People v. Fukima-Kabika

NOTICE FILED
This order was filed under Supreme 2020 IL App (4th) 170809-U August 11, 2020
Court Rule 23 and may not be cited Carla Bender
as precedent by any party except in NO. 4-17-0809 4th District Appellate
the limited circumstances allowed
under Rule 23(e)(1). Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
JEAN A. FUKAMA-KABIKA, ) No. 15CF648
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court.
Justices Knecht and Holder White concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, holding (1) there was no error in the giving of Zehr
admonishments under Illinois Supreme Court Rule 431(b) (eff. July 1, 2012),
(2) the trial court did not err by removing a spectator interacting
inappropriately with a member of the jury, (3) the trial court did not err by
permitting the State to recall the victim for limited testimony on rebuttal, and
(4) defendant failed to establish plain error since none of the prosecutor’s
comments in closing argument were error.
¶2 In May 2017, a jury convicted defendant, Jean A. Fukama-Kabika, of two counts
of criminal sexual assault, one count of criminal sexual abuse, and one count of unlawful
restraint. The trial court sentenced defendant to seven years in the Illinois Department of
Corrections (DOC) on each of the sexual assault counts and one year in prison for the unlawful
restraint count, with each sentence to be served consecutively. Defendant was sentenced to three
years in DOC on the sexual abuse count, to be served concurrently. In his posttrial motion,
defendant claimed the prosecution improperly sought to shift the burden of proof during closing
arguments, the State failed to prove him guilty beyond a reasonable doubt, and defendant’s
conviction for unlawful restraint violated the “one-act, one-crime” rule. Defendant further
contended the trial court committed error by denying defendant’s demand for production of
certain witness statements, denying defendant’s first motion in limine, failing to give defendant’s
non-IPI jury instruction, permitting the victim to testify again in rebuttal, and in denying
defendant’s pretrial motion to suppress. Defendant’s posttrial motion was denied, and this appeal
follows.
¶3 I. BACKGROUND
¶4 In May 2015, the State charged defendant with one count of criminal sexual
assault, a Class 1 felony (720 ILCS 5/11-1.20(a)(1) (West 2014)), one count of criminal sexual
abuse, a Class 4 felony (720 ILCS 5/11-1.50(a)(1) (West 2014)), and one count of unlawful
restraint, also a Class 4 felony (720 ILCS 5/10-3(a) (West 2014)). The charges stemmed from an
incident on May 3, 2015, where defendant, a legal émigré from the Democratic Republic of
Congo, was alleged to have sexually assaulted a female acquaintance he knew as a fellow
nursing student at Parkland Community College. The victim accepted defendant’s invitation to
attend a party at a local hotel televising a professional boxing match. The victim and defendant
arrived separately, and defendant was in the company of several friends. The group socialized,
eating and drinking throughout the evening, until, eventually, everyone left to go home. As the
victim went to her car, defendant approached, indicating he needed a ride, and she agreed to
drive him home. Once they arrived near his residence, defendant assaulted her, penetrating her
digitally, fondling her breasts, attempting to force her to perform oral sex on him, and eventually
forcing her on top of him in an effort at vaginal penetration. When that proved unsuccessful, the
victim indicated she yelled at defendant to leave her vehicle and he did. She spoke with a friend
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shortly after the incident, later she spoke to a relative, and she contacted the police early the
same morning.
¶5 When the police confronted defendant about the victim’s accusations, he admitted
the victim was unwilling and told him “no” when he began his advances. Defendant, whose
primary language is French, testified through an interpreter and indicated he had difficulty
communicating with the police when they questioned him. During police questioning, however,
he acknowledged turning the car’s ignition off against her will to prevent her from leaving.
When asked why he persisted in his advances after the victim made it clear she wanted him to
leave her car, the officer testified defendant said “he continued to try to initiate this contact with
her because he was a male and you had to continue trying to make sure that a woman was not
really interested.” According to the officer, defendant acknowledged reaching into the victim’s
pants and touching her vagina with his fingers even after she “continued to tell him no” and only
stopped when “he realized that he was not going to get as much or this was not going to go as far
as he wanted so he ended up giving up.” Defendant, testifying on his own behalf, said the sexual
contact was consensual. He also testified his inability to communicate effectively in English
caused the officers to misunderstand what he was trying to convey about the interaction between
him and the victim in the car. He said he understood the victim to be saying she did not want
another relationship, but that she was not opposed to what was transpiring in her vehicle.
¶6 Although each side called several additional witnesses to corroborate either what
transpired earlier in the evening or after the victim first disclosed the incident in her car, the
evidence of the encounter was limited to the testimony of defendant and the victim. Since the
victim declined to go to the hospital, despite the investigating officers’ request she go, there was
no physical or forensic evidence presented.
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¶7 The jury returned verdicts of guilty on two counts of criminal sexual assault, one
count of criminal sexual abuse, and one count of unlawful restraint. Defendant’s posttrial motion
raised eight specific claims of error: (1) the State improperly shifted the burden of proof during
its closing argument, (2) the State failed to prove defendant guilty beyond a reasonable doubt,
(3) defendant’s conviction for unlawful restraint violated the one-act, one crime rule and was not
proved beyond a reasonable doubt, (4) the trial court erred in denying defendant’s demand for
the production of certain witness statements from the State, (5) the trial court erred in denying
defendant’s first motion in limine regarding State’s witness Carol Carradine, (6) the trial court
erred by refusing to give defendant’s non-IPI instruction No. 1, (7) the trial court erred by
allowing the State to recall the victim as a rebuttal witness, and (8) the trial court erred by
denying defendant’s pretrial motion to suppress evidence. The trial court denied the motion and
ultimately sentenced defendant to seven years on each of the counts of criminal sexual assault, to
run consecutively to each other, three years on the count of criminal sexual abuse, to run
concurrently with all other counts, and one year on the unlawful restraint, to run consecutively to
the criminal sexual assault counts.
¶8 This appeal follows.
¶9 II. ANALYSIS
¶ 10 Defendant raises four issues, only two of which were argued before the trial court
in his posttrial motion. He now claims the trial court (1) erred in its Illinois Supreme Court Rule
431(b) (eff. July 1, 2012), or Zehr, instructions by grouping the four principles together in its
questions to the jurors, and (2) violated defendant’s constitutional right to a public trial when it
excused one of his “supporters” who was caught shaking hands with one of the jurors, apparently
as they were exiting the courtroom during jury selection. Based on his posttrial motion,
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defendant again claims the trial court erred when it permitted the victim to be recalled in rebuttal
and that defendant was denied a fair trial when the prosecutor improperly shifted the burden of
proof to defendant during his closing argument. Defendant now further claims the prosecutor
improperly vouched for the credibility of the victim during his closing argument as well.
¶ 11 A. Zehr Admonishments
¶ 12 Defendant accurately notes the question of whether a trial court violated Illinois
Supreme Court Rule 431(b) (eff. July 1, 2012), and if so, the effect of noncompliance, are
reviewed de novo. See People v. Wilmington, 2013 IL 112938, ¶ 26, 983 N.E.2d 1015; see also
People v. Wrencher, 2011 IL App (4th) 080619, ¶ 37, 959 N.E.2d 693. For a rule so
straightforward in its language and the Illinois Supreme Court so clear in its direction, it is
surprising that 34 years after People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984), and 23
years after Rule 431(b) was amended, we are still dealing with this issue. The rule itself is
simple—the trial court is to ask each prospective juror whether that juror understands and
accepts the following principles: “(1) that the defendant is presumed innocent of the charge(s)
against him or her; (2) that before a defendant can be convicted the State must prove the
defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any
evidence on his or her own behalf; and (4) that if a defendant does not testify it cannot be held
against him or her.” Ill. S. Ct. R. 431(b) (eff. July 1, 2012). We recently observed the language of
Rule 431(b) has been described by our supreme court as “clear and unambiguous,” requiring “a
specific question and response process.” (Internal quotation marks omitted.) People v. Bell, 2020
IL App (4th) 170804, ¶ 106, 145 N.E.3d 740 (citing People v. Thompson, 238 Ill. 2d 598, 607,
939 N.E.2d 403, 409 (2010)). In Bell, the trial court explained the four principles contained in
Rule 431(b) to the venire and then asked each prospective juror if he or she “accepted” the
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principles but failed to ask each prospective juror if he or she “understood” the principles. We
found, the State having even conceded the issue, the failure was error, but we concluded the
defendant failed to establish first-prong plain error since the evidence was not closely balanced.
Bell, 2020 IL App (4th) 170804, ¶ 113.
¶ 13 Three years earlier, in People v. McGuire, 2017 IL App (4th) 150695, ¶ 35, 92
N.E.3d 494, this court sought to explain the importance of strict compliance with Rule 431(b):
“That rule ensures that members of the jury understand and accept the bedrock
principles of Anglo-American criminal law. Failing to comply with [the rule]
could threaten the integrity of the jury’s verdict or, at the very minimum, cast
doubt on any guilty verdict a jury might return. Trial courts must exercise
diligence when instructing the jury of the Zehr principles as codified in Rule
431(b) and must not deviate in any way from the precise language chosen by the
Illinois Supreme Court to be in that rule.”
¶ 14 In an effort to reinforce the significance of following the language in the rule, we
highlighted the need for prosecutors to be aware of the rule’s strict requirements so they could
alert the court to any deficiencies in their admonishment, thereby protecting their records. In
McGuire, the trial court, after reciting each principle individually, asked prospective jurors if
they “disagreed” with each principle but failed to ask whether they understood and accepted
them. We noted this was “clear error.” However, the trial court, at the completion of its inquiry
for each group of jurors then asked both the State and defense to indicate whether they “believe
that [the prospective jurors] ha[ve] been properly admonished as far as [the] Zehr principles.”
McGuire, 2017 IL App (4th) 150695, ¶ 9. As a result, defendant’s acquiescence precluded
raising the issue under a “plain error” analysis on appeal and distinguished the facts in McGuire
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from People v. Sebby, 2017 IL 119445, 89 N.E.3d 675, decided by the supreme court only five
months before. There, our supreme court said Rule 431(b) was not satisfied when the trial court
asked prospective jurors whether they “believed in” or “had any problem with” any of the four
Zehr principles. Although originally grouping all four together, as the court continued
questioning the jurors it discussed each principle while interspersing comments and questions
about whether the jurors could be fair and impartial. There too, the defense failed to object to the
method of questioning at trial and sought to raise the issue as one of first prong plain error, i.e.,
clear error where the evidence is closely balanced. The supreme court held a Rule 431(b)
violation constituted an “instructional error” which would not entitle a defendant to
second-prong automatic reversal as a structural error absent evidence of actual jury bias. Sebby,
2017 IL 119445, ¶ 67. However, when coupled with proof of closely balanced evidence, it
required reversal under the first prong, since “[i]f the defendant carries that burden, prejudice is
not presumed; rather, ‘[t]he error is actually prejudicial.’ ” Sebby, 2017 IL 119445, ¶ 51 (quoting
People v. Herron, 215 Ill. 2d 167, 193, 830 N.E.2d 467, 483 (2005)). The supreme court found,
after evaluating “the totality of the evidence and conduct[ing] a qualitative, commonsense
assessment of it within the context of the case,” the evidence was closely balanced and the
court’s instructional error warranted reversal and remand for a new trial. Sebby, 2017 IL 119445,
¶¶ 53, 78.
¶ 15 The accepted methods of questioning are as numerous as the cases deciding the
issue. By way of example, in the oft-cited People v. Belknap, 2014 IL 117094, ¶ 42 23 N.E.3d
325, jurors were questioned in panels of six. In Wilmington, 2013 IL 112938, ¶ 28, the
prospective jurors were questioned as a group. In People v. Hayes, 409 Ill. App. 3d 612, 614, 949
N.E.2d 182, 185 (2011), jurors were questioned in panels of 14. In People v. Willhite, 399 Ill.
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App. 3d 1191, 1193, 927 N.E.2d 1265, 1267 (2010), jurors were broken down into panels of four
before being questioned. The trial court in People v. Brown, 2019 IL App (5th) 160329, ¶ 4, 145
N.E.3d 486, questioned jurors by row. In People v. Morris, 2013 IL App (1st) 110413, ¶¶ 80, 83,
1 N.E.3d 1033, where the court questioned all 14 prospective jurors in the jury box as well as
20-25 prospective jurors seated in the gallery, the First District noted, “[T]here is no requirement
that a trial court use the exact language of the rule and the rule does not prescribe a precise
formula for trial judges to use in ascertaining jurors’ prejudices or attitudes.” (Internal quotation
marks omitted.) In each case, regardless of whether the actual questions were found to be error,
the method was never criticized.
¶ 16 Here, defendant fails to note the trial court, at the outset of the jury selection
process, informed all the prospective jurors present they would be receiving written instructions
at the conclusion of the trial, which would include the following:
“The first instruction is that the defendant is presumed to be
innocent of the charges against him. This presumption remains
with him throughout every stage of the trial and during your
deliberations on the verdict, and is not overcome unless from all
the evidence in this case you are convinced beyond a reasonable
doubt that he is guilty. The State has the burden of proving the
defendant—proving the guilt of the defendant beyond a reasonable
doubt, and this burden remains on the State throughout the case.
The defendant is not required to prove his innocence. In
connection with that last sentence, this defendant, as does every
individual, possess an absolute right not to testify at his trial if he
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so chooses. If the defendant chooses not to testify, you will receive
an instruction that states the fact that the defendant did not testify
must not be considered by you in any way in arriving at your
verdict.”
¶ 17 Later, when asking about these principles in particular, the trial court grouped all
four Zehr principles into one question, asking each panel of four prospective jurors whether they
“understood” or “understand those instructions” and whether they “will follow those
instructions” before impaneling them. Defendant objects not only to the grouping of the
principles but also what he characterized as the “suggestive practice” of the court by
“affirmatively stat[ing] the jurors would understood [sic] and follow the principles before
eliciting their response with the leading question ‘is that correct?’. ”
¶ 18 As the State accurately points out, this particular judge’s practice of grouping all
four Zehr principles into one question was previously addressed in Willhite, and the practice in
general, most recently in People v. Kinnerson, 2020 IL App (4th) 170650. In each case, the
defendant complained about the collapsing of all four issues into one broad instruction; and, in
each, just as in the case before us, there was no objection to this process at trial or by way of a
posttrial motion. One may suspect, since the majority of cases raising Zehr issues on appeal
involve arguing plain error to avoid forfeiture, this may be because it is rarely an issue for
defendant or his counsel at trial.
¶ 19 Regardless, in Kinnerson, the defendant also argued the trial court erred by
“combining the four principles into a single statement on the law.” (Internal quotation marks
omitted.) Kinnerson, 2020 IL App (4th) 170650, ¶ 60. This court found the trial court’s statement
of all four principles, followed immediately by questioning of jurors “row by row,” asking, “do
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each of you understand and accept these basic propositions of law” with an indication of
responses by row, was sufficient to comply with both Rule 431(b) and the supreme court’s
admonishment in Thompson that the court “address each of the enumerated principles” and
determine “whether the potential jurors both understand and accept each of the enumerated
principles.” Kinnerson, 2020 IL App (4th) 170650, ¶ 60 (quoting Thompson, 238 Ill. 2d at 607).
We noted neither the rule nor the supreme court required the trial court to address each principle
“separately.” (Internal quotation marks omitted.) Kinnerson, 2020 IL App (4th) 170650, ¶ 62.
Further, we found in Willhite: “Rule 431(b) has no requirement that the trial court ask separate
questions of the jurors about each individual principle. [Citation.] Nor does the rule require
separate, individual answers from each juror.” Willhite, 399 Ill. App. 3d at 1196-97.
¶ 20 Defendant argues our rationale in Willhite is based solely on an earlier vacated
version of People v. McCovins, 399 Ill. App. 3d 323, 928 N.E.2d 486 (2010), vacated, 239 Ill. 2d
574, 940 N.E.2d 1151 (2011). This is not new. We addressed the identical argument in
Kinnerson, where, after noting the absence of language in both Thompson and Rule 431(b)
requiring individual questions to each juror regarding each principle, we found, “[c]ontrary to
defendant’s assertions on appeal, our rationale in Willhite was not solely reliant on an earlier,
vacated version of McCovins.” Kinnerson, 2020 IL App (4th) 170650, ¶ 64. Instead, we
concluded, as we do again, the plain language of the rule does not require “ ‘the trial court to ask
jurors individually about each principle’ or ‘receive their answers one by one.’ ” Kinnerson,
2020 IL App (4th) 170650 ¶ 64 (quoting Willhite, 399 Ill. App. 3d at 1196). Here, the jurors were
asked, in panels of four, if they “understood” each of the Zehr principles, and they were provided
the opportunity to respond. The trial court then asked if they “will follow those instructions” and
gave them each an opportunity to respond as well. This is not a situation like Sebby, 2017 IL
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119445, ¶ 49, where the trial court asked prospective jurors if they “ ‘had any problem with’ ” or
“ ‘believed in’ ” the principles, or that of Belknap, 2014 IL 117094, ¶ 44, where the court asked
one of three variations— whether prospective jurors “disagreed with,” “had any quarrel with,” or
“accepted” the principles, or Wilmington, 2013 IL 112938, ¶ 32, where the court asked if any of
the jurors disagreed with each principle. In each of those cases, the primary dispute was with a
failure to ask if the jurors “understood” the principle in conjunction with other options noted
above. In the matter before us, the trial court expressly asked if the jurors “understood” the four
principles and, we submit, asking if they will “follow” the principles is the functional equivalent
of asking if they “accept” them. This same questioning passed muster in Wilhite and does so
again. We still encourage trial courts to simply read the language of Rule 431(b) and avoid the
issue entirely. When trial courts ask prospective jurors if they “accept” a principle, it is not some
philosophical inquiry into their morality but an effort to determine whether they are willing and
likely to follow the instructions on that principle. Although that may be the ultimate goal, Zehr
and Rule 431(b) use the term “accept” and trial courts would do well to do the same. Defendant’s
complaint regarding the exact manner of questioning, i.e., that by including the comment “isn’t
that correct?” the trial court somehow overbore the free will of what we must assume was a
reasonably intelligent venire, we find to be so picayunish as to warrant no comment. These
belated claims of Zehr violations are not going to force us to devolve into an analysis of voice
tone and inflection. There was no error with the trial court’s Rule 431(b) admonishments.
Without error, there is no need to proceed further with a plain error analysis. See People v. Hood,
2016 IL 118581, ¶ 18, 67 N.E.3d 213 (without error there can be no plain error).
¶ 21 B. Defendant’s Sixth Amendment Claim
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¶ 22 Defendant next argues his constitutional right to a public trial was violated when,
during jury selection on the first day of trial, the trial court excluded some unknown person from
defendant’s church who was present “for support” when he was caught interacting and shaking
hands with one of the jurors as they were being excused for lunch.
¶ 23 Here, the trial court removed an individual because of his inappropriate
interactions with a juror. This is more akin to the removal of an unruly spectator, similar to the
situation in People v. Cooper, 365 Ill. App. 3d 278, 282-83, 849 N.E.2d 142, 146-47 (2006),
which discussed “partial closure” within the context of excluding several family members of the
defendant due to their behavior before the jury. There, this court noted the presumption against
removal may yield to an “overriding interest that is specifically articulated.” (Internal quotation
marks omitted.) Cooper, 365 Ill. App. 3d at 282. We also found the standard to be applied when
determining the sufficiency of the record to support a trial judge’s exclusion of a disruptive
individual from the courtroom is whether there has been an abuse of discretion. Cooper, 365 Ill.
App. 3d at 282.
¶ 24 In the case before us, one person, not related to defendant and identified only as
someone from his church who was present for “support,” was seen shaking hands and interacting
in some fashion with one of the jurors being excused for lunch. There is no indication anyone
else was excluded or that defendant opposed the removal of the person interfering with a juror.
The trial transcript reveals after the second panel of jurors had been selected and sworn, they and
the remaining venire were being released for lunch when the following conversation occurred:
“THE COURT: Mr. Dill [(defense attorney)], who is that
gentleman that’s shaking hands with one of my jurors?
MR. DILL: Judge, this is a man that I met this morning
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who goes to church with my client and he’s here for support.
That’s—.
THE COURT: Sir, you’re excused from this trial. I don’t
expect to see you here again. You do not interact with my jurors.
We will be in recess.”
¶ 25 When they reconvened, the court made no further comment. The “overriding
interest” was “specifically articulated” by the trial court when confronting counsel and
addressing the individual. He was being removed for directly interacting with what we can
surmise was one of the jurors who had already been selected and sworn since the court referred
to “one of my jurors.” The “overriding interest” here was to ensure a trial with fair and impartial
jurors, something one would assume was important to defendant as well, unless, of course, he
was hoping for some level of bias or influence generated by the supporter’s interaction with the
juror with whom he was seen shaking hands.
¶ 26 Of note once again, defendant did not object. His counsel did not include this
issue in a lengthy and detailed posttrial motion. Instead, we see it for the first time on appeal, as
if sprung full-grown from the forehead of Zeus and argued as if the court conducted a wholesale
evacuation of the courtroom. Our remarks should not be construed or misconstrued as some
comment on a defendant’s legitimate and necessary right to appeal. They are not. Instead, they
highlight once again the fact that the issue was not of concern to defendant or his counsel, but
appears now, exaggerated beyond what the record reveals. This was not a “closing” of
defendant’s public trial. The extent of the closure, or more accurately, eviction, would fall under
the “triviality standard” of Peterson v. Williams, 85 F.3d 39, 42 (2d Cir. 1996). A triviality
standard, properly understood, looks to whether the actions of the court and the effect that they
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had on the conduct of the trial deprived the defendant—whether otherwise innocent or guilty—of
the protections conferred by the sixth amendment. Williams, 85 F.3d at 42.
¶ 27 Our supreme court recently analyzed the public trial issue in People v. Radford,
2020 IL 123975, where a defendant contended the trial court erred by partially closing the
courtroom during jury selection when it filled the courtroom with prospective jurors, leaving
only enough space for two members of the defendant’s and the victim’s families. The court
discussed at length the sixth amendment right to public trials, noting, “[a] contemporaneous
objection is particularly crucial when challenging any courtroom closure” and the failure to
object deprives a trial court of the opportunity to explain its justification or develop an alternate
plan. Radford, 2020 IL 123975, ¶ 37. More importantly, the court stated, “This need to lodge a
contemporaneous objection to a courtroom closure also prevents a defendant from potentially
remaining silent about a possible error and waiting to raise the issue, seeking automatic reversal
only if the case does not conclude in his favor.” Radford, 2020 IL 123975, ¶ 37.
¶ 28 In People v. Evans, 2016 IL App (1st) 142190, ¶ 11, 69 N.E.3d 322, the First
District “assume[ed] that preventing juror contamination [wa]s an ‘overriding interest’ ” when
evaluating the effect of removing an individual—in that case, the defendant’s step-grandmother.
See also Waller v. Georgia, 467 U.S. 39, 48 (1984). It was the inability to show efforts at
contamination which doomed the trial court’s decision to exclude her from witnessing voir dire.
Evans, 2016 IL App (1st) 142190, ¶¶ 11-12. In People v. Willis, 274 Ill. App. 3d 551, 554, 654
N.E.2d 571, 574 (1995), the trial court was found to have erred by barring defendant’s family
members from voir dire to prevent contamination of prospective jurors, without evidence. The
situation before us is not the one to which defendant alludes in his citation of Presley v. Georgia,
558 U.S. 209, 215 (2010). Presley, as well as Willis and Evans, involved “perceived” possible
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risks of jury contamination. Here, the trial court witnessed the spectator having contact and
communicating directly with a juror as they were being escorted out of the courtroom. Once the
court excluded him from the trial, neither defendant nor his counsel voiced an objection, sought
to make a record, or sought an explanation. Allowing them to do so now would only encourage
the behavior Radford decried. Further, as the Radford court noted, “not every courtroom closure
[(as opposed to a mere expulsion)] results in an unfair trial, nor does each closure effect the
values underlying the sixth amendment’s public trial guarantee.” Radford, 2020 IL 123975, ¶ 33
(citing Weaver v. Massachusetts, 137 S. Ct. 1899, 1909-10 (2017)). Defendant can point to
nothing the removal of the interfering “supporter” did to “erode the integrity of the judicial
process and undermine the fairness of the defendant’s trial,” a definition of the sort of second-
prong structural error which might otherwise entitle him to “plain error” analysis. (Internal
quotation marks omitted.) Thompson, 238 Ill. 2d 598, 613-14. The defendant has the burden of
persuasion under both prongs of the plain error doctrine, and if he fails to satisfy his burden of
persuasion, as he did here, “the procedural default will be honored.” See People v. Hillier, 237
Ill. 2d 539, 545, 931 N.E.2d 1184, 1188 (2010), and People v. Eppinger, 2013 IL 114121, ¶ 19,
984 N.E.2d 475.
¶ 29 C. Victim’s Rebuttal Testimony
¶ 30 Defendant next argues the trial court’s decision to permit the victim to be recalled
by the State as a rebuttal witness was error. Defendant accurately notes we review the
discretionary admission of rebuttal testimony under an abuse of discretion standard. People v.
Woods, 2011 IL App (1st) 091959, ¶ 26, 952 N.E.2d 105. Indeed, it is within the trial court’s
discretion whether to allow rebuttal testimony and that determination will not be disturbed absent
“a clear abuse of discretion.” (Emphasis added.) People v. Harris, 231 Ill. 2d 582, 588, 901
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N.E.2d 367, 370 (2008). “An abuse of discretion will be found only where the trial court’s ruling
is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted
by the trial court.” People v. Caffey, 205 Ill. 2d 52, 89, 792 N.E.2d 1163, 1188 (2001).
¶ 31 After defendant testified on his own behalf, the prosecutor indicated it was his
intention to recall the victim. Defendant objected, contending the same topics were already
covered by the victim and defendant, and since nothing new had been brought up by defendant’s
testimony, there was no legitimate basis for recalling the victim other than to allow her to repeat
her emotional testimony before the jury.
¶ 32 The trial court noted several areas where their testimony had differed but made it
clear to the State: “[I]ts going to be really limited ***. Again, we’re not going back over this all
again. [Defense counsel] has a point. You can ask some specific questions where you think they
are rebutting the testimony that was presented.”
¶ 33 After a recess, the trial court reiterated, “[R]ebuttal is going to be brief. There are
very few, as I recall the testimony, things that could be rebutted by the victim testifying.” It is
clear from the record the trial court thought there were several areas where rebuttal testimony
was proper but was careful to note the “really limited” nature of rebuttal evidence it would allow
the State to elicit from the victim. In fact, during the necessarily leading questioning by the State
at one point, when the State instructed the witness to “[t]ell the jury what happened,” the court
immediately stepped in, addressing the State: “No ***. The answer is either yes or no,” requiring
the State to keep the inquiry specific and limited. In addition, as defense counsel repeatedly
objected to “asked and answered” questions, the court was quick to note to the prosecutor when
his questioning went beyond the limited bases for rebuttal.
¶ 34 The proper use of rebuttal evidence is to “explain, contradict or disprove
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defendant’s evidence.” People v. Hood, 213 Ill. 2d 244, 259, 821 N.E.2d 258, 266 (2004). This is
true even if the evidence was such that it would have been admissible as part of the State’s case
in chief. People v. Lucas, 132 Ill. 2d 399, 434, 548 N.E.2d 1003, 1017 (1989). Defendant relies
heavily on People v. McGhee, 20 Ill. App. 3d 915, 314 N.E.2d 313 (1974), a case easily
distinguished from the one before us. In McGhee, the defendant appealed from his bench trial for
battery, resisting arrest, and aggravated battery, claiming rebuttal evidence presented by the State
was admitted improperly. The First District found the “rebuttal evidence was offered by the State
to contradict defendants’ testimony concerning [the officers’] conduct in the lockup after the
altercation for which [the defendants] were being tried.” McGhee, 20 Ill. App. 3d at 923. This
was collateral to the substantive issues at trial since the behavior for which defendant was on trial
occurred before the incidents in the lock-up after his arrest. Further, the trial court’s comments
revealed it resolved credibility issues raised by the conflicting testimony based on the improper
rebuttal evidence.
¶ 35 Here, the court strictly limited the prosecutor both as to topic and extent of
examination, to address only those issues which would tend to “ ‘explain, repel, contradict or
disprove evidence of the defendant.’ ” Hood, 213 Ill. 2d at 261 (quoting Lucas, 132 Ill. 2d at
434). The areas of inquiry were limited to interaction between the victim and defendant while at
the hotel where defendant testified the victim “slow danced” with him, a claim by defendant he
had prearranged plans for the next day with the victim, a claim by defendant of a number of
planned dates which had to be cancelled due to work, and defendant’s claim the victim sang him
a song and provided a “lap dance” while they were parked outside his residence.
¶ 36 Considering this case was a credibility contest between the victim and defendant
as to what transpired between the two of them while parked in a vehicle, claims by defendant to
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a preexisting or more personal relationship with the victim than that to which she testified was
clearly relevant to the allegations and not a collateral matter as in McGhee. Her testimony
directly contradicted defendant’s claim of a slow, romantic dance at the hotel, his claim they had
plans for the next day, or that there had ever been planned dates previously. It also explained the
only time she sang a song was earlier in the evening when they were all heading to a restaurant,
and she did not willingly wind up on defendant’s lap in the car.
¶ 37 The trial court was careful to limit the length and area of inquiry to those specific
assertions made by defendant during his testimony and most of defense counsel’s objections
were sustained. The victim’s testimony can in no way be characterized as “improperly bolstering
her credibility.” Instead, it addressed the inference raised by defendant during his testimony
about the nature of the relationship between defendant and the victim, which was intended to
buttress his claim of consensual behavior.
¶ 38 We do not find the court’s admission of limited rebuttal testimony here to be
arbitrary, fanciful, or unreasonable.
¶ 39 D. Prosecutor’s Comments During Closing Argument
¶ 40 Defendant also contends he failed to receive a fair trial due to comments made by
the prosecutor during closing argument. Defendant claims the prosecutor misstated the law,
shifted the burden of proof to the defense, and improperly vouched for the credibility of the
victim. We consider whether a prosecutor’s comments during closing argument are sufficiently
egregious to require a new trial as a legal issue subject to de novo review. People v. Anderson,
2018 IL App (4th) 160037, ¶ 47, 102 N.E.3d 260. In People v. Wheeler, 226 Ill. 2d 92, 122, 871
N.E.2d 728, 744 (2007), our supreme court clearly indicated its intent to “reaffirm our
intolerance of prosecutorial misconduct.” It first acknowledged, however, “[p]rosecutors are
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afforded wide latitude in closing argument” and reversal and retrial are not warranted unless the
improper remarks “constituted a material factor in a defendant’s conviction.” Wheeler, 226 Ill.
2d at 123. In Anderson, we noted closing arguments are to be viewed in their entirety and
remarks claimed to be improper must be considered “ ‘within the context in which they were
conveyed.’ ” Anderson, 2018 IL App (4th 160037, ¶ 48 (quoting People v. Lewis, 2017 IL App
(4th) 150124, ¶ 67, 78 N.E.3d 527). Further, when the comment is based on reasonable
inferences to be drawn from the evidence or invited by the closing argument of the defense, then
it may sometimes be possible for otherwise improper argument to survive a claim of error.
Anderson, 2018 IL App (4th) 160037 ¶ 62; see also Bell, 2020 IL App (4th) 170804, ¶ 134
(finding a prosecutor’s statements will not be held improper if provoked or invited by defense
counsel’s closing argument).
¶ 41 We note all the comments of which defendant complains are contained in the
State’s rebuttal argument. Regarding the “burden-shifting” comment, defendant asserts in his
brief that “the prosecutor first raised the issue that [the victim] would not levy these allegations
for no reason.” Thus, although defense counsel replied by stating he did not know the answer to
the factual question of why the victim would make false allegations, this argument did not permit
the prosecutor to respond with repeated and incorrect statements of law that shifted the burden of
proof to defendant. One small problem—there was no comment by the prosecutor in his initial
closing about how the “victim would not levy these allegations for no reason” and the record
cited by defendant is to the final comment of the prosecutor’s rebuttal argument.
¶ 42 A careful reading of the State’s initial closing argument reveals it focused on the
two different versions of what happened and discussed the credibility determinations the jury
was being required to make. It was the defense who first brought up the idea of “why would she
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make this up,” although he attributed it to the prosecutor. The closest thing said was one isolated
comment, when the prosecutor was describing defendant’s version of his interaction with the
victim on the night in question:
“This [sic] I kissed her and she fell into my arms overcome with cries of passion
and pleasure. And then things stopped and we just went our separate ways and she
drives home, and suddenly she apparently for no reason claims sexual assault.”
He then went on to discuss other aspects of defendant’s testimony.
¶ 43 During the defense closing, however, counsel said:
“[The prosecutor] alluded to the fact why would she make
this up? Why would anyone make up these allegations? Why
would they do this? I don’t know. We don’t know. We certainly
don’t—no one has to prove why someone would come into court
***. We don’t have to prove that, but why? Why would she make
that up? Every day you read the newspaper. Terrible things
happen. People lie. People do terrible thing to other people, and
most of the time we don’t know why. There’s no answer to that
question, but the evidence has shown you that’s exactly what
happened here. That’s exactly what happened.”
¶ 44 It was in response to these comments that the prosecutor, in his rebuttal argument,
said:
“Counsel brings it up and we have to address it. Why?
Why, why, why, why, why is [victim] saying this happened?
Counsel says I have no idea. I will give you a spoiler right now and
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say I do. Here is the answer. It is because it happened. She is
saying it happened because it happened. Now for you to disbelieve
[the victim]—for you to disbelieve [the victim] I think you should
have some reason for her to have made this up.”
¶ 45 There was an objection interposed by defense counsel and overruled by the court.
The prosecutor continued: “For you to disbelieve her I suggest you have to have some reason
why she would have made it up, and this is why. Did that look like fun? When [the victim] was
on the stand, when she shared this with you, did that look like fun?”
¶ 46 There was no objection to this comment. To support defendant’s claim of “burden
shifting,” defendant’s brief parsed the prosecutor’s words during his rebuttal argument, omitting
an intervening objection and reciting only portions of a sentence.
¶ 47 Regardless, the comments were obviously in response to defendant’s closing
argument and are not improper. As noted by the State, our supreme court outlined the difference
between a permissible argument concerning the credibility of a witness and an impermissible one
in People v. Banks, 237 Ill. 2d 154, 184-185, 934 N.E.2d 435, 452 (2010). Citing its previous
decision in People v. Coleman, 158 Ill. 2d 319, 633 N.E.2d 654 (1994), the supreme court
distinguished between a situation “where a prosecutor improperly argues that a jury would have
to believe the State’s witnesses were lying in order to acquit defendant,” and a permissible
argument where the State argues “a jury would have to believe the State’s witnesses were lying
in order to believe the defendant’s version of events.” (Emphasis in original.) Banks, 237 Ill. 2d
at 185.
¶ 48 “Statements must be considered in the context of closing arguments as a whole,
and the State can reasonably respond in rebuttal to the defense’s characterization of the evidence
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or case.” People v. Miller, 2020 IL App (1st) 163304, ¶ 48. Here, the State’s only reference to a
“claim” of sexual assault was in the context of defendant’s version of events that evening. The
defense then laid out a scenario to explain why someone might lie, and the State’s comments
were a legitimate response. They did not go nearly as far as those considered proper in Coleman.
¶ 49 Defendant further claims the State sought to “shift the burden of truth” with the
prosecutor’s final statement during rebuttal:
“The only explanation for those facts or those circumstances and for her going
through this and saying things she did that day are true. That is why she is saying
it, and there is no other explanation and there is no other explanation offered. The
explanation is this: The defendant is guilty and he should so be found.”
¶ 50 In addition to the fact there was no objection, the comment is in direct response to
one made by defense counsel, “Why would anyone make up these allegations? Why would they
do this? I don’t know,” followed by defense counsel’s assertion that “people lie.” In context, the
comment appears directed more toward the victim than defendant. The prosecutor was arguing
the one and only explanation to be offered on her behalf was that she was telling the truth. There
is nothing about the prosecutor’s comment which shifts the burden of proof, and as a comment
on a matter raised by defendant, it is proper under the circumstances. See Bell, 2020 IL App
(4th) 170894, ¶ 134. “It is permissible for a prosecutor to comment on the uncontradicted nature
of the State’s case even where the only person who could have contradicted the State’s evidence
was the defendant himself.” People v. Reno, 32 Ill. App. 3d 754, 759, 336 N.E.2d 36, 39 (1975).
Here, there was no effort to comment on defendant’s lack of evidence, or some claimed
“burden,” but merely a response to defendant’s closing argument.
¶ 51 Defendant’s final claim is that the prosecutor “personally vouched for and
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expressed his personal opinion on [the victim’s] credibility and motives for testifying” when he
responded to counsel’s argument in rebuttal as set forth above. Based on the comment and the
context in which it occurred, defendant’s interpretation is both incorrect and extreme. Using
defendant’s logic, if the prosecutor used the first-person singular pronoun, in any context in
closing argument, he has somehow now “personally vouched for and expressed his opinion.”
Prosecutors are permitted to include some degree of both sarcasm and invective to express their
points. Banks, 237 Ill. 2d at 183. Further, “ ‘even improper remarks [by a prosecutor] do not
merit reversal unless they result in substantial prejudice to the defendant.’ ” People v. Shaw,
2016 IL App (4th) 150444, ¶ 70, 52 N.E.3d 728 (quoting People v. Cosmano, 2011 IL App (1st)
101196, ¶ 57, 964 N.E.2d 87). “A closing argument must be viewed in its entirety, and the
challenged remarks must be viewed in their context.” People v. Glasper, 234 Ill. 2d 173, 204,
917 N.E.2d 401, 420 (2009). The attorneys focused their arguments on the credibility of the
parties and it was in that context the comments were made. None of the comments were
improper and therefore there was no error.
¶ 52 Absent error, there is no need to consider defendant’s plain error claim regarding
those comments for which there was no objection or reference in his posttrial motion. People v.
Jackson, 2020 IL 124112, ¶ 88 (“Without reversible error, there can be no plain error.”).
¶ 53 III. CONCLUSION
¶ 54 For the reasons set forth above, we affirm the trial court’s judgment.
¶ 55 Affirmed.
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