People v. Gorosteata , 371 Ill. App. 3d 655 ( 2007 )

SIXTH DIVISION
February 9, 2007
No. 1-04-2469
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 03 CR 16293
)
JORGE GOROSTEATA, ) Honorable
) James M. Obbish,
Defendant-Appellant. ) Judge Presiding.
JUSTICE JOSEPH GORDON delivered the opinion of the court:
Defendant, Jorge Gorosteata, appeals after a jury trial from his convictions of possession
of cannabis with intent to deliver and possession of a controlled substance with intent to deliver.
On appeal, he contends that the circuit court erred when it denied his motion for a hearing
pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978); permitted
the State to make improper closing argument; imposed inapplicable fines and fees in his
sentence; ordered the extraction and storage of his DNA; and identified the wrong offenses of
conviction in his mittimus. For the following reasons, we affirm in part, reverse in part, and
correct the mittimus.
FACTUAL BACKGROUND
On June 25, 2003, Chicago police officer Richard Sanchez made a complaint to the
circuit court for the issuance of a search warrant. In the complaint, Sanchez averred:
"I had the occasion to have a conversation with a concerned citizen
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who will be known for the purpose of this search warrant as John Doe.
During the course of this conversation John Doe stated the following facts
to me.
John Doe stated that on the evening of 24-June-03 John Doe went
to the location of 4849 So. Honore St. and knocked on the front door that
leads to the second floor apartment at this location. At this time, the door
was opened by a M/WH [male, white Hispanic] subject know to John Doe
as Gordo. John Doe describes Gordo as a M/WH 35 yoa [years of age]
6'0" 250 lbs. short black hair medium complexion and a mustache. John
Doe was admitted entry to this 2nd floor apartment by Gordo. Once inside
of this apartment, John Doe states that John Doe observed Gordo remove
(3) large green plant brick shaped objects wrapped in clear plastic wrap
from a brown cardboard box and place these items on the kitchen table.
John Doe states that Gordo then unwrapped one of these bricks of green
plant substance and removed a large chunk. While inside of this location
John Doe had the occasion to ingest (smoke) some of the green plant
substance that Gordo removed from the unwrapped brick of green plant
substance. John Doe states that after ingesting this substance John Doe
experienced the same sensation as in the past when smoking marijuana
(cannabis). John doe [sic] states that John Doe has smoked marijuana for
over (5) years and could distinguish marijuana (cannabis) from a similar
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substance. John Doe states that John Doe has purchased marijuana in the
past from Gordo, and that Gordo sells multiple pounds of marijuana at a
time. While inside of this location John Doe states that Gordo offered to
sell John Doe marijuana for $600.00 a pound. John Doe estimates that
when John Doe left this location ion 24-June-03, Gordo possessed inside
of 4849 So. Honore 2nd floor apt. Chicago, Ill. Cook County at least 30
pounds of marijuana. John Doe also states that Gordo resides at this same
location of 4849 So. Honore Chicago, Ill. 2nd floor apartment and that this
is the only apartment located on the second floor at this location."
The parties do not dispute that John Doe accompanied Officer Sanchez when he presented the
complaint to the circuit court and testified to the statements in the complaint before the court.
The circuit court approved a search warrant for the second-floor apartment at 4849 S.
Honore, and a team of police executed the warrant on June 26, 2003. In a small, back bedroom
in the apartment, police recovered two gray duffel bags containing clear plastic bags containing a
crushed green plant. Later, in the course of the search, police also recovered bottles of inositol,
an agent used to dilute cocaine, as well as three bags of "rock like" white powder. Testing
revealed the crushed green plant to be marijuana, weighing 51,635 grams, and the white powder
to be cocaine, weighing 90 grams. Defendant was charged with one count of possession of
cannabis with intent to deliver and one count of possession of a controlled substance with intent
to deliver.
Prior to trial, defendant challenged the search warrant, filing a "Motion for a 'Franks'
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Hearing in Order to Quash the Search Warrant and Suppress Evidence Illegally Seized." In that
motion, defendant denied John Doe's account of the events alleged to have occurred on June 24
and asserted that Officer Sanchez relied on Doe's account in reckless disregard of the truth. In
support of his motion, defendant attached a number of affidavits, including his own, plus that of
Carmen Guzman, and those of Massiel and Dulce Gorosteata. In his own affidavit, defendant
repeated his blanket denial of Doe's allegations, and asserted that he actually resided at 4612 S.
Talman.
In her affidavit, Carmen Guzman swore that defendant, with whom she had a child,
picked them up at 4612 S. Talman around 10 a.m. on the morning of June 24, 2003. The three of
them proceeded to the second-floor apartment at 4849 S. Honore, arriving at approximately
10:15. At 10:30, Carmen and two other women, Massiel and Dulce, left to grocery shop for
dinner, including ingredients for a cake. Carmen left defendant in charge of the children in the
apartment. By 12:30, Carmen, Massiel, and Dulce returned to the apartment and found defendant
playing with the children, as well as watching television, with his uncle, Fructuoso. From that
point on, defendant remained in the apartment with his family; no other person came to the
apartment to be shown, or to smoke, marijuana.
Dulce Goroteata swore that she was defendant's sister and that she was present in the
second-floor apartment at 4849 S. Honore on June 24, 2003, along with other family members,
from 12:30 p.m. onward, preparing dinner. She averred that defendant did not invite any person
into the apartment to show or smoke marijuana.
Massiel Gorosteata averred in her affidavit that she was defendant's sister-in-law. As of
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June 24, 2003, she resided in the second-floor of 4849 S. Honore. Massiel confirmed that
defendant, Carmen, and their daughter arrived at the second floor apartment around 10:15 on
June 24. Massiel, likewise, corroborated that she, Carmen, and Dulce left the apartment around
10:30 and did not return until 12:30. Like the other affiants, she denied that defendant met with
any person, while she was present at the apartment, to show marijuana.
Nearly three months later, defendant filed supplemental affidavits from the same affiants
in support of his Franks motion. In his own supplemental affidavit, defendant averred that his
family got together at 4849 S. Honore on June 24, 2003, to celebrate his daughter's birthday. He
admitted that he "occasionally resided" at that address and that he "use[d] [the] residence quite
often." He stored items in the garage, had keys to the apartment, and did "not need to ask for
permission to enter or exit." He averred that he was constantly in the company of family during
his time in the apartment on June 24. In her supplemental affidavit, Massiel stated that there was
never any smell of marijuana in the apartment on June 24. The family's children did not tell of
any strangers coming to visit during the women's grocery trip. Likewise, there were no visitors
during the remainder of that day, during which time defendant remained in the apartment.
Massiel corroborated defendant's averment that he occasionally resided at the apartment and had
his own set of keys. Carmen's supplemental affidavit largely mirrored that of Massiel. However,
she also averred that defendant slept with her on a couch in the apartment after their daughter's
party, that she was a light sleeper, and that she would have noticed if anyone had knocked at the
apartment door or if defendant had left her side.
The circuit court heard defendant's Franks motion on June 2, 2004. At the hearing, the
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court stated that it failed to see how Officer Sanchez could have recklessly disregarded the truth
of Doe's statements, since Sanchez brought Doe before the magistrate. In the circuit court's view,
by doing so, the determination of the credibility of Doe became the burden of the magistrate and
not of Sanchez. The State argued that defendant had failed to demonstrate his entitlement to a
Franks hearing because all of his affidavits were from biased persons, whose accounts of the
events of the day had shifted between their original and supplemental affidavits, and which did
not positively rule out the occurrence of the transaction described by Doe. The circuit court ruled
on the motion as follows:
"As has been pointed out by the State there seems to [sic] inherent
contradictions in the affidavits. The affidavits do not, even as presented[,]
exclude the possibility of someone being able to go into that apartment of
[defendant] on that date and observe what he alleges he observed.
***
In this case you have family members who in different parts of the
affidavits allege different things, whether or not they lived there, whether
or not they stayed there, they are contradictory on their face. I don't think
the affidavits are sufficient to go to the next step for the Frank's hearing
and your motion will be denied."
The cause then proceeded to trial.
The primary disputes at trial surrounded whether defendant controlled the room in which
the narcotics were found so that his constructive possession of those drugs could be inferred.
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The State introduced a medical bill recovered from the room by the police listing 4849 S. Honore
as defendant's home address. The State further presented an officer's testimony that defendant
admitted the drugs were his and that the rest of his family had no knowledge of their presence.
Defendant, Carmen, Maciel, and Lazaro Corona-Cruz, another family member living at
the Honore apartment, all testified that, at all pertinent times, defendant lived with Carmen at
4612 S. Talman. Each conceded, however, that defendant worked next door to 4849 S. Honore
as a self-employed mechanic and that he would occasionally sleep over in the apartment's living
room. Moreover, on cross-examination, the State inquired of Carmen if defendant received any
mail at the Talman address and she admitted that defendant received "one or tow [sic] letters but
none," and testified that she did not have any of that mail. But, defendant and various members
of his family further testified that the room where the drugs were discovered was never used by
defendant but was, rather, the room of defendant's uncle, Fructuoso, who had since returned to
Mexico. Defendant further averred that the medical bill the police discovered only contained the
4849 S. Honore address because he thought he might be moving from where he was actually
living at the time and that he did not know how the receipt would have reached the room where it
was found.
Defendant noted that, of the many officers present for the search, only one testified to his
alleged admission of possession, which he explicitly denied making. He further challenged the
officers' credibility by presenting testimony disputing the manner of their entry into the apartment
and the subsequent search. For example, defendant presented testimony that he only possessed
keys to the back door of the apartment, whereas the police claimed to have used his keys to enter
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through the front door. Defendant likewise presented testimony that there was a dog in the
apartment that the police threatened to shoot if not restrained, while the police testified either that
there was no dog or that it was already outside when they conducted their search. Finally,
defendant's witnesses described the police as entering the apartment with weapons drawn,
whereas the police all testified that their guns were holstered at all times.
The State, in summation, argued that, since the officers testified that they never had come
into contact with defendant before, the "officers didn't have a personal vendetta against
[defendant]" and, therefore, that the officer testifying to defendant's admission of possessing the
drugs should be believed. The State also attacked Carmen's testimony as to defendant's residence
away from the South Honore apartment, observing:
"[S]he told you that the defendant rarely received mail at the
Talman address but that he did receive some mail there.
Well, ladies and gentlemen, we haven't seen anything regarding
that, any type of mail the defendant possibly received at the Talman
address. And we haven't seen anything because nothing exist[s], ladies
and gentlemen."
In the defense's closing argument, defense counsel repeated his attack on the credibility of
the arresting officers. Defense counsel, again, emphasized the varying accounts surrounding the
presence of a dog at the apartment, the officers' ability to open the front door of the apartment
with keys from defendant, and whether the officers' guns were drawn. Defense counsel, likewise,
again, suggested that the drugs recovered belonged to Fructuoso, not defendant.
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In rebuttal, the State argued:
"Members of the jury, counsel did a fantastic job of summing up
the evidence you heard yesterday. And in one day yesterday you heard two
totally different stories, two stories that were almost diametrically
opposed. And so what you're left with today in order to find your verdict
is your ability to apply the facts and your common sense to the law and
your ability to differentiate fact from fiction.
The State's witnesses told you that only the defendant walked out
of the front door of that address, only the defendant. Defense's witness
tells you 'No. Three people walked out of that door, Fructoso Villasenor
and the defendant.'
Officers on the State's case tell you they walk upstairs only with the
defendant. The defense tell[s] you, 'No. Three people walked back
upstairs with those officers Villasenor, the defendant and Fructoso.'
Officers tell you there is no dog in the apartment. But everybody
else on the defense side says 'No, there was a dog in the apartment. They
made us take it outside.' Officers tell you no guns were drawn, and they
weren't drawn because they conducted that surveillance waiting for their
sergeant. They didn't need their guns drawn.
But the defendant's witnesses say, 'No. All of them had their guns
drawn.' Ladies and gentlemen, counsel wants you to focus on those
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differences in minor details because he want to try and create a reasonable
doubt in your mind but it shouldn't. It shouldn't because those minor
details, smoke and mirrors, ladies and gentlemen, look over here at these
minor differences in details, so you don't think about the real issues in the
case.
And the real issues *** was [sic] that [defendant] was in
possession of cannabis and cocaine and that he had intent to deliver those
controlled substances. And, ladies and gentlemen, those issues have been
resolved. The real issues have been resolved.
They've [sic] been resolved by the credible testimony of officers
with years of experience and the less and believable testimony of those
defense's witnesses."
The State, further, reiterated its summation argument that the police had no motive to falsely
testify, stating: "What interest did those police officers have on [pinning] it on this guy?"; and
"Why would they pin it on him[?] He's [defendant] never been arrested before. He never met
him before which mean[s] he had no beef with them before and they had [no] beef with him. So
why pin it on him[?] This is just some huge conspiracy to pin a 50 thousand gram on him"; and
"Why would officers attempt to pin 50 thousand grams of pot on this man–on a man they never
met, never had a problem with?"
The State also launched its own attack on the credibility of the defense witnesses,
arguing:
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"But the story you heard from the defendant and the defense
witnesses, that story never exi[s]ted until today. How do we know that?
Because they had an opportunity during that interview with the Spanish
speaking officer to tell them 'Hey, you know what. The drugs that you
found in that back room, I don't know whose it is.' Uncle Fructuoso lives
in that bedroom and that's an important piece of information. But when
asked whose are these, they seen them coming from that back room. No
one says a word. They had a whole year to think about between the sister-
in-law– *** Carmen Guzman to think of a way out ***."
Defense counsel objected to the comment about "having a whole year to think about," but the
objection was overruled by the circuit court. Shortly after these comments, and after deriding the
defense theory that the drugs would actually have belonged to Fructuoso as "convenient,"
"[q]uite easy," and "[v]ery courageous," the State argued: "Ladies and gentlemen, I suggest to
you this is not a television show. This isn't 'The Practice' where lawyers can get away with a Plan
B defense."
The jury returned a verdict of guilty on both counts, one for possession of cannabis with
intent to deliver, and the other for possession of a controlled substance with intent to deliver,
addressing the cocaine. Defendant filed a posttrial motion challenging the sufficiency of the
evidence and also questioning the circuit court's refusal to grant a mistrial when, in the context of
attempting to impeach defendant with an affidavit in support of his pretrial Franks motion, the
State revealed to the jury that defendant had been held in custody. The court found any error,
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from what it found to be an inadvertent disclosure of that information, not to be significant
enough to warrant a new trial, however. The trial court went on to sentence defendant to eight
years in prison and ordered the extraction of defendant's DNA for storage in the Illinois State
Police's databank. Defendant appeals.
ANALYSIS
I. Franks
On appeal, defendant first argues that the circuit court erred by declining to grant him a
hearing pursuant to Franks v. Delaware. Defendant contends that the circuit court
inappropriately factored inconsistencies in the affidavits that were immaterial to the question of
whether Doe could have taken part in the transaction and viewed what he alleged, and that the
court "mistakenly believed that any affidavits originating with members of Mr. Gorosteata's
family were per se insufficient to require a Franks hearing." The State first counters that
defendant has waived review of this issue by failing to raise it in his posttrial motion. We agree
with the State. Failing to raise the denial of a pretrial motion in a posttrial motion results in
waiver. See People v. Owens, 99 Ill. App. 3d 730, 736 (1981).
Defendant asks us, nevertheless, to review the circuit court's decision for plain error. An
otherwise waived contention may be reviewed for plain error "when either (1) the evidence is
close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the
closeness of the evidence." People v. Herron, 215 Ill. 2d 167, 187 (2005). However, to succeed
under a plain error analysis, the appellant must still demonstrate error, which we find that
defendant cannot do in this case. See People v. Johnson, 218 Ill. 2d 125, 139 (2005) ("Clearly,
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there can be no plain error if there is no error").
In Franks, the Supreme Court held that defendants must be permitted to attack the
veracity of the statements made by governmental affiants in applications for search warrants at an
evidentiary hearing if they made a "substantial preliminary showing," including a counteroffer of
proof, that the affiant deliberately included falsehoods or included allegations with a "reckless
disregard for the truth." Franks v. Delaware, 438 U.S. 154, 170-71, 57 L. Ed. 2d 667, 681-82, 98
S. Ct. 2674, 2684 (1978). See also People v. Lucente, 116 Ill. 2d 133, 151-52 (1987) ("Franks
demands something more than a request, and even more than a defendant's unsubstantiated
denial. *** [T]he precise standard lies somewhere between mere denials on the one hand and
proof by a preponderance on the other"). The purpose of permitting attacks on search warrant
affidavits is to deter police misconduct. See Franks, 438 U.S. at 172, 57 L. Ed. 2d at 682, 98 S.
Ct. at 2685 ("The deliberate falsity or reckless disregard whose impeachment is permitted today
is only that of the affiant, not of any nongovernmental informant"); United States v. Owens, 882
F.2d 1493, 1499 (10th Cir. 1989) ("It is not enough to show that the informant lied to an
unsuspecting affiant, or that an affiant's negligence or innocent mistake resulted in false
statements in the affidavit").
Here, to begin with, defendant has not shown that the circuit court abused its discretion in
determining that he failed to make the “substantial preliminary showing” necessary to warrant a
hearing. See People v. Castro, 190 Ill. App. 3d 227, 237 (1989) (holding that the determination
of whether a defendant made the necessary showing to warrant a Franks hearing is within the
discretion of the circuit court).
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In the case at bar, defendant provided two sets of affidavits in support of his contention
that he never met and sold marijuana to Doe. These affidavits are suspect to begin with, since
they all derive from family members. See People v. Tovar, 169 Ill. App. 3d 986, 992 (1988);
People v. McCoy, 295 Ill. App. 3d 988, 990 (1998). More importantly, they do not preclude the
possibility that defendant executed a narcotics transaction with Doe as he recounted to Officer
Sanchez. Each affiant for defendant avers that he or she left defendant at the home for a time
while he or she went out to obtain groceries. See Tovar, 169 Ill. App. 3d at 992 (affirming the
denial of a Franks hearing where, inter alia, "the affidavits did not establish an impossibility of
the informant having access to the apartment"); McCoy, 295 Ill. App. 3d at 999-1000 ("We find
that the affidavits were not sufficient to establish that the trial court abused its discretion in
denying defendant's motion for a Franks hearing. Not only were the affidavits executed by
interested parties, but there were times when defendant was in his apartment *** during which
time the informant could have purchased narcotics from him"). Finally, the affidavits do nothing
to show how Sanchez necessarily, deliberately included false statements in his affidavit in
support of the warrant or included averments with reckless disregard for the truth. Even had
defendant’s affidavits, taken as true, shown that he was constantly in the company of his family
for his daughter’s birthday on the date Doe alleged the narcotics transaction, so that the
transaction could not have occurred, that would not have shown Doe’s allegations to be so
contradictory or outrageous that Sanchez would have engaged in misconduct merely by believing
Doe.
More overridingly, there appears to be no dispute that John Doe personally testified
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before the magistrate at the time Officer Sanchez applied for the search warrant. We agree with
the circuit court that the police's employment of this procedure, rather than the officer merely
presenting and vouching for his informant's claims in the officer's complaint, without presenting
the informant to the court for interrogation, removed this case from the ambit of Franks.
A number of courts have recognized, as did the circuit court, that, when a non-
governmental informant is personally brought before the magistrate to testify to the facts that will
establish probable cause in a warrant, the burden of determining the reliability of the informant
then shifts to the court and away from law enforcement personnel.1 As the Supreme Court of
Kansas stated in State v. Jensen, 259 Kan. 781, 788, 915 P.2d 109, 115 (1996): "Although the
Franks Court did not expressly limit [a veracity challenge] to an affidavit sworn to by a
government agent, we agree with the State that it is intrinsic to the decision." Thus, even though
the Jensen court found that its magistrate failed to adequately probe the reliability of its
informant, it, nonetheless, held that its defendant was not entitled to a Franks hearing. The
Jensen court explained:
"In this case, [the informant's] reliability was an unknown quantity to
police, who avoided the issue by making no representations about it and
having [the informant] testify before the magistrate. The magistrate could
and should have questioned [the informant] and the officers in order to
satisfy the intertwined requirement of the informant's reliability. Here,
1
None of the parties have alleged that John Doe was anything other than a private citizen as
averred in Officer Sanchez's affidavit.
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however, the issuing judge ignored the opportunity to elicit information on
which an opinion of the informant's reliability could have been based. The
few minutes in which [the informant] appeared to testify may have
permitted the judge to form an initial impression of the informant as
credible or not, but an impression based on appearance and demeanor
cannot replace an opinion formed on facts. That failure lies with the
issuing magistrate and not with the law enforcement officers. The district
court correctly interpreted *** Franks *** and did not err in denying a
hearing." (Emphasis added). Jensen, 259 Kan. at 790; 915 P.2d at 116.
See also State v. Moore, 54 Wash App. 211, 215, 773 P.2d 96, 98 (1989) ("If, however, a
nongovernmental affiant provides testimony upon which a warrant is based and that testimony is
later shown to have been intentionally false or gathered by means that would constitute a
constitutional violation if done by a governmental agent, Franks, nonetheless, does not apply.
[Citations.] Franks does not apply in such instances because there exists no governmental
misconduct that could be detected or deterred by a Franks hearing").
In fact, this court also essentially so held in People v. Phillips, 265 Ill. App. 3d 438, 448
(1994). In that case, in addition to a motion invoking Franks, the defendant filed a motion to
suppress the evidence gathered by exercise of that warrant asserting that probable cause had not
been established to support the warrant application because there was no showing of the
credibility of the informant. In addressing the motion to suppress, the Phillips court stated:
"[C]ases which concern the credibility of hearsay informants have
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no relevance to a case such as that presented here, where the informant
appears before the issuing judge. [Citation.] When the informant appears
before the judge issuing the search warrant, the informant is under oath
and any statement which he makes is subject to that oath; moreover, the
judge has the opportunity to personally observe the demeanor of the
informant and to assess the informant's credibility." Phillips, 265 Ill. App.
at 448.
The Phillips court went on to hold that, when the informant appears before the magistrate, it is
not even necessary for the police to corroborate the informant's account since "the judge issuing
the search warrant ha[s] an opportunity to *** determine the basis of [the informant's]
knowledge." Phillips, 265 Ill. App. at 448.
Thus, since John Doe appeared before the magistrate to testify surrounding the allegations
contained in the complaint for the search warrant of the second-floor apartment at 4849 S.
Honore, this case falls outside the scope of Franks. Therefore, there was no error on the part of
the circuit court in denying defendant a Franks evidentiary hearing.
II. Closing Arguments
Defendant next contends that the circuit court erred by permitting improper and
prejudicial closing arguments. Defendant argues that the State engaged in impermissible
bolstering of its witnesses by suggesting that they were inherently credible because they were
police officers. Defendant further contends that the prosecution improperly shifted the burden of
proof to him when it emphasized that Carmen admitted on cross-examination that she had no
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mail addressed to defendant at 4612 S. Talman, to support her claim that he lived there and not at
4849 S. Honore. Finally, defendant argues that the State impermissibly denigrated his defense by
describing it as "smoke and mirrors" and suggesting that he, his witnesses, and his attorneys
concocted a defense.
As the State points out, as with his Franks claim, defendant has waived review of the
closing arguments by failing to make contemporaneous objections and by failing to raise them as
errors in his posttrial motion. But, defendant, again, contends that he is entitled to analysis and
relief under the plain error doctrine. As previously discussed,
"[T]he plain-error doctrine bypasses normal forfeiture principles and
allows a reviewing court to consider unpreserved error when either (1) the
evidence is close, regardless of the seriousness of the error, or (2) the error
is serious, regardless of the closeness of the evidence. In the first instance,
the defendant must prove 'prejudicial error.' *** In the second instance,
the defendant must prove there was plain error and that the error was so
serious that it affected the fairness of the defendant's trial and challenged
the integrity of the judicial process." People v. Herron, 215 Ill. 2d 167,
186-87 (2005).
See also People v. Nitz, 219 Ill. 2d 400, 415 (2006) ("Herron's two prongs establish two
categories of plain error: prejudicial errors, which may have affected the outcome in a closely
balanced case, and presumptively prejudicial errors, which must be remedied although they may
not have affected the outcome"); People v. Edgecombe, 317 Ill. App. 3d 615, 620 (2000)
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("Improper remarks are reversible error only when they result in substantial prejudice to the
defendant, given the content and context of the language, its relationship to the evidence, and its
effect on the defendant's right to a fair and impartial trial"). Defendant contends that the
prosecution's improper arguments tipped the balance in what he characterizes as a closely
balanced case since it required the assessment of witnesses' credibility. Defendant, however, also
contends that the cumulative effect of the erroneous arguments undermined the fairness of his
trial. We, however, disagree since we do not find the evidence to be close; and, otherwise, find
that the fairness of defendant's trial and integrity of the proceedings were not undermined.
We first address defendant's contention that the State's argument improperly shifted the
burden of proof to him. See People v. Weinstein, 35 Ill. 2d 467, 470 (1966) ("the prosecution
has the burden of proving beyond a reasonable doubt all the material and essential facts
constituting the crime. [Citations.] The burden of such proof never shifts to the accused, but
remains the responsibility of the prosecution throughout the trial"); People v. Carroll, 278 Ill.
App. 3d 464, 467 (1996) ("It is improper *** to suggest to the jury that the State had no burden
of proof or to attempt to shift the burden to the defendant"). Defendant takes particular exception
to the prosecutor's comment "Well, ladies and gentlemen, we haven't seen anything regarding
*** any type of mail defendant possibly received at the Talman address. And we haven't seen
anything because nothing exist[s] ***." The State responds that this situation is akin to where a
prosecutor comments on the absence of alibi witness testimony after a defendant identifies such
potential witnesses, comments that courts have found to be proper in cases such as People v.
Blakes, 63 Ill. 2d 354 (1976), and People v. Anderson, 250 Ill. App. 3d 439 (1993). Defendant
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replies that the holdings of these cases are inapplicable, however, because, first, he never raised
an alibi defense, and, second, because he never raised the issue of mail as a form of proof of
address in his direct examination of Carmen. He asserts that the lack of mail addressed to him at
his claimed address of 4612 S. Talman only came into evidence through the State's improper
cross-examination of Carmen. We agree with the State.
To begin, People v. Williams, 40 Ill. 2d 522, 524-26 (1968), establishes that State
comment on the absence of exculpatory evidence available to a defendant is not limited to the
particular context of unproduced alibi witnesses. In Williams our supreme court addressed a
prosecutor's statements, after the State produced evidence that bullets recovered from two murder
victims were of the same class as a gun known to have belonged to the defendant, that the bullets
could only be matched to defendant's gun if that gun were to be tested, and the defendant elicited
that many of defendant's friends also carried guns of the same class. The prosecutor remarked in
his opening statement: " 'The evidence in this case will show further that the gun purchased on
March 1st [the defendant's gun] has never been found and has never been produced or brought
forward by this defendant.' " Williams, 40 Ill. 2d at 526. In closing argument, the prosecutor
stated: " 'I don't believe for a second that this man's gun will ever turn up. It can't. He can't
afford to have that gun ever turn up. And we all know why he can't do that. We know why it
hasn't turned up. We know why [the ballistics expert] has not been allowed to look at it to
compare slugs fired from it with slugs in these plastic bags before you.' " Williams, 40 Ill. 2d at
527. The defendant asserted that the prosecutor's comments undercut the presumption of
innocence and his right against self-incrimination. Williams, 40 Ill. 2d at 527. Reviewing the
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prosecutor's statements, the Williams court observed: "A careful analysis of the privilege and the
reason for the prohibition reveals that their purpose is to prevent prejudice to an accused from his
failure to testify, but not to prevent prejudice to his case from his failure to produce evidence to
establish his defense." (Emphasis added.) Williams, 40 Ill. 2d at 527. The Williams court went
on to hold:
"[T]hough the failure to call a witness or produce evidence may not be
relied on as substantial proof of the charge, nonetheless, if other evidence
tends to prove the guilt of a defendant and he fails to bring in evidence
within his control in explanation or refutation, his omission to do so is a
circumstance entitled to some weight in the minds of the jury, and, as
such, is a legitimate subject of comment by the prosecution. In the case
before us there may have been some reason for failing to produce the gun
in question, the gun which defendant had acquired the day before the
murders and which by other evidence was so closely linked to the crime,
but none was given and consequently defendant's nonproduction was a
subject for consideration and also for comment." Williams, 40 Ill. 2d at
529.
The facts in this case are analogous to those presented in Williams. The State presented
evidence, in the form of a medical bill addressed to defendant as 4849 S. Honore, to demonstrate
that that was his true residence for purposes of establishing constructive possession of the
narcotics found therein. Defendant and his witnesses testified that he did not live there but,
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instead, at 4612 S. Talman. Carmen testified on cross-examination that defendant did receive
some mail at the Talman address.2 We think it would naturally and properly have been in the
jury's mind why neither defendant nor Carmen would produce mail addressed to him at 4612 S.
Talman, where they both claimed he resided.
Most significantly, the State's argument and examination did not suggest that defendant
was under a general duty to produce evidence; rather, the examination and argument only
reflected on the quality and credibility of the evidence that defendant's witness presented. In this
respect, this case differs from People v. Clark, 186 Ill. App. 3d 109 (1989), People v. Lopez, 152
Ill. App. 3d 667 (1987), and People v. Giangrande, 101 Ill. App. 3d 397 (1981), on which
defendant relies. In Giagrande, the prosecutor inquired " 'Now where's the evidence that the
defendant didn't do it?' " (Emphasis omitted.) Giagrande, 101 Ill. app. 3d at 402. In Lopez, the
prosecutor asked " 'Where are those people that can clear the defendant?' " Lopez, 152 Ill. App.
3d at 678. The prosecutor in Clark inquired why the defendant had not produced taxi and train
receipts to support his witness's account that he traveled to Chicago from Palatine wearing a coat
in the pocket of which, unbeknownst to the defendant, the witness had placed a gun. Clark, 186
Ill. App. 3d at 115. In each case, the reviewing court recognized that its prosecutor's statement,
rather than commenting on any evidence presented, instead suggested that the defendant had a
2
Defendant argues that Carmen's testimony that he received "[o]ne or two letters but
none" means that he received no mail addressed to him. However, we see this reading to be
speculative. In fact, none of her testimony preceding or following that statement suggests such a
restrictive reading.
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duty to produce evidence in support of his innocence. See Giangrande, 101 Ill. app. 3d at 402
("we recognize that a prosecutor may comment on the uncontradicted nature of the State's case
***. *** [The comment] is more than a comment that evidence is uncontradicted. The comment
may well have improperly suggested to the jury that defendant had a burden to introduce
evidence"); Lopez, 152 Ill. App. 3d at 679 ("here there was no foundation for the State's remarks;
defendant did not name any specific people in his opening argument, and the names read off by
the State appeared in various pretrial discovery documents not in evidence. The first mention of
these people occurred when the State introduced them in closing rebuttal argument" (emphasis in
original)); Clark, 186 Ill. App. 3d at 115 ("We reject the State's assertion that the prosecutor was
properly commenting on the evidence and defense witness Horn's credibility. The prosecutor's
preliminary comment, " '[L]et me say by my commenting on anything [the witness] has said or
anything that the defense has suggested (emphasis added),' clearly emphasized the defense's
failure to produce certain evidence"). Since here, the State merely sought to undercut the
testimony of Carmen, a defense witness, it did not suggest that defendant was required to
abandon his right to silence generally or that he was under a duty to present evidence in support
of his innocence. Thus, we perceive no burden shifting in this argument by the State.
Finally, defendant contends that Carmen's testimony, surrounding his receipt of mail at
the Talman address and her nonproduction of such mail, could not have opened the door to later
comment by the State on the grounds that the predicate testimony was elicited on cross-
examination, and that it was improper cross-examination no less. We reject that contention. Our
research reveals the law to be contrary to defendant's position. See People v. Outlaw, 75 Ill. App.
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3d 626, 645 (1979) ("The State maintains that it is proper for a prosecutor, on cross-examination,
to inquire into the circumstances of an alibi [citation], and to inquire of witnesses as to whether
they had told the same story previously in order to determine whether the testimony was recently
fabricated [citation]. We agree. We fail to see how such questioning shifted the burden upon
defendant to prove his innocence since it was not his silence which was being tested but rather an
examination of alibi witnesses which was being pursued"); People v. Woods, 292 Ill. App. 3d
172, 176-77 (1997) (holding that it is proper for the prosecution to comment on the failure of a
defendant to produce alibi witnesses when those witnesses are identified in the defense's opening
statement, or by defense witnesses, whether on direct or cross-examination). Furthermore, we
note that defendant cited to no contrary authority and that he made no objection to the
introduction of the evidence at trial.
We next analyze defendant's contention that the State improperly bolstered its witnesses.
It "is well established that a prosecutor may not argue that a witness is more credible because of
his status as a police officer." People v. Fields, 258 Ill. App. 3d 912, 921 (1994). This court has
recognized various permutations of arguments extolling an officer's experience, or asserting that
an officer would not lie merely to convict a particular defendant, as falling afoul of the
aforementioned rule. See Fields, 258 Ill. App. 3d at 920-21 (where a prosecutor argued, " 'The
police? Are they going to come in here and risk perjury, a perjury charge for Ronnie Fields?
They're not going to do that for him. *** Would they risk their jobs, their careers, their pensions?
Would they risk their reputation as police officers to lie for Ronnie Fields? Of course not' ");
People v. Clark, 186 Ill. App. 3d 109, 115-16 (1989) (similarly asserting that the officers
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testifying in that case would not risk their careers, pensions, and potential perjury charges by
testifying falsely); People v. Rogers, 172 Ill. App. 3d 471, 476-77 (1988) (where a prosecutor
observed that the detectives were " 'seasoned veterans on the police force. Credibility
untouchable' " and further argued " 'they won't get on the stand and lie and make up something'
"); People v. Ford, 113 Ill. App. 3d 659, 661-62 (1983) (where a prosecutor repeatedly referred to
the testifying officer as a " 'sworn' " officer, also mentioned her " 'eight years of integrity serving
in this community,' " and inquired " 'Why would Deputy Kurlinkus, a sworn Warren County
Deputy, pull a charade like this and lie and perjure herself for a lousy 15 gram purchase of
marijuana?' ").
In its closing argument in this case, the State argued that the "real issues have been
resolved. They've [sic] been resolved by the credible testimony of officers with years of
experience and the less believable testimony of those defense's witnesses [sic.]," and twice
inquired what motivation the police would have had to falsely "pin" criminal charges on
defendant, with whom they had no prior contact or "beef." Although not as egregious an
example as in the previously cited cases, the prosecutor's statements here questioning why the
officers would "pin" an offense on defendant and extolling their "years of experience"
nevertheless suggests that they were incapable, as a result of their chosen profession, from lying
and probably should have been avoided.
We turn, then, to defendant's claim that the State improperly denigrated his witnesses as
well as his trial counsel. Specifically, defendant objects to two statements by the State.
In the first, after addressing the disparity in the testimony of the police officers and defendant's
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witnesses as to how many people were in front of the apartment at the time the police moved in,
whether or not a dog was present, and whether or not the police had their guns drawn, the
prosecutor argued:
"Ladies and gentlemen, counsel wants you to focus on those differences in
minor details because he wants to try and create a reasonable doubt in your
mind but it shouldn't. It shouldn't because those minor details, smoke and
mirrors, ladies and gentlemen, look over here at these minor differences in
details, so you don't think about the real issues in this case."
We note that prosecutorial references to a defense as "smoke and mirrors," a "smokescreen," or
other statements to that effect, have usually been held to be improper (see, e.g., People v. Kidd,
147 Ill. 2d 510, 542 (1992) ("It is abundantly clear that the prosecutor's comments comparing or
analogizing the defense counsel's argument to a 'smoke screen' were improper. This court and
our appellate court have on numerous occasions condemned such comments. [Citation.]")).
Although the comments surrounding smoke and mirrors can be construed, as suggested by the
State, as reflecting only on the trivial and collateral nature of the impeachment offered by the
defense witnesses, it could also be viewed as an improper statement on the integrity of defense
counsel (see People v. Rodriguez, 312 Ill. App. 3d 920, 931 (2000)), and should thus, again, have
been excluded from the prosecution's argument. See also People v. Emerson, 97 Ill. 2d 487, 497
(1983) ("Unless based on some evidence, statements made in closing arguments by the
prosecution which suggest that defense counsel fabricated a defense theory, attempted to free his
client through trickery or deception, or suborned perjury are improper").
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Later, in her rebuttal, the prosecutor attacked the credibility of the defense, stating: "But
the story you heard from the defendant and the defense witnesses, that story never exi[s]ted until
today. *** They had a whole year to think about *** to think of a way out." We note that the
prosecutor then went on to observe "this is not a television show. This isn't 'The Practice' where
lawyers can get away with a Plan B defense." These comments, too, while not directly charging
the defense with suborning perjury or fabricating a defense, nevertheless, echo such charges and
skirt the edge of propriety. See People v. Weathers, 62 Ill. 2d 114, 120 (1975) (including in its
list of prosecutorial errors that "the Assistant State's Attorney charged the defendant's attorneys
with lying and with attempting to create a reasonable doubt by 'confusion indecision, and
misrepresentation' " and "charged repeatedly that the defendant lied"); People v. Slabaugh, 323
Ill. App. 3d 723, 730 (2001) ("We are not persuaded that the remarks were proper merely because
in rebuttal the prosecutor specifically exempted defense counsel from complicity, contending
instead that he was 'in a cloud of dust' while the defense witnesses independently 'concocted' the
defense. In People v. Harris, 228 Ill. App. 3d 204, 208 (1992), this court condemned an
argument that defendant herself suborned perjury by forcing her daughter to testify falsely. Here,
the tenor of the argument was clearly that the defense was fabricated, regardless of who was at
fault").
The State would contend, however, that even if any of its comments were facially
improper, such impropriety would have been cured by the fact that it only made responses called
for by invitations made in the defense's summation. But, we would reject this contention since
the State has not shown any initial impropriety in defense counsel's argument from which the
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invitation could emanate.
The invited response doctrine allows a party who is provoked by his opponent's improper
argument to right the scale by fighting fire with fire. See, e.g., United States v. Young, 470 U.S.
1, 12-13, 84 L. Ed. 2d 1, 11, 105 S. Ct. 1038, 1045 (1985) ("if the prosecutor's remarks were
'invited' and did no more than respond substantially in order to 'right the scale,' such comments
would not warrant reversing a conviction"); 75A Am. Jur. 2d Trial § 564 (1991) ("if counsel for a
party litigant or for the defendant in a criminal prosecution pursues an improper line of argument,
he thereby invites a reply, and statements made by opposing counsel or the prosecuting attorney
by way of retaliation thereto have often been considered proper which would otherwise be
objectionable"). See also B. Gershman, Trial Error and Misconduct § 5-1(c)(1), at 305 (1997)
("Thus, when one party succeeds in introducing evidence that is inadmissible, misleading, or
otherwise improper, the other side may be allowed to 'fight fire with fire' by making an
appropriate evidentiary response. *** Reference by one party to matters that the other party
would be barred from mentioning may invite an appropriate response"). Courts have held that
when the original party opens the door, through making his own improper argument, he is
precluded from objecting to the response he invited either through waiver or estoppel. See
People v. Enoch, 189 Ill. App. 3d 535, 548 (1989) ("A defendant should not be allowed to benefit
from his own counsel's misconduct which invited the State's response); B. Gershman, Trial Error
and Misconduct, § 6-2(g), at 398 (1997) ("If an appellate court concludes that an error was
invited by counsel, it usually will not review the issue on the ground that counsel waived the
claim"); 88 C.J.S. Trial § 297, at 335 (2001) ("Generally, the party whose counsel pursues an
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improper argument and invites a reply is estopped to complain of the reply argument").
It must be emphasized that the invitation or provocation must be in the form of an
improper argument from the other side. See Enoch, 189 Ill. App. 3d at 548; People v. Starks,
169 Ill. App. 3d 588, 600 (1988) (citing to United States v. Young, 470 U.S. at 12-13, 84 L. Ed.
2d at 10-11, 105 S. Ct. at 1045, for the proposition that the " 'invited response' rule [is] limited to
instances of impropriety in [the] initial argument"). Where "the improper argument is not, in
fact, a retaliatory argument, but instead, is the first improper argument made, reversal is
warranted." 88 C.J.S. Trial § 297, at 335 (2001). See also Gallagher v. People, 211 Ill. 158, 169
(1904) (holding that a conviction may be reversed when an "unprovoked" improper argument is
made); People v. Harbold, 124 Ill. App. 3d 363, 372 (1984) (rejecting the State's invited response
claim when it found its defendant's argument to have been proper). Further, the response must be
proportionate to the initial error. See, e.g., People v. Montgomery, 254 Ill. App. 3d 782, 795
(1993) ("The invited error doctrine does not go so far 'as to insulate any related remarks the
prosecutor may choose to make' in response to defense arguments [citation]"); B. Gershman,
Trial Error and Misconduct, § 5-1(c)(1), at 306 (1997) ([regarding curative admissibility] "when
the defense presents a prosecutor with such an opening, a prosecutor may attempt to exploit the
opportunity by introducing inadmissible evidence, or engaging in gratuitous overkill. The judge
on such occasions must be alert to the potential for misconduct").
In particular, with respect to its comments on the experience of the police officers, the
State appears to contend that the defense's questioning of the officers' credibility necessarily
would have even opened the door for general arguments in support of police officers' credibility
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as a class of people. The State draws our attention to defendant's closing argument in which he
derided two officer's claims of entering the second-floor apartment without guns drawn, in
contrast to defendant's witnesses' testimony, as being illogical since the officers would not have
known what to expect on entering. The State further highlights defense counsel's statement,
"[Y]ou saw every single officer testify *** you decide who is telling the truth." We fail to see
how this defense argument was improper, however. "The credibility of a witness is a proper
subject for closing argument if it is based on the evidence or inferences drawn from it." People
v. Hudson, 157 Ill. 2d 401, 445 (1993). Here, the arguments that the State contends opened the
door were based on the trial evidence. Thus, in our view, the door would have remained closed
to any otherwise improper bolstering arguments by the State.
The cases of People v. Williams, 289 Ill. App. 3d 24 (1997), and People v. Davis, 228 Ill.
App. 3d 835 (1992), on which the State relies, do not mandate a contrary finding. Contrary to the
State's understanding of the case, Davis never held that a defendant's challenge to the credibility
of police officers necessarily opened the door to otherwise improper bolstering in the State's
argument. Rather, instead of fully considering the application of the invited response doctrine,
Davis resolved its defendant's challenge to the State's argument on the ground that the defendant
was not prejudiced since the State's comments did not deprive him of a fair trial, an issue that we
will yet address in this case. See Davis, 228 Ill. App. 3d at 841 ("We acknowledge that courts
have generally held that these types of comments concerning police officers' testimony are
improper. [Citation.] Here, however, [citation] we believe that the question is not whether the
argument was proper, but whether it reached the level of impropriety which deprived defendant
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of a fair trial"). Williams, on the other hand, while purporting to rely on Davis, failed to
recognize this distinction in reaching its conclusion that "defendant invited the prosecution's
comments [about the police risking their lives everyday to protect the public and, therefore,
deserving the public's gratitude] by making police credibility the central issue in the case."
Williams, 289 Ill. App. 3d at 36. The Williams dissent, however, observed that the challenge to
the officers' credibility in that case was properly done and therefore could not invite an improper
argument from the State, stating:
"Although defense counsel questioned the credibility of the police officers,
counsel did so through use of the evidence presented at trial. While the
prosecutor, in turn, was entitled to discuss why the police officers were
more credible than defendant, he should have done so by discussing the
evidence at trial, not by arguing that the officers should be believed
because they put their lives in danger to protect people." Williams, 289 Ill.
App. 3d at 39 (McNulty, J., dissenting).
Thus, we do not see Davis and Williams as supporting the State's interpretation of the invited
error doctrine in this context.
The State further argues that its comments surrounding the defense witnesses having a
year to "find a way out" could only have been proper because those comments merely argued the
evidence and logical inferences to be drawn therefrom. The State contends that, since there was
no testimony that any of the witnesses disclaimed that the drugs discovered belonged to
defendant or informed the police that the room in which they were found actually belonged to
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defendant's uncle, that the later recitation of those facts by the witnesses was incredible.
However, there is a significant difference between properly highlighting a prior inconsistent
statement by omission, inferred through silence when it would have been natural to speak, and
accusing witnesses of actively conspiring to commit perjury, as the State did in this case.
Although there might have been some circumstantial support for the conclusion, it would not
have justified an impassioned argument that the defense witnesses were, in fact, committing
perjury. 70 C.J.S. Perjury § 12, at 318 (2005) ("Mere contradictions or inconsistencies in a
witness' testimony are not, of themselves, generally enough to support a charge of perjury");
Commonwealth v. Gilman, 470 Pa. 179, 188, 368 A.2d 253, 257 (1977) ("the prosecutor is a
quasi-judicial officer representing the Commonwealth. His duty is to seek justice, not just
convictions. [Citations.] *** During closing argument, the prosecutor has an obligation to ‘. . .
present the facts so that the jury can dispassionately and objectively evaluate the testimony in a
sober and reflective frame of mind that will produce judgment warranted by the evidence and not
inspired by emotion or passion.' [Citation.] The prosecutor's position as both an administrator of
justice and an advocate ‘gives him a responsibility not to be vindictive or attempt in any manner
to influence the jury by arousing their prejudices.’ [Citations.] In particular, the prosecutor must
limit his argument to the facts in evidence and legitimate inferences therefrom").
However, notwithstanding the State's overreaching errors in its arguments, we are still left
to determine whether those arguments would have amounted to "plain error." See People v.
Keene, 169 Ill. 2d 1, 17 (1996) ("while all plain errors are reversible ones, not all reversible
errors are also 'plain' ***. [Citation.] *** to determine whether a purported error is 'plain'
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requires a substantive look at it"). In our view, defendant cannot demonstrate that the errors here
were "plain."
As previously noted, we do not perceive the evidence in this case to be closely balanced.
See Herron, 215 Ill. 2d at 187 ("In the first instance, the defendant must prove 'prejudicial error.'
That is, the defendant must show both that there was plain error and that the evidence was so
closely balanced that the error alone severely threatened to tip the scales of justice against him.
The State, of course, can respond by arguing that the evidence was not closely balanced, but
rather strongly weighted against the defendant"); see also People v. Green, 74 Ill. 2d 444, 454
(1979) (Ryan, J., concurring) ("the court will look at the record only to see if the evidence is
'closely balanced.' If it is not, the reason for considering the error in the absence of its
preservation is not present"); Green, 74 Ill. 2d at 454 (Ryan, J., concurring) ("the strength or
weakness of the evidence against [a defendant] is relevant [in determining the applicability of the
plain error doctrine]"); People v. Alexander, 212 Ill. App. 3d 1091, 1101-02 (1991) ("When
'examin[ing] the strength or weakness of the evidence against [the defendant, in order to
determine whether] *** the evidence is close [and whether] there is a possibility that an innocent
person may have been convicted due to some error which is obvious from the record, but not
properly preserved' [citation], courts have tended to review claims as plain error when the
conviction relied upon the conflicting testimony of eyewitnesses [citation], physical evidence
was ambiguous [citation], the testimony of witnesses measured short of credibility [citation], or
improprieties raised judicial suspicion as to the accuracy of the verdict [citation]. It has not been
applied, however, even when physical evidence was inconclusive, if there were several witnesses
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connecting the defendant to the crime").
In this case, the physical and testimonial evidence strongly weighed against defendant.
According to police, they opened the door of the apartment building using defendant’s keys.
Mail of an important nature, a medical bill, was addressed to defendant at the address where the
drugs were found. Further, that mail was found in the very room where the narcotics were
recovered. Even more overridingly, at the time of his arrest, defendant admitted that the drugs
were his and stated that his family was unconnected to them. None of the officers testifying
against defendant were effectively impeached; while defendant attempted to contradict aspects of
the officers' testimony through his own witnesses, the contradictions largely focused on
secondary matters, such as the presence and exact location of a dog, or whether the officers had
their guns drawn upon their entry into the apartment. On the other hand, all of the evidence in
defendant's favor came only from himself or his family, who are persons with an inherent bias.
See People v. Phillips, 265 Ill. App. 3d 438, 445 (1994) ("An affidavit of an interested party
tends to be weaker support for a motion to quash the warrant"); 2 J. Wigmore, Evidence, § 949,
at 332-33 (2d ed. 1923) ("The range of external circumstances *** from which probabl[e] bias
may be inferred is infinite. *** Among the commoner sorts of circumstances are all those
involving some intimate family relationship to one of the parties by blood or marriage")
(emphasis in the original). Considering this balance of the evidence, we cannot find that the
erroneous arguments "alone severely threatened to tip the scales of justice against him." See
Herron, 215 Ill. 2d at 187.
Moreover, the bulk of the prosecution’s argument analyzed and persuasively addressed
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the evidence. The comments we have addressed above were minor and transitory. See People v.
Hall, 195 Ill. 2d 1, 26 (2000) ("Considered in the context of the State's entire closing argument,
these brief references did not deny defendant a fair sentencing hearing, or threaten deterioration
of the judicial process. Consequently, we find no plain error"); People v. Terrell, 185 Ill. 2d 467,
514 (1998) ("the prosecutor's brief comments about the victim were not so inflammatory as to
deny defendant a fair sentencing hearing"); People v. McCann, 348 Ill. App. 3d 328, 338-39
(2004) (holding that a prosecutor's reference to defense counsel as "an octopus releasing inky
fluid" and as "throwing dust on the road to justice" did not deny the defendant a fair trial and
amount to plain error where "the complained-of comments, when viewed in the context and
totality of the closing arguments, were brief and isolated"). Unlike in cases where courts have
reversed, the State did not make the improper matter and references a central or recurring theme
in its argument. See Kidd, 147 Ill. 2d at 543-44 ("the assistant State's Attorney did not make just
one fleeting, inadvertent remark ***. Rather, he commented eight times that defense counsel was
'raising a smoke screen,' or 'filling this courtroom with smoke today,' or 'hoping that the smoke he
raises in this room today will strangle the truth like it strangled the life of the ten children,' etc.
Thus, this case is unlike other cases in which the prosecutor made only a passing reference to a
'smoke screen' theme, and it was held not to be reversible error" (emphasis in original)). Further,
since the State's arguments were focused upon credibility they did not distract the jurors from
confronting the appropriate question of credibility in this case. See Davis, 228 Ill. App. 3d at 841
("defendant argues that the comments [that the police would not risk their careers and pensions to
frame the defendant] unfairly played upon the jury's sympathies. We disagree. The record shows
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that it was precisely defendant's strategy to make the credibility of the officers the dispositive
issue; defendant expressly attacked the credibility of the officers throughout the trial. Therefore,
the prosecution's comments, in response to defendant's trial strategy, focused the jury's attention
on the dispositive issue; the comments did not unfairly play upon the jury's sympathies and did
not deny defendant a fair trial"). Thus, we cannot find that any of the above-described errors,
individually or in combination could have denied defendant a fair trial or undermined the
integrity of the judicial process. Hence, we must affirm defendant's conviction.
III. Fines and Fees
We will next address defendant's challenge to the imposition of various fines and fees in
his sentence.
Defendant first contends that the circuit court could not impose assessments without
considering his ability to pay. We disagree. In People v. Fort, 362 Ill. App. 3d 1 (2005), the
court observed that, although "the [controlled substance] assessment is a kind of fine, we see no
need to remand for an inquiry into defendant's ability to pay it. The assessment is mandatory."
Fort, 362 Ill. App. 3d at 8. The assessments levied against defendant are also mandatory.
Therefore, the circuit court did not err by not considering defendant's ability to pay.
Defendant further argues that under section 110-14 of the Code of Criminal Procedure of
1963 (725 ILCS 5/110-14 (West 2004)), which provides defendants with a $5-per-day credit
toward fines for each day of pretrial incarceration, he is entitled to a credit of $2,660 against his
$6,000 controlled substance assessment under section 411.2 of the Illinois Controlled Substances
Act (720 ILCS 570/411.2 (West 2004)). The State counters that the credit under the Code of
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Criminal Procedure is inapplicable, however, because it only applies to "fines" while the other
charge here is described in the statute creating it as an "assessment."
Our supreme court recently resolved this issue in favor of defendant in People v. Jones,
No. 101996 (December 21, 2006). In reaching its result, Jones specifically approved of the
reasoning of Fort. Jones, No. 101996, slip op. at 15-17. The Fort court observed that senators
debating the assessments provision of the Illinois Controlled Substances Act referred to them as
"fines." Fort, 362 Ill. App. 3d at 7. The Fort court further took as evidence that the legislature
intended for the credit to be applicable from the fact that, in spite of the numerous appellate court
decisions to that effect (see People v. Haycraft, 349 Ill. App. 3d 416 (2004); People v. Littlejohn,
338 Ill. App. 3d 281 (2003); People v. Rodriguez, 276 Ill. App. 3d 33 (1995); People v. Otero,
263 Ill. App. 3d 282 (1994); People v. Gathing, 334 Ill. App. 3d 617 (2002); People v. Reed, 255
Ill. App. 3d 949 (1994); People v. Brown, 242 Ill. App. 3d 465 (1993)), the legislature had
declined to legislatively overrule those holdings, even though it had otherwise amended the
statute three times following such decisions. Fort, 362 Ill. App. 3d at 8. Hence, defendant's drug
assessment should have been reduced by his pretrial incarceration credits.
We next address defendant's contention that requiring him to contribute to the Spinal
Cord Injury Paralysis Cure Research Trust Fund, pursuant to section 5-9-1.1(c) of the Unified
Code of Corrections (730 ILCS 5/5-9-1.1(c) (West 2004)) would violate his due process rights
because there is no rational relationship between the offense of possession of controlled
substance with intent to deliver and the public interest that induced the legislature to create the
spinal cord fund. On this issue, our supreme court's decision in Jones diverges from the holding
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in Fort. Fort, relying on the on point holding of another recent case, People v. Rodriguez, 362 Ill.
App. 3d 44 (2005), concurred with its defendant's position that no rational relationship existed
between controlled substance offenses not involving motor vehicles and spinal cord research and
that, therefore, imposition of the fee violated a defendant's substantive due process rights. See
Fort, 362 Ill. App. 3d at 8. However, the Jones court disagreed with Fort. After initially
determining that the $5 imposed for the Spinal Cord Injury Research Fund by statute, in spite of
its label as a "fee," was, in fact, substantively, a "criminal penalty" or "fine" (Jones, No. 101996,
slip op. at 24-25), the Jones court held:
"A defendant has no basis for protesting the usage to which his criminal
fines are put. The sole inquiry is whether the amount of the fine is
excessive when compared to the criminal conduct in which the defendant
is found to have engaged. So far as the propriety of inflicting a pecuniary
punishment on a defendant is concerned, it makes no difference whether
the fines are designated for deposit in the Spinal Cord Injury Paralysis
Cure Research Trust Fund or the general state treasury" (Jones, No.
101996, slip op. at 26).
"There can be no serious argument that a $5 fine is so disproportionate to the offense of a
possession of a controlled substance so as to violate defendant's substantive due process rights."
Jones, No. 101996, slip op. at 26. Thus, this fine was validly imposed on defendant.
Finally, we address defendant's contention that a $20 assessment for the Violent Crime
Victim Assistance Fund could not lawfully be applied under the terms of the Violent Crime
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Victims Assistance Act (725 ILCS 240/1 et seq. (West 2004)). The parties agree that the
assessment is provided for by the following language from section 10(c)(2) of the Act:
"When any person is convicted in Illinois on or after August 28, 1986, of
an offense listed below, or placed on supervision for such an offense on or
after September 18, 1986, and no other fine is imposed, the following
penalty shall be collected by the Circuit Court Clerk:
***
(2) $20, for any other felony or misdemeanor, excluding any
conservation offense." (Emphasis added). 725 ILCS 240/10(c)(2) (West
2004)
Defendant contends that since controlled substance assessments were imposed as a part of
his sentence, and the Act only provides for the $20 to be imposed when "no other fine is
imposed," then, under the plain language of the Act, he could not be subject to this additional
charge. We agree. Based on our analysis above, derived from our supreme court's holding in
Jones, defendant is already subject to multiple, other "fines." Therefore, the Act does not apply
to him by its own plain terms.
IV. DNA Extraction
We next address defendant's challenge to the constitutionality of section 5-4-3(a-5) of the
Unified Code of Corrections (Code) (730 ILCS 5/5-4-3(a-5) (West 2004)) as an unreasonable
search and seizure under the fourth amendment of the federal constitution.
Section 5-4-3(a-5) of the Code provides:
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"Any person who was otherwise convicted of or received a
disposition of court supervision for any other offense under the Criminal
Code of 1961 or who was found guilty or given supervision for such a
violation under the Juvenile Court Act of 1987, may, regardless of the
sentence imposed, be required by an order of the court to submit
specimens of blood, saliva, or tissue to the Illinois Department of State
Police in accordance with the provision of this Section." 730 ILCS 5/5-4-
3(a-5) (West 2004).
Defendant asks us to find the search provided for to be unreasonable because it serves no special
need aside from general law enforcement. In the alternative, he asks us to find that any special
need presented by the State is outweighed by defendant's privacy interests. Our supreme court
has recently, directly addressed defendant's contentions in People v. Garvin, 219 Ill. 2d 104
(2006) and rejected his arguments. The Garvin court held that the "main purpose" for the
collection of DNA was "to absolve innocents, identify the guilty, deter recidivism by identifying
those at a high risk of reoffending, or bring closure to victims," which it found distinct from
"traditional law enforcement practices designed to gather evidence in a particular case to solve a
specific crime that ha[d] already been committed." Garvin, 219 Ill. 2d at 122. The Garvin court
further held that, on balance, the special need of the State outweighed the privacy interests of its
defendant both because of the minimal intrusion presented by a blood draw (Garvin, 219 Ill. 2d at
123) and because of the reduced privacy expectations of convicted felons (Garvin, 219 Ill. 2d at
123-24). Therefore, the circuit court's order requiring extraction and storage of defendant's DNA
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was proper.
V. Mittimus
Finally, defendant contends that his mittimus incorrectly reflects his conviction for
manufacture or delivery of a controlled substance and manufacture or delivery of cannabis when,
in fact, he was convicted of possession of a controlled substance with intent to deliver and
possession of cannabis with intent to deliver. The State concedes the error. We have the
authority to correct the mittimus. See People v. McCray, 273 Ill. App. 3d 396, 403 (1995). We,
therefore, instruct the clerk of the circuit court to correct defendant’s mittimus to reflect
convictions of possession of a controlled substance with intent to deliver and possession of
cannabis with intent to deliver.
CONCLUSION
For all the foregoing reasons, we affirm the judgment of the circuit court, the order
mandating the extraction and storage of defendant’s DNA, and the imposition of a fine directed
to the Spinal Cord Injury Research Fund. However, we reverse the imposition of the Violent
Crime Victim Assistance Fund fee in his sentence, and remand for recalculation of the drug
assessments to factor in his pretrial incarceration credits. Finally, we order correction of the
mittimus.
Affirmed in part, reversed in part, and mittimus corrected, and cause remanded with
instructions.
McBRIDE, P.J., and CAHILL, J., concur.
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