People v. Anderson

FIRST DIVISION
February 14, 2011
No. 1-08-0500
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. O5C6-61126-01
)
JOHN ANDERSON, ) Honorable
) Michelle M. Simmons,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE HALL delivered the judgment of the court,
with opinion.
Justices Lampkin and Rochford concurred in the judgment and
opinion.
OPINION
Following a jury trial, the defendant, John Anderson, was
found guilty of residential burglary. The trial court imposed a
sentence of 20 years' imprisonment in the Department of
Corrections. The defendant appeals.
On appeal, the defendant raises the following issues: (1)
whether the denial of his motion to suppress was error; (2)
whether it was error to admit evidence which permitted the jury
to find the defendant guilty of an uncharged residential
burglary; (3) whether it was error to allow the jury to view a
No. 1-08-0500
certified copy of the defendant's previous conviction, which
contained prejudicial surplusage; (4) whether the defendant's
testimony in support of his defense was inadmissible hearsay; (5)
whether the prosecutor's remarks in closing argument deprived the
defendant of a fair trial; (6) whether it was error to deny
defense counsel's request to question the venire to ascertain any
bias based on the defendant's prior conviction; and (7) whether
the cumulative effect of the alleged errors denied the defendant
a fair trial and due process of law. We affirm the defendant's
conviction and sentence.
The defendant was charged with a single count of residential
burglary. The indictment charged that, on or about September 17,
2005, the defendant entered the residence of Joann Hess with the
intent to commit a theft. See 720 ILCS 5/19-3(a) (West 2004).
In response to the defendant's request for a bill of particulars,
the State identified the date and time of the offense as on or
about September 17, 2005, at approximately 2:39 a.m., and that it
occurred at or near 12316 Vincennes, Blue Island, Illinois.
As the defendant does not challenge the sufficiency of the
evidence, only a brief summary of the evidence at trial is
necessary. Evidence pertinent to an issue raised on appeal will
2
No. 1-08-0500
be set forth in connection with that issue.
SUMMARY OF TRIAL EVIDENCE
Joann and Jeffrey Hess resided at 12316 Vincennes Avenue in
Blue Island. On September 16, 2005, the Hesses attended a party.
At approximately 2 a.m., on September 17, 2001, Mrs. Hess
returned to their residence and discovered evidence of a
burglary: the front door was unlocked, and jewelry, cash and gas
cards were missing. After being notified of the burglary, Mr.
Hess returned to the residence. As the Hesses stood in their
kitchen, a man, later identified as the defendant, entered the
residence through the front door and began looking around. When
Mrs. Hess cried out that the man was back, the defendant fled the
house, pursued by Mr. Hess. Mr. Hess managed to restrain the
defendant. The defendant told Mr. Hess that if he did not call
the police, he would get the Hesses' property returned to them.
The police arrived, and a search of the defendant revealed a set
of car keys, which had been on the kitchen counter of the
residence when Mrs. Hess left for the party.
The defendant gave a statement to Blue Island police
officers. Initially, the defendant had acted as a lookout while
a friend of his, Cat Daddy, entered the Hess residence and
3
No. 1-08-0500
removed some items. Cat Daddy shared the proceeds with his
girlfriend and then told the defendant to return to the Hess
residence and see what else he could take. When the defendant
returned to the Hess residence, he was confronted by the
homeowner. However, at trial the defendant testified that, prior
to going to the Hess residence, he had witnessed Mrs. Hess giving
a set of keys to Cat Daddy's brother in exchange for drugs. The
keys were then given to the defendant who went to the Hess
residence only to exchange the keys for $20.
The jury found the defendant guilty of residential burglary.
Following the denial of his motion for a new trial, the defendant
was sentenced to 20 years' imprisonment. This timely appeal
followed.
ANALYSIS
I. Denial of Motion to Suppress Statement
The defendant contends that the trial court erred when it
denied his motion to suppress the inculpatory statement he gave
to police following his arrest.
A. Pertinent Evidence
At the hearing on the motion to suppress, the following
testimony was presented by the parties.
4
No. 1-08-0500
Bernadine Rzab1 testified that, on September 17, 2005, she
was a detective with the Blue Island police department. After
reporting for work at 3 p.m., Officer Rzab was informed that the
defendant, a burglary suspect, had been taken into custody at
approximately 2:45 a.m. that morning. At approximately 4:30
p.m., Officer Rzab and Corporal Kevin Sisk interviewed the
defendant.
Officer Rzab advised the defendant of his Miranda rights.
She had the defendant read aloud each of the rights from the
printed form. As he read each right, she asked if he understood
each right. He indicated he did and placed his initials by each
right. Both officers signed the waiver of rights form after the
defendant signed it.
After signing the waiver form, the defendant agreed to speak
to the officers and agreed that his statement could be summarized
in writing. The conversation lasted approximately 40 minutes.
The defendant appeared coherent and had no difficulty forming
sentences. After the defendant gave his statement, Officer Rzab
1
The record reflects that Officer Rzab also spelled her name
"Azab."
5
No. 1-08-0500
had him review what she wrote, and the defendant agreed it was
accurate. The defendant also acknowledged in the statement that
he had been treated well while in custody and that he was not
forced to make the statement.
When questioned about the defendant's physical condition,
Officer Rzab stated that he appeared fine and that there was no
change in his physical condition during the interview. The
defendant never stated that he suffered from diabetes or that he
was taking insulin. She denied that the defendant told her that
he needed to take his insulin or that he told her he did not
understand the proceedings because he was ill. She never denied
medication to the defendant, and there was no discussion
regarding the defendant's need to take medication.
On cross-examination, Officer Rzab testified that she was
unaware of whether the defendant had been given any food prior to
beginning her interview with him. She did not ask the defendant
if he needed food. She acknowledged that she was unfamiliar with
the defendant's "normal" demeanor. She again denied that the
defendant told her he was a diabetic or that he requested
insulin. She did not recall telling the defendant that she would
help him get insulin after their discussion. Officer Rzab denied
6
No. 1-08-0500
that she escorted the defendant to another room to make a
telephone call to obtain insulin.
The defendant testified that he was 45 years of age and had
been an insulin-dependent diabetic since 1984. He took insulin
twice a day, in the morning and the evening. Following his
arrest, he was placed in a holding cell at approximately 2:40
a.m. He had no medication with him, and he was not offered any
food or anything to drink. He had last taken his insulin the
morning of September 16, 2005, and had last eaten around 8:30
p.m. the evening of the 16th.
When he entered the interview room, he was feeling ill; he
had a severe headache, cramps, he was sweating, and feeling
nauseated. He told Officer Rzab that he was an insulin-dependent
diabetic and need his insulin. He also told her that he had some
insulin at his godmother's residence. The defendant was not
wearing his glasses, which, due to his diabetes, he needed in
order to see clearly.
The defendant testified that he repeatedly told Officer Rzab
that he was ill and needed his insulin. Officer Rzab responded
that once they concluded the interview, she would see about
obtaining insulin for the defendant. He did not recall Officer
7
No. 1-08-0500
Rzab asking if he wanted his statement in writing, but he did
recall Officer Rzab reading the statement to him and telling him
that if he signed it, he could make a telephone call to get the
insulin. The defendant did not read the written statement.
After the defendant signed the statement, Officer Rzab took
the defendant into the squad room so he could telephone his
godmother, Elizabeth Broadway. He spoke to Ms. Broadway, but she
was unable to bring his insulin to the police station. After he
concluded the call, Officer Rzab told him she would see about
getting him insulin. The defendant was then returned to his
cell. When he was taken to bond court the next morning, he
passed out and woke up in the hospital.
On cross-examination, the defendant testified that, while in
custody, he had three meals, each consisting of a cheeseburger
and a soft drink. The first time he ate was after he signed the
statement. The defendant maintained that he signed the statement
because he was feeling ill. He acknowledged that, despite not
having his glasses, he was able to place his initials on the
lines of the form. The defendant pointed out that three of the
letters of his signature on the waiver of rights form were not
exactly on the line. However, he acknowledged that he signed on
8
No. 1-08-0500
the lines, including a slanted line, in three places on his
statement.
On redirect examination, the defendant testified that much
of the food he consumed while in custody was not good for him.
He passed out because he had not taken his insulin since the
morning of September 16, 2005. He was able to sign the statement
because it was placed right in front of him. On re-cross-
examination, the defendant maintained that he was not given a
choice of food; he ate because he was hungry.
Corporal Kevin Sisk testified that on September 17, 2005, he
was a corporal detective with the Blue Island police department.
Officer Rzab and he conducted an interview of the defendant. The
defendant did not appear ill during the interview. He appeared
coherent and did not have any difficulty communicating during the
interview. He made no request of either officer. On cross-
examination, Corporal Sisk acknowledged that he was not familiar
with the defendant's normal appearance.
The State requested that the trial court take judicial
notice that, in bond court on September 18, 2005, the judge set
bond but issued a "no body" mittimus for the defendant. The
trial court denied the motion to suppress.
9
No. 1-08-0500
B. Standard of Review
In reviewing a trial court's ruling on a motion to suppress,
we apply a two-part standard. While we will not reverse the
trial court's factual findings unless they are against the
manifest weight of the evidence, the trial court's ultimate
determination is reviewed de novo. People v. Luedemann, 222 Ill.
2d 530, 542, 857 N.E.2d 187 (2006).
C. Discussion
In determining whether a confession is voluntary, the court
must consider the totality of the circumstances. People v.
Gorgis, 337 Ill. App. 3d 960, 970-71, 787 N.E.2d 329 (2003).
Factors to be considered include the defendant's age,
intelligence, background, experience, mental capacity, education,
physical condition at the time of questioning, and any physical
or mental abuse by police, including the existence of threats or
promises. Gorgis, 337 Ill. App. 3d at 971.
The defendant maintains that the police denied him food,
water and medical attention until he provided a confession to the
residential burglary charge. The State initially responds that
the defendant has forfeited the issue because he did not
specifically allege it in his motion to suppress or raise it in
10
No. 1-08-0500
his motion for a new trial.
The purpose behind the waiver rule is to ensure that the
trial court was given the opportunity to correct any errors
before they are raised on appeal. People v. Bennett, 376 Ill.
App. 3d 554, 567, 876 N.E.2d 256 (2007). In support of his
motion to suppress and in his testimony at trial, the defendant
argued that he was not given any food and was denied insulin
until he gave a statement to the detectives. In his motion for a
new trial, the defendant alleged that the denial of his motion to
suppress was error. In denying the defendant's motion for a new
trial, the trial court was clearly aware of the arguments the
defendant raised in contesting that his confession was voluntary.
As the trial court had the opportunity to consider the
defendant's arguments both prior to and after the trial, the
issue was not forfeited.
The defendant maintains that evidence established that the
officers withheld insulin, food and water to the defendant until
he agreed to give them a statement. While the fact that the
defendant was a diabetic was uncontradicted, what is disputed in
this case is whether he informed the officers that he was a
diabetic and needed insulin. In contrast to the defendant's
11
No. 1-08-0500
testimony, the officers maintained that the defendant made no
complaints or requests during the interview, never informed them
that he was a diabetic and required insulin, and appeared alert
and coherent during the interview.
In ruling on a motion to suppress, the trial court must
resolve conflicts in the evidence and determine the credibility
of the witnesses. Gorgis, 337 Ill. App. 3d at 971. The trial
court is in a better position than the reviewing court to assess
the credibility and demeanor of the witnesses who testified at
the hearing and to assess the relevant facts. Gorgis, 337 Ill.
App. 3d at 971. In this case, credibility was the determinative
factor in the outcome of the hearing. The trial court resolved
the conflicts in the evidence against the defendant. We find no
basis in the record for disagreeing with the trial court's
credibility determinations. Therefore, they are not against the
manifest weight of the evidence.
The cases relied on by the defendant are distinguishable.
In People v. Strickland, 129 Ill. 2d 550, 544 N.E.2d 758 (1989),
the police were aware that the defendant was injured when he was
arrested and did not obtain medical treatment for him until he
had given a statement. In the present case, the issue of whether
12
No. 1-08-0500
the officers were aware of the defendant's medical condition was
resolved against the defendant.
In In re V.L.T., 292 Ill. App. 3d 728, 686 N.E.2d 49 (1997),
the reviewing court found the 10-year-old respondent's confession
to have been coerced. The evidence established that the
respondent, who had no prior experience with police, was taken
from her home in her pajamas, was tired and hungry, and despite
her request, no one concerned with her welfare was present for
her to confer with prior to writing out her confession. V.L.T.,
292 Ill. App. 3d at 737. The evidence in this case established
that the defendant was a mature man, who never indicated to
police that he required food or medical attention or assistance
of any kind.
We conclude that the trial court did not err in denying the
defendant's motion to suppress his inculpatory statement.
II. Uncharged Offense
The defendant contends that his burglary conviction must be
reversed because he may have been convicted of an uncharged
offense. He maintains that the indictment charged him only in
connection with his own entry into the Hess residence. He argues
that by giving the jury an instruction on accountability, the
13
No. 1-08-0500
jury may have convicted him based on evidence that he served as a
lookout when Cat Daddy entered the Hess residence. The State
responds that the trial court correctly found that the two
entries were part of a continuous course of conduct and that the
defendant's conduct constituted the singular offense of
residential burglary.
A. Pertinent Evidence
Prior to trial, defense counsel filed a motion in limine to
bar evidence of other crimes, specifically the reference in the
defendant's statement that he acted as a lookout while Cat Daddy
entered the Hess residence and removed certain items from the
residence.
Defense counsel argued that, based on the defendant's
statement, two separate burglaries occurred; one in which the
defendant acted as a lookout and the other when he actually
entered the residence. Based on the indictment and its answer to
the bill of particulars, defense counsel maintained that the
State was proceeding only on the burglary in which the defendant
actually entered the residence. In response, the prosecutor
argued that the defendant's actions in acting as a lookout and
his entry into the Hess residence comprised one continuous crime.
14
No. 1-08-0500
While the exact time of the defendant's actions could not be
ascertained, the prosecutor noted that, according to the
defendant's statement, he did not arrive in Blue Island until
2:30 a.m. on September 17, 2005. While trial counsel
acknowledged that both entrances to the Hess residence were on
September 17, 2005, she pointed out that Mrs. Hess was expected
to testify that she discovered evidence of the burglary at 2 a.m.
on September 17, 2005.
After reviewing the defendant's statement, the trial court
denied the motion. Relying on the defendant's statement, the
court determined that the defendant's actions as a lookout and
his own entry into the Hess residence constituted a continuous
course of conduct. There was no previous burglary and therefore,
the defendant's statement did not refer to other crimes.
B. Discussion
The defendant first challenges the trial court's
determination that the defendant's participation as a lookout for
Cat Daddy and his own entry into the Hess residence was a
continuous course of conduct and constituted the commission of a
single burglary as charged in the indictment. The defendant
relies on People v. Bell, 196 Ill. 2d 343, 751 N.E.2d 114315
No. 1-08-0500
(2001). In Bell, the supreme court held that for purposes of
eligibility for extended-term sentencing, "[i]f there was a
substantial change in the nature of the criminal objective, the
defendant's offenses are part of an 'unrelated course of
conduct.' " Bell, 196 Ill. 2d at 354-55.
The defendant maintains that the State's evidence showed
there was a substantial change in the defendant's criminal
objective between the first and second entries. The defendant
asserts that, in the first entry, he served as a lookout while
Cat Daddy burglarized the Hess residence for the benefit of
himself and his girlfriend. When the defendant entered the Hess
residence, it was to obtain items for himself. However, the
evidence also established that when the police searched the
defendant, he had keys that had been taken from the Hess
residence. According to the defendant's statement, after Cat
Daddy and he returned to Cat Daddy's apartment, the defendant
took the keys that Cat Daddy had obtained from the Hess residence
and returned to obtain more items. After he was surprised by the
Hesses, the defendant testified that he was trying to return to
Cat Daddy's apartment when he was tackled by Mr. Hess.
Based on the evidence and the reasonable inferences from
16
No. 1-08-0500
that evidence, we agree with the trial court that the defendant's
conduct in acting as a lookout and his own entry into the Hess
residence constituted a single burglary as charged in the
indictment. Assuming, arguendo, the two entries into the Hess
residence did not constitute a continuous course of conduct, the
error does not require reversal.
Citing People v. Crespo, 203 Ill. 2d 335, 788 N.E.2d 1117(2001), the defendant argues that it would be unfair to uphold
his conviction based on either of two burglary theories, one
which is not legally valid. In Crespo, while the court rejected
the State's argument that three separate stab wounds sustained by
the victim supported three separate offenses, it was because
"[w]e believe that to apportion the crimes among the various stab
wounds for the first time on appeal would be profoundly unfair."
(Emphasis added.) Crespo, 203 Ill. 2d at 343. In the present
case, the State's argument that it was seeking to convict the
defendant either as an accomplice or a principal was raised at
trial.
The defendant then argues that where the jury was instructed
on alternative theories of guilt and may have relied on an
invalid one, the guilty verdict may not stand. See Yates v.
17
No. 1-08-0500
United States, 354 U.S. 298 (1957), overruled on other grounds by
Burks v. United States, 437 U.S. 1 (1978). However, our supreme
court's decision in People v. Davis, 233 Ill. 2d 244, 909 N.E.2d
766 (2009), suggests otherwise.
In Davis, our supreme court determined that a harmless-error
or a plain-error analysis applied to a constitutional due process
error. The court noted that in Hedgpeth v. Pulido, 555 U.S. 57(per curiam), the United States Supreme Court held that where the
jury was instructed on multiple theories of guilt, one of which
is improper, a harmless-error analysis is applicable. Davis, 233
Ill. 2d at 270, citing Hedgpeth, 555 U.S. at ___, 129 S. Ct. at
532. The court further noted that Yates had been decided prior
to the decision in Chapman v. California, 386 U.S. 18 (1967), in
which the Court held that constitutional error may be harmless.
The harmless-error analysis also applies to violations of the
Illinois Constitution. See People v. Rivera, 227 Ill. 2d 1, 30,
879 N.E.2d 876 (2007) (harmless-error analysis applied to
violation of the right to a jury trial under the federal
constitution and applied to a violation of that right alleged
under the Illinois Constitution).
Unlike Davis, where the plain-error analysis applied because
18
No. 1-08-0500
the error was not preserved, here the error was preserved for
review; therefore, the harmless-error analysis applies. People
v. Thurow, 203 Ill. 2d 352, 363, 786 N.E.2d 1019 (2003). Under
the harmless-error analysis, the test is whether, absent the
error, a rational jury could have found the defendant guilty
beyond a reasonable doubt. Thurow, 203 Ill. 2d at 368-69. The
State bears the burden of proof. Thurow, 203 Ill. 2d at 363.
Even assuming that a conviction on the accountability theory
would have been invalid because the defendant was never charged
in connection with Cat Daddy's entry, there was more than
sufficient evidence from which the jury could conclude that the
defendant was guilty of burglary based on his own entry into the
Hess residence. The only contested issue was why the defendant
was present at the Hess residence. The State's evidence
established that the defendant was in possession of a set of
keys, that had been in the Hess kitchen when Mrs. Hess left.
While the defendant testified that he was given the keys to
return them for money, his statement was contracted by his own
statement to police, as well as his statement to Mr. Hess that if
he did not call the police, the defendant could assist in getting
the remaining stolen items returned.
19
No. 1-08-0500
We conclude that any error in allowing the jury to consider
an accountability theory in convicting the defendant was harmless
beyond a reasonable doubt.
III. Admission of Certified Copy of Previous Conviction
The defendant contends that the trial court erred by
admitting the certified copy of the defendant's conviction
without deleting the references to the sentence he received,
that he caused injury and great bodily harm and the nine counts
the defendant was charged with, not just the seven of which he
was convicted. He acknowledges that he failed to preserve the
error but seeks review under the plain-error doctrine. See Ill.
S. Ct. R. 615(a). Under the plain-error doctrine, we may
consider a forfeited issue "when either (1) the evidence is
close, regardless of the seriousness of the error, or (2) the
error is serious, regardless of the closeness of the evidence."
People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d 467 (2005).
The defendant asserts that we should review the alleged error
because the evidence is closely balanced. First, we must
determine if error occurred. People v. Hudson, 228 Ill. 2d 181,
191, 886 N.E.2d 964 (2008).
To impeach a defendant with a prior conviction, the proper
20
No. 1-08-0500
method of proof is the introduction of a certified copy of the
record of conviction only. People v. Davis, 54 Ill. App. 3d 517,
525, 369 N.E.2d 1376 (1977). The inclusion of irrelevant
evidence such as the inclusion of criminal charges of which the
defendant was not convicted was surplusage, irrelevant and
erroneous. Davis, 54 Ill. App. 3d at 525. It is also improper
to indicate the sentence the defendant received for a prior
conviction, as it is immaterial to the question of a defendant's
credibility. People v. Pruitt, 165 Ill. App. 3d 947, 954, 520
N.E.2d 867 (1988). The details appearing on the documents
necessary to prove the defendant's prior conviction may be so
prejudicial that the defendant would be entitled to a new trial.
See People v. Dudley, 217 Ill. App. 3d 230, 234, 576 N.E.2d 1110(1991). Assuming, arguendo, that the admission of the surplusage
information was error, we must address the defendant's argument
that the evidence is closely balanced.
In People v. Naylor, 229 Ill. 2d 584, 893 N.E.2d 653 (2008),
the supreme court determined that the trial court erred when it
admitted the defendant's prior conviction. In conducting a
plain-error analysis, the court further determined that the
evidence was closely balanced where the trial court was faced
21
No. 1-08-0500
with two credible versions of the event. As the State's only
successful attack on the defendant's testimony was his
erroneously admitted prior conviction and the court could not be
certain the error did not prejudice the defendant's right to a
fair trial, the error was not forfeited and required that the
defendant receive a new trial. Naylor, 229 Ill. 2d at 608-09.
The defendant's reliance on Naylor is misplaced. Unlike the
trial judge in Naylor, in the present case, the jury was not
faced with two equally credible versions of the events. The
testimony of the Hesses established that the defendant entered
their residence and that the defendant had in his possession a
set of keys, which had been in the residence at the time Mrs.
Hess left. The defendant attempted to flee and was restrained by
Mr. Hess. The defendant then offered to help Mr. Hess retrieve
his possessions. The defendant's testimony denying his
participation in the burglary was contradicted by his statement
admitting his participation in the burglary of the Hess residence
and his possession of the keys taken from the residence.
The evidence is not closely balanced in this case, and the
defendant does not argue the second prong of the plain-error
analysis. Therefore, we conclude that there is no basis for
22
No. 1-08-0500
excusing the defendant's procedural default.
IV. Hearsay
The defendant contends that the trial court erred when it
barred a portion of the defendant's testimony on the basis that
it was hearsay and that the error prevented him from establishing
his defense. The State responds that the testimony was hearsay
and that any error was harmless and did not deprive the defendant
of his defense.
A. Pertinent Evidence
On direct examination, the defendant testified that Cat
Daddy passed him a set of keys from Cat Daddy's brother. The
defendant was then questioned as follows:
"Q. After you had that conversation about these keys,
did you do anything?
A. Meaning?
Q. What did you do after you had this conversation
about the keys that you were given?
A. I went down the street. I followed their
direction."
The prosecutor's objection was sustained, and the answer was
stricken. The questioning then continued as follows:
23
No. 1-08-0500
"Q. Just tell me what you did. Where did you go?
A. I walked down the street on the same side of the
street we all were on until I saw the house on the opposite
side of the street like they told me."
Again, the prosecutor's objection was sustained. The trial
court instructed the defendant to answer the question without
telling what someone told him to do. The defendant indicated
that he understood the court's instruction. The questioning
continued as follows:
"Q. All right. You said you walked to a house. How
did you know which house to walk to?
A. I was given instructions."
Outside the presence of the jury, defense counsel argued
that the testimony was not hearsay in that it was not offered for
the truth of the matter asserted but to explain why the defendant
went to a particular house. The trial court disagreed, finding
that the testimony was offered to prove that the defendant was
told by someone to go that house. Later, the trial court
allowed the defendant to testify that he was going to the Hess
residence to get $20.
B. Standard of Review
24
No. 1-08-0500
A trial court's decision on the relevance and admissibility
of evidence is reviewed for an abuse of discretion. People v.
Gonzalez, 379 Ill. App. 3d 941, 953, 884 N.E.2d 228 (2008).
C. Discussion
In order to constitute hearsay, the statement must be
offered to establish the truth of the matter asserted in the
statement. Gonzalez, 379 Ill. App. 3d at 954. "The primary
rationale for the exclusion of hearsay testimony is the inability
of the opposition to test the testimony's reliability through
cross-examination of the out-of-court declarant." People v.
Weatherspoon, 394 Ill. App. 3d 839, 850, 915 N.E.2d 761 (2009).
Where the out-of-court statement is offered to prove its effect
on the listener's mind or to show why the listener subsequently
acted as he did, the statement does not constitute hearsay and is
admissible. Gonzalez, 379 Ill. App. 3d 941.
The defendant maintains that the excluded testimony was not
hearsay because his testimony as to Cat Daddy's instructions was
offered to explain that he went to the Hess residence to return a
set of car keys. In People v. Sorrels, 389 Ill. App. 3d 547, 906
N.E.2d 788 (2009), the reviewing court held that a police
officer's order to the defendant to "stop," was not hearsay as it
25
No. 1-08-0500
was admitted to establish that the defendant ignored the
officer's command and continued to flee. In addition, the court
found that the statement was properly admitted because there was
"'no truth of the matter asserted'" in the command to "stop" and
that it was not necessary "'to test the reliability through
cross-examination of the out-of-court declarant' because that
testimony has no 'reliability' in the hearsay sense." All that
mattered was that the word was uttered. Sorrels, 389 Ill. App.
3d at 553.
Likewise, in this case, the defendant's statement that he
was instructed to go to the Hess residence did not constitute
hearsay because it was offered to show why the defendant acted as
he did, namely to go to the Hess residence. Like the "stop"
command in Sorrels, the instruction to go to the Hess residence
did not constitute "'an assertion or a statement of fact.'" See
Sorrels, 389 Ill. App. 3d at 554 (quoting Holland v. State, 713
A.2d 364, 369-70 (Md. Ct. Spec. App. 1998).
"Erroneous exclusion of admissible evidence does not mandate
reversal unless defendant was prejudiced and the error affected
the verdict." Weatherspoon, 394 Ill. App. 3d at 850-51. In
Weatherspoon, the trial court erroneously excluded on the grounds
26
No. 1-08-0500
of hearsay the defendant's testimony that during a conversation
with a group of men, he felt threatened. The defendant argued
that the exclusion of the testimony prevented him from explaining
why he left the jurisdiction. The reviewing court held that the
error was harmless where, from the defendant's testimony, the
jury could discern that the conversation was so disturbing as to
cause the defendant to immediately leave Chicago. The court
concluded that, considering all of the evidence and arguments,
the jury was sufficiently aware of an explanation for his flight
compatible with the defendant's innocence. Weatherspoon, 394
Ill. App. 3d at 851-52.
In the present case, the defendant testified that he did not
go to the Hess residence on his own, that he had a conversation
with Cat Daddy or Cat Daddy's brother about the keys and that he
was going to the Hess residence to make an exchange for $20. On
cross-examination, the defendant was questioned as follows;
"Q. Now, you indicated that you do remember that
approximately sometime between 1:30 and 1:45 [a.m.], Cat
Daddy's brother gives Cat Daddy some keys and Cat Daddy
gives the keys to you, is that what happened?
A. Yes, ma'am.
27
No. 1-08-0500
Q. Were you now wearing a watch?
A. No, ma'am.
Q. How did you know the time this time?
A. Because it was late. I had not too much more time
before they told me the bus quit running. When he gave me
the keys, he said go on do that so you can go on and get out
of here.
Q. Okay.
So he gave you the keys and then you walked to 12316
Vincennes, that's your testimony, right?
A. Yes, ma'am."
The admitted testimony was sufficient to acquaint the jury
with an explanation for the defendant's presence at the Hess
residence compatible with the defendant's innocence. See
Weatherspoon, 394 Ill. App. 3d at 853. Therefore, the exclusion
of the testimony did not prejudice the defendant, and given the
overwhelming evidence against the defendant, the outcome of the
trial would not have been different had the omitted testimony
been allowed.
V. Prosecutor's Rebuttal Argument
The defendant contends that the prosecutor's improper
28
No. 1-08-0500
remarks during her rebuttal argument require that the defendant
receive a new trial.
A. Standard of Review
Our appellate courts are divided on the standard of review
for closing remarks. People v. Maldonado, 402 Ill. App. 3d 411,
421, 930 N.E.2d 1104 (2010). The division stems from an apparent
conflict between two supreme court cases. In People v. Wheeler,
226 Ill. 2d 92, 121, 871 N.E.2d 728 (2007), the supreme court
held that whether a prosecutor's remarks are so egregious as to
require a new trial presents a question of law to which the de
novo standard of review is applicable. However, in Wheeler, the
court also cited with approval People v. Blue, 189 Ill. 2d 99,
724 N.E.2d 920 (2000). In Blue, the court applied the abuse of
discretion standard to its review of the prosecutor's remarks.
Within this district, there is a division as to the
applicable standard of review. See People v. Raymond, 404 Ill.
App. 3d 1028, 1038 (2010). While noting the conflict, this
division has declined to determine the appropriate standard,
where the result would be the same regardless of which standard
was applied. See Maldonado, 402 Ill. App. 3d at 422. As we
would reach the same approach under either standard, we will
29
No. 1-08-0500
refrain from articulating the applicable standard until our
supreme court resolves the conflict.
B. Discussion
1. Forfeiture
In order to preserve an issue for appeal, the defendant must
object at trial and raise the issue in a posttrial motion.
People v. Johnson, 385 Ill. App. 3d 585, 604, 898 N.E.2d 658(2008). In his posttrial motion, the defendant raised only one
remark by the prosecutor as error: that the defendant had two
years to fabricate his defense. However, as the State points
out, the defendant did not object to this remark at trial but
rather to the prosecutor's reference to what the defendant "knew"
two years before. As the prosecutor's remarks were either not
objected to at trial or not raised in the defendant's posttrial
motion, the defendant has forfeited any error based on the
prosecutor's closing argument.
2. Plain Error
In his reply brief, the defendant requests that we review
this issue for plain error. Ordinarily a litigant may not raise
issues for the first time in a reply brief. Ill. S. Ct. R.
30
No. 1-08-0500
341(h)(7) (eff. Mar.16, 2007). However, this court has
recognized that a reviewing court is not precluded from reviewing
a defendant's plain-error argument even when it was raised for
the first time in a reply brief. People v. Johnson, No. 1-07-
3372, slip op. at 5-6 (Ill. App. Dec. 10, 2010) (citing People v.
Williams, 193 Ill. 2d 306, 347-48, 739 N.E.2d 455 (2000)).
The defendant contends that we may consider the forfeited
error in this case because the evidence is closely balanced. We
must first determine if error occurred. Hudson, 228 Ill. 2d at
191.
In reviewing a defendant's claims of prosecutorial
misconduct in closing argument, the court considers the closing
argument in its entirety in order to place the complained of
remarks in context. Johnson, 385 Ill. App. 3d at 604. "If the
jury could have reached a contrary verdict had the improper
remarks not been made, or the reviewing court cannot say that the
prosecutor's improper remarks did not contribute to the
defendant's conviction, a new trial should be granted." Wheeler,
226 Ill. 2d at 123.
The defendant complains that the prosecutor accused the
defendant of fabricating his defense, misstated the defendant's
31
No. 1-08-0500
testimony when he argued that the defendant had referred to Mrs.
Hess as a "crackhead," improperly shifted the burden of proof by
arguing that there was no evidence that Mrs. Hess ever purchased
drugs, inflamed the passions of the jury by accusing the
defendant of using his status as a diabetic to excuse his
behavior, and bolstered his case improperly by telling the jury
police officers were more credible than the defendant based on
their status as police officers. Finally, the defendant argued
that the cumulative effect of these improper remarks required
that the defendant receive a new trial.
Prosecutors are afforded wide latitude in closing argument.
Wheeler, 226 Ill. 2d at 123. A prosecutor has the right to
comment upon the evidence presented and upon reasonable
inferences arising from that evidence, even if the inferences are
unfavorable to the defendant, and may respond to comments made by
defense counsel which clearly invite a response. People v.
Hudson, 157 Ill. 2d 401, 441, 626 N.E.2d 161 (1993).
Nonetheless, " 'it is improper for the prosecutor to do or say
anything in argument the only effect of which will be to inflame
the passion or arouse the prejudice of the jury against the
defendant, without throwing any light on the question for
32
No. 1-08-0500
decision.' " People v. Fluker, 318 Ill. App. 3d 193, 202, 742
N.E.2d 799 (2000) (quoting People v. Smith, 141 Ill. 2d 40, 60,
565 N.E.2d 900 (1990)).
The prosecutor's statement that the defendant wanted the
jury to believe that Mrs. Hess was a "crackhead" was in response
to defense counsel's argument that Mrs. Hess's statement to Mr.
Hess that "he's back" was based on the fact she had seen the
defendant while she was purchasing drugs. The prosecutor's
statement that there was no evidence that Mrs. Hess ever bought
drugs did not amount to shifting the burden of proof to the
defendant but was a proper attack on the theory of defense. See
People v. Berry, 264 Ill. App. 3d 773, 780, 642 N.E.2d 1307(1994).
The defendant asserts that the prosecutor repeatedly and
improperly argued that the defendant fabricated his defense. In
People v. Slabaugh, 323 Ill. App. 3d 723, 753 N.E.2d 1170 (2001),
the reviewing court found the prosecutor's rebuttal argument
improper where he repeatedly argued that the defense witnesses
were lying and had gotten together to create a defense. The
court determined that the testimony of the defendant and a
witness, who were friends, that they had a discussion about what
33
No. 1-08-0500
would happen at the trial some two years before did not support
the inference that they had manufactured a defense. Slabaugh,
323 Ill. App. 3d at 729-30.
The defendant's reliance on Slabaugh is misplaced. In the
present case, the prosecutor's argument was based on the
differing versions of the burglary contained in the defendant's
statement and in his testimony at trial. See People v. Frieberg,
147 Ill. 2d 326, 356, 589 N.E.2d 508 (1992) (proper for
prosecutor to cross-examine the defendant on the inconsistencies
between his statement to police and his in-court testimony).
Therefore, it was a reasonable inference from the evidence that
the defendant had tailored his defense to fit the facts.
We find the prosecutor's reference to the defendant's use of
his diabetic condition as an excuse for his confession to be a
reasonable inference from the evidence. The defendant testified
that he was an insulin-dependent diabetic and that he took
insulin twice a day. He further testified that his confession
was the result of being deprived of insulin. When confronted by
the prosecutor, the defendant acknowledged he did not take his
insulin the night of September 16, 2005, explaining that he did
not feel like he needed the insulin because he had consumed
34
No. 1-08-0500
enough food that evening. Yet, by the time of his September 17,
2005, statement to police, he had twice missed taking insulin.
In that statement, the defendant maintained that he had been well
treated by police. In light of the defendant's varying testimony
as to his dependance on insulin, the prosecutor's comment was not
intended to inflame the passions of the jury and was a proper
comment on the evidence.
Finally, the defendant contends that the prosecutor
improperly bolstered the testimony of the police witnesses.
Defense counsel had argued to the jury that Officer Rzab could
not afford to change her account of the defendant's interview in
her trial testimony and how convenient it was that the statement
was not videotaped. In rebuttal, the prosecutor argued that the
detectives would not have ignored the defendant's requests for
insulin, given the potential liability if the defendant passed
out or died as a result. The defendant relies on People v.
Fields, 258 Ill. App. 3d 912, 921, 631 N.E.2d 303 (1994), and
People v. Clark, 186 Ill. App. 3d 109, 542 N.E.2d 138 (1989). In
both cases, the reviewing courts found the prosecutors' arguments
that the police witnesses would not risk their pensions by
committing perjury to be improper argument.
35
No. 1-08-0500
In People v. Gorosteata, 374 Ill. App. 3d 203, 870 N.E.2d
936 (2007), this court explained that the "invited response"
doctrine applies where the prosecutor is responding to improper
argument on the part of defendant's counsel. Gorosteata, 374
Ill. App. 3d at 222. " 'The credibility of a witness is a proper
subject for closing argument if it is based on the evidence or
the inferences drawn from it.' " Gorosteata, 374 Ill. App. 3d at
223 (quoting Hudson, 157 Ill. 2d at 445). As trial counsel's
argument was not improper, the prosecutor's reference on rebuttal
to why the jury should believe the police officers cannot be
justified under the invited response doctrine. As such, the
prosecutor's argument was improper.
Even if reversible, this error does not require that the
defendant receive a new trial in this case. See Gorosteata, 374
Ill. App. 3d at 225 (not all reversible errors are plain errors).
As we previously determined, the evidence against the defendant
was overwhelming; therefore, the defendant has failed to satisfy
the first prong of the plain-error analysis. As the defendant
does not argue the second prong of the plain error analysis, we
conclude that there is no basis for excusing the defendant's
procedural default.
36
No. 1-08-0500
VI. Voir Dire
The defendant contends that the trial court erred when it
refused to allow defense counsel to question the venire to
determine if they could be fair and impartial, knowing that the
defendant had a prior conviction.
A. Pertinent Evidence
Initially, the trial court allowed defense counsel to
question the venire as to the defendant's prior convictions as
follows:
"MS. MALONE-LOCKETT (defense counsel): Mr. McNicholas,
if you learned that a witness or a defendant had a
conviction in his background, would that impair your ability
to be fair and impartial?
MR. McNICHOLAS: For repeated offense?
MS. MALONE-LOCKETT: At all.
MR. McNICHOLAS: Or just whether [sic] general?
MS. MALONE-LOCKETT: At all.
MR. McNICHOLAS: I guess it depends on [the] nature of
it.
MS. MALONE-LOCKETT: What do you mean by that?
MR. McNICHOLAS: Well, I mean again if it is [a]
37
No. 1-08-0500
similar event and there was [a] conviction I guess I would
have to look at - [.]"
The trial court recessed the proceedings and in chambers
heard argument from both parties on the merits of the defendant's
request. The court then ruled as follows:
"I am not going to allow the question. It seems loaded with
other issues that it will lead to. What is [the] conviction
for. That's what the jury instruction is for.
I asked all of them it they will follow the law.
Follow the jury instruction. There will be no question
pertaining if the defendant or witness had a prior
conviction. And I guess your next question would be would
it affect your ability to be a juror in this case.
That's not a proper question for the venire."
B. Standard of Review
We review an issue as to compliance with a supreme court
rule de novo. People v. Lloyd, 338 Ill. App. 3d 379, 384, 788
N.E.2d 1169 (2003). However, a trial court's denial of a party's
request to question jurors on a particular viewpoint is reviewed
for an abuse of discretion. People v. Reeves, 385 Ill. App. 3d
716, 729-30, 897 N.E.2d (2008).
38
No. 1-08-0500
C. Discussion
1. Forfeiture
The defendant concedes that the error was not raised in his
posttrial motion. He argues that the error was sufficiently
preserved in the record by his objection at trial and may be
reviewed under the constitutional or plain error exceptions
recognized in People v. Enoch, 122 Ill. 2d 176, 190, 122 N.E.2d
1124 (1988) (where a defendant failed to file a posttrial motion,
review was limited to constitutional issues properly raised at
trial, sufficiency of the evidence and plain error).
The constitutional exception does not apply in this case
because the authority to question prospective jurors derives from
the supreme court's inherent power to make rules governing the
conduct of the circuit courts. See People v. Glasper, 234 Ill.
2d 173, 196, 917 N.E.2d 401 (2009) (defendants do not have a
right to Illinois Supreme Court Rule 431(b)(4) (eff. May 1, 2007)
questioning under either the United States or Illinois
Constitution). Therefore, we will apply the plain-error analysis
and determine, first, if error occurred.
2. Plain Error
Initially, we note that the trial judge did not deny defense
39
No. 1-08-0500
counsel the opportunity to question the jurors directly. It
allowed the questioning until it appeared defense counsel's
questions were intruding into the area of jury instructions, thus
violating Rule 431(a). We must determine if the trial court
abused its discretion by not allowing defense counsel to question
the venire as to the effect the defendant's prior conviction
would have on their ability to be fair and impartial. Rule
431(a) provides as follows:
"The court shall conduct voir dire examination of
prospective jurors by putting to them questions it thinks
appropriate, touching upon their qualifications to serve as
jurors in the case at trial. The court may permit the
parties to submit additional questions to it for further
inquiry if it thinks they are appropriate and shall permit
the parties to supplement the examination by such direct
inquiry as the court deems proper for a reasonable period of
time depending upon the length of examination by the court,
the complexity of the case, and the nature of the charges.
Questions shall not directly or indirectly concern matters
of law or instructions." Ill. S. Ct. R. 431(a) (eff. May 1,
2007)).
40
No. 1-08-0500
We find no error in the refusal of the trial court to
question prospective jurors as to whether a witness or a
defendant's prior conviction would affect their ability to be
fair and impartial. Such an inquiry violated Rule 431(a)
prohibition against questions covered by the instructions.
Illinois Pattern Jury Instructions, Criminal, No. 3.13 (4th ed.
2000) (hereinafter, IPI Criminal 4th No. 3.13) provides that
jurors may consider evidence of a defendant's prior conviction
only as it affects his credibility as a witness and not as
evidence of guilt.
The defendant argues that defense counsel's question
concerned not only the defendant's credibility but that of the
witnesses as well. IPI Criminal 4th No. 1.02 sets forth what the
jurors may take into account in their role as the sole judges of
the believability of the witnesses. Since the defendant's
inquiry of the prospective jurors directly or at the very least,
indirectly, concerned the instructions to be given to the jury,
it was prohibited by Rule 431(a).
Our conclusion finds support in People v. Brandon, 157 Ill.
App. 3d 835, 510 N.E.2d 1005 (1987). On appeal, the defendant
argued that the trial court erred in refusing to question
41
No. 1-08-0500
potential jurors if they would be prejudiced against the
defendant if they learned he had a felony conviction. The
defendant maintained that his question did not pertain to matters
of law, but was proper in order to uncover bias.
The reviewing court found the tendered question improper
because the subject was covered in IPI Criminal 2d No. 3.13 and
because it would have tended to unfairly tip the balance in favor
of the defendant's case. The court reasoned that, as the
defendant claimed that the case was a battle of credibility
between the defendant and the arresting officer, the tendered
question would have improperly highlighted an aspect of the
defense claim rather than a legitimate attempt to expose bias or
prejudice. In addition, at the voir dire stage of the
proceedings, the trial court could not have anticipated whether
the defendant would testify and, if so, whether the State would
impeach him with his prior convictions. Brandon, 157 Ill. App.
3d at 844.
In this case, the defendant argues that the question did not
relate to the theory of his case. We disagree. As was the case
in Brandon, the trial here presented a credibility contest
between the defendant's version of why he was present in the Hess
42
No. 1-08-0500
residence and the version presented by the State's witnesses.
The defendant's reliance on People v. Strain, 194 Ill. 2d
467, 742 N.E.2d 315 (2000), and People v. Lanter, 230 Ill. App.
3d 72, 595 N.E.2d 210 (1992), is misplaced. In People v. Dixon,
382 Ill. App. 3d 233, 887 N.E.2d 577 (2008), this court
reiterated its holding that Strain was limited to cases involving
evidence relating to gangs and gang membership and refused to
extend Strain to other areas of potential bias. Dixon, 382 Ill.
App. 3d at 245. The court in Dixon also distinguished Lanter on
the basis that the defendant in Lanter asserted the affirmative
defense of intoxication and that no affirmative defense was
asserted in the case before it. The court also noted the court's
observation in Lanter, that " '[n]ot every affirmative defense is
so controversial as to render voir dire questioning appropriate.'
" Dixon, 382 Ill. App. 3d at 244 (quoting Lanter, 230 Ill. App.
3d at 76).
This case does not involve gang-related evidence or an
affirmative defense. The defendant also relies on People v.
Stack, 112 Ill. 2d 301, 493 N.E.2d 339 (1986). However, in
Brandon, the reviewing court found Stack inapplicable because the
question relating to the defendant's prior convictions did not go
43
No. 1-08-0500
to a basic or fundamental matter directly involving the
defendant's guilt or responsibility, such as the defense of
insanity raised in Stack. Brandon, 157 Ill. App. 3d at 843.
Likewise, Stack does not support the defendant's argument that
the question relating to the defendant's prior convictions was
proper.
We conclude that the trial court did not abuse its
discretion when it refused to allow defense counsel to question
the venire as to the affect prior convictions would have on their
ability to be fair and impartial. As there was no error, we need
not engage in the plain-error analysis.
VII. Cumulative Error
The defendant contends that the cumulative effect of the
alleged errors requires that he receive a new trial. Based on
our resolution of the defendant's claims of error in this case,
we find no merit to the defendant's contention.
CONCLUSION
The defendant's conviction and sentence are affirmed.
Affirmed.
44
No. 1-08-0500
45