People v. Trice , 2017 IL App (4th) 150429 ( 2017 )

FILED
November 1, 2017
Carla Bender
2017 IL App (4th) 150429 4th District Appellate
Court, IL
NO. 4-15-0429
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
JOHN EDWARD TRICE, ) No. 13CF1462
Defendant-Appellant. )
) Honorable
) Scott D. Drazewski,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justices Appleton and Knecht concurred in the judgment and opinion.
OPINION
¶1 In January 2015, a jury convicted defendant, John Edward Trice, of delivery of a
controlled substance at a truck stop (720 ILCS 570/407(a)(2)(A) (West 2012)) and delivery of a
controlled substance (720 ILCS 570/401(c)(2) (West 2012)). The trial court later sentenced him
to seven years in prison.
¶2 Defendant appeals, arguing that his convictions ought to be reversed and his case
remanded for a new trial because (1) the trial court erred by refusing to instruct the jury on
entrapment, (2) trial counsel was ineffective for failing to request a jury instruction about paid
informants, and (3) the State committed prosecutorial misconduct. We disagree with these
contentions and affirm.
¶3 I. BACKGROUND
¶4 In October 2013, following a controlled drug transaction, defendant was charged
with two Class 1 felonies: (1) delivery of a controlled substance at a truck stop (cocaine) (720
ILCS 570/407(a)(2)(A) (West 2012)) and (2) delivery of a controlled substance (cocaine) (720
ILCS 570/401(c)(2) (West 2012)). (We note there was a scrivener’s error in the charging
instrument, which indicated defendant was charged under section (b)(2) (720 ILCS
570/407(b)(2) (West 2012)) as opposed to section (a)(2)(A) (720 ILCS 570/407(a)(2)(A) (West
2012)).) The case proceeded to a jury trial in January 2015, and the following testimony was
presented.
¶5 Beverly Throgmorton testified that she became a paid informant for the
Bloomington police department in March 2013, following her arrest for possession of a crack
pipe. She agreed to work for the Bloomington police department as an informant in exchange for
the charges against her being dropped and, later, in exchange for money. She described her
“steady employment” as working for the Bloomington police department. It paid her “a couple of
thousand dollars.” In her role as an informant for the Bloomington police, Throgmorton had
bought drugs from 10 or more individuals.
¶6 Throgmorton had previously been addicted to crack cocaine for over 20 years, but
at the time of defendant’s trial, she had been sober for over 17 months. She had convictions for
forgery, possession of a controlled substance, and retail theft, but she explained that her criminal
behavior had all stemmed from her addiction to cocaine. She had begun a culinary career by
taking classes through a local church, which led to her culinary arts degree and her currently
managing a restaurant and catering company.
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¶7 Throgmorton testified that she informed Bloomington police detective Stephen
Brown in October 2013 that she could purchase crack cocaine from defendant. Throgmorton
explained that she first met defendant because he lived in an apartment across from her brother.
She told him she knew some truckers who bought crack, and he gave her his phone number.
When she later told defendant that one of her truck drivers was coming to town, defendant told
her that he could get whatever she wanted. Several days later, she called defendant and spoke
with him on a speakerphone while Brown was in the room. She told defendant that she knew of a
truck driver who wanted to purchase $400 worth of cocaine. Defendant said “okay,” and they
arranged to meet at the Pilot gas station in Bloomington.
¶8 Throgmorton and Brown went to the gas station, but defendant was not there. She
called defendant multiple times but learned he had left his phone somewhere. Defendant later
called her and said he was on his way and she should not leave. When he got there, she got into
the back passenger seat of his vehicle. Another black male, whom she did not know, was in the
car. Defendant handed her a bag of what she believed was crack cocaine, and she handed him
$400 of marked bills she had received from Brown. She then returned to Brown’s car and handed
Brown the bag.
¶9 Brown field-tested the contents of the bag and determined it contained crack
cocaine. (At trial, the parties stipulated that the contents of the bag tested positive for 1.3 grams
of cocaine.)
¶ 10 Brown then contacted police officer Jared Johnson, who had followed defendant’s
car from the scene. Johnson pulled defendant’s vehicle over and eventually arrested defendant
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and the vehicle’s other occupant, Jovon Wilder. When the police searched Wilder, they found a
small plastic bag of crack cocaine.
¶ 11 Detective Jared Bierbaum performed surveillance of the transaction at Pilot and
met Johnson at the traffic stop. Bierbaum searched defendant’s person and recovered a cellular
phone and $200 in bills marked for the controlled transaction. Bierbaum later confirmed that the
number to the cellular phone recovered from defendant matched the number that Throgmorton
used to communicate with defendant to arrange the transaction.
¶ 12 At the Bloomington police department, Brown strip-searched defendant and
recovered $200 from defendant’s underwear. Brown later determined that cash was comprised of
the remaining marked bills from the controlled transaction.
¶ 13 During Brown’s interview of defendant, a recording that was ultimately played
for the jury, defendant stated Throgmorton contacted him and asked if he could get her $400
worth of cocaine. He indicated that he “knew a guy.” Defendant explained to Brown that he
really did not know Wilder, but defendant’s sister was dating Wilder. However, defendant called
Wilder after Throgmorton asked him for the cocaine. He told Wilder that Throgmorton needed
$200 worth of crack cocaine rather than $400 worth. A transaction was arranged, and on the date
of the transaction, Wilder called defendant for a ride to Pilot to meet Throgmorton. When Wilder
and defendant arrived at the gas station, Throgmorton got into his vehicle and placed $400 on the
center console. Defendant stated he immediately pocketed $200 of the cash because he intended
to use the money for gas. Wilder handed Throgmorton the cocaine, and Throgmorton exited the
vehicle. When defendant noticed the police attempting to pull him over after the transaction,
defendant grabbed the remaining $200.
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¶ 14 Defendant’s trial testimony conflicted with the above statement he gave to Brown
following his arrest. Defendant testified that he was on social security disability and worked
transporting children to his sister’s day care center. He knew Throgmorton from having given
her a ride home when it was raining. He gave her his phone number at her request. He had been
to her apartment twice, and the second time they watched a movie.
¶ 15 Throgmorton called him and asked if he knew anybody, which he took to mean
whether he knew someone from whom she could purchase drugs. Defendant testified he stated,
“I know one guy, but I don’t know.”
¶ 16 On the day of the controlled transaction, defendant testified he left his cellular
phone at his sister’s day care, and his sister called him on his landline because Throgmorton had
called his cellular phone several times. Defendant retrieved his phone and saw a text from
Throgmorton that said, “I’m here,” which defendant understood to mean that she was at Pilot.
According to defendant’s testimony, Throgmorton had called a few days before and told him she
would be at Pilot, and if he got a chance to go there, that was where she would be. Defendant
responded to her text, stating, “I’m on my way.” Defendant then received a call from Wilder,
who said that he was walking to Pilot and asked defendant to pick him up because “that one girl
called.” Defendant responded, “What you want me to do about it,” and Wilder stated, “I just
want you to know, Man, she called me.” Defendant agreed to give him a ride to Pilot but said
that was all he would do.
¶ 17 Defendant picked up Wilder, and when they arrived at Pilot, Throgmorton entered
the vehicle. Defendant did not say anything while she was in the vehicle, and he looked out the
window the entire time. He testified he did not know what Wilder did, but “he had his hands
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back there.” Defendant testified he “didn’t even look that way,” and he did not “see anything
else, no drugs or nothing.” Throgmorton then left the vehicle, and defendant told Wilder he
wanted his gas money. After driving for a few minutes, defendant noticed the police attempting
to pull him over. Defendant stated he pulled over and looked around the car as the officers
approached. He noticed the cash and grabbed it.
¶ 18 Defendant testified he considered that he did Throgmorton a “favor” by giving
Wilder a ride to Pilot. Defense counsel asked defendant, “And you were unwilling to answer her
call and do any further work as far as finding drugs for her?” Defendant responded affirmatively.
Defense counsel asked defendant if he understood Wilder’s phone call to mean that Wilder was
meeting Throgmorton to sell drugs to her, and defendant responded affirmatively. Defense
counsel then asked, “And knowing that, you provided the ride anyway; is that right?” Defendant
responded, “I just gave him a ride. I didn’t know—it was his business whatever he was doing.”
Defense counsel later asked, “That was a ride which you understood was likely to lead to
criminal activity; is that right?” Defendant responded, “I felt like this: I gave him a ride, but he’s
a grown man. Whatever he do [sic] is his business, as long as I’m not involved. I didn’t put my
hands on anything. I didn’t touch anything at all.” Defendant then denied receiving cash directly
from Throgmorton or seeing or handling “any bag.”
¶ 19 During closing argument, the State argued defendant was guilty either as a
principal or by accountability because he either delivered the drugs himself or caused the drugs
to be delivered by Wilder. The State argued defendant not only arranged the transaction, but he
also intended to “rip off” Throgmorton by delivering only $200 worth of crack cocaine but still
charging her $400. The prosecutor indicated that defendant’s statement that he intended to keep
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the remaining $200 as gas money made him “chuckle” because gas was not so expensive that
driving Wilder to Pilot would consume $200 worth of gas. The State also attempted to
rehabilitate Throgmorton’s credibility, stating:
“This was a crack addict. This is a person that we know, or can
infer from all that we know about her, is someone that had such a
bad crack addiction, that she went from prostituting herself to get
her next high, to—as she sat before you yesterday clean and sober
for 17 months, working 60 hours a week in order to further her
culinary career.”
¶ 20 During its closing argument, defense counsel argued Throgmorton was not
credible because she was biased due to her role as a paid informant and due to her addiction. On
rebuttal, the State stated:
“And another thing for you to consider, because obviously
you have to weigh—you’ve heard conflicting stories, so you have
to weigh believability. And one of the ways that you get to weigh
believability is by your personal observations of the demeanor, and
the way the person conducted themselves, and what they said when
they testified. [Throgmorton] looked healthy. [Throgmorton]
looked clean.”
[DEFENSE COUNSEL]: I’m going to object to the
opinion.
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THE COURT: All right. Counsel should refrain from
stating personal opinions or beliefs. Ladies and gentlemen,
personal opinions or beliefs of the attorneys are not proper and
should not be considered by you in any way. Remember, you are
the fact finder.
[STATE]: Under cross-examination [Throgmorton] did not
falter. [Throgmorton] did not waiver. She stood by the same
version of what happened throughout. And her version is
believable, not only because of the way that she stated, because,
you know, sometimes people are good liars, but she was believable
because the facts support what she testify [sic] to.”
¶ 21 Defendant requested a jury instruction on entrapment, but the trial court denied
his request, concluding he had not admitted that he committed the crimes and he denied
accountability. The jury returned guilty verdicts on both counts. After a March 2015 sentencing
hearing, the court merged count II into count I and sentenced defendant to seven years in prison.
¶ 22 This appeal followed.
¶ 23 II. ANALYSIS
¶ 24 On appeal, defendant argues that (1) the trial court erred by refusing to instruct
the jury on entrapment, (2) trial counsel was ineffective for failing to request a jury instruction
about paid informants, and (3) the State committed prosecutorial misconduct.
¶ 25 A. Plain Error
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¶ 26 The State argues defendant forfeited his arguments relating to the entrapment
instruction and prosecutorial misconduct. Defendant concedes he forfeited his prosecutorial
misconduct argument, but he requests plain-error review.
“Plain-error review is appropriate under either of two
circumstances: (1) when ‘a clear or obvious error occurred and the
evidence is so closely balanced that the error alone threatened to
tip the scales of justice against the defendant, regardless of the
seriousness of the error’; or (2) when ‘a clear or obvious error
occurred and that error is so serious that it affected the fairness of
the defendant’s trial and challenged the integrity of the judicial
process, regardless of the closeness of the evidence.’ ” People v.
Eppinger, 2013 IL 114121, ¶ 18, 984 N.E.2d 475 (quoting People
v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410-11
(2007)).
As a matter of convention, the first step in plain-error review is usually to ascertain whether an
error occurred at all. People v. Shaw, 2016 IL App (4th) 150444, ¶ 69, 52 N.E.3d 728 (citing
People v. Bowens, 407 Ill. App. 3d 1094, 1108, 943 N.E.2d 1249, 1265 (2011)). In this case, we
choose to follow that convention and determine first whether defendant’s claims of error have
merit.
¶ 27 B. The Entrapment Instruction
¶ 28 Defendant argues the trial court committed plain error by refusing his request for
a jury instruction on the affirmative defense of entrapment. We disagree.
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¶ 29 A jury instruction on an affirmative defense is justified when, viewing the
evidence in the light most favorable to the defendant, “slight evidence is presented that, if
believed, establishes the elements of the defense.” People v. Couch, 387 Ill. App. 3d 437, 443-
44, 899 N.E.2d 618, 623 (2008). The supreme court recently clarified this standard, holding the
appropriate inquiry is “whether there is some evidence in the record[,] *** not whether there is
some credible evidence.” (Emphases added and in original.) People v. McDonald, 2016 IL
118882, ¶ 25, 77 N.E.3d 26. “[W]hen the trial court *** determines that there is insufficient
evidence to justify the giving of a jury instruction, the proper standard of review of that decision
is abuse of discretion.” Id. ¶ 42.
¶ 30 Section 7-12 of the Criminal Code of 2012, which defines Entrapment (720 ILCS
5/7-12 (West 2012)), states the following:
“A person is not guilty of an offense if his or her conduct is
incited or induced by a public officer or employee, or agent of
either, for the purpose of obtaining evidence for the prosecution of
that person. However, this [s]ection is inapplicable if the person
was pre-disposed to commit the offense and the public officer or
employee, or agent of either, merely affords to that person the
opportunity or facility for committing an offense.”
¶ 31 “A precondition to raising the entrapment defense is that the defendant must
admit that a crime was committed and that he or she committed it.” People v. Gillespie, 136 Ill.
2d 496, 501, 557 N.E.2d 894, 896 (1990). “The logical reasoning behind the long-standing
entrapment defense rule is that it is both factually and legally inconsistent for a defendant to deny
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committing the offense and then to assert as a defense that he committed the offense, but only
because of incitement or inducement by the authorities.” Id. at 501, 557 N.E.2d at 897. Indeed,
the nature of an affirmative defense assumes the underlying allegations are true. See Affirmative
Defense, Black’s Law Dictionary 482 (9th ed. 2009) (“A defendant’s assertion of facts and
arguments that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all the allegations
in the complaint are true.”).
¶ 32 Defendant argues he “sufficiently admitted the elements of the offense for
purposes of the instruction,” citing People v. Walker, 267 Ill. App. 3d 454, 460, 641 N.E.2d 965,
970 (1994). In Walker, the defendant was charged with delivery of cocaine by accountability.
The First District Appellate Court concluded the defendant was entitled to an entrapment defense
despite his denial of witnessing the transaction or knowledge of whether the sale was completed.
Id. at 457, 460, 641 N.E.2d at 968, 970. The court held that the “defendant’s testimony did not
constitute a denial of an essential element of the crime. Although defendant did offer conflicting
statements throughout his testimony, when considering the evidence in the light most favorable
to defendant, the ‘slight evidence’ standard *** was satisfied.” Id. at 460, 641 N.E.2d at 970. We
disagree with the First District.
¶ 33 To be guilty of the crime of unlawful delivery by accountability, a defendant,
either before or during the commission of that offense, and with the intent to promote or
facilitate that commission, must aid, abet, agree, or attempt to aid another person in the planning
or commission of that offense. See 720 ILCS 5/5-2(c) (West 2012). A defendant cannot claim
that he admitted intentionally assisting with a delivery when he testifies that he did not know
whether the delivery would occur. We thus decline to follow Walker because its holding is
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inconsistent with Gillespie, which held a defendant must admit committing the underlying crime
(Gillespie, 136 Ill. 2d at 501, 557 N.E.2d at 896). Admission of the crime necessarily means the
defendant admitted that he committed each element of the crime.
¶ 34 Further, the “slight evidence” test does not apply to the question of whether a
defendant admitted he committed the crime, which is the precondition to considering whether an
entrapment instruction is warranted. Instead, the “slight evidence” test on the question of
whether an entrapment instruction is warranted applies only after a defendant has admitted that
(1) a crime was committed and (2) he committed it. Only after that threshold has been crossed
should the trial court assess whether the defendant has presented “slight evidence” demonstrating
that he was induced by the State to commit a crime that he was not predisposed to commit.
¶ 35 Accordingly, we must first consider whether defendant satisfied this precondition
by admitting he committed (by accountability) unlawful delivery of a controlled substance (720
ILCS 570/401(c)(2) (West 2012)) and unlawful delivery of a controlled substance at a truck stop
(720 ILCS 570/407(a)(2)(A) (West 2012)). We conclude he did not.
¶ 36 Defendant’s trial testimony did not constitute an admission to these crimes either
as a principal or by accountability because defendant unequivocally denied knowing whether a
delivery would occur. The fact that his initial statement to Detective Brown was inconsistent
with his trial testimony is of no import. Even if defendant admitted the crime in his initial
statement, his subsequent trial testimony, denying that he committed the crime, overrides his
original admission for purposes of determining whether an entrapment instruction is warranted.
¶ 37 Were we to allow the entrapment instruction here, our decision would defy the
logic of the rule because defendant would be in the position of both denying the commission of
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the crime and also claiming that he was entrapped into committing it. Because defendant
unequivocally denied at trial that he knowingly delivered or knowingly assisted with the delivery
of the crack cocaine, the trial court did not abuse its discretion by refusing defendant’s request
for an entrapment instruction.
¶ 38 C. The Informant Instruction
¶ 39 Defendant next argues his trial counsel was ineffective for failing to request that
the jury be instructed to view the testimony of a paid informant with caution. We disagree.
¶ 40 “To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate that counsel’s performance was deficient and that the deficient performance
prejudiced the defendant.” (Internal quotation marks omitted.) People v. Veach, 2017 IL 120649,
¶ 30; see also Strickland v. Washington, 466 U.S. 668, 687 (1984). “Specifically, a defendant
must show that counsel’s performance was objectively unreasonable under prevailing
professional norms and that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” (Internal
quotation marks omitted.) Veach, 2017 IL 120649, ¶ 30. “A ‘reasonable probability’ is defined as
‘a probability sufficient to undermine confidence in the outcome.’ ” (Internal quotation marks
omitted.) Id.
¶ 41 “The purpose of jury instructions is to provide the jury with the correct legal
principles applicable to the evidence, so that the jury may reach a correct conclusion according to
the law and the evidence.” People v. Bannister, 232 Ill. 2d 52, 81, 902 N.E.2d 571, 589 (2008).
Generally, juries are given the relevant Illinois Pattern Jury Instructions (IPI). People v.
Rodriguez, 387 Ill. App. 3d 812, 822, 901 N.E.2d 927, 937 (2008).
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“[I]f the pattern jury instructions do not contain an instruction on a
subject on which the trial court determines that the jury should be
instructed, the court may tender a nonpattern instruction to the jury
as long as it is simple, brief, impartial, and free from argument.”
(Emphasis added.) People v. Buck, 361 Ill. App. 3d 923, 942, 838
N.E.2d 187, 203 (2005).
However, “[a] trial court does not exceed its discretion by refusing to give a non-IPI instruction
if there is an applicable IPI instruction or the essence of the refused instruction is covered by
other instructions.” Id. at 942-43, 838 N.E.2d at 203.
¶ 42 There is no IPI instruction cautioning the jury about the credibility of a paid
informant’s testimony.
¶ 43 In support of his argument, defendant refers to a trend among the federal courts
favoring “informant instructions.” Citing United States v. Luck, 611 F.3d 183, 187 (4th Cir.
2010), defendant argues, “in cases involving uncorroborated accounts by confidential
informants, an ‘informant instruction’ is ‘always mandatory.’ ” However, though Luck cites
other circuits that have come to that conclusion, the Luck court expressly declined to hold
informant instructions were mandatory in any case. Id. at 188; see also United States v. Bosch,
914 F.2d 1239, 1247 (9th Cir. 1990); United States v. Hill, 627 F.2d 1052, 1054-55 (10th Cir.
1980); United States v. Garcia, 528 F.2d 580, 587-88 (5th Cir. 1976); United States v. Griffin,
382 F.2d 823, 828 (6th Cir. 1967) (each holding an informant instruction is mandatory when an
informant’s testimony is uncorroborated by other evidence). Instead, the Luck court determined
defense counsel was ineffective because, based upon federal rules, a reasonable attorney would
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have requested an informant instruction due to the lack of evidence corroborating the informant’s
testimony. Luck, 611 F.3d at 188.
¶ 44 Notwithstanding this trend among the federal courts of appeal, a special jury
instruction about informants is contrary to Illinois law. This court, as well as the Fifth District,
has already addressed this exact argument, albeit in unpublished orders. See People v. Powell,
2015 IL App (5th) 120258-U, ¶¶ 117-23; People v. Lockett, 2014 IL App (4th) 120440-U, ¶¶ 31-
35; People v. Hill, 2014 IL App (4th) 130276-U, ¶¶ 34-40. In each case, the court concluded trial
counsel was not ineffective for failing to request a non-IPI informant instruction. We reach the
same conclusion.
¶ 45 The supreme court has specifically held that “the credibility of a government
informant, as with any other witness, is a question for the jury.” (Internal quotation marks
omitted.) People v. Evans, 209 Ill. 2d 194, 213, 808 N.E.2d 939, 949 (2004). Illinois Pattern Jury
Instructions, Criminal, No. 1.02 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 1.02), which
was given in this case, informs the jury of its responsibility to judge the credibility of each
witness, taking into account any “interest, bias, or prejudice” and “the reasonableness of [the]
testimony considered in the light of all the evidence in the case.” Giving IPI Criminal 4th No.
1.02 was sufficient to instruct the jury to consider any potential interest or bias when assessing
Throgmorton’s credibility. Thus, even if defense counsel had requested an informant instruction,
the trial court would not have abused its discretion by refusing to tender it. See Buck, 361 Ill.
App. 3d at 942-43, 838 N.E.2d at 203.
¶ 46 We also note that IPI Criminal 4th No. 3.00, Introduction, “disapproves of
instructions which comment on particular types of evidence.”
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“[C]ourts are under a general obligation to avoid giving
instructions which unduly emphasize one part of the evidence in a
case[ ] and are not required to give an instruction that would
provide the jury with no more guidance than that available to them
by application of common sense.” (Internal quotation marks
omitted.) IPI Criminal 4th No. 3.00, Introduction (quoting People
v. McClellan, 62 Ill. App. 3d 590, 595, 378 N.E.2d 1221, 1225
(1978)).
We seriously doubt that any sensible jury, using common sense, needs to be instructed to view
paid informants with caution. This is especially true where, as here, defense counsel addressed
the informant’s potential bias and interests on cross-examination and in closing argument.
¶ 47 Thus, defendant fails to persuade us that his trial counsel’s performance was
objectively unreasonable due to counsel’s failure to request an informant instruction. Illinois law
neither encourages nor requires it. Because the trial court would not have abused its discretion by
refusing to tender the proposed informant instruction, defense counsel was not ineffective for
failing to request it.
¶ 48 D. Claims of Prosecutorial Misconduct
¶ 49 Last, defendant argues the State engaged in prosecutorial misconduct “throughout
[defendant’s] entire trial.” Particularly, defendant takes issue with the State’s (1) direct
examination of Throgmorton and (2) statements in closing argument relating to the credibility
and character of Throgmorton and defendant. Defendant concedes he forfeited this argument, but
he requests plain-error review.
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¶ 50 “[A] pattern of intentional prosecutorial misconduct may so seriously undermine
the integrity of judicial proceedings as to support reversal under the plain-error doctrine.” People
v. Johnson, 208 Ill. 2d 53, 64, 803 N.E.2d 405, 412 (2003).
“[P]ervasive prosecutorial misconduct which is designed to
encourage[ ] the jury to return a verdict grounded in emotion, and
not a rational deliberation of the facts [citation], adversely affects a
defendant’s substantial right to a fair trial, and in our view
certainly qualifies as a structural defect affecting the framework
within which the trial proceeds. [Citations.]” (Internal quotation
marks omitted.) Id. at 84-85, 803 N.E.2d at 424.
Moreover, pervasive prosecutorial misconduct can undermine the “trustworthiness and
reputation of the judicial process, affecting the very integrity of the judicial process itself.”
(Internal quotation marks omitted.) Id. at 85, 803 N.E.2d at 424.
¶ 51 We choose to begin our inquiry by considering whether the State committed
prosecutorial misconduct either in its direct examination of Throgmorton or in its closing
argument.
¶ 52 1. The Direct Examination
¶ 53 Defendant contends that the State committed misconduct by asking Throgmorton
questions on direct examination relating to her prior drug use, her decision to quit using drugs,
and her activities since quitting. We disagree.
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¶ 54 At trial, defense counsel objected to this line of questioning on relevance grounds,
and the trial court overruled the objection, finding the testimony was admissible for the limited
purpose of assessing Throgmorton’s credibility and background.
¶ 55 Generally, a witness’s credibility is relevant, and the State may, on direct
examination, elicit testimony explaining the facts regarding a potential basis for impeachment.
See People v. Nitz, 143 Ill. 2d 82, 120, 572 N.E.2d 895, 912 (1991) (“under [Illinois] Supreme
Court Rule 238(a) [(eff. Apr. 11, 2001)], a party may introduce impeachment evidence regarding
its own witnesses to lessen the prejudicial effect”). Throgmorton’s prior drug addiction was a
probable basis for impeachment. Indeed, defense counsel questioned Throgmorton about her
prior addiction and sobriety on cross-examination and discussed her prior addiction in closing
argument. Defendant never explains why the State’s anticipatory disclosure of these facts and
attempt to “pull the sting” was inadmissible or improper, and we deem the State’s direct
examination entirely appropriate.
¶ 56 2. The State’s Comments During Closing Argument
¶ 57 Defendant argues plain error occurred when the State “vouched for the credibility
of its key witness while improperly disparaging [defendant].” We disagree.
¶ 58 Defendant takes issue with the following statements by the State during closing
argument:
“This was a crack addict. This is a person that we know, or can
infer from all that we know about her, is someone that had such a
bad crack addiction, that she went from prostituting herself to get
her next high, to—as she sat before you yesterday clean and sober
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for 17 months, working 60 hours a week in order to further her
culinary career.”
Additionally, defendant complains of the following remarks during the State’s rebuttal:
“And another thing for you to consider, because obviously
you have to weigh—you’ve heard conflicting stories, so you have
to weigh believability. And one of the ways that you get to weigh
believability is by your personal observations of the demeanor, and
the way the person conducted themselves, and what they said when
they testified. [Throgmorton] looked healthy. [Throgmorton]
looked clean.”
[DEFENSE COUNSEL]: I’m going to object to the
opinion.
THE COURT: All right. Counsel should refrain from
stating personal opinions or beliefs. Ladies and gentlemen,
personal opinions or beliefs of the attorneys are not proper and
should not be considered by you in any way. Remember, you are
the fact finder.
[STATE]: Under cross-examination [Throgmorton] did not
falter. [Throgmorton] did not waiver. She stood by the same
version of what happened throughout. And her version is
believable, not only because of the way that she stated, because,
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you know, sometimes people are good liars, but she was believable
because the facts support what she testify [sic] to.”
Defendant also complains of the State’s use of the phrase “rip off” when discussing the fact that
Throgmorton agreed to purchase $400 worth of crack cocaine but was only delivered $200 worth
of the drug. Finally, defendant complains of the prosecutor’s remark that he “chuckled” when he
heard defendant’s statement that he kept $200 for gas money.
¶ 59 “Closing arguments are viewed in their entirety, and the challenged remarks are
considered within the context in which they were conveyed.” People v. Lewis, 2017 IL App (4th)
150124, ¶ 67, 78 N.E.3d 527. “ ‘During closing argument, prosecutors are granted wide latitude,’
but when a prosecutor expresses ‘personal beliefs or opinions or invoke[s] the State’s Attorney’s
office’s integrity, to vouch for a witness’s credibility,’ the prosecutor breaches that latitude.” Id.
(quoting People v. Wilson, 2015 IL App (4th) 130512, ¶ 66, 44 N.E.3d 632). While a prosecutor
may not personally vouch for a witness, the credibility of witnesses may be argued in closing
argument. See People v. Richardson, 123 Ill. 2d 322, 356, 528 N.E.2d 612, 625 (1988).
¶ 60 “If no objection was made when the prosecutor vouched for the credibility of the
State’s witnesses, it will constitute plain error only if the comments were so inflammatory as to
deny the defendant a fair trial or so flagrant as to threaten deterioration of the judicial process.”
People v. Taylor, 2015 IL App (4th) 140060, ¶ 39, 44 N.E.3d 1234. Further, “a defendant may
not claim prejudice from comments by the prosecutor when those comments were invited by
defendant’s argument.” Richardson, 123 Ill. 2d at 356, 528 N.E.2d at 625.
¶ 61 In Wilson, 2015 IL App (4th) 130512, ¶ 66, 44 N.E.3d 632, this court wrote that
“[t]he question of whether a prosecutor’s statements in closing argument necessitate a new trial
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is a legal question reviewed de novo.” In support, this court cited the decision of the Illinois
Supreme Court in People v. Wheeler, 226 Ill. 2d 92, 121, 871 N.E.2d 728, 744 (2007). However,
we note that the First District Appellate Court recently spoke of a conflict regarding the correct
standard of review. In People v. Anderson, 2017 IL App (1st) 122640, 72 N.E.3d 726, the First
District cited an earlier decision of the Illinois Supreme Court in People v. Hudson, 157 Ill. 2d
401, 441, 626 N.E.2d 161, 178 (1993), where the supreme court “suggested that [an appellate
court] should review this issue for an abuse of discretion.” Anderson, 2017 IL App (1st) 122640,
¶ 109, 72 N.E.3d 726. Other appellate court decisions have raised the same concern. See People
v. Crawford, 2013 IL App (1st) 100310, ¶ 139, 2 N.E.3d 1143; People v. Daniel, 2014 IL App
(1st) 121171, ¶ 32, 12 N.E.3d 715; People v. Hayes, 409 Ill. App. 3d 612, 624, 949 N.E.2d 182,
192-93 (2011). However, like the court in Anderson, “[w]e need not take a position in this case,
as defendant’s claim fails under either standard.” Anderson, 2017 IL App (1st) 122640, ¶ 109, 72
N.E.3d 726.
¶ 62 The prosecutor did not personally vouch for Throgmorton’s credibility in closing
argument; he merely reiterated her testimony and pointed out that her story had not changed
throughout the proceedings. Further, the prosecutor’s comments on rebuttal can be reasonably
characterized as a response to defense counsel’s closing argument about Throgmorton’s
credibility. Defendant cannot claim prejudice where his own defense counsel invited the State’s
remarks. Richardson, 123 Ill. 2d at 356, 528 N.E.2d at 625.
¶ 63 The prosecutor also did not improperly disparage defendant by stating defendant
“ripped [Throgmorton] off.” “[W]hile it may be improper to disparage a defendant, it is not
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prejudicial error if such a characterization was based on the evidence or a reasonable inference
therefrom.” People v. Arbuckle, 75 Ill. App. 3d 826, 837, 393 N.E.2d 1296, 1304 (1979).
¶ 64 Also, while the prosecutor’s statement that he “chuckled” comes closer to an
improper personal opinion on defendant’s credibility, defendant fails to persuade that the
comment, to which defense counsel did not object, was “so inflammatory as to deny the
defendant a fair trial or so flagrant as to threaten deterioration of the judicial process.” Taylor,
2015 IL App (4th) 140060, ¶ 39, 44 N.E.3d 1234. Putting the comment in context, it was
followed by the common sense observation that giving Wilder a ride to Pilot could not possibly
have consumed $200 worth of gas. Thus, the evidence did not support defendant’s assertion that
he kept $200 for gas money. The State was entitled to argue the credibility of defendant’s
explanations as long as the argument was reasonably based upon the evidence or inferences
drawn therefrom. That standard was met here.
¶ 65 In closing this discussion about defendant’s claim that the prosecutor’s arguments
were improper, we reiterate what this court wrote in People v. Hubner, 2013 IL App (4th)
120137, ¶ 33, 986 N.E.2d 246, wherein we deemed the prosecutor’s argument in that case to be
entirely appropriate:
“In so concluding, we reiterate what this court recently
wrote in People v. Montgomery, 373 Ill. App. 3d 1104, 1118, 872
N.E.2d 403, 415 (2007), and Dunlap, 2011 IL App (4th) 100595,
¶ 28, 963 N.E.2d 394, that ‘trying felony cases before a jury “ain’t
beanbag.” ’ We added the following in Dunlap:
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‘[F]elony criminal trials are serious matters with high
stakes, and we expect advocates in our adversarial system
of justiceCboth prosecutors and defense attorneysCto “use
all of their forensic skills to persuade the jury of the
wisdom or justice of their respective positions.” [Citation.]
We continue to be disinclined to become the “speech
police” by imposing unnecessary restrictions upon closing
arguments in criminal cases, and we encourage counsel to
vigorously advocate for their position.’ Id.”
¶ 66 III. CONCLUSION
¶ 67 For the reasons stated, we affirm the trial court’s judgment. As part of our
judgment, we award the State its $50 statutory assessment against defendant as costs of this
appeal. 55 ILCS 5/4-2002 (West 2016).
¶ 68 Affirmed.
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