People v. Woods , 2011 IL App (1st) 91959 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Woods, 2011 IL App (1st) 091959Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ROSCOE WOODS, Defendant-Appellant.
District & No. First District, Second Division
Docket No. 1–09–1959
Filed May 31, 2011
Held Defendant’s convictions for aggravated battery with a firearm and
(Note: This syllabus attempted first degree murder arising from a gang-related shooting were
constitutes no part of upheld over his contentions that State violated Supreme Court Rule 412
the opinion of the by failing to disclose alleged prior statement of its rebuttal witness, that
court but has been trial court erred in allowing State to present other crimes evidence in
prepared by the rebuttal and by violating Supreme Court Rule 431(b), that he was denied
Reporter of Decisions a fair trial by the prosecutor’s comments in closing argument and that his
for the convenience of mittimus should be corrected to add seven days of presentence credit,
the reader.)
since defendant failed to carry his burden of proving he was prejudiced
by State’s failure to disclose rebuttal witness’s prior statement, objection
to other crimes evidence would not be considered under plain error
doctrine where there was no error, defendant conceded issue of alleged
violation of Rule 431(b) in his reply brief, and he was unable to show any
substantial prejudice in State’s closing and rebuttal closing arguments,
but State conceded that defendant was entitled to additional seven days
of presentence credit.
Decision Under Appeal from the Circuit Court of Cook County, No. 07–CR–1130; the
Review Hon. Stanley J. Sacks, Judge, presiding.
Judgment Affirmed; mittimus corrected.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Rachel M. Kindstrand, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Ashley A. Romito, and Annette Collins, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Cunningham and Justice Karnezis concurred in the
judgment and opinion.
OPINION
¶1 Following a jury trial defendant, Roscoe Woods, was convicted of one count of
aggravated battery with a firearm and one count of attempted first degree murder. He was
sentenced to 33 years in prison, which included an enhancement based on his personal
discharge of a firearm causing bodily harm. On appeal, he argues that the State violated
Illinois Supreme Court Rule 412 (eff. Mar. 1, 2001) by not disclosing an alleged prior
statement of its rebuttal witness, Rosalinda Taufique. He urges this court to excuse his
procedural default and review, under the plain error doctrine: whether the trial court erred
in allowing the State to present other crimes evidence in rebuttal; whether the trial court
violated Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) when instructing the jury;
and whether he was denied a fair trial by several comments made by the prosecuting attorney
during closing argument. Additionally, defendant argues, and the State agrees, that he is
entitled to an additional seven days of presentence credit. We hold that defendant has not
carried his burden of proving that he was prejudiced by any alleged Rule 412 violation.
Defendant has also not shown plain error and therefore we decline to excuse defendant’s
procedural defaults and review on the merits whether the trial court erred in allowing other
acts evidence in rebuttal; whether the trial court violated Rule 431(b); and whether the
State’s closing and rebuttal closing arguments were improper. We agree with both parties
that defendant’s mittimus should be corrected to reflect 854 days of presentence credit.
¶2 JURISDICTION
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¶3 The circuit court denied defendant’s motion to reconsider his sentence on June 16,
2009. Defendant timely filed his notice of appeal on July 15, 2009. Accordingly, this court
has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois
Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction
in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1,
2010); R. 606 (eff. Mar. 20, 2009).
¶4 BACKGROUND
¶5 On December 11, 2006, Chicago police officer Lee Trevino was shot and injured on
Division Street in Chicago, Illinois, after responding to a disturbance at nearby Clemente
High School. On the first day of defendant’s trial, the State filed a motion in limine seeking
to introduce evidence that before the shooting, at approximately 8 a.m., and in the same
general area of the incident, defendant approached Terrell Durham. Durham would testify
that defendant had in his waistband a silver-colored pistol and said to Durham, “What you
be about Cobra” and Durham responded that he was not a Cobra, but a member of a different
gang. Defendant then walked away saying he did not have a problem with Durham. The State
argued that this other crimes evidence was relevant to establish defendant’s intent in firing
the gun, his motive in firing the gun, and defendant’s state of mind. The State additionally
argued that the other crimes evidence was relevant to negate the defenses of an innocent
frame of mind, mistake, necessity and self-defense.
¶6 Defendant’s counsel argued that the incident was not relevant and that it was
prejudicial. Specifically, defense counsel stressed that the shooting and the evidence of other
crimes were two separate incidents occurring at different times of the day and that the
evidence was prejudicial because, from it, the jury could infer that defendant was
predisposed to violence on the day of the shooting. In ruling on the motion, the trial court
pointed out that defendant had raised two possible affirmative defenses, self-defense and
necessity. The trial court barred the evidence as inadmissable in the State’s case-in-chief, but
cautioned that it may be admissible during rebuttal if the defendant opened the door,
specifically “depending on what the defense offers or brings out on his examination of the
witnesses.”
¶7 Officer Michael Komo testified for the State that at about 2:30 p.m. on the day of the
shooting, he received an assignment that there was a disturbance at the bus stop at the
intersection of Division Street and Western Avenue near Clemente High School. He testified
that he and Officer Lee Trevino were in uniform and drove a marked police car to the area
near the bus stop, where they parked. He testified that the primary gangs operating in the area
are the Spanish Cobras and the Maniac Latin Disciples, who “don’t get along,” and that he
saw Spanish Cobra gang signs being “thrown up.” He saw six kids fighting and then run
westbound on Division Street past their marked police car. He stated that the kids continued
fighting, shoving each other, “throwing up gang signs,” and shouting gang words at each
other. The two officers approached the 6 kids fighting while 30 other people were on the
street. He was 15 to 20 feet from the fight and then identified himself as a Chicago police
officer and shouted “get out of here, break it up,” while waving his baton. He identified
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defendant as one of the kids fighting and testified that defendant was wearing a coat about
thigh length with fur around the collar. When he shouted for the crowd to disperse, the six
kids fighting looked at him and then ran. Defendant ran away from him on Division Street,
and as he passed Campbell Street, defendant turned around, reached in his waistband, and
produced a gun. As defendant was facing Officer Komo, he fired five or six shots in Officer
Komo’s direction. Officer Trevino was hit in the arm and shouted “I’m hit.” Both officers
took cover behind a parked car. He testified that after the shooting, he saw spent cartridges
on the ground where defendant had fired his gun.
¶8 Danate Barnes testified for the State that he was in the area and saw the fight. He
identified defendant, whom he knew as “Nu-Nu,” as a member of the Maniac Latin Disciples
gang. Barnes did not know defendant’s real name. Barnes testified that defendant and another
Maniac Latin Disciples’s gang member, “Buckaroo,” walked past members of the Spanish
Cobras gang. The Spanish Cobras, defendant, and Buckaroo were verbally insulting each
other. Defendant and Buckaroo walked away from the Spanish Cobras, but the Spanish
Cobras followed them. Barnes testified that at some point the altercation turned physical, but
that he ran away because he heard gunshots.
¶9 Kenyon Taylor testified for the State that on the day of the incident, he was at his
girlfriend’s house, which is approximately four blocks away from Clemente High School.
Taylor testified he knew defendant because he was friends with defendant’s cousin. He
testified that both defendant and defendant’s cousin were members of the Maniac Latin
Disciples gang. On the day of the incident, defendant rang the doorbell and Taylor answered.
Taylor described defendant’s appearance as “rough,” “scared,” and “nervous.” Defendant
was wearing a black coat with fur on it. Defendant stated to Taylor that he was “in a jam,”
that he might have shot a police officer, and he asked Taylor to stash a black handgun for
him. Taylor refused.
¶ 10 The State also called Torrey Davis, who had previously given a written statement to
the police and testified before a grand jury. At trial, Davis’s testimony was significantly
different from his written statement and his testimony before the grand jury. At trial, Davis
identified defendant, whom he knew both as Roscoe Woods and as “Nu-Nu.” He testified
that he did not know if defendant was a member of the Maniac Latin Disciples gang. Davis
testified that he saw a Hispanic man fighting with an African-American man in the street and
that they were the only two individuals fighting in the street. He testified he also saw a
Hispanic man with a silver gun in the alley. Davis testified that the man with the silver gun
had a mask over his face. Davis denied seeing defendant fighting, running, or shooting. Davis
was questioned extensively on his earlier statements to the police and the grand jury, which
were significantly different than his in-court testimony.
¶ 11 Assistant State’s Attorney (ASA) Susan Jakubiak testified for the State in order to
read into evidence Torrey Davis’s written statement, which he had provided a few days after
the shooting. The relevant portions of Davis’s statement, as read into evidence through ASA
Jakubiak, are as follows. Davis was 14 years old at the time of the incident and stated that
he socialized with the Maniac Latin Disciples gang, but was not actually in the gang. Davis
knew defendant as “Nu-Nu” and knew that he was a member of the Maniac Latin Disciples
gang. Davis stated that at the time of the incident, he saw defendant with “Buckaroo, G-
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Money, and Little Feasy.” Davis was walking with defendant and the other three individuals
when a Spanish Cobra gang member walked up to them and asked if they were Maniac Latin
Disciples. The Spanish Cobra then took off his shirt and curled his index finger to appear as
though he was pulling the trigger of a gun. Davis did not see a gun on the Spanish Cobra, but
he believed that the Spanish Cobra was signaling for someone to bring him a gun. Six other
Spanish Cobras joined the original Spanish Cobra. He started running with defendant and the
other three individuals. More Spanish Cobras appeared and defendant pulled a black gun out
of his waistband and held it out like he was going to shoot. He told defendant not to shoot
because there was a little girl present. Defendant then put the gun in his pocket and the group
ran about four more steps, before Buckaroo said to defendant; “Why are you running, don’t
you got the banger?” Defendant then pulled the gun out of his pocket, stopped, and turned
around. Davis heard five or six shots coming from defendant’s direction. ASA Jakubiak
testified that at the time he gave his statement, Davis never told her about a Hispanic
gentleman with a silver handgun on the street.
¶ 12 ASA Sabra Ebersole testified regarding Davis’s testimony before the grand jury,
which was substantially similar to the written statement he provided to ASA Jakubiak. ASA
Ebersole testified that Davis never told her about a Hispanic man with a silver gun.
¶ 13 The State also offered testimony from Detective Steven Suveda, who examined the
crime scene and presented the expert testimony of Marc Pomerance, an expert in the field
of firearms identification from the Illinois State Police Division of Forensic Sciences.
¶ 14 The State’s final witness was the victim in this case, Officer Trevino. Officer
Trevino’s testimony was substantially similar to Officer Komo’s regarding driving to the
scene of the fight, the number of people fighting, and the location of the fight. He testified
that during the incident he was focused on a Hispanic man who had his shirt off and was
flashing gang signs. The next thing he remembers was that he heard five or six shots fired
from in front of him in quick succession. He did not see who fired the shots. After he was
hit by one of the shots, he and Officer Komo retreated for cover behind a parked car.
¶ 15 Defendant testified on his own behalf. He stated that at approximately 2:30 p.m. on
the day of the incident, he got off the bus at the intersection of Division Street and Western
Avenue en route to his grandmother’s house, which was three or four blocks from the bus
stop. He said that as he got off the bus, there was a crowd of people asking him if he was a
Maniac Latin Disciple. He told the crowd that he was not a Maniac Latin Disciple and kept
walking. He said that one of the people in the crowd accused him of being a Maniac Latin
Disciple because defendant’s cousin was a member of the Maniac Latin Disciples. He knew
of the gang, but he was not a member of the gang. Defendant’s cousin was killed a month
earlier on his grandmother’s porch. As defendant was walking, a few of his cousin’s friends,
“Little Feasy, G-Money, and Buckaroo,” were standing by the bus stop and told him they
would walk with him for safety. As defendant’s group was walking, another group of people
approached them from the front and said, “y’all Maniacs.” Defendant testified that Little
Feasy replied and a fight ensued. Defendant continued walking despite the ongoing fight,
until some more Hispanic men stopped him. He saw one of them signal for a gun and then
run away. Defendant next saw someone coming out of the alley and running toward him with
a silver gun. Defendant ran, but when the man with the silver gun aimed at him, defendant
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shot his gun. He testified that when he shot the gun, his head was facing forward to see where
he was running and the gun was behind him. He did not look back or see where the gun was
pointed. He testified that he was scared he was going to get shot because his cousin had
recently been killed. He denied telling Kenyon Taylor that he may have shot a police officer.
He also denied participating in the fight because he was running away from it. Defendant
testified that he was not in the area on the morning of the incident and that he did not have
any contact with Terrell Durham.
¶ 16 After the defense rested, the State renewed its motion in limine to call Terrell Durham
in rebuttal to negate defendant’s claims of self-defense, necessity, and lack of mistake.
Defense counsel argued that defendant’s testimony was vague at best regarding whether he
was in the area at that time of the incident. Defense counsel also argued that too much time
separated the two incidents. The trial court allowed the State to call Durham, reasoning that
the evidence was permissible to show defendant’s intent and motive and the absence of
mistake. In addition to Durham, the State called Rosalinda Taufique and Detective Michael
Landano in rebuttal. The prosecutor informed the court that the detective was to testify to a
conversation he had with defendant at the time of his arrest and that Taufique was going to
testify that she saw the shooting. Specifically, her testimony would contradict defendant’s
testimony as to the position of his body at the time of the shooting. Defense counsel objected
to Taufique’s testimony, arguing that it would be cumulative to Officer Komo’s testimony,
that the State had an opportunity to bring Taufique’s testimony in during its case-in-chief,
and that her testimony would not specifically rebut defendant’s testimony. Defense counsel
also argued that the State violated discovery rules by not tendering Taufique’s statement
regarding the positioning of the shooter to the defense. The State argued that the reports
disclosed that Taufique observed a male with a gun discharging the weapon as he ran past
her store. The court overruled defendant’s objection, allowing Taufique to testify, consistent
with the police report, that she saw the shooting.
¶ 17 Rosalinda Taufique testified that on the day of the incident, she was in her store on
Division Street. She saw, out of her window, people running, and then one of them stopped,
turned, and fired five shots. Taufique indicated that the shooter’s left elbow was bent and his
right arm was across the left arm. Taufique recalled the shooter was an African-American
male, but she could not see his face. She could not identify the shooter, except that he had
on a black long coat. On cross-examination, Taufique testified that she did not tell the police
the manner in which the shooter shot the gun the first time she was interviewed, but she gave
them that information during her second interview.
¶ 18 Terrell Durham testified that at 8 a.m. on the morning of the incident, defendant,
whom he knew as “Sto,” said to him “what you be about Cobra” and showed him a silver-
colored pistol on his waist. Durham identified defendant in open court. Durham testified that
he responded that he was a “G.D.,” and defendant responded, “My problem is not his.”
Durham interpreted this to mean that defendant did not have a problem with him.
¶ 19 Detective Landano was the State’s final rebuttal witness. Detective Landano testified
that shortly after defendant’s arrest, defendant denied shooting a gun or even having a gun.
Detective Landano also testified that defendant did not tell him that he saw a Hispanic male
with a gun.
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¶ 20 Following closing arguments, the jury found defendant guilty of attempted murder
and aggravated battery with a firearm. The jury also found defendant personally discharged
a firearm causing severe bodily injury. The sentencing court sentenced defendant to 33 years
for attempted first degree murder.
¶ 21 Defendant filed a motion for a new trial pursuant to section 116–1 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/116–1 (West 2008)). Relevant to this appeal,
defendant argued that the trial court erred in allowing Rosalinda Taufique to testify as a
rebuttal witness. Defendant argued that Taufique’s testimony did not rebut defendant’s
testimony but, instead, improperly added additional evidence that was available for the State
to use in its case-in-chief. Defendant argued further that Taufique’s testimony severely
prejudiced him and denied him a fair trial. The trial court denied defendant’s motion, finding
Taufique’s testimony to be proper rebuttal testimony.
¶ 22 ANALYSIS
¶ 23 On appeal, defendant argues that the State violated Illinois Supreme Court Rule 412
(eff. Mar. 1, 2001) by not disclosing the specific statement as to the substance of the
testimony of its rebuttal witness, Rosalinda Taufique. Defendant also argues that this court
should review the following issues under the plain error doctrine: whether the trial court
erred in allowing other acts evidence through the State’s rebuttal witness; whether the State
violated Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) when instructing the jury;
and whether several comments made by the prosecution during closing argument denied him
his right to a fair trial. Defendant also argues, and the State agrees, that he is entitled to an
additional seven days of presentence credit.
¶ 24 Illinois Supreme Court Rule 412
¶ 25 Defendant argues that the State violated Illinois Supreme Court 412 by not disclosing
a specific statement as to the substance of rebuttal witness Rosalinda Taufique’s testimony.
The State disclosed Taufique as a potential witness before trial and provided the police
reports in which Taufique stated she observed an African-American man shooting a gun in
front of her store on the day of the incident. At trial, defendant objected, arguing that the
State did not disclose the manner in which the man Taufique observed shot the gun,
specifically whether the man she observed stopped, turned, and shot. On appeal, defendant
argues that the State was required to disclose the specificity of Taufique’s statement and that
the State’s failure to do so mandates a new trial.
¶ 26 Rule 412 provides that, “If the State has obtained from the defendant, pursuant to
Rule 413(d), information regarding defenses the defendant intends to make, it shall provide
to defendant *** a specific statement as to the substance of the testimony such witnesses will
give at the trial of the cause.” Ill. S. Ct. R. 412(a) (eff. Mar. 1, 2001). Thus, under Rule
412(a), the State must tender to defendant the identity of a rebuttal witness and a specific
statement regarding the substance of that witness’s testimony. Id.; People v. McCullum, 386
Ill. App. 3d 495, 512 (2008) (“the plain language of the rule requires the State to disclose the
identity of rebuttal witnesses and a specific statement as to the substance of the testimony of
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the witnesses”) However, “[c]ase law recognizes that the identity or specific testimony of
rebuttal witnesses may not be known until a defendant presents his case, and, therefore, the
proper procedure is for the State to provide this information when the intention is formed.”
McCullum, 386 Ill. App. 3d at 512; see also People v. Hood, 213 Ill. 2d 244, 259 (2004).
Although the requirements of discovery are mandatory, reversal is not required unless
surprise or undue prejudice has been shown. People v. Robinson, 157 Ill. 2d 68, 78 (1993).
Defendant has the burden of showing prejudice or surprise. Id. Whether rebuttal testimony
is admitted into evidence is a matter within the discretion of the trial court and will not be
reversed unless the trial court abuses that discretion. People v. Whitlock, 174 Ill. App. 3d
749, 777 (1988).
¶ 27 Our review of the record shows the State disclosed to defendant police reports stating
Taufique saw a man shooting as he ran past her store. Her details of the shooter having
stopped, turned, and fired the gun were not disclosed and the State claims that such details
were not part of the witness’s statement. We need not decide whether the State violated Rule
412 because the record fails to show defendant was prejudiced or surprised by the alleged
violation. In deciding prejudice, surprise and whether a discovery violation warrants a new
trial for a criminal defendant, a reviewing court considers “the closeness of the evidence, the
strength of the undisclosed evidence, the likelihood that prior notice could have helped the
defense discredit the evidence, and the willfulness of the State in failing to disclose the new
evidence.” Robinson, 157 Ill. 2d at 81. Further, a “defendant’s failure to request a
continuance upon learning of a discovery violation is a relevant factor to consider in
determining whether the new evidence prejudiced the defendant.” People v. Heard, 187 Ill.
2d 36, 63 (1999). Defendant did not request a continuance to investigate Taufique’s
testimony further, nor is the evidence in this case close. Taufique’s testimony was put forth
by the State to rebut and discredit defendant’s testimony that in shooting the gun, he did so
while running and pointing the gun backwards. Taufique’s testimony could not have been
a surprise to defendant because the State had already put forth evidence consistent with
Taufique’s testimony that the shooter stopped, turned, and then fired the gun as opposed to
defendant’s testimony that he held the gun behind his body and fired. Both Officer Komo’s
testimony and Torrey Davis’s written statement, as testified to by ASA Jakubiak, had already
shown that defendant stopped, turned, and then fired the gun. Officer Komo testified that he
saw defendant turn around, reach in his waistband, and then produce a gun. He testified that
defendant was then facing him when he fired it. Davis stated to ASA Jakubiak that after
Buckaroo asked defendant “Why are you running, don’t you got the banger” defendant pulled
the gun out of his pocket, stopped, and turned around. Taufique’s testimony could not have
surprised defendant as the State had already offered evidence consistent with Taufique’s
testimony in regard to his body position when he fired the gun. Taufique’s testimony was put
forth to impeach defendant’s testimony, not to surprise defendant with new evidence of the
positioning of his body as he fired the gun.
¶ 28 Defendant had prior notice from the State that Taufique was an eyewitness. Before
trial the State informed defendant that Taufique was in her store and saw the incident and the
shooting as it occurred, but that she could not identify the shooter she observed. Defense
counsel had the opportunity to impeach Taufique’s credibility. It is unlikely that prior
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knowledge consisting of a specific statement that Taufique observed the shooter stopped,
turned, and shooting would have helped discredit the evidence. Finally, defendant has not
shown how the State was willful in not disclosing Taufique’s observation of the shooter
stopped, turned, and shooting. The record shows the State disclosed Taufique as a witness
and that she saw a person shooting in front of her store. The State did not seek to surprise or
trick defendant by calling Taufique to testify. Defendant has not carried his burden of
proving prejudice.
¶ 29 Plain Error Doctrine
¶ 30 Defendant admits that he did not properly preserve certain issues for appeal, but urges
this court to excuse his procedural default and address these claims on the merits. We may
review defendant’s arguments on their merits only if he sustains his burden of persuasion on
either of the two prongs of the plain error doctrine. People v. Herron, 215 Ill. 2d 167, 187
(2005). Our supreme court has described the plain error doctrine as a “narrow and limited
exception.” People v. Hillier, 237 Ill. 2d 539, 545 (2010). The plain error doctrine allows this
court to review a forfeited claim of error that affects a substantial right in two instances:
“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” or “where the error is so serious that the
defendant was denied a substantial right, and thus a fair trial.” People v. Herron, 215 Ill. 2d
167, 178-79 (2005); see also Ill. S. Ct. R. 615(a) (“Any error, defect, irregularity, or variance
which does not affect substantial rights shall be disregarded. Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the trial
court.”). Before we address whether defendant’s claims satisfy either prong of the plain error
doctrine, defendant “must first show that a clear or obvious error occurred.” Hillier, 237 Ill.
2d at 545.
¶ 31 Testimony of Rebuttal Witness Terrell Durham
¶ 32 Defendant argues the trial court abused its discretion by allowing the State to present
the rebuttal testimony of Terrell Durham. Defendant contends that Durham’s testimony was
irrelevant because the incident he testified to occurred seven hours earlier than the one in
question, there was no commonality between the victims and because it lacked a threshold
similarity to the later shooting. Defendant argues further that even if it was relevant, it was
highly prejudicial.
¶ 33 Evidence of other offenses is not admissible to show a defendant’s propensity to
commit a crime. People v. Lindgren, 79 Ill. 2d 129, 137 (1980). However, if the evidence of
other offenses is relevant, it can be introduced for any purpose other than to show
defendant’s propensity to commit criminal acts. People v. Illgen, 145 Ill. 2d 353, 365 (1991).
Evidence of other offenses is admissible when “relevant to prove modus operandi, intent,
identity, motive or absence of mistake.” Id. at 364-65. Further, where other crimes evidence
is “admitted to show intent or lack of accident, mere general areas of similarity are
sufficient.” People v. Young, 381 Ill. App. 3d 595, 601 (2008); People v. LeCour, 273 Ill.
App. 3d 1003, 1008-09 (1995) (“Where other crimes are offered to prove a defendant’s
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criminal intent, they need not possess the same level of similarity to the offense at bar as is
required when offered to prove modus operandi.”).
¶ 34 In deciding whether to allow such evidence, the trial court must weigh the probative
value of the other offense evidence against the prejudicial effect of that evidence. Illgen, 145
Ill. 2d at 365. If the probative value of the evidence is outweighed by its prejudicial effect,
the trial court should exclude the evidence. Id. However, the trial court may admit rebuttal
evidence “where the evidence tends to explain, repel, contradict or disprove the evidence of
the defendant.” People v. Daugherty, 43 Ill. 2d 251, 255 (1969). Whether evidence is
admitted at trial is a matter within the discretion of the trial court, and, therefore, we will not
reverse the trial court’s decision absent an abuse of that discretion. Illgen, 145 Ill. 2d at 364.
¶ 35 In this case, the testimony of Terrell Durham was admitted in rebuttal. Defendant
testified that he was not in the area, nor did he have any contact with Terrell Durham, on the
morning of the incident. Prior to its admittance, the State argued that Durham’s testimony
would contradict defendant’s testimony on that point. The trial court allowed the evidence,
ruling the State could bring in the testimony to show motive, intent and absence of mistake.
The trial court also instructed the jury that Durham’s testimony should be considered for the
limited purposes of intent, motive, and lack of mistake.
¶ 36 We agree with the trial court that Durham’s testimony was not brought in to show
defendant’s propensity to commit criminal acts but, rather, was properly admitted to show
motive, intent and absence of mistake. Illgen, 145 Ill. 2d at 364-65. It is also clear from the
record that the trial court weighed the probative value of Durham’s testimony against its
prejudicial effect before allowing it. The trial court found its probative value outweighed any
prejudicial effect because it impeached defendant’s testimony. Durham’s testimony is proper
rebuttal testimony because it contradicts defendant’s testimony that he was not in the area
of the incident in the morning and that he did not make contact with Durham. Daugherty, 43
Ill. 2d at 255 (trial court may admit rebuttal evidence “where the evidence tends to explain,
repel, contradict or disprove the evidence of the defendant”). Based on our review of the
record, we cannot say the trial court abused its discretion in admitting the rebuttal testimony
of Terrell Durham. Because defendant cannot show error, the plain error doctrine is not
applicable. Hillier, 237 Ill. 2d at 545 (before proceeding under either prong of the plain error
doctrine, defendant “must first show that a clear or obvious error occurred”).
¶ 37 Closing Arguments
¶ 38 Defendant next contends the State made several comments during closing and
rebuttal closing argument that were improper. Initially, we note that due to an apparent
conflict between two Illinois Supreme Court cases, People v. Wheeler, 226 Ill. 2d 92, 121
(2007), and People v. Blue,189 Ill. 2d 99, 128 (2000), it is not clear what the proper standard
of review is when reviewing improper remarks made during closing arguments. People v.
Raymond, 404 Ill. App. 3d 1028, 1059-60 (2010) (stating that in Wheeler, the supreme court
utilized a de novo standard of review, but that in numerous other supreme court cases,
including Blue, the court applied an abuse of discretion standard). However, as this court
found in Raymond, we need not determine the proper standard of review in this case because
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here the result would be the same under either a de novo or an abuse of discretion standard
of review. Raymond, 404 Ill. App. 3d at 1060 (noting that this was the same approach taken
by this court in People v. Phillips, 392 Ill. App. 3d 243, 275 (2009), People v. Johnson, 385
Ill. App. 3d 585, 603 (2008), and People v. Robinson, 391 Ill. App. 3d 822, 840 (2009)).
¶ 39 First, defendant argues that the following statement by the prosecutor, during closing
arguments, was inflammatory.
“The evidence has proven the defendant guilty beyond a reasonable doubt. And
justice demands you find defendant guilty. Not just the evidence, but justice. And I’m not
talking about justice for Officer Trevino. I’m talking about justice for every high schooler
or child that was out on that street. For every shop owner, for every patron, for every
motorist on Division Street. For everyone, so that we can be free and safe from this gang
garbage on our city streets. We are asking for justice for all.”
¶ 40 Next, defendant argues that the prosecutor, during rebuttal closing arguments,
improperly argued that the credibility of the witness was enhanced because he was a police
officer.
“So let’s continue with the defendant’s story. How can a shot, six shots fired like this,
possibly shoot Lee Trevino in the arm. To believe that, you will absolutely have to
believe that Mike Komo came in here and lied to you. So let’s think about that for a
minute. Why would Mike Komo lie to you. Why. His partner was shot. To believe Mike
Komo would come in here and lie, you would have to believe that Mike Komo wants the
wrong person convicted of this offense and wants the correct person running free. The
person who actually shot his partner. What logic or sense does that make? Why would
Mike Komo do such a thing?
The use of force must be necessary to prevent imminent death or great bodily harm.
To understand why self defense is ridiculous, you really have to take it to its logical
conclusion. He is in a gang fight with other gangs. We all know gangs are bad. Okay.
Nobody’s going to sit here and tell you anything different. Most if not all shootings in the
city are occurring because of gang fights. If it is enough to simply come in at the day of
trial and invent a fictitious person and say someone was out there with a gun, then there
can be absolutely no convictions in any gang fight, any time, anywhere. *** The question
is, is there anything that corroborates it.”
¶ 41 Defendant’s final contention is that during rebuttal closing arguments, the following
comments made by the prosecutor distorted the burden of proof.
“The defendant is presumed innocent. The defendant is not presumed truthful. When
he takes the stand, you view his testimony, compared to the evidence, in the same way
as you view all the other testimony. You compare it, contrast it and you compare the
credibility.”
¶ 42 In making a closing argument, a prosecutor is given a great deal of latitude. People
v. Pasch, 152 Ill. 2d 133, 184 (1992). The prosecutor “has [the] right to comment on the
evidence and draw all legitimate inferences deducible therefrom, even if they are unfavorable
to the defendant.” Id. We must look at the entire argument and view any alleged erroneous
comments within the context that they were made. Blue, 189 Ill. 2d at 128. Closing
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arguments are improper if they serve no other purpose except to inflame the jury. Id. It is also
improper for a prosecutor to argue that a police officer’s testimony is more credible based
on the status of being a police officer. People v. Adams, 403 Ill. App. 3d 995, 1002 (2010).
A prosecutor may, however, “comment unfavorably on the evil effects of the crime and urge
the jury to administer the law without fear, when such argument is based upon competent and
pertinent evidence.” People v. Nicholas, 218 Ill. 2d 104, 121-22 (2005). Further, “[a]lthough
the prosecutor’s remarks may sometimes exceed the bounds of proper comment, the verdict
must not be disturbed unless it can be said that the remarks resulted in substantial prejudice
to the accused, such that absent those remarks the verdict would have been different.” People
v. Byron, 164 Ill. 2d 279, 295 (1995). Improper comments by the prosecutor themselves will
not warrant reversal unless those comments were a material factor in convicting the
defendant. Wheeler, 226 Ill. 2d at 123. Additionally, a significant factor in reviewing the
impact of a prosecutor’s allegedly improper comments on a jury verdict is whether the
comments were isolated and brief within the context of a lengthy closing argument. People
v. Runge, 234 Ill. 2d 68, 142 (2009).
¶ 43 Our review of the entire closing and rebuttal closing argument, as well as placing the
complained-of comments in their proper context, shows defendant cannot meet his burden
of showing substantial prejudice. We disagree with defendant that the prosecutor argued
during rebuttal closing argument that Officer Komo’s status as a police officer entitled him
to greater credibility. Adams, 403 Ill. App. 3d at 1002. Our review of the complained-of
comment in its entirety shows that at no time did the prosecutor argue that Officer Komo was
more credible because he is a police officer.
¶ 44 We also disagree that the prosecutor during rebuttal closing argument distorted the
burden of proof. Our review of the comment in its entirety shows that the State did argue the
proper standard of review, that a defendant is presumed innocent. After the complained-of
remark, the State commented that “you view [defendant’s] testimony, compared to the
evidence, in the same way as you view all the other testimony. You compare it, contrast it
and you compare the credibility.” We disagree with defendant’s contention and do not think
the comment is an improper remark on the State’s burden of proof in a criminal matter.
¶ 45 The prosecutor’s comments during closing arguments regarding “justice” may have
been improper. However, we need not decide that, as we cannot say that this comment was
a material factor in defendant’s conviction. Wheeler, 226 Ill. 2d at 123. The comment was
brief and isolated, made in the context of a lengthy closing argument by the State. Runge, 234
Ill. 2d at 142. The State’s closing argument was over 20 pages of transcript, and this was the
only alleged improper remark. This is also true as to the complained-of comment during
rebuttal closing argument regarding gang violence across the city. Although it may not have
been proper, it was brief and isolated in the midst of a rebuttal closing argument that was also
over 20 pages of the transcript. Id. at 142. Our review of both the closing and rebuttal closing
arguments shows that we cannot say that defendant’s verdict would have been different had
the prosecutor not commented on justice or general gang violence. Byron, 164 Ill. 2d at 295.
Defendant has thus not shown that he was substantially prejudiced. Id. Defendant failed to
object to these alleged errors and a review of his claim under the plain error doctrine is
inapplicable.
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¶ 46 Illinois Supreme Court 431(b)
¶ 47 Defendant next argues that the trial court failed to comply with Illinois Supreme
Court Rule 431(b) in its voir dire of prospective jurors. Ill. S. Ct. R. 431(b) (eff. May 1,
2007). Defendant admits that this issue was not properly preserved for appeal, but in his
opening brief urged this court to excuse his procedural default and address his claim on the
merits under the second prong of the plain error doctrine. During the pendency of this case,
the Illinois Supreme Court decided People v. Thompson, 238 Ill. 2d 598 (2010). Thompson
held that a violation of Rule 431(b) does not automatically constitute a structural error
subject to reversal. Id. at 608. In Thompson, our supreme court concluded the defendant had
not carried his burden of persuasion under the second prong of plain error review because
the defendant had not presented any evidence of a biased jury. Id. at 614. In his reply brief,
defendant conceded the issue, stating “[b]ecause [defendant] is not arguing that his jury was
biased based on the trial court’s noncompliance with Rule 431(b), he does not persist in his
plain error argument under the second prong.”
¶ 48 Presentence Credit
¶ 49 Defendant’s final argument is that he is entitled to an additional seven days of
presentence credit and, thus, this court must instruct the circuit court to correct the mittimus
to reflect the proper presentence credit. The trial court ordered defendant be credited 847
days of presentence credit. The State concedes defendant is entitled to 854 days of
presentence credit. We agree with the parties. Defendant’s mittimus shall be corrected to
reflect 854 days of presentence credit.
¶ 50 CONCLUSION
¶ 51 For the foregoing reasons, the judgment of the circuit court of Cook County is
affirmed and the mittimus corrected.
¶ 52 Affirmed; mittimus corrected.
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