People v. Thompson , 2015 IL App (1st) 122265 ( 2015 )

Illinois Official Reports
Appellate Court
People v. Thompson, 2015 IL App (1st) 122265
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ANDREW THOMPSON, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-12-2265
Filed August 5, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CR-1001; the
Review Hon. William G. Lacy and the Hon. Thaddeus L. Wilson, Judges,
presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Michael Orenstein, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Matthew Connors, and Bianca R. Pucci, Assistant State’s Attorneys,
of counsel), for the People.
Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justices Lavin and Mason concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant Andrew Thompson was convicted of burglary (720
ILCS 5/19-1(a) (West 2010)) and theft (720 ILCS 5/16-1(a)(1) (West 2010)). The trial court
merged the two convictions and sentenced Thompson to 18 years’ incarceration on the
burglary conviction. Thompson asks for reversal of his conviction and remand for new trial,
arguing that the State, during its rebuttal argument, improperly minimized the burden of
proof and attacked his exercise of his constitutional right to a jury trial. Alternatively,
Thompson argues that the trial court ignored his allegations that his attorney had a conflict of
interest, and requests that this court remand this cause for a hearing as provided in People v.
Krankel, 102 Ill. 2d 181 (1984).
¶2 We affirm. The State’s closing argument did not result in substantial prejudice or
constitute a material factor in Thompson’s conviction. While neither the trial court nor the
parties should define “reasonable doubt” for a jury, no error occurred regarding the
prosecutor’s remarks in closing argument about the reasonable doubt standard. Moreover, the
arguments in closing made by Thompson’s counsel invited the State’s response. In a similar
fashion, while the State’s closing argument that Thompson was trying to “evade his
responsibility” was improper, the evidence was not close and no prejudice resulted from the
remarks. Finally, Thompson’s pretrial Krankel motion did not allege sufficient grounds to
justify appointment of new defense counsel.
¶3 BACKGROUND
¶4 On October 19, 2010, someone stole two bags containing laptops and other school related
items from outside a meeting room on the University of Chicago campus. Surveillance
cameras inside the building recorded the perpetrator entering the building, walking in the
hallway, taking the two bags, and then leaving immediately. Cameras outside the building
recorded the perpetrator taking a bicycle from a bike rack and making his getaway through a
parking lot.
¶5 Two months later, University police detained Thompson for questioning and, after
viewing the videos and three still photographs of the perpetrator, contacted the Chicago
police department. Thompson was arrested and charged with burglary and theft of the bag
which belonged to student Deepak Gaur.
¶6 Pretrial Proceedings
¶7 At a status hearing on September 30, 2011, Thompson’s assistant public defender asked
for a final status date, stating that she had followed up on information Thompson had given
her since his last status. Thompson then attempted to present a document to the trial court.
The following exchange occurred:
“THE COURT: Why is your hand up?
THE DEFENDANT: I want to present something to you about the case.
THE COURT: Talk to your attorney.
THE DEFENDANT: I can’t give you this paper?
THE COURT: You can give it to the lawyer.
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[ASSISTANT PUBLIC DEFENDER]: I already have this. This is the arrest
report.
THE DEFENDANT: That’s not the arrest report. This is about a warrant.
[ASSISTANT PUBLIC DEFENDER]: I have a copy of the warrant in the file.
There is a copy–
THE DEFENDANT: Could you give it to the Judge for me?
THE COURT: I’m not allowed to see that. When we go to trial, we go to trial.
THE DEFENDANT: Mr. Lacy, can I mail this to you?
THE COURT: No, you can’t. I can’t see police reports.
THE DEFENDANT: No, this is a warrant from Dorothy Brown, that the police
lied and said I had a warrant on me for my arrest.
[ASSISTANT PUBLIC DEFENDER]: Judge–
THE DEFENDANT: There was no investigative alert.
THE SHERIFF: Quiet.
[ASSISTANT PUBLIC DEFENDER]: Judge, I have a copy of the warrant in his
file. There was a warrant.
THE DEFENDANT: There wasn’t a warrant.
THE COURT: By-agreement, 10-24.
THE DEFENDANT: Dorothy Brown–
THE COURT: By agreement, 10-24.
THE DEFENDANT: Tell that lie, telling it was a warrant. It wasn’t no warrant
[sic]. I got the papers for you.”
At this point, the trial court continued the case.
¶8 On October 24, Thompson again raised his hand, and the trial court told him to talk to his
lawyer. Thompson responded, “She ain’t talking to me.” The trial court said, “She is talking
to you” and Thompson responded, “no she ain’t.” The trial court then told Thompson, “We
set the case for trial sir.”
¶9 On January 17, 2012, Thompson filed a pro se motion for a Krankel hearing, alleging a
“major conflict of interest and lack of communication” with the assistant public defender
assigned to defend him. His motion stated:
“In support of these contentions the petitioner hereby submits that said counsel is
possibly incompetent and utter disregard in preparing the petitioner with a viable
defense [sic]; (2) the petitioner has made repeated efforts to make said attorney aware
of Andrew Thompson wrote the Warrant Clerk, Room 901, Richard J. Daley Center
in which Dorothy Brown Clerk of the Circuit Court of Cook County hereby certified
the Statement of Disposition that there was never a warrant of any kind in this case
against Andrew Thompson ***. When Andrew Thompson gave copies to his court
appointed attorney ***, she refused to accept and submit document to court. Andrew
Thompson made an attempt to submit to Judge himself the documents. Judge Lacy
stated you have to give documents to your attorney to submit. Andrew Thompson
stated to Judge on record attorney refused to accept documents in bullpen. Andrew
Thompson’s complaint is his court appointed attorney [name] is not trying to get to
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the bottom of this, but is continually holding her client illegally incarcerated for the
state. Andrew Thompson would like to no longer be represented by ***.”
¶ 10 The next day the assistant public defender filed the answer raising an alibi defense.
¶ 11 The record also contains a “Petition for Writ of Habeas Corpus” filed pro se on February
3, 2012, asserting a violation of Thompson’s fourth, sixth, and fourteenth amendment rights.
Thompson further asserted that “there was never a warrant of any kind in this case” and that
his attorney perjured herself when she stated there was an active warrant. Attached to the
petition was a “CERTIFIED STATEMENT OF CONVICTION / DISPOSITION” from the
Clerk of the Circuit Court of Cook County with a reference number “11CR0100101” (the CR
number assigned to this case in the trial court) with a handwritten notation stating “[t]here is
no warrant on this case.” Also attached to the written motion was a scheduling form
indicating the motion would be heard on March 20, 2012.
¶ 12 On March 21, the following exchange occurred:
“[Assistant Public Defender]: We are asking that the matter be reset for trial [from
March]. I understand that Mr. Thompson had filed a motion regarding–
THE COURT: Well you talk to him about it. We will deal with it next time.”
The matter was then scheduled by agreement for trial on May 8. On that date, Judge Lacy
sent the matter for reassignment because he was unable to preside over the trial for the next
few days.
¶ 13 Trial
¶ 14 Judge Thaddeus Wilson heard argument on motions in limine, ruling that neither party
could mention that the charges had been filed after Thompson was detained under an
outstanding warrant for a prior misdemeanor criminal trespass to property charge (in late
December 2010 Thompson pleaded guilty to that charge and received a sentence of
conditional discharge).
¶ 15 Deepak Gaur, a graduate student in the University’s business school, testified that on
October 19, 2010, he attended a recruiting event on the campus. Gaur had a bag with him
containing a laptop and other belongings worth over $1,000 that he left on the hallway floor
near a coat rack. When Gaur returned after about one hour later, the bag was missing. He
alerted the security officer at the front desk.
¶ 16 John Taplett, also a graduate student in the University business school, testified that he
attended the October 19 recruitment event. He left his bag containing a laptop and other
items on top of the luggage rack in the hallway outside the meeting room. His bag was also
missing when he returned. Taplett spoke to the security guard, Demarquez Alexander, who
pulled the security camera feed that was recording in the hallway. Taplett viewed the video
from the surveillance camera. On the video Taplett saw an individual whom he did not
recognize take two bags from the hallway.
¶ 17 University security guard Alexander monitored the security cameras from the front desk.
When Alexander learned of the laptop disappearance, he viewed videos from the security
cameras located inside and outside the building. Alexander saw a black male take two
laptops from the area and leave. Alexander stated that the video from outside the building
showed an individual stealing a bicycle before coming into the school. Defense counsel
objected to the testimony about the bicycle and moved for a mistrial, which was denied. The
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trial court struck the statement and instructed the jury to disregard. On cross-examination,
Alexander testified that he did not see anything happening.
¶ 18 University police officer Arthur Gillespie testified that in August 2010, he learned that
Thompson had no affiliation with the University. On August 2, Gillespie told Thompson that
he could not “return to” the University property, including the campus as well as the
buildings. On December 16, two months after the October theft of the laptop, Gillespie saw
Thompson on campus. Gillespie detained him for questioning and gave him Miranda
warnings. Gillespie “viewed the video” from the burglary and recognized Thompson from a
“prior interaction” with him. Gillespie then made three still photographs from the video that
depicted a black male with a white baseball cap riding a bicycle away from the building
where the burglary occurred. The photographs were admitted into evidence and published to
the jury. Gillespie showed the photographs to Thompson and asked Thompson “if that was
him.” Thompson said, “yeah that’s me.” Gillespie summarized Thompson’s statement in his
report. Thompson did not give or sign a written statement, and no video was made of the oral
statement. The City of Chicago police arrived and took over the investigation.
¶ 19 Chicago police department officer Livius Tomescu and his partner responded to the call
on the University campus where Thompson was in custody. Tomescu spoke with the
University police officers and viewed the video and the three photographs. Tomescu and his
partner brought Thompson to a police station. After reading the Miranda rights, they asked
Thompson if he wanted to speak. Thompson responded, “Yeah, what do you want to know?”
Tomescu asked Thompson if he could return the laptops, but Thompson told him “I don’t
have them, I sold them.” Tomescu included Thompson’s statements in his case report.
Thompson did not write or sign a written statement.
¶ 20 Detective Mark Cunningham testified that on December 16 he was assigned to
investigate a theft on October 19 at the University business school. The next day,
Cunningham interviewed Thompson at Area 1. Cunningham advised Thompson of his
Miranda rights, and Thompson answered “yes” to each question, indicating he understood.
Cunningham then asked Thompson about the burglary. Thompson told Cunningham that he
had been in Wisconsin during the previous six weeks. Cunningham asked him “if there was
any chance” the laptops could be returned; Thompson said that he sold them to someone “on
the street” for $40. Cunningham wrote down the conversation on a progress report and in his
“closing supplementary report.” Cunningham did not obtain a written statement from
Thompson nor did he video or audio tape Thompson’s statement.
¶ 21 Thompson presented an alibi defense. Thompson’s fiancée, Erin Johnson, testified that on
October 19, her birthday, she and Thompson were in Wisconsin. Johnson knew Thompson
for 27 years, and they sporadically dated. Thompson arrived in Wisconsin on August 29, left
for a short time, and returned on October 1. He again left around November 1 and returned
on November 3 or 4. Johnson stated that Thompson remained in Wisconsin until returning to
Chicago on December 6.
¶ 22 At the conclusion of the State’s case, Thompson moved for a directed verdict, which the
trial court denied.
¶ 23 CLOSING ARGUMENTS
¶ 24 Defense counsel argued to the jury regarding the burden of proof: “The State has a
burden to prove that it was indeed Mr. Thompson who stole those laptops. Not that it could
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have been him, it might have been him, probably could have been him. No, that is not
enough. They have to prove it beyond a reasonable doubt.” Regarding Gillespie’s testimony
that Thompson said the photograph looked like him, she argued, “To say that it looks like
me, you could look at it and say it could be him, it may not be him, it looks like him, that is
not proof beyond a reasonable doubt.” She also suggested that had the police taken
fingerprints from the door of the building, “[the jury] wouldn’t have to assume anything
because the law requires that the State prove their case beyond a reasonable doubt, not for
you to guess and think that what the possibilities could have been [sic].” Regarding the lack
of a signed Miranda waiver and written statement, she argued: “[W]e do not have anything in
writing, we do not have anything on video, and we do not have any signatures. Basically you
are left here to guess. That is not proof beyond a reasonable doubt.”
¶ 25 In rebuttal, the State argued:
“And with respect to reasonable doubt, that’s a burden that’s met in courtrooms
across the country every day. It’s not proof beyond all doubt, it’s not prove any doubt
[sic], it’s proof beyond a reasonable doubt. And you are the ones that determine what
a reasonable doubt is.”
The State also argued: “The defendant is trying to evade his responsibility for the actions that
he committed ***. He is trying to evade his responsibility even after he admitted what
happened on December 16 and 17, of 2010.” She continued, “[h]e has decided that he doesn’t
want to face responsibility, he’s decided that he wants to shrug any facing up or owning up to
any of his actions on that day, just like he did in the video”; and “[h]e thinks he’s going to
slickly convince you that he wasn’t the person [in the video].” Defense counsel did not object
to any of these remarks.
¶ 26 The trial court instructed the jury:
“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 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.”
The court further instructed the jury:
“Closing arguments are made by the attorneys to discuss the facts and
circumstances in the case and should be confined to the evidence and to reasonable
inferences to be drawn from the evidence. Neither opening statements nor closing
arguments are evidence, and any statement or argument made by the attorneys which
is not based on the evidence should be disregarded.”
In addition, “The fact that the defendant did not testify must not be considered by you in any
way in arriving at your verdict.”
¶ 27 During deliberations, the jury sent a note asking: “Is it possible to see the written
notes/reports from the officers?” Without objection, the court responded: “You have all of
the evidence in this case. Please continue to deliberate.”
¶ 28 The jury convicted Thompson of both burglary and theft.
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¶ 29 In the motion for a new trial, the defense argued that Thompson was never identified as
the perpetrator in the video and his verbal statements to the police were not recorded by
either video or audio or reduced to writing.
¶ 30 In sentencing, the trial court merged the two counts into one burglary count, and imposed
a sentence of 18 years’ imprisonment as a mandatory Class X offender.
¶ 31 ANALYSIS
¶ 32 Closing Arguments
¶ 33 Thompson argues he was denied a fair trial because the State’s improper rebuttal
argument attacked him for exercising constitutional rights by going to trial, confronting the
State’s witnesses, and putting the State to the burden of proof. Additionally, Thompson
argues that the State minimized its burden and improperly urged the jury to invent its own
definition of “beyond a reasonable doubt.” Thompson did not include this issue in his
supplemental motion for a new trial. Acknowledging that his trial counsel failed to object to
the State’s argument, Thompson asserts that we should review this issue under the plain error
doctrine, both because the evidence was closely balanced and because the cumulative effect
of the prosecution’s remarks prejudiced him in the eyes of the jury. The State responds that
Thompson forfeited these claims, and, forfeiture aside, the remarks properly respond to
Thompson’s closing argument and properly challenge the defense theory.
¶ 34 A defendant must object contemporaneously as well as in a posttrial motion to preserve
issues for our review. People v. Lewis, 234 Ill. 2d 32, 40 (2009). Failure to take both steps
results in procedural default, or forfeiture, of the issue. Id. Under the plain error doctrine,
however, this court may excuse a procedural default and consider unpreserved error where:
(1) the evidence is closely balanced so as to preclude argument that an innocent person was
wrongfully convicted; or (2) the alleged error affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process. People v. Naylor, 229 Ill. 2d 584, 602 (2008).
Our analysis initially considers whether error occurred, because in the absence of error, there
can be no plain error. People v. Sargent, 239 Ill. 2d 166, 189-90 (2010). If we find error, then
we proceed to consider whether either of the two prongs of the plain-error doctrine has been
satisfied. The burden of persuasion rests with the defendant under either plain error
alternative. People v. McLaurin, 235 Ill. 2d 478, 495 (2009).
¶ 35 We first address Thompson’s argument regarding the prosecutor’s comments on the
definition of reasonable doubt. Generally, a prosecutor has wide latitude in the content of a
closing argument. People v. Wheeler, 226 Ill. 2d 92 (2007). The Illinois Supreme Court in
People v. Downs, 2015 IL 117934, ¶ 24, stated, “In decisions dating back more than 100
years, this court has consistently held that the term ‘reasonable doubt’ should not be defined
for the jury, that the term, in fact, needs no definition because the words themselves
sufficiently convey its meaning.” This restriction applies to both the trial court and counsel.
People v. Speight, 153 Ill. 2d 365, 374 (1992). See United States v. Glass, 846 F.2d 386, 387
(7th Cir. 1988) (“ ‘Reasonable doubt’ must speak for itself. Jurors know what is ‘reasonable’
and are quite familiar with the meaning of ‘doubt.’ ”). A trial court’s instruction that the
meaning of “reasonable doubt” is for jurors to determine is a correct statement of Illinois law.
¶ 36 Nevertheless, even where a prosecutor’s comment exceeded the bounds of proper
argument, the jury’s verdict will not be disturbed “unless the remark caused substantial
prejudice to the defendant, taking into account the content and context of the comment, its
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relationship to the evidence, and its effect on the defendant’s right to a fair and impartial trial.
[Citation.]” People v. Johnson, 208 Ill. 2d 53, 115 (2003). In Johnson the supreme court
found that the prosecutor’s remark did not result in substantial prejudice to defendant or
constitute a material factor in his conviction. Id. See also People v. Carroll, 278 Ill. App. 3d
464, 468 (1996) (finding no error where prosecutor stated, “[i]t’s not beyond all doubt or any
doubt, but beyond a reasonable doubt, a doubt that has reason behind it. That’s not some
mythical, unattainable standard that can’t be met. That standard is met every day in
courtrooms ***.” (Internal quotation marks omitted.)); People v. Trass, 136 Ill. App. 3d 455,
467 (1985) (finding no error where prosecutor stated that standard is not “an insurmountable
burden, some mystical thing” (internal quotation marks omitted)).
¶ 37 Thompson cites People v. Mena, 345 Ill. App. 3d 418, 426-27 (2003), where the
prosecutor attempted to define beyond a reasonable doubt, arguing that the prosecution need
not prove guilt beyond all doubt, and that juries across the country find evidence in other
cases sufficient to meet the burden. But, Johnson, 208 Ill. 2d 53, is controlling even though
the appellate court has held similar arguments improper (see People v. Jones, 241 Ill. App.
3d 228, 234 (1993); People v. Frazier, 107 Ill. App. 3d 1096, 1102 (1982); People v.
Martinez, 76 Ill. App. 3d 280, 285 (1979)).
¶ 38 Therefore, we find no error. But, were we considering this issue under the plain error
standard, no prejudice resulted where defense counsel’s argument invited the prosecutor’s
remarks. During her closing, defense counsel mentioned “reasonable doubt” in several
contexts. She argued: “The State has a burden to prove that it was indeed Mr. Thompson who
stole those laptops. Not that it could have been him, it might have been him, probably could
have been him.” She went on: “No, that is not enough. They have to prove it beyond a
reasonable doubt.” She also suggested that had the police taken fingerprints from the door of
the building, the jury “wouldn’t have to assume anything because the law requires that the
State prove their case beyond a reasonable doubt, not for you to guess and think that what the
possibilities could have been [sic].” Regarding the lack of a signed Miranda waiver and
written statement, she argued further: “we don’t have anything in writing, we don’t have
anything on video, we don’t have any signatures. Basically you are left here to guess. That is
not proof beyond a reasonable doubt.”
¶ 39 During rebuttal, the State may respond to statements made by defense counsel in closing
argument that invite a response. People v. Kliner, 185 Ill. 2d 81, 154 (1998); People v.
Munson, 206 Ill. 2d 104, 145 (2002). We consider comments in the proper context by
examining the entire closing argument of both sides. Kliner, 185 Ill. 2d at 154; see People v.
Mendez, 318 Ill. App. 3d 1145, 1152 (2001). Our review of the record reveals that defense
counsel’s argument invited the prosecutor’s comments.
¶ 40 Moreover, the trial court instructed the jury on the presumption of innocence, that
throughout the case the State has the burden of proving defendant’s guilt beyond a reasonable
doubt and that the fact that defendant did not testify must not be considered by the jurors in
any way in arriving at a verdict. See People v. Burman, 2013 IL App (2d) 110807, ¶ 47
(improper comment plain error only when either so inflammatory that defendant could not
have received fair trial or so flagrant as to threaten deterioration of judicial process). A trial
court’s instruction that closing arguments are not evidence and that arguments not based on
the evidence are to be disregarded have been found to ameliorate any prejudice resulting
from these types of comments. See People v. Walker, 230 Ill. App. 3d 377 (1992).
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¶ 41 Thompson next argues that the prosecutor’s rebuttal prejudiced him by arguing “The
defendant is trying to evade his responsibility for the actions that he committed ***. He is
trying to evade his responsibility even after he admitted what happened on December 16 and
17, of 2010.” The prosecutor argued further: “[h]e has decided that he doesn’t want to face
responsibility, he’s decided that he wants to shrug any facing up or owning up to any of his
actions on that day, just like he did in the video”; and “[h]e thinks he’s going to slickly
convince you that he wasn’t the person [in the video].”
¶ 42 This court in People v. Herrero, 324 Ill. App. 3d 876, 887-88 (2001) examined the
prosecutor’s statements during closing argument that the defendant was trying to “sucker in”
the jury. For the prosecutor to comment on the defendant’s decision to exercise his
constitutional right to a jury was “outrageous, casting a shadow over the proceedings that
simply cannot be ignored. Courts cannot countenance prosecutors invading the substantive
rights of the accused by making comments that would penalize a defendant for the use of his
constitutional rights. [Citation.]” Id. Additionally, the suggestion that alleged criminals like
the defendant in Herrero are attempting to “sucker in” or dupe the jurors would have the
tendency to improperly shift the focus of attention away from the actual evidence in the case.
See People v. Fluker, 318 Ill. App. 3d 193, 202, 204 (2000) (without “pervasive misconduct
of the prosecutor in rebuttal argument,” the jury may have reached different result, therefore
remarks constituted material factor in conviction).
¶ 43 We do not believe the comments deprived defendant of a fair trial despite suggesting that
Thompson was “trying to evade his responsibility” after December 16 and 17, when he was
arrested and gave statements to the police, and that he was “slickly” defending himself. The
evidence here cannot be considered a “close case.” Gillespie testified that in August 2010,
two months before the burglary, he told Thompson to stay off campus and out of the
buildings. In December 2010, he again encountered Thompson and detained him. Gillespie
recognized Thompson from the surveillance videos. Thompson made incriminating
statements to all three police officers who testified. Thompson was willing to speak to
Tomescu after receiving his Miranda warnings. Tomescu asked Thompson if he could return
the laptops, but Thompson told him “I don’t have them, I sold them.” The jury requested the
“written notes/reports” from the police officers but this fact alone does not support the
conclusion that the jury would have found differently absent the State’s remarks.
¶ 44 Thompson urges us to consider the cumulative effect of the prosecutor’s arguments,
citing People v. Scaggs, 111 Ill. App. 3d 633, 636-37 (1982), where, due to the cumulative
impact of the instances of prosecutorial misconduct, this court granted the defendant a new
trial. Scaggs provides concrete examples of actions that constitute error. The question,
however, of whether a defendant has been denied a fair trial, remains sui generis; with the
result in each case decided on its own distinct set of facts and circumstances. The
prosecutor’s misconduct in Scaggs included: questioning the defendant regarding his living
with a woman other than his wife; questioning the defendant regarding the frequency with
which he carried a gun; questioning the defendant about his failure to call a witness coupled
with the statement during closing argument that the witness did not “show” because he would
not “lie” for the defendant; misstating the law relating to self-defense; and leading the jury to
believe that “reasonable doubt” was a “mere pro forma detail.” Id. The prosecutor’s
statement about reasonable doubt was:
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“Every defendant that has ever been convicted in this building in this country has
been convicted beyond a reasonable doubt whether it is stealing a bicycle or
committing a murder. It does not put this man on a pedestal. It is not some impossible
thing floating up there in the air. It is a burden that is met every day.” (Internal
quotation marks omitted.) Id.
Nevertheless, this court made “no finding as to whether, individually, the [five] instances of
prosecutorial misconduct cited above warrant a reversal.” Id.
¶ 45 In his reply brief, Thompson cites People v. Buckley, 282 Ill. App. 3d 81, 90 (1996),
where the court found the evidence to be closely balanced, but could not say with a
reasonable degree of certainty that the prosecutor’s improper equating of recklessness and
carelessness in the minds of the jury did not contribute to the defendant’s guilty verdict, and,
therefore, reversed the conviction and remanded for a new trial. There, if the defendant was
found responsible for the victim’s death, “whether [the defendant’s] responsibility was based
upon carelessness or recklessness was crucially important to a finding of criminal liability,”
and the prosecutor’s statements improperly equating the two concepts only served to confuse
that important distinction. Id. This case presents a much less serious scenario, and we cannot
say that the guilty verdict resulted from prosecutor’s remarks, even if improper.
¶ 46 Thompson quotes People v. Richmond, 341 Ill. App. 3d 39, 47 (2003), which stated that a
prosecutor’s words carry the authority of the State and admonished prosecutors to choose
their words carefully. In that case, the prosecutor assumed the identity of the eight-year-old
victim in opening statement, an unusual situation found improper under the circumstances,
but not sufficient to constitute plain error. The remarks here hardly rise to the level of
impropriety in Richmond. That said, while we consider defense counsel’s conduct during
closing argument as inviting a response, we also believe the State should have responded in
“more measured” terms. See Johnson, 208 Ill. 2d at 113. The court’s admonition in People v.
Herrero, 324 Ill. App. 3d 876, 888 (2001), is well taken: “This is not to say that conduct such
as that described here would be harmless in all situations.” In Herrero, the court affirmed the
defendant’s conviction because it was not a close case on the evidence of guilt, finding that,
even with the problems created by the prosecutorial misconduct, the strong evidence
rendered the prosecutor’s comments harmless.
¶ 47 Thus, we either find the statements of which Thompson complains on appeal a proper
response to his closing argument or otherwise do not qualify as reversible error, and the cases
cited by defendant do not compel a different result.
¶ 48 Pretrial Request for Krankel Hearing
¶ 49 In People v. Krankel, 102 Ill. 2d 181 (1984), the supreme court held that the defendant
should have had counsel, other than his originally appointed counsel, appointed to represent
him at the posttrial hearing regarding his allegation that he had received ineffective
assistance of counsel. Id. at 189. At the September 2011 status hearing, Thompson attempted
to hand a document to the trial court. When the trial court advised that he should give the
document to his attorney, Thompson’s attorney stated the document was the arrest report she
already had, and promptly explained that there was a warrant.
¶ 50 Thompson continued to insist that there was no warrant for his arrest. In October 2011,
Thompson again raised his hand, and the trial court told him to talk to his lawyer. Thompson
responded that she wasn’t talking to him, but the trial court disagreed and told him the case
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was set for trial. In January 2012, Thompson filed pro se a written request for a Krankel
hearing, and in February a written petition for a writ of habeas corpus. After having been
filed, the trial court never considered the motions.
¶ 51 Thompson filed pro se a pretrial motion for a Krankel hearing, asserting that a conflict
existed between himself and his assistant public defender and asking the trial court appoint a
new attorney to represent him. As the State points out, Illinois recognizes two types of
conflicts of interest: per se and actual conflicts. People v. Austin M., 2012 IL 111194, ¶ 80;
People v. Taylor, 237 Ill. 2d 356, 374 (2010) (discusses difference between per se conflicts
and actual conflicts of interest). A per se conflict will be found to exist where certain facts
about a defense attorney’s status engender, by themselves, a disabling conflict where: (1)
defense counsel had a prior or contemporaneous association with the victim, the prosecution,
or an entity assisting the prosecution; (2) defense counsel contemporaneously represented a
prosecution witness; and (3) defense counsel was a former prosecutor who had been
personally involved in the prosecution of defendant. Id. An actual conflict generally, if not
exclusively, involves joint or multiple representation. Id. at 375; People v. Spreitzer, 123 Ill.
2d 1, 17 (1988). In actual conflict situations, the accused need not prove prejudice in that the
conflict contributed to the conviction, but it is necessary to establish that an actual conflict of
interest adversely affected the lawyer’s performance; in other words, a specific defect in his
counsel’s strategy, tactics, or decision making attributable to the alleged conflict of interest.
Taylor, 237 Ill. 2d at 375-76. Nothing in the record establishes either type of conflict between
Thompson and his counsel that would require new counsel.
¶ 52 At this juncture, we note that before trial Thompson also filed a habeas corpus petition
asserting that the assistant public defender perjured herself by telling the trial court that there
was an active warrant on this case. Habeas corpus relief depends on the seven grounds
specified by the Code of Civil Procedure. 735 ILCS 5/10-124 (West 2012). These grounds
fall into two general categories: (1) the prisoner was incarcerated by a court that lacked
personal or subject matter jurisdiction; or (2) some occurrence subsequent to the prisoner’s
conviction entitled the prisoner to immediate release. Hennings v. Chandler, 229 Ill. 2d 18,
30 (2008). “A complaint for order of habeas corpus may not be used to review proceedings
that do not exhibit one of these defects, even though the alleged error involves a denial of
constitutional rights.” Beacham v. Walker, 231 Ill. 2d 51, 58 (2008). Thompson’s petition did
not allege a legitimate ground for relief, and, further, nothing in the record indicates that
Thompson pursued his motion.
¶ 53 Yet, Thompson asserts that the record does not rebut his claim when, in fact, the
“putative document” on which he relies states “CERTIFIED STATEMENT OF
CONVICTION/ DISPOSITION.” The reference number on the certified statement is
“11CR0100101,” referring to this case. A handwritten note recites: “There is no warrant on
this case.” In the petition, Thompson asserted that he “[felt] like they [were] holding me
because of my criminal background! And this case is a clear conspiracy.” While creative,
Thompson’s attempt to obtain a release from pretrial incarceration fails on the facts. The trial
court ruled on Thompson’s motion that the jury would not hear about Thompson’s initial
detention as under an outstanding warrant issued in another matter for his criminal trespass to
University property. The jury did hear that Gillespie detained Thompson, knew him from
previous interactions, recognized him on the surveillance video, and arrested him. The record
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demonstrates that both of Thompson’s complaints–wrongful arrest and his counsel
wrongfully allowed him to be incarcerated–were baseless.
¶ 54 Thompson was first picked up on a warrant relating to a misdemeanor charge of criminal
trespass to property at the University. He pled guilty to the charge a few weeks later. Before
presenting evidence to the jury, the trial court ruled on motions in limine filed by both
parties. The trial court excluded any testimony about the criminal trespass matter; i.e.,
notifications he may have received, postings on campus, or any outstanding warrant that was
served would be allowed at trial. The trial court also ruled that should Thompson testify,
evidence of his convictions for burglary and attempted burglary in the University area would
then be admissible.
¶ 55 Finally, Thompson’s ineffectiveness argument fails as premature. Strickland
ineffectiveness claims cannot be resolved before trial and a Krankel hearing has been held
inapposite in the context of pretrial complaints of ineffectiveness. People v. Jocko, 239 Ill. 2d
87, 92 (2010). In Moore and Jocko, the supreme court “explicitly applied Krankel only to
posttrial motions.” People v. Washington, 2012 IL App (2d) 101287, ¶ 19.
¶ 56 Thompson’s attempts to establish a conflict fail, and the record shows that Thompson’s
attorney represented him diligently and vigorously both before and at trial, presenting his
defense and arguing strongly on his behalf. As in Jocko, the record rebuts the Krankel
complaint.
¶ 57 Affirmed.
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