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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CEDRIC JOHNSON, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE HEIPLE\ndelivered the opinion of the court:\nFollowing a jury trial, the defendant, Cedric Johnson, was convicted of aggravated battery and armed violence based upon aggravated battery. (Ill. Rev. Stat. 1985, ch. 38, pars. 12\u20144(b)(8), 33A\u20142.) He was sentenced to 12 years for armed violence and a concurrent four years for aggravated battery. The defendant appeals, arguing that prosecutorial misconduct deprived him of a fair trial and that he should be resentenced following reversal of his aggravated-battery conviction. We reverse.\nOn July 15, 1985, in a residential area of Bolingbrook, Leon Bell, Sr., was shot in the right foot. The shot came from an automobile in which the defendant was a passenger. The State presented testimony that two shots came from the rear seat on the driver\u2019s side of the automobile, that the defendant was sitting in that location, and that the defendant had a .25-caliber automatic pistol in the car. The defendant presented no witnesses.\nThe defendant first argues that several of the prosecutor\u2019s remarks in closing arguments were improper individually and that cumulatively they denied him a fair trial. We address the issue despite the State\u2019s argument that it is waived. (People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629.) Furthermore, as the parties are well informed of the comments currently before us, we will not unnecessarily lengthen this opinion by presenting more than a brief description of each comment at issue.\nIn the first comment to which the defendant objects, the prosecutor stated and discussed the State\u2019s burden to prove the defendant guilty beyond a reasonable doubt. In that comment the prosecutor went on to ask tha,t the jurors note that the burden was a sustainable one which had been met. We find that although the term \u201creasonable doubt\u201d should stand undefined (People v. Eddington (1984), 129 Ill. App. 3d 745, 473 N.E.2d 103), the prosecutor\u2019s comments on the State\u2019s burden of proof were essentially a superfluous restatement of the beyond a reasonable doubt standard and did not reduce the State\u2019s burden. See People v. Smith (1981), 93 Ill. App. 3d 1133, 418 N.E.2d 172.\nIn the second comment at issue, the prosecutor stated that although criminal defendants are entitled to certain rights or presumptions, the defendant was not an innocent man. The prosecutor went on to say that the evidence had shown the defendant to be guilty of the offenses charged. We find that the instant comment was improper. Although the remarks could be construed as allowable comments on the defendant\u2019s guilt established by the evidence (see People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174), the remarks were unwarranted and improperly diminished the presumption of the defendant\u2019s innocence (People v. Harbold (1984), 124 Ill. App. 3d 363, 464 N.E.2d 734).\nIn the third objected comment, the prosecutor noted that in a police interview the defendant offered some inconsistent statements, then refused to discuss his case further. That comment was arguably a reference to the defendant\u2019s assertion of his right to remain silent. We observe that the instant comment focused primarily upon the defendant\u2019s contradictory statements to the police. But we find that the prosecutor\u2019s comment was also an improper reference to the defendant\u2019s exercise of his right to remain silent. People v. Stack (1984), 128 Ill. App. 3d 611, 470 N.E.2d 1252.\nThe defendant\u2019s fourth specific objection is to the prosecutor\u2019s several references to the uncontradicted nature of the evidence at trial. The defendant asserts that these comments were calculated to draw attention to the defendant\u2019s failure to testify at trial. In the instant comments, the prosecutor observed that the evidence was uncontradicted on whether the defendant saw the State\u2019s primary witness a few days after the incident, whether the victim received a wound while he was present on a public way, and whether the instant incident involved a pistol. We agree with the State generally that the prosecutor properly characterized the instant evidence as uncontradicted and that that characterization neither was intended to nor in fact did draw attention to the defendant\u2019s failure to testify. The defendant was in no sense the sole witness who could have testified to challenge the relevant State\u2019s evidence.\nFurther regarding the defendant\u2019s fourth objection, however, we agree with the defendant that the prosecutor improperly asserted that the evidence showed without contradiction that the defendant had shot the victim. The defendant correctly observes that the evidence included such a contradiction: his denial to a police officer that he shot the victim.\nIn his fifth specific objection, the defendant asserts that the prosecutor improperly expressed his personal opinion in commenting that the evidence was \u201coverwhelming,\u201d that this was an \u201copen and shut\u201d case, and that the State\u2019s witnesses were credible. We find that the instant comments were generally based upon the evidence and in response to the defendant\u2019s challenge to the credibility of the State\u2019s witnesses. (See People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) However, the comments went beyond simple inferences from the evidence and may have tended to infringe on the fact-finding function of the jury. People v. Valdery (1978), 65 Ill. App. 3d 375, 381 N.E.2d 1217; People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629.\nIn his sixth specific objection, the defendant observes that the prosecutor unfairly aligned himself with the jury by referring to \u201cour job\u201d to find the facts. The prosecutor here did not specifically characterize himself as a 13th juror. (Cf. People v. Vasquez (1972), 8 Ill. App. 3d 679, 291 N.E.2d 5.) However, we agree with the defendant that the prosecutor\u2019s reference to \u201cour job\u201d was improper.\nIn his final specific objection to the prosecutor\u2019s argument, the defendant asserts that the prosecutor denigrated defense counsel by challenging both counsel\u2019s attacks on State witnesses\u2019 credibility and counsel\u2019s suggested inferences from the evidence. We find that the prosecutor\u2019s instant statements were in response to counsel\u2019s attempts to discredit both the State\u2019s witnesses and the State\u2019s theory of the case. (See People v. Williams (1984), 127 Ill. App. 3d 231, 468 N.E.2d 807.) However, we further find that the statements bordered on improper denigration of counsel. See People v. Stock (1974), 56 Ill. 2d 461, 309 N.E.2d 19.\nWhere the cumulative impact of improper prosecutorial comment may be reasonably determined to have prejudiced the jury and constituted a material factor leading to the defendant\u2019s conviction, the comment constitutes grounds for reversal. (People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629.) Here, the prosecutor\u2019s ill-advised and improper comments were so numerous that we find no need to assess the prejudicial effect of each isolated comment. Rather, we find that the instant remarks may be reasonably determined to have prejudiced the jury and constituted a material factor leading to the defendant\u2019s conviction. Consequently, we reverse the defendant\u2019s conviction, despite the fact that it was based on sufficient evidence, and remand for a new trial.\nAs it may be relevant upon a retrial, we briefly comment that the defendant also correctly argues that he was improperly convicted of aggravated battery. Both that conviction and his conviction for armed violence were based on the same physical act. See People v. Smith (1980), 86 Ill. App. 3d 302, 408 N.E.2d 101.\nBased on the foregoing, the judgment of the circuit court of Will County is reversed. The cause is remanded for further proceedings consistent with this decision.\nReversed and remanded.\nSCOTT, P.J., and WOMBACHER, J., concur.",
        "type": "majority",
        "author": "JUSTICE HEIPLE"
      }
    ],
    "attorneys": [
      "Thomas A. Lilien, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.",
      "Edward Petka, State\u2019s Attorney, of Joliet (Rita Kennedy Mertel, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CEDRIC JOHNSON, Defendant-Appellant.\nThird District\nNo. 3\u201486\u20140101\nOpinion filed November 14, 1986.\nThomas A. Lilien, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nEdward Petka, State\u2019s Attorney, of Joliet (Rita Kennedy Mertel, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
  },
  "file_name": "0465-01",
  "first_page_order": 487,
  "last_page_order": 491
}