on his face, shaking, and his eyes were turning white. Edgar
then ran home because he was scared and did not talk to the police on the scene. When presented
with his original statement to the police that he ran into a beauty shop, Edgar admitted that he
made that statement. Edgar explained that the first floor of the building he ran into a building
that looked like a beauty shop, but he ran up to the second floor.
Edgar identified defendant in the courtroom as the shooter. Edgar also testified that, with
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his mother present, he was interviewed by detectives on the night of the shooting at his home and
again a couple nights later when they brought photos. Edgar testified that he identified
defendant’s photograph as that of the shooter. On August 1, 2001, he was going to the victim’s
wake with his mother and siblings when his sister asked him if a man across the street was the
shooter. Edgar saw defendant eating at a hot dog stand and told his family that defendant was the
shooter. The family went into a store and Edgar’s sister called the police and gave an anonymous
tip. They waited in the store as the police arrived and arrested defendant and then went to the
wake. A few days later, Edgar viewed a lineup at the police station and identified defendant
again as the shooter.
Detective Allen Szudarski of the Chicago police department was assigned to investigate
the shooting and responded to the scene shortly after the shooting occurred. Witnesses of the
shooting stated that there was only one offender. Szudarski returned to the police station with
Jose and worked with him to create a composite sketch based on descriptions provided.
Szudarski testified that on July 30, 2001, he compiled a group of photographs of people
arrested for various crimes that resembled the description of the suspect. Defense counsel
objected to Szudarski’s characterization of the photographs as gathered from men who had been
arrested in the past and the trial court overruled the objection. The prosecutor next asked
Szudarski if he had a picture of defendant, in addition to the pictures of men previously arrested.
Several of the men in the photos had marks under their right eye, though defendant was the only
one pictured with a teardrop tattoo under his left eye. Szudarski took the photo array to Edgar’s
home and Edgar identified defendant from the photos as the shooter.
Later that day, Detective John Henry interviewed Edgar at his home. Edgar told Henry
that the shooter had a teardrop tattoo under his right eye, bushy eyebrows, and a bad complexion
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and was wearing a dark blue shirt. Edgar also told Henry that after the shooting, he ran
westbound to a beauty shop.
Fabian Gomez, a member of the Latin Saints street gang, testified that he had been
working with the Chicago police as a confidential informant since May 2001. Gomez provided
information in exchange for the dropping of aggravated kidnapping charges against him in an
unrelated case. Gomez saw the composite sketch of the suspect on television and thought it
looked like defendant, despite the teardrop tattoo being located on the wrong side.
On August 1 or 2, 2001, Gomez was driving his van with other gang members when he
pulled up alongside defendant. When Gomez told defendant he was famous, he replied “Yeah,
you seen that s---?” Defendant also told Gomez that the police had picked him up for the
murder, but let him go. Gomez told defendant “that dude - that guy wasn’t s---,” meaning that
the victim was not in a gang. Defendant told Gomez, “F--- that, he was a Soul; his name was
Little Dog.” In addition, Gomez also called defendant “gay” because he was clean shaven and
defendant responded that he had to shave because the composite sketch looked like him.
Detective Thomas Cepeda, Jr., no relation to Jose Cepeda, was assigned to investigate
this case on July 31, 2001. Cepeda learned that defendant was in custody in response to an
anonymous 911 call on August 1, 2001. Despite being identified in a photo array, defendant was
released from custody because Cepeda and his partner were unable to locate witnesses to
complete a lineup identification. On August 2, 2001, Cepeda interviewed Edgar at his home and
learned that Edgar and his family made the anonymous 911 call.
Defendant was located and placed under arrest again. Following a pat-down of
defendant, he immediately told Cepeda, “hey they already arrested me yesterday for that shooting
of the little kid and they let me go,” even though there was no discussion about the shooting.
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Defendant was taken to the police station to view a lineup. On August 3, 2001, Cepeda located
Edgar and brought him to the station to view a lineup. Since defendant was wearing his gang
colors, he requested and was given a different-colored T-shirt for the lineup. Defendant was also
given a bandage to cover his teardrop tattoo and all men in the lineup wore a similarly placed
bandage.
Edgar viewed the lineup and identified defendant as the shooter. Despite his efforts,
Cepeda was unable to locate any other witnesses. He also testified that he believed Jose Cepeda
was in hiding because he could not be located. The trial court sustained defense counsel’s
objection to the claim that Jose was in hiding. Cepeda also admitted that during his first
interview, Edgar described the shooter as having big lips, bushy eyebrows, a bad complexion and
a teardrop tattoo under his right eye.
Also during trial, defense counsel informed the judge that a juror had seen defendant in
shackles and his jail jumpsuit when he was escorted into court by two officers. One of the
officers was questioned by the trial court and explained that when they were escorting defendant
into court, the door to the jury room was not locked and a juror walked out to see defendant. The
trial court asked defense counsel if the defense wanted the juror instructed. After taking time to
consider the situation, defense counsel moved for a mistrial, which was denied. The trial court
gave defense counsel the option to voir dire the juror to determine who may have seen defendant
in shackles and instruct the juror. Defense counsel requested the trial court admonish the entire
jury that it could not consider the fact defendant was in custody in its deliberations. The trial
court admonished the jury that whether or not a defendant is in custody is not relevant in
considering his guilt or innocence.
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The jury returned a guilty verdict against defendant for first degree murder. Defendant
filed a posttrial motion for a new trial. The motion was denied and defendant received a sentence
of 40 years’ imprisonment for first degree murder with an additional 25 years’ imprisonment
under the firearm enhancement statute. Defendant now appeals his conviction.
II. ANALYSIS
A. Sufficiency of the Evidence
Defendant argues that the State failed to produce sufficient evidence at trial to support the
guilty verdict. Defendant argues that the State failed to meet its burden of proving guilt beyond a
reasonable doubt and this court must reverse his conviction. Jackson v. Virginia, 443 U.S. 307,
319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). In Illinois, a reviewing court must view
the evidence in a light most favorable to the prosecution, allowing all reasonable inferences to
determine if no reasonable person could find defendant guilty beyond a reasonable doubt. People
v. Cunningham, 212 Ill. 2d 274, 280 (2004).
Defendant asserts that his conviction rests purely on a questionable identification by
Edgar. While defendant admits that a single eyewitness identification may be sufficient to
sustain a conviction, he argues that where there is no physical evidence and an identification is in
doubt, reversal is proper. People v. Cullotta, 32 Ill. 2d 502, 504 (1965). Defendant states that
five factors are to be considered in evaluating the likelihood of the misidentification of a
perpetrator, including: (1) the opportunity the witness had to view the criminal at the time of the
crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of
the criminal; (4) the level of certainty demonstrated by the witness at the identification
confrontation; and (5) the length of time between the crime and the identification. People v.
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Slim, 127 Ill. 2d 302, 308 (1989). Defendant contends that the inconsistent descriptions and
suggestive identifications raise a reasonable doubt as to his guilt under the Slim factors.
Defendant argues that the third factor weighs heavily in favor of reversal. Defendant
points to Edgar’s inconsistent descriptions of the perpetrator. Originally, Edgar stated that the
teardrop tattoo was on the right side of the face and the shooter had a bad complexion and wore a
dark blue shirt. Edgar’s description of the shooter at trial changed to a teardrop tattoo on the left
side, a shag haircut and a light blue and white shirt. Defendant also argues that the first two Slim
factors are not in the State’s favor because of this deficient and inconsistent description of the
suspect. In addition, because the gate was locked and taller than defendant, defendant argues that
Edgar did not have a clear opportunity to view the shooter. Defendant adds that Edgar originally
said he was on a bike and then ran into a beauty parlor, but testified at trial that Ivan Diaz was on
a bike and that he ran to a house. Further, before the grand jury, Edgar said the shooter opened
the gate and then pulled a gun out before shooting. Accordingly, defendant argues that Edgar’s
description and testimony were inaccurate and these inconsistencies weigh in favor of reversal
based on the first three factors.
Defendant contends that analysis of the fourth and fifth factors also weighs in favor of
reversal. Defendant claims that because of the underlying circumstances with Edgar’s
identifications, they cannot be considered accurate. He claims that the photo array did not
contain any pictures of men with teardrop tattoos and was highly suggestive to the 11-year-old
Edgar. Therefore, Edgar was inclined to pick his picture over the others. For the second
identification in the street, defendant argues that Edgar’s sister pointed out defendant and
suggested to Edgar that he was the shooter. Defendant concludes that the lineup identification
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was then rendered uncertain because Edgar was overwhelmed and had repeatedly been sent the
message that defendant was the shooter such that his identification was a foregone conclusion.
As for timeliness, defendant argues that subsequent to the incident, Edgar became a member of a
rival gang and was motivated to identify defendant as the shooter at trial because of the ongoing
“war” between gangs.
Defendant adds that the credibility of the State’s identification witnesses, Edgar and
Fabian Gomez, was lacking because of the witnesses’ gang affiliations. Furthermore, defendant
notes that Gomez did not independently produce his information, but was actively working with
the police to try and clear the charges against him. Defendant contends that even if Gomez was
credible, defendant’s comments may have been nothing more than his relaying what the police
had told him when he was initially arrested.
In reviewing defendant’s arguments and undertaking a review of the Slim factors, we note
that it is the function of the trier of fact to assess the credibility of witnesses, the weight to be
given their testimony, and the inferences to be drawn from the evidence. People v. Cox, 377 Ill.
App. 3d 690, 697 (2007). As the trier of fact, the jury is in the position to view a witness while
he or she is being questioned and may believe as much, or as little, of any witness’ testimony as it
sees fit. People v. Mejia, 247 Ill. App. 3d 55, 62 (1993). Whether eyewitness testimony is
trustworthy is typically within the common knowledge and experience of the average juror, and if
trustworthy, a single positive eyewitness identification may be sufficient proof of guilt. People v.
Rojas, 359 Ill. App. 3d 392, 397 (2005). Therefore, we will not substitute our judgment for that
of the fact finder on what weight is given to the evidence presented or the credibility of the
witnesses. People v. Campbell, 146 Ill. 2d 363, 375 (1992).
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Defense counsel ably presented the facts surrounding the two key witnesses, Edgar and
Gomez. The jury was apprised of each witness’ criminal history and his gang affiliations at the
time of trial. Defense counsel highlighted the inconsistencies between Edgar’s trial testimony,
grand jury testimony, and statements to the police. Reviewing the evidence under the Slim
factors, we find there was sufficient evidence to support Edgar’s testimony and defendant’s
conviction.
While Edgar’s testimony at trial was that he saw defendant through the gate, in his prior
statements he claimed that he saw defendant’s face without obstruction. Despite this, there was
evidence to support a finding that Edgar had a clear opportunity to view the shooter under the
first and second factors. The evidence showed that the shooting occurred during the middle of a
sunny day. Edgar was within close proximity of the gate and the victim and he had a clear
sightline to the gate. Further, Edgar’s degree of attention was demonstrated by his testimony that
he had an opportunity to see defendant over a few seconds as he came up the gangway, grabbed
the gate and then pointed his weapon and fired the fatal shot. Edgar testified that he was able to
clearly see defendant’s face before he fled, supporting the conclusion that his identification was
not based on any suggestive actions of the police.
The third factor - the accuracy of Edgar’s description - is the centerpiece of defendant’s
argument. As the State notes, under Slim, discrepancies and omissions as to physical
characteristics or clothing and appearance in a description are not necessarily fatal, but affect the
weight to be given that testimony. Slim, 127 Ill. 2d at 308, 312. Edgar described the shooter to
the police as having the teardrop tattoo on the right side, being 5 feet 9 inches tall with a bad
complexion and bushy eyebrows. At trial, Edgar testified that defendant was wearing a baby
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blue and white shirt and had a shag haircut and a teardrop tattoo under his left eye. Defendant
argues that Edgar, who was only 11 years old at the time, was under stress and obviously did not
present a reliable description. However, this again is not fatal under Slim; discrepancies such as
these are commonly made by untrained observers under stress. The jury was presented with the
attendant circumstances and able to weigh the testimony accordingly.
Testimony at trial indicated that each time Edgar was presented with an image of
defendant or was in front of defendant, he immediately identified him as the shooter. Detective
Szudarski testified that no suggestive comments were made and Edgar immediately and
unequivocally identified defendant each time. As to the final factor, Edgar’s initial
identifications were all made within days of the shooting; thus the time frame would not be a
detrimental factor to the weight of Edgar’s identifications.
The attendant discrepancies in Edgar’s statements and testimony, his prior criminal
record and his subsequent gang affiliation go to the weight of Edgar’s testimony. Likewise,
Gomez’s gang affiliation and status as an informant and Edgar’s current gang membership could
arguably lead to an incredible in-court identification by Gomez. However, prior convictions
alone do not make evidence incredible. People v. Killingsworth, 314 Ill. App. 3d 506, 510-11
(2000). Defendant attempts to argue on appeal that Gomez had this motivation to lie and it is
possible that defendant was not necessarily providing a justification for the shooting, but simply
relaying information received from the police.
These criminal histories do not remove the fact that Edgar affirmatively identified
defendant three prior times as the shooter, all within days of the shooting. While neither of the
witnesses is a “shining example of good citizenship,” as in Killingsworth, the jury was made
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aware of the witnesses’ criminal and gang histories and was able to weigh the testimony of each
witness and make its determination. Killingsworth, 314 Ill. App. 3d at 510. Considering the
evidence in a light favorable to the prosecution we find there was sufficient evidence to support
Edgar’s identification and the jury verdict.
B. Right to a Fair Trial
Defendant next asserts that he was denied his right to a fair trial because, during the
middle of the trial, the jury was able to see him in shackles and jail uniform and the trial court
did not voir dire the jury to determine if it remained impartial. Defendant notes that a criminal
defendant has a constitutional right to appear in court for trial unencumbered by the markings of
guilt, standing with the “appearance, dignity, and self-respect of a free and innocent man.” In re
Staley, 67 Ill. 2d 33, 37 (1977). However, he also notes that where the defendant has not been
forced to sit through trial in shackles, but only an accidental viewing of the restrained defendant
occurs, it is not reversible error absent an affirmative showing of prejudice. People v. Greene,
102 Ill. App. 3d 933, 936 (1981).
Defendant argues that the image of him in a jail jumpsuit and shackles resulted in a belief
that he was dangerous and was compounded by the fact he sat between the officers, who were in
plain clothes, during trial. Further, he claims that additional comments elicited by the State
during trial established the image that defendant was a career criminal and dangerous. Defendant
cites to Detective Cepeda’s comments that he compiled the photo array from photographs of
people arrested for crimes in the area that fit the description, that a lineup is composed of
criminal offenders, and that he believed he could not locate Jose because he was in hiding.
Defendant argues that the last comment implied that Jose was hiding because he feared
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retribution from defendant.
Defendant concludes that, in total, these numerous signals prejudiced him in the eyes of
the jury because they created the image of a dangerous repeat offender. Defendant argues that
this was prejudicial because of the lack of physical evidence and the suspect identification by
Edgar. Defendant notes that there is no question that a juror saw him in shackles as it was
confirmed by the corrections officer. Defendant asserts that this prejudicial error was
compounded by the trial court’s lack of prompt action in failing to voir dire the jury immediately,
instead waiting until the end of the trial to instruct the jury. Defendant argues that other
jurisdictions have followed this procedure and it is necessary to assure a fair and impartial trial.
See United States v. Johnson, 911 F.2d 1394 (10th Cir. 1990); People v. Jacobs, 210 Cal. App.
3d 1135, 258 Cal. Rptr. 734 (1989).
We agree with the State that the juror’s brief encounter with a shackled defendant outside
the courtroom presented a “tenuous prejudicial effect” at best. People v. O’Toole, 226 Ill. App.
3d 974, 985 (1992). Because this case involves only a brief and accidental encounter by one
juror with defendant while he was shackled and in a jail uniform. Under Greene, defendant must
affirmatively show that he was prejudiced by the encounter and the trial court’s handling of the
situation. While defendant correctly notes the O’Toole court’s comments on the prejudicial
effect of such an encounter are dicta, the holding that the trial court is in the best position to
determine if a juror can impartially weigh the evidence stands and we will not reverse such a
decision unless it is against the manifest weight of the evidence. O’Toole, 226 Ill. App. 3d at
986.
The trial court in this case found that a single juror’s accidental viewing of defendant in
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custody was not sufficient to warrant a mistrial. Accordingly, the trial court denied defendant’s
motion for a mistrial in line with Illinois and foreign case law. The trial court also granted
defense counsel the opportunity to voir dire the juror who saw defendant to determine what the
juror saw, if any other jurors were informed and if it would affect that juror’s ability to be fair
and impartial. Defense counsel ultimately accepted the trial court’s alternate option, which was
to admonish the entire jury that whether a defendant is in custody during trial is irrelevant to the
proceedings and not a consideration in determining guilt or innocence.
Defendant contends that the decision of defense counsel is irrelevant because the trial
court abused its discretion. Defendant claims that the only proper course of action for the trial
court was to voir dire the jury like in Johnson and Jacobs. However, each of these cases notes
the acceptance in those jurisdictions that a brief observation of a defendant in physical restraints
by one or more veniremen does not warrant a mistrial. Johnson, 911 F.2d at 1397; Jacobs, 210
Cal. App. 3d at 1141, 258 Cal. Rptr. at 737. While the trial court in Johnson made a “full
inquiry” as to the jury remaining impartial and defense counsel in Jacobs conducted “extensive
voir dire” of prospective jurors, these cases do not mandate these actions. See Johnson, 911 F.2d
at 1397; Jacobs, 210 Cal. App. 3d at 1142, 258 Cal. Rptr. at 738. At most, these cases require
action upon the request of the defendant. The trial court in this case appropriately gave defense
counsel the option to conduct an inquiry of the juror and to include an admonishment of the jury.
Upon counsel’s decision, no voir dire was conducted and the jury was properly admonished.
With respect to the testimony of Detective Cepeda, we do not find that his testimony
bolsters defendant’s argument that he failed to receive a fair trial. The trial court sustained an
objection to Detective Cepeda’s comment that he thought Jose Cepeda was in hiding. While the
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trial court did not specifically admonish the jury to ignore this comment, neither the detective nor
the State attempted to claim that Jose was in hiding because he feared retribution by defendant.
The detective’s commentary on how he assembled photographs for the photo array shown Edgar
also was not prejudicial. The State specifically followed up his comment that he took
photographs of men recently arrested in the neighborhood by eliciting that Detective Cepeda
added these photographs to a picture he had of defendant.
Defendant has not made an affirmative showing of prejudice. As O’Toole and Jacobs
note, it is commonly known and accepted that, to protect the public and the prisoner, it is
customary to use physical restraints on the prisoner. The inadvertent viewing by a juror was
cured by the trial court’s admonishment. Despite defendant’s contention that the admonishment
was deficient because the trial court described it as “informational,” the trial court properly
informed the jury of its responsibilities and what it could consider in rendering judgment.
Furthermore, the trial court further granted defense counsel the option to voir dire the juror, but
counsel rejected that offer. The trial court properly handled defendant’s exposure to the juror
while shackled and no prejudice was suffered to warrant a new trial.
C. Prosecutorial Misconduct
Defendant next claims that he was prejudiced by prosecutorial misconduct during
the State’s closing rebuttal argument. Defendant argues that the State misrepresented the
evidence during closing argument in an attempt to bolster Edgar’s inconsistent statements and
testimony. Defendant claims that the State improperly misstated the evidence by arguing that
defendant was identified as the shooter by two people - Edgar and Gomez. Defendant contends
that the State continued to prejudice his case by improperly shifting the burden to the defense.
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He argues that the State improperly argued that the defense did not want the truth and could have
asked open-ended questions of witnesses regarding the evidentiary inconsistencies in the case,
instead of attempting to distract the jury with speculation.
Defendant however waived argument on this issue for failing to object to the comments
argued as improper here on appeal, and therefore the issue was not preserved for review. People
v. Enoch, 122 Ill. 2d 176, 186 (1988). Defendant cites defense counsel’s objection to the State’s
argument that they did not seek clarification regarding the location of the teardrop tattoo on the
suspect preserved this issue. Defense counsel objected and simply stated that he asked that
question, and he was overruled by the trial court. However, counsel did not object to any of the
other comments during rebuttal or raise the issues of burden shifting, misstatement of evidence
or improper argument.
In his reply brief, defendant advances the alternative argument that this issue must be
reviewed under the plain error doctrine. Under Supreme Court Rule 615(a) (134 Ill. 2d R.
615(a)), nonpreserved errors may be reviewed on appeal if the evidence is closely balanced or
where the errors are of such a magnitude that defendant was denied a fair and impartial trial.
People v. Nieves, 192 Ill. 2d 487, 502-03 (2000). These exceptions are narrow and limited in
scope to protect the rights of the defendant and the integrity and reputation of the judicial
process. People v. Herron, 215 Ill. 2d 167, 177 (2005). The defendant bears the burden of
persuasion in proving plain error. Herron, 215 Ill. 2d at 187.
The evidence in this case was not so closely balanced to support plain error review under
the first prong. As noted above, where the jury’s determination is dependent upon eyewitness
testimony, its credibility determinations are entitled to great deference and will be upset only if
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unreasonable. Cunningham, 212 Ill. 2d at 280. Defendant has argued that the inconsistencies in
Edgar’s testimony and the lack of physical evidence support the conclusion that the evidence was
closely balanced. The evidence at trial indicated that Edgar repeatedly and unequivocally
identified defendant as the shooter in a photo array, in public view, and in a lineup. The jury
obviously found Edgar credible, and as outlined above, the record does not demonstrate that this
finding was unreasonable.
Waiver notwithstanding, the alleged prosecutorial misconduct was not sufficient to
overcome the evidence and support reversal. In reviewing allegations of prosecutorial
misconduct, this court must consider the arguments of both the prosecutor and the defense in
their entirety and place the allegations of improper comments in context. People v. Evans, 209
Ill. 2d 194, 225-26 (2004). The prosecution has the right to comment on the evidence presented
at trial and draw all reasonable inferences deducible therefrom. People v. Simms, 192 Ill. 2d 348,
396 (2000). The prosecution may also respond to comments made by defense counsel. People v.
Abadia, 328 Ill. App. 3d 669, 678 (2001). It is well settled that prosecutors enjoy wide latitude in
closing arguments and that the scope of permissible argument rests within the sound discretion of
the trial court. People v. Griffin, 368 Ill. App. 3d 369, 376 (2006). Any improper comments or
remarks made by a prosecutor in closing arguments are not reversible error unless they are a
material factor in the conviction or cause substantial prejudice to the accused. People v. Sutton,
316 Ill. App. 3d 874, 893 (2000).
Defendant’s first argument is that the State misstated the evidence by arguing that
defendant was identified by both Edgar and Gomez as the shooter. Defendant notes that a
prosecutor’s argument must be grounded in facts established by the evidence and that
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misstatement of the evidence may not be argued. People v. Williams, 333 Ill. App. 3d 204, 214
(2002). Williams also notes that reasonable inferences may be properly argued. Williams, 333
Ill. App. 3d at 214. When viewing the comments regarding Gomez in the full context of the
State’s argument, it is clear the evidence was not misstated. The prosecutor specifically
instructed the jury to consider the inferences to be drawn from Gomez’s testimony and made
clear that Edgar provided the only eyewitness identification. It was reasonable to infer and argue
that the circumstantial evidence and discussion allowed the inference that Gomez identified
defendant as the shooter.
The State argues that defendant’s second claim of misconduct also involves comments
that were taken out of context and invited by defendant. The State argued in rebuttal that defense
counsel had the opportunity to question Gomez and Cepeda regarding their conversations and
Edgar concerning the shooter’s teardrop tattoo, bad complexion, and other inconsistent details to
develop his speculative arguments. The State continued to argue that defendant was not
interested in finding the truth, but in presenting this speculation to confuse the jury. The State
offered these arguments to rebut defendant’s claims that Gomez and Cepeda lied regarding the
conversations between Gomez and defendant and Gomez and Cepeda.
With respect to classifying defendant’s argument as speculative, the State did not accuse
defense counsel of fabrication, trickery, deception or suborning perjury, but properly commented
that the jury should focus on the facts in evidence and not the speculative arguments advanced by
defendant. People v. Kirchner, 194 Ill. 2d 502, 549-50 (2000). In response to defendant’s
arguments, the State also highlighted that defendant did not question the witnesses to support his
speculative argument. Contrary to defendant’s assertion, the State did not switch the burden to
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defendant to clear up weaknesses in its case. The State argued that the jury should focus on the
evidence adduced at trial that supported conviction and that defendant failed to support his
speculative argument. Based on the entire record and the defense’s arguments, the prosecutor’s
argument did not exceed the bounds of proper argument.
III. CONCLUSION
For the foregoing reasons, we affirm the decision of the trial court.
Affirmed.
NEVILLE, P.J., and CAMPBELL, concur.
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