People v. Anderson , 2011 IL App (1st) 71768 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Anderson, 2011 IL App (1st) 071768Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JAMES ANDERSON, Defendant-Appellant.
District & No. First District, First Division
Docket No. 1–07–1768
Filed June 27, 2011
Rehearing denied July 28, 2011
Held Defendant’s convictions for first degree murder under an accountability
(Note: This syllabus theory and aggravated battery were affirmed, where defendant did not
constitutes no part of the object to the trial court’s violation of Rule 431(b) and the error did not
opinion of the court but rise to the level of plain error where the evidence against defendant was
has been prepared by the overwhelming, defendant failed to present a reasonable probability that,
Reporter of Decisions for but for defense counsel’s error in not presenting a compulsion defense,
the convenience of the the result would have been different, and defendant waived his
reader.) objections to the alleged improper impeachment and prosecutorial
misconduct arising from the prosecution’s personal commentary on the
credibility of defendant and his codefendant, and the same
overwhelming evidence of defendant’s guilt precluded a finding of plain
error.
Decision Under Appeal from the Circuit Court of Cook County, No. 04–CR–7764; the
Review Hon. Diane Gordon Cannon, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Patricia Unsinn, and Brian E. Koch, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (James E. Fitzgerald,
Alan J. Spellberg, Clare Wesolik Connolly, and Carol L. Gaines,
Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
Presiding Justice Hall and Justice Garcia concurred in the judgment and
opinion.
OPINION
¶1 In compliance with the supreme court’s supervisory order, we have vacated our prior
judgment in People v. Anderson, 399 Ill. App. 3d 856, 927 N.E.2d 121 (2010), and
reconsidered this case in light of People v. Thompson, 238 Ill. 2d 598, 939 N.E.2d 403(2010). See People v. Anderson, 239 Ill. 2d 557, 940 N.E.2d 1151 (2011) (table).
¶2 The amended Illinois Supreme Court Rule 431(b) went into effect on May 1, 2007. Jury
selection in the case against defendant, James Anderson, began three weeks later, on May
21, 2007. The jury found defendant guilty, under an accountability theory, of first degree
murder and aggravated battery with a firearm.
¶3 On appeal, defendant contends: (1) the trial court failed to comply with Rule 431(b) (Ill.
S. Ct. R. 431(b) (eff. May 1, 2007)) in conducting voir dire and his convictions should be
reversed for another trial as a result; (2) his trial counsel was ineffective for presenting a
compulsion defense; (3) he was prejudiced because the State conducted improper
impeachment; and (4) he otherwise suffered prejudice as a result of prosecutorial
misconduct. Based on the following, we affirm defendant’s convictions and sentence.
¶4 FACTS
¶5 Briefly stated, on May 3, 2003, defendant agreed to drive codefendants Christopher
Washington and Sheldon Smith to a neighborhood where codefendants shot three
individuals. Two of the victims were injured and one died.
¶6 According to defendant’s trial testimony, codefendants merely asked him to drive them
to obtain marijuana. Defendant testified he did not know codefendants intended to shoot the
victims. Defendant said he continued to follow codefendants’ instructions as they chose their
targets because he feared for his safety. Defendant, however, never attempted to withdraw
himself from the scene or report the offenses.
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¶7 Sherman Lee testified that he lived at 117th and Parnell in Chicago, Illinois. On the date
in question, he was walking home when a dark car pulled up next to him with three people
inside. The individual in the front passenger seat asked him if he had any “weed” and if he
was a Gangster Disciple. When Lee responded “no” to both questions, the man in the front
passenger seat pointed a handgun at Lee and shot Lee in the side. Lee ran away and the
shooter fired at least two more shots in his direction. Lee later identified Smith as the
shooter. Lee was unable to identify the other two men in the car.
¶8 Wayne Spears testified that, on the date in question, he returned to his home at 11731
South Lowe in Chicago, Illinois, and said hello to three people standing outside the front of
the building. While inside his kitchen, Spears heard two gunshots fired outside. Spears ran
to the front of the house to look out the window. Spears saw that one of the three individuals
he had seen standing out front had been shot in the head and abdomen. Lamar Eckstine died
as a result of the gunshot wounds.
¶9 Brian Treadwell testified that, on the same date in question, he was walking in an alley
near 117th and Halsted Street in Chicago, Illinois, when a car pulled up carrying three
individuals. The man in the rear seat behind the driver asked Treadwell whether he had any
“weed.” When Treadwell did not respond, the man asked again. Treadwell started to turn to
run away when the man in the rear seat revealed a handgun and shot at Treadwell. The bullet
hit Treadwell in the abdomen. Treadwell ran away and heard eight or nine additional
gunshots as he ran. Treadwell identified Washington as the shooter. Treadwell was unable
to identify the other two individuals in the car.
¶ 10 Codefendant Washington, who pled guilty to his involvement in the offenses and was
sentenced to 26 years’ imprisonment, testified that he was in a car around midnight on the
date in question looking to avenge a fellow gang member’s death. Washington did not know
the driver of the car except that he was a fellow member of the Black Disciples gang.
Washington was armed and sat in the rear seat behind the driver. He shot three people in
different locations within minutes. Washington said he shot all the victims, but he did not
instruct the driver to slow the car in order to do so. The police eventually arrived and chased
the car. Washington testified that he and the driver exited the car and attempted to flee.
Washington was caught and arrested.
¶ 11 When interviewed by the police, Washington originally named two rival gang members
as being with him when he shot the individuals. Washington, however, eventually implicated
defendant and codefendant Smith. Washington retracted his identifications of defendant and
Smith at trial, explaining that the police forced him to name defendant and Smith because
of their criminal backgrounds.
¶ 12 After being interviewed by the police, Washington agreed to videotape his statement. At
trial, he testified that most of the videotaped statement was untrue. The videotape was
published to the jury.
¶ 13 In the videotape, Washington said he, defendant, and Smith were selected by their gang
to shoot rival gang members in exchange for drugs and money. Defendant drove the car,
Smith sat in the front passenger seat, and Washington sat in the backseat. Defendant and
Smith were armed with handguns and all three shot at different individuals throughout the
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neighborhood: Smith shot at an individual near 117th and Lowe, and defendant shot at a
second individual near that location; Washington shot at an individual in an alley, and Smith
fired shots at the same individual; and Smith shot at an individual near 118th and Wallace.
On the videotape, Washington said he was treated well by the police. At trial, however,
Washington testified he was “jacked” by the police.
¶ 14 Detective John Otto testified that he and Assistant State’s Attorney (ASA) William
Merritt interviewed defendant on January 30, 2004. Otto advised defendant of his Miranda
rights, which defendant waived. Defendant admitted that he drove the vehicle involved in
the shootings while Smith and Washington rode as passengers. When Otto confronted
defendant with inconsistencies between his confession and Washington’s statement,
defendant drew a diagram of the shootings as he remembered them. Defendant said he drove
the vehicle during each shooting. Defendant never told Otto that he was threatened at
gunpoint to drive the vehicle.
¶ 15 ASA Merritt’s testimony was consistent with that of Detective Otto, adding that
defendant said he was the driver, but not a shooter.
¶ 16 Defendant consented to have his confession videotaped. The videotape was admitted as
evidence. The videotaped statement was consistent with defendant’s confession, adding that
he was in shock after the first shooting, but he continued driving as told. Defendant did not
say he was threatened at gunpoint.
¶ 17 At trial, defendant testified that he did not know Washington and Smith were armed
when he agreed to drive them to obtain marijuana. While driving, Washington first instructed
defendant to slow down near two men standing on a corner. Washington rolled down the
window, asked the men for marijuana, and then shot at them. Defendant was shocked, but
he was instructed to drive away. He complied. On the way to the next location, near 119th
and Wallace, Washington and Smith told defendant to slow the car when they saw another
individual. Smith asked that individual whether he had marijuana and whether he was a rival
gang member. The individual responded in the negative to both questions. Smith shot him
in response. Defendant then drove to the next location, toward Union Avenue, as instructed.
He was told to stop when they reached a man in an alley. Washington asked the man about
marijuana and then shot him.
¶ 18 On cross-examination, defendant said he did not want to continue driving the car, but he
was ordered to at gunpoint. Defendant admitted he did not include that fact in his videotaped
statement; however, after first saying he never told the detectives because they never asked,
defendant maintained that he reported the fact to the detectives before he gave the videotaped
statement. Defendant testified that he drove to the second location as instructed because he
thought he would be shot if he disagreed. Defendant said he stopped the car during the
second shooting, but did not attempt to exit or flee because he was afraid. Defendant denied
knowing Washington and Smith intended to shoot the man in the alley, but admitted he drove
the car around the block to find the man again. When unsuccessful, Smith and Washington
exited the car and approached a different individual. Defendant was instructed to wait in the
car, and he complied. Smith and Washington shot that individual, then told defendant to
drive away. Defendant tried to slow the car when the police approached, but was instructed
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to turn on a dead-end road and to speed up. He complied and did not exit the car to run away
until instructed. Defendant later moved to Du Page County. Defendant denied evading the
police, but admitted he never reported the offenses because he feared for his and his family’s
safety.
¶ 19 The jury found defendant not guilty of aggravated battery with a firearm of the first
victim (Lee), but guilty of aggravated battery with a firearm of the second victim (Treadwell)
and first degree murder of the third victim (Eckstine). Both convictions were based on the
theory of accountability. Defendant was sentenced to consecutive sentences of 35 years’
imprisonment for the first degree murder count and 10 years’ imprisonment for the
aggravated battery with a firearm count. This appeal followed.
¶ 20 DECISION
¶ 21 I. Rule 431(b)
¶ 22 We first turn to the issue of whether the court complied with the requirements of Rule
431(b) in conducting voir dire and, if not, whether lack of compliance constitutes reversible
error.
¶ 23 Defendant concedes that he did not raise a Rule 431(b) objection. See People v. Enoch,
122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988) (in order to preserve an error for appellate
review, the defendant must object at trial and include the alleged error in a posttrial motion).
The plain error doctrine allows us to review an issue affecting substantial rights despite
forfeiture in either of two circumstances:
“First, where the evidence in a case is so closely balanced that the jury’s guilty verdict
may have resulted from the error and not the evidence, a reviewing court may consider
a forfeited error in order to preclude an argument that an innocent man was wrongly
convicted. [Citation.] Second, where the error is so serious that defendant was denied a
substantial right, and thus a fair trial, a reviewing court may consider a forfeited error in
order to preserve the integrity of the judicial process.” People v. Herron, 215 Ill. 2d 167,
178-79, 830 N.E.2d 467 (2005).
The burden is on the defendant to establish plain error. Thompson, 238 Ill. 2d at 613.
¶ 24 Defendant recognizes that the Thompson case invalidated his former argument under the
second prong of plain error. Id. at 613-14 (in order to establish second-prong plain error, a
defendant must establish the error was structural, i.e., that the jury was biased). Defendant,
however, contends he is entitled to a new trial under the first prong of plain error because the
evidence supporting the jury’s guilty verdict was closely balanced.
¶ 25 Before determining whether there was first-prong plain error, we first must determine
whether any error occurred. People v. Hudson, 228 Ill. 2d 181, 191, 886 N.E.2d 964 (2008).
We review the construction of a supreme court rule de novo. Robidoux v. Oliphant, 201 Ill.
2d 324, 332, 775 N.E.2d 987 (2002).
¶ 26 Supreme Court Rule 431(b) codified our supreme court’s holding in People v. Zehr, 103
Ill. 2d 472, 477, 469 N.E.2d 1062 (1984). As amended, Rule 431(b) places a sua sponte duty
on trial courts to ensure compliance with its mandates. Thompson, 238 Ill. 2d at 607. The
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amended rule provides:
“(b) The court shall ask each potential juror, individually or in a group whether that
juror understands and accepts the following principles: (1) that the defendant is
presumed innocent of the charge(s) against him or her; (2) that before a defendant can
be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3)
that the defendant is not required to offer any evidence on his or her own behalf; and (4)
that the defendant’s failure to testify cannot be held against him or her; however, no
inquiry of a prospective juror shall be made into the defendant’s failure to testify when
the defendant objects.
The court’s method of inquiry shall provide each juror an opportunity to respond to
specific questions concerning the principles set out in this section.” (Emphasis added.)
Ill. S. Ct. R. 431(b).
¶ 27 The court conducted voir dire and empaneled the jury. Prior to beginning voir dire, the
trial court made the following introductory comment:
“The charges in this case, ladies and gentlemen, come by way of a Cook County
Grand Jury indictment. They are not any evidence of guilt against [defendant]. He is
presumed innocent of the charges and the State has the burden of proving him guilty
beyond a reasonable doubt.”
¶ 28 The first panel of prospective jurors was then brought forward. The judge said:
“As I indicated earlier, the defendant is presumed innocent of the charges. The State
has the burden of proving the defendant guilty beyond a reasonable doubt. The defendant
is not required to prove his innocence, nor is he required to testify or call witnesses on
his own behalf.
Should the State meet their burden of proof beyond a reasonable doubt, is there
anybody seated in the jury box who could not or would not go into the jury room with
your fellow jurors and the law that governs this case as I give it to you and sign a verdict
form of guilty? Anybody who could not or would not do that for any reason?
(No audible response.)
No response. Should the State fail to meet their burden of proof beyond a reasonable
doubt, is there anybody seated in the jury box who could not or would not go into the jury
room with your fellow jurors and the law that governs this case as I give it to you and
sign a verdict form of not guilty?
(No audible response.)
No response.”
Eight jury members were selected from this panel. After the eight jury members were
selected, they were sent to the jury room and were not present for the voir dire of the
remaining panels.
¶ 29 When the second panel of potential jurors was brought forward, the judge said:
“Ladies and gentlemen, I wish to thank you for your time and patience. As I indicated
earlier, the charges against the defendant come by way of a Grand Jury indictment. They
are not any evidence against the defendant.
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The defendant is presumed innocent of the charges against him and the State has the
burden of proving him guilty beyond a reasonable doubt. He is not required to call
witnesses on his own behalf or testify on his own behalf.
Is there anybody who has any qualms or problems with those propositions of law?
(No audible response.)
No response. Should the State meet their burden of proof beyond a reasonable doubt,
is there anybody seated in the jury box who could not or would not go into the jury room
with your fellow jurors and follow the law that governs this case as I give it to you and
sign a verdict form of guilty? Anybody who could not or would not do that for any
reason?
(No audible response.)
No response. Should the State fail to meet their burden of proof beyond a reasonable
doubt, is there anybody seated in the jury box who could not or would not go into the jury
room with your fellow jurors and the law that governs this case as I give it to you and
sign the verdict form of not guilty?
(No audible response.)
No response.”
Four jurors were selected to serve from this panel and one juror was selected as an alternate.
¶ 30 When the court called the third panel, the judge said:
“Again, ladies and gentlemen, I wish to thank you for your time and patience. As
indicated in my opening remarks, the defendant is presumed innocent of the charges
against him and the State has the burden of proving him guilty beyond a reasonable
doubt.
Is there anyone who has any problems or qualms with that proposition of law?
(No audible response.)
No response. The defendant is not required to prove his innocence. He is not required
to call witnesses or testify on his own behalf.
If the State meets their burden of proof beyond a reasonable doubt, is there anybody
seated in the jury box who could not or would not go into the jury room with your fellow
jurors and the law that governs this case as I give it to you and sign a verdict form of
guilty? Anybody who would not or could not do that?
(No audible response.)
No response. If the State should fail to meet their burden of proof beyond a
reasonable doubt, is there anybody who could not or would not follow the law and sign
a verdict form of not guilty.
(No audible response.)
No response.”
One alternate juror was selected from this panel.
¶ 31 The incomplete voir dire conducted in this case is the practice the amended rule seeks
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to end. Ill. S. Ct. R. 431, Committee Comments (a court may not simply make “a broad
statement of the applicable law followed by a general question concerning the juror’s
willingness to follow the law”); accord Thompson, 238 Ill. 2d at 607. With regard to the first
panel of prospective jurors, from which eight were empaneled, the court provided only three
of the four Zehr principles in narrative form, not in questions. Asking the first panel as a
group whether they would sign the appropriate verdict form if the State had or had not met
its burden of proof was not in compliance with Rule 431(b). The court did not adequately
determine whether the majority of empaneled jurors understood and accepted any of the four
Zehr principles. In Thompson, the supreme court advised:
“Rule 431(b), therefore, mandates a specific question and response process. The trial
court must ask each potential juror whether he or she understands and accepts each of
the principles in the rule. The questioning may be performed either individually or in a
group, but the rule requires an opportunity for a response from each prospective juror
on his or her understanding and acceptance of those principles.” (Emphasis added.)
Thompson, 238 Ill. 2d at 607.
The court’s inquiry failed to comply with the dictates of Rule 431(b) and, therefore,
constitutes error.
¶ 32 In light of our finding, we must determine whether the error was reversible as first-prong
plain error. To establish first-prong plain error, a defendant must demonstrate “ ‘prejudicial
error.’ That is, the defendant must show both that there was plain error and that the evidence
was so closely balanced that the error alone severely threatened to tip the scales of justice
against him.” Herron, 215 Ill. 2d at 187. A defendant is guilty of an offense under the theory
of accountability where, “[e]ither before or during the commission of the offense, and with
the intent to promote or facilitate such commission,” he aids, abets, or agrees in the planning
or commission of the offense. 720 ILCS 5/5–2(c) (West 2002).
¶ 33 The evidence demonstrated defendant was accountable for the shooting death of Eckstine
and the aggravated battery with a firearm of Treadwell. Defendant agreed to drive
codefendants while they completed their shooting spree. The jury did not find defendant
accountable for the first shooting of Lee despite the fact that a defendant may be held
accountable for an offense even where he was unaware that his codefendant possessed a
weapon. See People v. Garrett, 401 Ill. App. 3d 238, 245, 928 N.E.2d 431 (2010).
Defendant, however, was found accountable for the subsequent two shootings in which
defendant continued to drive the car after learning Washington and Smith were armed and
were not merely looking to purchase marijuana. The events that transpired were
overwhelmingly supported by defendant’s confession, defendant’s videotaped statement,
Washington’s confession, Washington’s videotaped statement, and the trial testimony of
defendant, Lee, Spears, and Treadwell.
¶ 34 We recognize that the reported order of the shootings differs between the accounts of
defendant and Washington, that Washington recanted his prior statements identifying
defendant as the driver, and that there was no physical evidence tying defendant to the
shootings; however, it was the jury’s duty to make credibility determinations, weigh the
witness testimony, and draw reasonable inferences from the evidence. People v. Evans, 209
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Ill. 2d 194, 211, 808 N.E.2d 939 (2004). The jury exercised its judgment and our review of
the record supports the jury’s finding. We conclude that the evidence against defendant was
substantial.
¶ 35 Because we have found that the evidence was overwhelming and not closely balanced,
the trial court’s Rule 431(b) error does not constitute plain error.
¶ 36 II. Ineffective Assistance of Counsel
¶ 37 Defendant contends his counsel was ineffective for failing to present a viable defense.
In particular, defendant argues that his counsel improvidently advanced a compulsion
defense at trial even though compulsion is a prohibited defense in first degree murder cases,
effectively leaving defendant without a defense.
¶ 38 To demonstrate ineffective assistance of counsel, a defendant must show counsel’s
performance was deficient and such deficient performance caused substantial prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, a defendant
“must show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694. Failure to establish either
prong of the test precludes a finding of ineffective assistance of counsel. Id. at 697. However,
if a defendant cannot establish prejudice, the reviewing court need not determine whether the
counsel’s performance fell below the objective standard of reasonableness. Id.¶ 39 “Generally, counsel’s choice of an appropriate defense is a matter of trial strategy or
tactics not reviewable under the Strickland test, unless that choice is based upon a
misapprehension of the law. [Citations.] Misapprehension of a defense theory may be shown
where evidence is presented in such a manner that the jury is left with no choice but to
convict defendant of the offenses charged [citation] ***.” People v. Garmon, 394 Ill. App.
3d 977, 987, 916 N.E.2d 1191 (2009).
¶ 40 Here, defense counsel’s request for a jury instruction regarding the defense of compulsion
was denied because the law provides that compulsion is a prohibited defense in first degree
murder cases. People v. Gleckler, 82 Ill. 2d 145, 157, 411 N.E.2d 845 (1980); People v.
Haynie, 347 Ill. App. 3d 650, 655, 807 N.E.2d 987 (2004); see 720 ILCS 5/7–11 (West
2002).
¶ 41 Notwithstanding, at the jury instruction conference, defense counsel argued that the
compulsion defense should be available because defendant was charged under the
accountability statute as opposed to solely under the murder statute. Noting that, based on
the evidence, it would be a “stretch” to include such an instruction, the trial court denied
defense counsel’s request. During deliberations, the jury sent a note to the court asking,
“Suppose the defendant was threatened and forced to drive the car, is he guilty solely because
he didn’t report the crime to the police?” By the agreement of the parties, the jury was
instructed that it had heard all of the evidence and the law and should continue deliberating.
As previously stated, the jury returned a split verdict, finding defendant not guilty of the
aggravated battery with a firearm of Lee but guilty of the aggravated battery with a firearm
of Treadwell and Eckstine’s murder. The split verdict demonstrates that the jury was not
forced to find defendant guilty as a result of defense counsel’s “misapprehension of the law”
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where he argued that defendant was compelled to drive the shooters.
¶ 42 The instant case is distinguishable from People v. Chandler, 129 Ill. 2d 233, 543 N.E.2d
1290 (1989), a case heavily relied upon by defendant. In Chandler, our supreme court
concluded the defendant was denied effective assistance of counsel where his attorney failed
to cross-examine key prosecution witnesses, poorly cross-examined other State witnesses,
failed to call defense witnesses despite his promise during opening statements that the
defendant would testify and explain his involvement in the murder on trial, and conceded in
closing that his client had entered the victim’s house. Id. at 248-49. The defense counsel
erroneously believed the defendant could not be found guilty of murder if he did not fatally
wound the victim despite the fact that the defendant had been charged under the
accountability and felony murder statutes. Id. at 247. As a result, the supreme court held that,
because of his misapprehension of the law, the defense counsel’s strategy and actions
amounted to no real defense and failed to subject the State’s case to meaningful adversarial
testing. Id. at 249.
¶ 43 In comparison, here, defense counsel was faced with an uphill battle where defendant
confessed to driving the shooters in his police statement, videotaped statement, and at trial.
Defendant’s confessions were further supported by Washington’s police statement and
videotaped statement. Nevertheless, defense counsel cross-examined the State’s witnesses
demonstrating that neither of the victims or Spears identified defendant, and presented
defendant’s trial testimony in which he maintained he only agreed to drive Washington and
Smith to purchase marijuana and then continued driving them after the first shooting only
because he was forced to at gunpoint and feared for his safety. Defense counsel did subject
the State’s case to meaningful adversarial testing. Defendant has not demonstrated counsel’s
performance was deficient.
¶ 44 We conclude that, even assuming, arguendo, defense counsel should not have argued
defendant was compelled to drive his codefendants when Eckstine was shot and killed,
defendant has failed to present a reasonable probability that, but for defense counsel’s error,
the outcome of his trial would have been different. Consequently, defendant’s ineffective
assistance of counsel claim fails.
¶ 45 III. Impeaching Testimony
¶ 46 Defendant contends the State improperly impeached codefendant Washington with the
factual basis from his guilty plea, as presented by the State, because it was not expressly
adopted by Washington.
¶ 47 Defendant concedes that he failed to preserve his contention for our review by not
objecting at trial or including the alleged error in a posttrial motion. See Enoch, 122 Ill. 2d
at 186. As previously stated, we may review a forfeited error under the doctrine of plain error
when (1) the evidence was close, regardless of the seriousness of the error; or (2) the error
was so serious as to deny a substantial right, and thus a fair trial, that the closeness of the
evidence does not matter. Herron, 215 Ill. 2d at 178-79. Defendant requests that we consider
the error under first-prong plain error. Again, we first must determine whether any error
occurred. Hudson, 228 Ill. 2d at 191.
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¶ 48 At issue is the State’s impeachment of Washington with the factual basis from his guilty
plea hearing. Specifically, the following exchange took place:
“THE STATE: When you pled guilty, you stood in front of [the] judge with your
lawyer, correct?
MR. WASHINGTON: Correct.
***
THE STATE: Well, at some point the judge asked for the prosecutor to read some
facts into the record about what happened the night of these shootings. Remember that?
MR. WASHINGTON: Yes.
THE STATE: And that prosecutor *** read into the record that on the night of the
shootings you were with James Anderson and Sheldon Smith in the [car], correct?
MR. WASHINGTON: Correct.
DEFENSE COUNSEL: Judge, I want to ask for a sidebar.
THE COURT: Overruled.
THE STATE: Correct?
MR. WASHINGTON: Correct.
THE STATE: And you never raised your hand and said, oh, no, that’s not right, they
weren’t with me, did you?
MR. WASHINGTON: ’Cause–
THE STATE: Yes or no, sir, you never raised your hand?
MR. WASHINGTON: Hold on. Hear me out, though, ’cause–
THE STATE: Judge, I am going to ask you–
THE COURT: Listen to the question, sir.
MR. WASHINGTON: No.”
¶ 49 Relying on People v. Henderson, 95 Ill. App. 3d 291, 419 N.E.2d 1262 (1981), defendant
contends that the factual basis of a codefendant’s confession or admission, which implicates
the defendant, cannot be used for impeachment where the codefendant did not affirmatively
adopt the factual basis, but simply failed to correct the factual basis. Id. at 296. In Henderson,
the codefendant, who previously pled guilty to the robbery offense, testified at the
defendant’s trial that the defendant was not the car passenger who fled the scene when the
codefendant was arrested. Id. at 294-97. The State then impeached the codefendant with the
fact that, when the State presented a factual basis of his guilt at his plea hearing, he did not
disagree with the portion of the synopsis that indicated the defendant was the car passenger
who fled the scene. Id. at 294-97. The court found the impeachment was prejudicial because
it implied the codefendant had inculpated the defendant. Id. at 297.
¶ 50 Since Henderson, this court, in People v. Mitchell, 238 Ill. App. 3d 1055, 605 N.E.2d
1055 (1992), highlighted the fact that the impeachment in Henderson was prejudicial because
it was the only testimony in a case entirely based on circumstantial evidence that implied the
defendant was present when the arrest at issue occurred. Mitchell, 238 Ill. App. 3d at 1063.
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The Mitchell court, however, concluded that an attempt to “skirt” the Henderson rule may
be found harmless, especially where the evidence elicited from the erroneous impeachment
is cumulative of other testimony. Id. at 1063-64.
¶ 51 We find that any erroneous impeachment here was harmless, especially in light of the
overwhelming evidence that defendant was in fact the driver during the shootings. The
impeachment was only one of several times that testimony provided defendant was the
driver. Defendant himself admitted no less than three times through evidence presented at
trial that he was the driver. Consequently, defendant cannot establish plain error.
¶ 52 IV. Prosecutorial Misconduct
¶ 53 Defendant contends the State engaged in prosecutorial misconduct by offering personal
commentary on the credibility of defendant and codefendant Washington, improperly asking
defendant whether he thought Washington was truthful, and erroneously providing personal
opinion regarding Washington’s credibility during rebuttal argument.
¶ 54 Defendant yet again concedes that he failed to preserve his contention. See Enoch, 122
Ill. 2d at 186 (alleged errors that have not been objected to at trial and included in a posttrial
motion are forfeited for purposes of review). Defendant asks that we consider the contention
for first-prong plain error. See Herron, 215 Ill. 2d at 178-79. We first determine whether
error occurred. Hudson, 228 Ill. 2d at 191.
¶ 55 Defendant first challenges the State’s responses to testimony by defendant and
Washington. In particular, after asking defendant whether he informed the detectives and the
ASA that he was ordered by codefendants to drive at gunpoint and defendant responded that
he told them everything, “my story never changed.” The State responded, “I beg to differ,”
noting that defendant did not include that information in his videotaped statement. Then,
again when defendant testified that he was told to drive at gunpoint, the State responded,
“Really?” Later, while testifying regarding the shooting in the alley, defendant said his mind
was focused on getting away from codefendants as soon as possible and the State responded,
“Really. You hadn’t even stopped the car to try to get away from them?” During
Washington’s testimony, the State twice responded, “Really?” when Washington testified
that the detectives “jacked him up.” Defendant argues that the State’s responses were
argumentative because they were not designed to elicit information, but rather expressed the
State’s personal opinion.
¶ 56 Defendant mistakenly relies on People v. Clay, 27 Ill. 2d 27 (1963), as support that the
State’s comments were improper. In Clay, the supreme court found the defense counsel’s
cross-examination was not unduly restricted when the trial court sustained an objection to
the prosecution’s rhetorical question demonstrating its disbelief of the witness’s prior
answer. Id. at 30. While it is improper for the State to inject personal opinion about the
veracity of a witness because it is the jury’s duty to assess credibility (People v. Lee, 229 Ill.
App. 3d 254, 260, 593 N.E.2d 800 (1992)), we do not find the State’s responses to
inconsistencies in defendant’s and Washington’s testimony impermissibly influenced the
jury’s credibility assessment. Even assuming, arguendo, the State’s comments were
improper, the evidence supporting the jury’s verdict was so substantial that defendant cannot
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establish first-prong plain error.
¶ 57 Defendant next argues that the State improperly asked him whether he believed
Washington lied on the stand. The challenged inquiry occurred during defendant’s cross-
examination. On direct, defendant testified that he was not a member of the Black Disciples
and had no knowledge of the gang member’s death for which revenge had been ordered. The
following took place during cross-examination:
“THE STATE: There had been problems in the neighborhood between the Black
Disciples and Gangster Disciples?
DEFENDANT: Not to my knowledge. I wouldn’t know.
THE STATE: You don’t know anything about that?
DEFENDANT: I wouldn’t know.
THE STATE: So, when [Washington] in his video statement talks about the Black
Disciples meeting where the Black Disciples want to retaliate for someone named
Christopher Brooks or I think that was the last name, getting shot, and you being one of
the people asked to do it, you are saying none of that is true?
DEFENDANT: None of that is true.
THE STATE: As you sit here today, you have no idea why [Washington] would say
that about you or about Sheldon back in May of 2003 after he was arrested?
DEFENDANT: I have no idea.”
¶ 58 Courts have consistently found it improper for a State to question a defendant regarding
the veracity of a witness that testified against the defendant because such inquiry intrudes on
the jury’s function to assess the credibility of witnesses and serves to demean the defendant.
People v. Young, 347 Ill. App. 3d 909, 926, 807 N.E.2d 1125 (2004). Such errors, however,
have “generally been deemed harmless *** where evidence of defendant’s guilt was
overwhelming.” Id.¶ 59 We have repeatedly stated that the evidence here was overwhelming. Therefore, to the
extent the State’s cross-examination improperly infringed on the province of the jury by
asking defendant whether and why Washington was untruthful in his videotaped statement,
we find the error was harmless and defendant cannot establish first-prong plain error.
¶ 60 Defendant finally argues that the State erroneously offered its personal opinion regarding
Washington’s credibility during rebuttal argument. Specifically, in rebuttal, the State argued
that Washington “lie[d] when he took *** [the] stand, and I’ll get to that in a minute. And
I agree with that, ladies and gentlemen. Murderer, yes. And guess who was hanging out with
him on May 22, 2003, James Anderson.”
¶ 61 In regard to closing arguments, this court has said:
“For a prosecutor’s closing argument to be improper, he must ‘explicitly state that
he is asserting his personal views.’ (Emphasis omitted.) [Citation.] Appellate courts are
unwilling to infer that a prosecutor is injecting his personal opinion into an argument
where the record does not unambiguously say so. [Citation.] Furthermore, a witness’s
credibility is the proper subject of closing argument if it is based on the evidence or
reasonable inferences drawn from the evidence. [Citation.]” People v. Jackson, 391 Ill.
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App. 3d 11, 43, 908 N.E.2d 72 (2009).
Moreover, a prosecutor may respond to comments made by the defense that clearly invite or
provoke response. People v. Hudson, 157 Ill. 2d 401, 441, 626 N.E.2d 161 (1993).
¶ 62 Taking the challenged comments in context, we conclude the State’s comment regarding
Washington’s credibility was based on the evidence and reasonable inferences drawn
therefrom and that the State’s comment regarding Washington being a murderer was in direct
response to defense counsel’s closing argument in which he repeatedly referred to
Washington as a “sociopathic, perjurious, murderous witness.” Notwithstanding, even
assuming, arguendo, the rebuttal comments were improper, we have consistently concluded
defendant cannot establish first-prong plain error where the evidence supporting the jury’s
verdict was overwhelming.
¶ 63 CONCLUSION
¶ 64 We conclude that, although the trial court failed to comply with the dictates of Rule
431(b), the error did not rise to the level of plain error. We further find defendant received
effective assistance of counsel. We finally conclude that defendant cannot establish first-
prong plain error to avoid forfeiture of his improper impeachment and prosecutorial
misconduct contentions where the evidence against defendant was overwhelming.
¶ 65 Affirmed.
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