People v. Adams

No. 3–09–0004
______________________________________________________________________________
Filed August 30, 2010
IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2010
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) for the 12th Judicial Circuit,
) Will County, Illinois
)
Plaintiff-Appellee, )
) No. 06–CF–546
v. )
)
ROMNEY ADAMS, ) Honorable
) Carla Policandriotes,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE CARTER delivered the opinion of the court:
______________________________________________________________________________
The defendant, Romney Adams, was convicted of unlawful possession of a controlled
substance (720 ILCS 570/402(c) (West 2006)) and sentenced to five years’ imprisonment. On
appeal, the defendant contends that the prosecutor made improper and prejudicial remarks during
closing argument, which require that the matter be reversed and remanded for a new trial. The
State maintains that the prosecutor’s arguments were permissible. We reverse the defendant’s
conviction and remand for a new trial.
FACTS
The defendant’s jury trial was held on October 15, 2008. In opening statements, the
prosecutor told the jury that he expected the jury to hear evidence from two witnesses, Sergeant
Joe Boers and crime lab technician Cynthia Koulis.
Sergeant Boers testified that on March 3, 2006, at approximately 7:42 p.m., he and two
other officers were in a semi-marked police vehicle in the parking lot of a liquor store in Joliet
Township. Boers observed a tan Oldsmobile in the parking lot and ran the vehicle’s license plate
number. Boers received information that the defendant was the registered owner of the vehicle
and that he had a suspended driver’s license. Boers also received a physical description of the
owner, which matched the appearance of the person then driving the vehicle.
The defendant backed the vehicle out of a parking spot and passed in front of the police
vehicle. The defendant left the parking lot and pulled into the parking lot of a grocery store
across the street. Boers followed the defendant’s vehicle and activated the police car’s
emergency lights. After effectuating the stop of the defendant’s vehicle, Boers exited the police
car, approached the defendant’s vehicle, and asked the defendant for his driver’s license. The
defendant produced his license and two traffic citations for previous driving offenses. Boers
asked the defendant to exit his vehicle and then walked the defendant to the rear of that vehicle.
Boers arrested the defendant for driving while his license was suspended and handcuffed the
defendant.
Boers then searched the defendant. Boers found a small plastic sandwich bag containing
a white powder in the defendant’s left front pocket. Boers suspected that the substance was
cocaine and conducted a field test of the substance. The substance tested positive for the
probable presence of cocaine. Boers then placed the defendant into the police vehicle. Another
officer searched the defendant’s car, but did not find anything.
Boers testified that there was nothing on the ground in front of the defendant before Boers
searched him. Boers did not find any narcotics on the ground and denied picking up any
2
narcotics and placing them on the defendant’s person. Further, Boers testified that the
defendant’s arrest took place in a high drug activity area. Boers estimated that he had made
approximately 20 other arrests for drug crimes in that general area.
When searching a suspect, Boers usually starts at the top, and also briefly touches the
outside of any pockets to make sure there is nothing in the pockets that would cut him. Boers
testified that he does not search a suspect’s pockets first. Boers testified that no other officer was
involved in the search of the defendant, and no other officer conducted a field test of the
substance. Boers testified that Officer Buck, who was on patrol with Boers, was a female officer,
and she would not have assisted in the search of a male suspect.
Cynthia Koulis testified that she was a forensic scientist employed by the Illinois State
Police and specialized in the analysis of controlled substances and cannabis. Koulis performed
several different tests on the substance collected during the defendant’s arrest. That substance
weighed 0.8 grams and tested positive for cocaine.
The defendant testified that on March 3, 2006, at approximately 7:30 p.m. he went to a
liquor store to buy a lottery ticket and then drove across the street to the grocery store to buy
some ice and water. The defendant parked and exited his vehicle. As he got out of his vehicle, a
police car pulled up behind him with its lights flashing. An officer told him to halt, and he did.
Boers asked the defendant for his driver’s license, and the defendant produced two traffic
citations. Boers told the defendant he was under arrest and to put his hands behind his back.
Boers took the defendant by the hand and walked him to the rear of the police vehicle. Boers did
not handcuff the defendant at that time.
According to the defendant’s testimony, Boers told him to empty his pockets and then
3
told him that he was moving too slowly and to put his hands behind his back. Officer Buck then
searched the defendant’s right pants pocket and took out his keys and his pocketknife. Boers
searched the defendant’s left pants pocket and pulled out money and business cards. Boers then
said, “What is this?” Boers moved his foot and looked down on the ground. The defendant
looked and saw a piece of plastic with a white substance in it. The defendant said he did not
know what it was, and Boers said, “[Y]ou’re not going to say I dropped it.” The defendant, who
had his hands behind his back, said, “[Y]ou know I didn’t drop it.” The defendant further
testified that he had never seen before the piece of plastic with the white substance. The
defendant did not notice whether the plastic baggie was on the ground before he was searched or
whether it was dropped to the ground by someone else.
Boers said, “[Y]ou had better hope that it doesn’t come back positive.” Boers then
handed the substance to the third officer who was present, Deputy Schumacher. That officer
took the substance to another police vehicle that had arrived. Boers then told the defendant to sit
in the back of his police car, and Boers asked the defendant if he knew any drug dealers or if he
had any information regarding any murders or guns. Boers also told the defendant that he knew
the defendant was a drug dealer and that the defendant had been previously charged with a crime
involving heroin. The defendant testified that he had never had any dealings with heroin and that
he did not know to what Boers was referring. Approximately 15 minutes later, Schumacher
opened the door of the police vehicle and sat in the back next to the defendant. Schumacher told
Boers, “[I]t came back blue.” Boers told the defendant that he was facing possession charges and
transported the defendant to the Will County jail.
At the jail, another police officer told the defendant that Boers wanted him to sign a paper
4
that stated the defendant had possessed over 30 grams of heroin. The defendant told the officer
that he did not know anything about heroin and the officer told him he did not have to sign the
paper.
In rebuttal, the State presented the testimony of Deputy Schumacher. Schumacher
testified that on March 3, 3006, at approximately 7:45 p.m., he was on patrol with Boers and
Buck. Schumacher testified that the officers were parked in a parking lot and ran the license
plates of a vehicle. The vehicle was registered to the defendant, whose driver’s license was
suspended. Boers was driving the police vehicle, and he pulled over the defendant in a grocery
store parking lot. Schumacher testified that Boers approached the vehicle while the defendant
was still seated inside. Boers asked the defendant for his driver’s license and confirmed that the
license was suspended. Boers then asked the defendant to step out of his vehicle. Boers patted
down the defendant and then searched the defendant’s pocket. Schumacher observed Boers pull
a white substance out of the defendant’s pocket. Schumacher did not see Boers retrieve anything
from the ground or drop anything on the ground. Schumacher testified that he never took
possession of the white substance and did not test the substance. Schumacher also testified that
he believed that the defendant was handcuffed after he was searched. Schumacher testified that
he did not believe that Buck searched the defendant.
Following Schumacher’s testimony, the Stated presented its closing argument. The
prosecutor first summarized the testimony of Sergeant Boers. At the conclusion of this summary,
the prosecutor stated that Boers’s memory of the events surrounding the defendant’s arrest was
clear and that Boers “generated a report on this matter shortly after this stop.” In addition, the
prosecutor stated, “So what Deputy Boers told you today from the stand is what he stated
5
happened two years ago. He locked himself in to his version of events when he wrote his report
shortly thereafter; that is what he testified to.” A little later in his argument, the prosecutor
stated, “The defendant, on the other hand, he got up and testified today. He has had two years, a
little over two years to come up with his story that he’s going to tell you.” In addition, the
prosecutor argued:
“I have no idea what the defendant is going to say before this trial starts,
and that is why I say again, I go back to when I prefaced my opening statements
with I think this is what the evidence would show because I don’t know what the
defendant is going to say.
Based on what he said, I brought in an additional witness.”
Later in his argument, the prosecutor stated:
“The defense is based simply on the defendant’s story that he told you on
the stand and a typo on a booking sheet. That is their defense.
What did the State have? We have an eight and a half year veteran of the
Will County Sheriff’s Department telling you that he searched the defendant, that
he found the cocaine on him, that he field tested it, and he sealed it.
***
What this case is going to come down to, ladies and gentlemen, is
credibility. Who do you believe? Do you believe the eight and a half year veteran
of the Will County Sheriff’s Department, the five year veteran of the forest
preserve police, or do you believe the defendant who had almost two and a half
years to come up with the story he told you today.
6
***
What also doesn’t make sense is that Deputy Boers would plant these
drugs on the defendant. We are talking about 0.8 grams of cocaine. If you believe
what the defendant is saying, then you also have to believe that Deputy Boers is
risking his credibility, his job, and his freedom over 0.8 grams of cocaine.
And not only is Deputy Boers doing that, but Officer Schumacher is doing
that as well. He’s also risking his life– his job and his freedom and his reputation
over 0.8 grams of cocaine.”
In the State’s rebuttal argument, the prosecutor stated:
“The only reason I called Deputy Schumacher is because the defendant
took the stand and he gave you a cockamamie story about what he said went
down, a story he created two and a half years later, that he had two and a half
years to come up with, that if you look at and you say, is this reasonable, that’s not
reasonable.
Again you have got to buy one of two theories that the defense is throwing
at you. Either this was a set up and these officers are risking their jobs for this,
over 0.8 grams of cocaine because they were just looking to make a bust that
night, or that he’s the unluckiest man alive.”
ANALYSIS
On appeal, the defendant contends that the prosecutor committed reversible error during
closing arguments. The defendant acknowledges that this issue has been forfeited because he did
not object to any of the prosecutor’s statements during trial or raise the issue in a posttrial
7
motion. However, he maintains that this issue may be reviewed under both prongs of the plain
error doctrine.
“Plain errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the trial court.” 134 Ill. 2d R. 615(a). “The plain-error doctrine does
not instruct a reviewing court to consider all forfeited errors.” People v. Herron, 215 Ill. 2d 167,
177, 830 N.E.2d 467, 474 (2005). A reviewing court will reach a forfeited error affecting
substantial rights in two circumstances. Herron, 215 Ill. 2d at 178, 830 N.E.2d at 475. First, the
court may consider a forfeited error “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.” Herron, 215 Ill. 2d
at 178, 830 N.E.2d at 475. Second, a reviewing court may consider a forfeited error “where the
error is so serious that the defendant was denied a substantial right, and thus a fair trial.” Herron,
215 Ill. 2d at 179, 830 N.E.2d at 475. The first step in any plain error analysis is to determine
whether clear or obvious error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d
403, 410-11 (2007). To determine whether error occurred requires a substantive look at the
issue. People v. Naylor, 229 Ill. 2d 584, 593, 893 N.E.2d 653, 660 (2008).
First, the defendant claims the prosecutor engaged in misconduct when he stated that
Boers and Schumacher were risking their credibility, reputation, jobs and freedom if they had
somehow planted the drugs or otherwise set up the defendant. The defendant contends that the
prosecutor, when making these statements, referred to matters that were outside the evidence
produced at trial and impermissibly bolstered the witnesses’ credibility. The State claims that the
prosecutor’s statements were based on the evidence or were reasonable inferences therefrom. In
addition, the State argues that the prosecutor’s statements did not improperly bolster the
8
witnesses’ credibility.
The defendant specifically complains of the following comments:
“What also doesn’t make sense is that Deputy Boers would plant these
drugs on the defendant. We are talking about 0.8 grams of cocaine. If you believe
what the defendant is saying, then you also have to believe that Deputy Boers is
risking his credibility, his job, and his freedom over 0.8 grams of cocaine.
And not only is Deputy Boers doing that, but Officer Schumacher is doing
that as well. He’s also risking his life– his job and his freedom and his reputation
over 0.8 grams of cocaine.”
In addition, during rebuttal argument the prosecutor stated that the defense wanted the jurors to
believe that “these officers are risking their jobs for this, over 0.8 grams of cocaine.”
“Prosecutors are afforded wide latitude in closing argument.” People v. Wheeler, 226 Ill.
2d 92, 123, 871 N.E.2d 728, 745 (2007). “[C]losing arguments must be viewed in their entirety,
and the challenged remarks must be viewed in context.” Wheeler, 226 Ill. 2d at 122, 871 N.E.2d
at 745. Generally, it is improper for a prosecutor to vouch for the credibility of a witness or to
express a personal opinion on a case. People v. Emerson, 122 Ill. 2d 411, 434, 522 N.E.2d 1109,
1118 (1987). Counsel may comment on the credibility of witnesses if the comments are based on
the evidence or inferences drawn from the evidence. People v. Flores, 128 Ill. 2d 66, 94, 538
N.E.2d 481, 492 (1989).
One line of appellate court cases state that a prosecutor may not argue that a witness is
more credible because of his status as a police officer. People v. Gorosteata, 374 Ill. App. 3d
203, 219, 870 N.E.2d 936, 950 (2007). Courts have recognized “various permutations of
9
arguments extolling an officer’s experience, or asserting that an officer would not lie merely to
convict a particular defendant, as falling afoul of the aforementioned rule.” Gorosteata, 374 Ill.
App. 3d at 219, 870 N.E.2d at 950, citing People v. Fields, 258 Ill. App. 3d 912, 920-21, 631
N.E.2d 303, 308-09 (1994); People v. Clark, 186 Ill. App. 3d 109, 115-16, 542 N.E.2d 138, 142-
43 (1989); People v. Rogers, 172 Ill. App. 3d 471, 476-77, 526 N.E.2d 655, 660 (1988); People
v. Ford, 113 Ill. App. 3d 659, 661-62, 447 N.E.2d 564, 566-67 (1983). See also People v.
Montgomery, 254 Ill. App. 3d 782, 795, 626 N.E.2d 1254, 1263 (1993) (concluding that the
prosecutor’s statements were improper because they invited the jury to believe that the State’s
witnesses were more trustworthy because of their status). In Gorosteata, the First District
Appellate Court concluded that a prosecutor’s statements were improper, where the prosecutor
stated that the issues in that case had “ ‘been resolved by the credible testimony of officers with
years of experience’ ” and “twice inquired what motivation the police would have had to falsely
‘pin’ criminal charges on defendant, with whom they had no prior contact or ‘beef.’ ”
Gorosteata, 374 Ill. App. 3d at 220, 870 N.E.2d at 950.
Likewise, in Ford, 113 Ill. App. 3d at 662, 447 N.E.2d at 567, a panel of this court
determined that the prosecutor’s statements were “an improper attempt to enhance the credibility
of his witness.” In that case, the prosecutor made several references during closing argument to
the witness’s status as a sworn police officer and posed the question of why the officer would “
‘pull a charade like this and lie and perjure herself for a lousy 15 gram purchase of marijuana.’ ”
Ford, 113 Ill. App. 3d at 661-62, 447 N.E.2d at 566-67. The Ford court reasoned that a police
officer’s testimony must be evaluated as that of any other witness, and there is no presumption
that an officer’s testimony is more truthful and credible than that of any other witness. Ford, 113
10
Ill. App. 3d at 662, 447 N.E.2d at 567, citing Crook v. Crook, 329 Ill. App. 588, 70 N.E.2d 209
(1946).
The State, however, points to another line of cases wherein courts found no error when
presented with similar statements. See People v. Bennett, 304 Ill. App. 3d 69, 710 N.E.2d 445
(1999); People v. Killen, 217 Ill. App. 3d 473, 577 N.E.2d 560 (1991); People v. Thomas, 172
Ill. App. 3d 172, 526 N.E.2d 467 (1988). See also People v. Myers, 246 Ill. App. 3d 542, 616
N.E.2d 633 (1993). In Bennett, the Second District declined to follow the reasoning of the Ford
court. Bennett, 304 Ill. App. 3d at 72-73, 710 N.E.2d at 447-48. Rather, the Bennett court
concluded that the prosecutor’s statements were not improper where the prosecutor posed the
questions of what motive two police officers would have to lie and plant evidence against the
defendant and why they would risk their careers to do so. Bennett, 304 Ill. App. 3d at 71-73, 710
N.E.2d at 447-48. Similarly, in Killen, the Fourth District held that similar comments made by a
prosecutor during closing arguments “may have in fact enhanced [the officer’s] credibility, but
there was nothing unfair about them.” Killen, 217 Ill. App. 3d at 479-82, 577 N.E.2d at 564-66.
In Myers, decided 10 years after Ford, a different panel of this court cited Killen when it
concluded that the prosecutor’s statements in that case were proper. Myers, 246 Ill. App. 3d at
547, 616 N.E.2d at 637.1 The prosecutor in Myers stated:
“ ‘This is a big set up, all the police are lying. I submit to you they were
not lying. They told you the truth. This incident happened relatively quickly.
1
Thus, there is a split of authority on this issue in our district. Myers did not overrule
Ford because one panel of the appellate court has no authority to overrule another panel. In re
Marriage of Gutman, 232 Ill. 2d 145, 149-50, 902 N.E.2d 631, 633 (2008).
11
These were officers with two to three years’ experience on the force. You have to
weigh the credibility of each witness that testified.
***
There was no conspiracy here. There was no make-believe story on the
part of the police. They recovered the items. They told you what happened, they
testified truthfully. They had no reason to come in here and lie.’ ” Myers, 246 Ill.
App. 3d at 546, 616 N.E.2d at 637.
Myers did not discuss or cite this court’s previous decision in Ford.
As the above discussion of the case law indicates, Illinois courts are divided over whether
statements concerning an officer’s status and the possible repercussions of an officer’s alleged lie
are permissible. Those cases finding such statements permissible conclude that the statements
were proper comments on the credibility of witnesses that were based on the evidence or
inferences drawn from the evidence. Killen, 217 Ill. App. 3d at 481-82, 577 N.E.2d at 565-66;
Myers, 246 Ill. App. 3d at 547, 616 N.E.2d at 637; Bennett, 304 Ill. App. 3d at 73, 710 N.E.2d at
448. In contrast, those cases finding such statements improper determine that those statements
are attempts to bolster the credibility of the police officer witnesses due solely to their status as
police officers. Gorosteata, 374 Ill. App. 3d at 220, 870 N.E.2d at 951; Clark, 186 Ill. App. 3d at
115-16, 542 N.E.2d at 142-43; Ford, 113 Ill. App. 3d at 662, 447 N.E.2d at 567; Fields, 258 Ill.
App. 3d at 921, 631 N.E.2d at 309; Montgomery, 254 Ill. App. 3d at 795, 626 N.E.2d at 1263.
We agree with Gorosteata and Ford that a prosecutor’s comments on a witness’s status as
a police officer and the repercussions to such a witness if he were to lie are impermissible
statements seeking to bolster the officer’s credibility as a witness solely because he is a police
12
officer. Courts in Illinois have long recognized that a person is not more truthful because he or
she chooses the profession of a police officer. Crook, 329 Ill. App. at 598, 70 N.E.2d at 213. It
is improper, then, for a prosecutor to invite a jury to believe a witness’s testimony because that
witness was a police officer and, thus, would not lie.
Further, we disagree with Killen that the position adopted in Ford is inconsistent with the
court’s holding in Flores. Killen, 217 Ill. App. 3d at 481, 577 N.E.2d at 565. In Flores, the court
held that a prosecutor’s comments that a non-police-officer witness’s testimony was unrebutted
and corroborated by another witness were permissible because those comments were an accurate
summary of the evidence. Flores, 128 Ill. 2d at 94-95, 538 N.E.2d at 492. In Ford, and the
subsequent cases cited above, the prosecutors’ comments went beyond summarizing the evidence
and invoked the belief that the witnesses did not lie because they were police officers. Ford, 113
Ill. App. 3d at 662, 447 N.E.2d at 567; Gorosteata, 374 Ill. App. 3d at 220, 870 N.E.2d at 951;
Clark, 186 Ill. App. 3d at 115-16, 542 N.E.2d at 142-43; Fields, 258 Ill. App. 3d at 921, 631
N.E.2d at 309; Montgomery, 254 Ill. App. 3d at 795, 626 N.E.2d at 1263.
In this case, the prosecutor referred twice to Boers’s status as an 8 ½-year veteran police
officer and once to Schumacher’s status as a 5-year veteran police officer when discussing the
strength of the State’s case and the jury’s job to assess the credibility of these witnesses. In
addition, on three occasions, the prosecutor commented that the officers risked their jobs, their
freedom and their reputations over 0.8 grams of cocaine if they had lied about finding the cocaine
in the defendant’s pocket. These statements were an attempt by the prosecutor to bolster these
witnesses’ testimony by suggesting “that they were incapable, as a result of their chosen
profession, from lying.” Gorosteata, 374 Ill. App. 3d at 220, 870 N.E.2d at 951. Thus, we
13
conclude that these statements were impermissible. Ford, 113 Ill. App. 3d at 662, 447 N.E.2d at
567; Gorosteata, 374 Ill. App. 3d at 220, 870 N.E.2d at 951; Clark, 186 Ill. App. 3d at 115-16,
542 N.E.2d at 142-43; Fields, 258 Ill. App. 3d at 921, 631 N.E.2d at 309; Montgomery, 254 Ill.
App. 3d at 795, 626 N.E.2d at 1263.
In addition, we conclude that the defendant was prejudiced by this error as the evidence in
this case was closely balanced. See Herron, 215 Ill. 2d at 178, 830 N.E.2d at 475. The jurors
were required to assess the credibility of the police officers and the defendant in order to
determine whether the defendant possessed cocaine. The testimony of the officers was the only
evidence presented to the jury that the cocaine was found in the defendant’s pocket; there was no
physical evidence linking the cocaine to the defendant. The defendant, however, testified that he
did not have cocaine in his pocket that night and that the cocaine was found on the ground near
Boers’ foot. Thus, the resolution of this case hinged upon the jury’s determination of the
witnesses’ credibility. Under these facts, we believe the evidence was closely balanced. See
People v. Naylor, 229 Ill. 2d 584, 605-11, 893 N.E.2d 653, 667-70 (2008) (concluding that
evidence was closely balanced where only evidence was the testimony of two police officers and
the defendant). “Where there is error in a close case, we choose to err on the side of fairness, so
as not to convict an innocent person.” Herron, 215 Ill. 2d at 193, 830 N.E.2d at 483. Because
the evidence produced at trial was closely balanced, we conclude that the prosecutor’s improper
statements prejudiced the defendant. Thus, we reverse the defendant’s conviction and remand
for a new trial.
Although we have reversed the defendant’s conviction, we address the defendant’s other
arguments because the issues may arise upon remand. People v. Fuller, 205 Ill. 2d 308, 346, 793
14
N.E.2d 526, 550 (2002). The defendant makes two claims of error regarding the following
comments:
“So what Deputy Boers told you today from the stand is what he stated
happened two years ago. He locked himself in to his version of events when he
wrote his report shortly thereafter; that is what he testified to.
***
The defendant, on the other hand, he got up and testified today. He has
had two years, a little over two years to come up with his story that he’s going to
tell you.
***
I have no idea what the defendant is going to say before this trial starts,
and that is why I say again, I go back to when I prefaced my opening statements
with I think this is what the evidence would show because I don’t know what the
defendant is going to say.
***
*** [O]r do you believe the defendant who had almost two and a half
years to come up with the story he told you today.”
And during rebuttal, the prosecutor stated:
“The only reason I called Deputy Schumacher is because the defendant
took the stand and he gave you a cockamamie story about what he said went
down, a story he created two and a half years later, that he had two and a half
years to come up with, that if you look at and you say, is this reasonable, that’s not
15
reasonable.”
The defendant claims that the prosecutor’s reference to the police report authored by
Boers was impermissible. The State, on appeal, admits that this reference was error. We agree.
In closing argument, the prosecutor may argue “fair and reasonable inferences that can be drawn
from the evidence introduced at trial.” People v. Porter, 372 Ill. App. 3d 973, 978, 866 N.E.2d
1249, 1254 (2007). However, the prosecutor “may not ‘argue assumptions or facts not based
upon the evidence in the record.’ ” Porter, 372 Ill. App. 3d at 978, 866 N.E.2d at 1254, quoting
People v. Johnson, 208 Ill. 2d 53, 115, 803 N.E.2d 405 (2003).
In this case, the prosecutor referred twice in closing argument to a report supposedly
written by Boers following the defendant’s arrest. There was no evidence produced at trial, for
any reason, that this report had been written. The only evidence the jury ever heard that Boers
had written a report was given by the prosecutor in his closing argument. This was error.
Further, the prosecutor’s comments regarding Boers’s report appear to have been made in an
effort to bolster Boers’s testimony by referring to an allegedly prior consistent statement. This,
too, was impermissible. See People v. McWhite, 399 Ill. App. 3d 637, 640-43, 927 N.E.2d 152,
156-58 (2010).
The State claims that this error was de minimus. We have concluded, however, that the
evidence in this case was so closely balanced that the jury’s verdict may have resulted from the
prosecutor’s errors rather than the evidence. Herron, 215 Ill. 2d at 178, 830 N.E.2d at 475.
Thus, the prosecutor’s references to the police report were actually prejudicial to the defendant,
and constitute plain error. Herron, 215 Ill. 2d at 193, 830 N.E.2d at 483. In this situation, we
cannot find that the error was de minimus. People v. Belknap, 396 Ill. App. 3d 183, 207, 918
16
N.E.2d 1233, 1254-55 (2009); see also People v. Lewis, 234 Ill. 2d 32, 912 N.E.2d 1220 (2009)
(no de minimus exception to second prong of plain error review).
Next, the defendant maintains that the prosecutor’s comments that the defendant had 2 ½
years to come up with his version of the events leading to his arrest were an impermissible
comment on the defendant’s pretrial silence. The State argues that the prosecutor’s statements
did not suggest that the defendant had remained silent following his arrest. The State contends
that the prosecutor’s statements were permissible comments on the inconsistencies between the
testimony of the officers and the defendant and were an explanation of why the prosecutor called
Schumacher to testify. The defendant does not argue that the prosecutor’s statement was
impermissible for any other reason. Thus, we limit our consideration of the propriety of this
statement to whether the prosecutor’s statement was an impermissible comment on the
defendant’s silence.
“ ‘[U]nder Illinois evidentiary law, it is impermissible to impeach a defendant with his or
her post-arrest silence, regardless of whether the silence occurred before or after the defendant
was given Miranda warnings.’ ” People v. Sanchez, 392 Ill. App. 3d 1084, 1096, 912 N.E.2d
361, 371 (2009), quoting People v. Clark, 335 Ill. App. 3d 758, 763, 781 N.E.2d 1126, 1130
(2002); see also Doyle v. Ohio, 426 U.S. 610, 619, 49 L. Ed. 2d 91, 98, 96 S. Ct. 2240, 2245
(1976) (holding that use of defendant’s silence after receiving Miranda warnings violated due
process). However, “[i]f a defendant’s trial testimony is inconsistent with statements made to the
police, the prosecution may impeach his trial testimony by using his failure to give the same
statements to the police.” People v. Ridley, 199 Ill. App. 3d 487, 493, 557 N.E.2d 378, 382
(1990); see also People v. Frieberg, 147 Ill. 2d 326, 355-56, 589 N.E.2d 508, 521-22 (1992)
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(concluding that no Doyle violation occurred where defendant’s post-Miranda statement to police
was “markedly different,” including the omission of significant details, from his testimony at
trial). This same exception to the general rule that a prosecutor may not present evidence of a
defendant’s postarrest silence finds expression in Doyle,
“It goes almost without saying that the fact of post-arrest silence could be
used by the prosecution to contradict a defendant who testifies to an exculpatory
version of events and claims to have told the police the same version upon arrest.
In that situation the fact of earlier silence would not be used to impeach the
exculpatory story, but rather to challenge the defendant’s testimony as to his
behavior following arrest.” Doyle, 426 U.S. at 619 n.11, 49 L. Ed. 2d at 98 n.11,
96 S. Ct. at 2245 n.11.
In this case, the jury was presented with two conflicting versions of events leading to the
defendant’s arrest for unlawful possession of a controlled substance. The defendant testified at
trial that the cocaine was found on the ground, and he told Boers that he had not dropped the
drugs. Boers and Schumacher testified, however, that Boers found the cocaine in the defendant’s
pocket. The prosecutor’s comments in closing argument that the defendant had not told anyone
his version of events in the 2 ½ years between his arrest and the trial were permissible comments
on the witnesses’ widely divergent testimonies. Here, the defendant's testimony that he told the
officers at the time of his arrest that he did not drop the drugs on the ground and did not see them
there before he was searched, differs substantially from the officers’ testimony about his actions
at that time. We believe that this situation is more analogous to Frieberg, 147 Ill. 2d at 355-56,
589 N.E.2d at 521-22, where the defendant made a statement to police at his arrest and then
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testified inconsistently with that statement, than to a situation where a defendant remained silent
postarrest (People v. Adams, 102 Ill. App. 3d 1129, 1133, 430 N.E.2d 267, 271 (1981)) or made
a general denial of guilt and then testified as to a specific defense (Ridley, 199 Ill. App. 3d at
493, 557 N.E.2d at 382). Although the prosecutor's statements were comments on defendant's
silence, they "challenge the defendant's testimony as to his behavior after the arrest." Doyle, 426
U.S. at 619, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245. Under the unique facts of this case, we
conclude that the prosecutor’s statements were permissible.
Finally, we note that while we have found the evidence was closely balanced for purposes
of the plain error doctrine, we also conclude that the evidence presented was sufficient to find the
defendant guilty beyond a reasonable doubt. “Whether the evidence is closely balanced is, of
course, a separate question from whether the evidence is sufficient to sustain a conviction on
review against a reasonable doubt challenge.” People v. Piatkowski, 225 Ill. 2d 551, 566, 870
N.E.2d 403, 411 (2007). Thus, double jeopardy does not bar retrial of the defendant. People v.
Hernandez, 231 Ill. 2d 134, 152, 896 N.E.2d 297, 309 (2008).
CONCLUSION
The prosecutor erred when he bolstered the police officers’ testimony by commenting
during closing argument that the officers would not risk their jobs and reputations for 0.8 grams
of cocaine. The prosecutor also erred by referring in closing argument to Boers’s police report.
In addition, the evidence presented at trial was closely balanced. Thus, we conclude that these
errors prejudiced the defendant, reverse the defendant’s conviction, and remand for a new trial.
Reversed and remanded.
LYTTON and O’BRIEN, J. J. concurring.
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