{ "id": 3541267, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAURA WILLS, Defendant-Appellant", "name_abbreviation": "People v. Wills", "decision_date": "1986-12-31", "docket_number": "No. 2-86-0106", "first_page": "418", "last_page": "424", "citations": [ { "type": "official", "cite": "151 Ill. App. 3d 418" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "93 Ill. App. 3d 986", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3136324 ], "pin_cites": [ { "page": "994" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/0986-01" ] }, { "cite": "89 Ill. App. 3d 538", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5537070 ], "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0538-01" ] }, { "cite": "121 Ill. 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Ed. 2d", "year": 1957, "opinion_index": 0 }, { "cite": "393 U.S. 1123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11437888, 11437825, 11438212, 11438118, 11438187, 11437965, 11438036 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/us/393/1123-02", "/us/393/1123-01", "/us/393/1123-07", "/us/393/1123-05", "/us/393/1123-06", "/us/393/1123-03", "/us/393/1123-04" ] }, { "cite": "40 Ill. 2d 522", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2855750 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-2d/40/0522-01" ] }, { "cite": "66 Ill. App. 3d 330", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3316089 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "337" }, { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0330-01" ] }, { "cite": "105 S. Ct. 1204", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "84 L. Ed. 2d 347", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "471 U.S. 1050", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6288577, 6289067, 6288783, 6289302, 6288281 ], "opinion_index": 0, "case_paths": [ "/us/471/1050-02", "/us/471/1050-04", "/us/471/1050-03", "/us/471/1050-05", "/us/471/1050-01" ] }, { "cite": "103 Ill. 2d 133", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152504 ], "year": 1985, "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0133-01" ] }, { "cite": "57 Ill. 2d 15", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5406371 ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0015-01" ] }, { "cite": "10 Ill. App. 3d 745", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5397709 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0745-01" ] }, { "cite": "44 Ill. App. 3d 922", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2817450 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0922-01" ] }, { "cite": "89 Ill. App. 3d 689", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5541515 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0689-01" ] }, { "cite": "104 S. Ct. 199", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "78 L. Ed. 2d 174", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "464 U.S. 865", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6401817 ], "opinion_index": 0, "case_paths": [ "/us/464/0865-01" ] }, { "cite": "94 Ill. 2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3105923 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-2d/94/0437-01" ] }, { "cite": "122 Ill. App. 3d 922", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3522475 ], "year": 1983, "pin_cites": [ { "page": "930" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0922-01" ] }, { "cite": "106 S. Ct. 2919", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "91 L. Ed. 2d 548", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "476 U.S. 1183", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12417, 12517, 13029, 12424, 12489, 12939, 12588, 12909, 12753, 12722, 12755, 12471, 12478 ], "opinion_index": 0, "case_paths": [ "/us/476/1183-13", "/us/476/1183-03", "/us/476/1183-06", "/us/476/1183-04", "/us/476/1183-08", "/us/476/1183-02", "/us/476/1183-11", "/us/476/1183-10", "/us/476/1183-12", "/us/476/1183-01", "/us/476/1183-07", "/us/476/1183-09", "/us/476/1183-05" ] }, { "cite": "776 F.2d 678", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1516333 ], "year": 1986, "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/f2d/776/0678-01" ] }, { "cite": "111 Ill. 2d 454", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166977 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/111/0454-01" ] }, { "cite": "128 Ill. App. 3d 774", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3525437 ], "year": 1986, "pin_cites": [ { "page": "782" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0774-01" ] }, { "cite": "280 Ill. 32", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4890968 ], "pin_cites": [ { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/ill/280/0032-01" ] }, { "cite": "106 S. Ct. 1476", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "89 L. Ed. 2d 730", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "475 U.S. 1088", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6399389, 6398169, 6398462, 6398376, 6397867, 6397967, 6398799, 6398288, 6399069, 6399606, 6398585, 6399516, 6398909, 6398686 ], "opinion_index": 0, "case_paths": [ "/us/475/1088-12", "/us/475/1088-03", "/us/475/1088-06", "/us/475/1088-05", "/us/475/1088-01", "/us/475/1088-02", "/us/475/1088-09", "/us/475/1088-04", "/us/475/1088-11", "/us/475/1088-14", "/us/475/1088-07", "/us/475/1088-13", "/us/475/1088-10", "/us/475/1088-08" ] }, { "cite": "109 Ill. 2d 102", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126650 ], "year": 1986, "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0102-01" ] } ], "analysis": { "cardinality": 684, "char_count": 14185, "ocr_confidence": 0.785, "pagerank": { "raw": 9.801105586764637e-08, "percentile": 0.5328189017969773 }, "sha256": "ac7af950cedb8f4b0e161287e4225d3f0adf9202f8a524f788bc6631e406ca09", "simhash": "1:03f315a9f90920f7", "word_count": 2381 }, "last_updated": "2023-07-14T16:55:10.892091+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAURA WILLS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nDefendant, Laura Wills, appeals from her conviction of forgery (Ill. Rev. Stat. 1985, ch. 38, par. 17 \u2014 3) after a jury trial, contending that she was denied a fair trial because the prosecutor stated in closing argument that defendant\u2019s testimony was uncorroborated by certain witnesses who did not testify.\nDefendant was charged by information filed September 6, 1985, with forgery in that she with intent to defraud knowingly delivered a check which was issued to \u201cLeavy Napoleon\u201d to Nena Elliott, knowing such check to be forged to appear as if it were endorsed by the payee. Among the names listed in the State\u2019s response to defendant\u2019s motion for pretrial discovery as names of the persons the State intended to call as witnesses was the name and address of Denise Coleman. Defendant stated in her answer to the State\u2019s motion for pretrial discovery that she might call each person named by the State in its answer to discovery as well as Lydell Hopson.\nPrior to trial on November 12, 1985, the assistant State\u2019s Attorney stated that he had not been able to find Denise Coleman and therefore did not intend for her to be a witness. Defense counsel stated that he could not find Denise Coleman either.\nNena Elliott, a cashier at the First Federal Savings & Loan Association in Rockford, testified that defendant presented a check to her on February 1, 1985, which had been endorsed by Leavy Napoleon. She told defendant that she would have to have Leavy endorse the check to defendant. Defendant then left the bank with the check and returned in about three minutes with an endorsement of the check to defendant. She had earlier testified, at the September 6, 1985, preliminary hearing, that about five minutes had elapsed. On both occasions, defendant came into the bank with the same woman. She cashed the check for defendant after the check was endorsed to her and the supervisor approved. The cash was not deposited in defendant\u2019s account. She helped a customer after defendant left the first time, but she does not know how many customers she assisted.\nNapoleon Leavy testified that the check cashed by defendant was his retirement fund check and that he never received it, endorsed it, or gave anyone permission to endorse it. He is known by the name \u201cBo\u201d to defendant. Defense counsel asked him who Denise Coleman was, and he responded that she was one of his brothers\u2019 former girl friends. He lived in apartment eight at 328 West State; Coleman lived in apartment one. His mailbox lock was missing. He asked Coleman to watch his mail while he stayed with his blind mother at a different address.\nDefendant testified that on January 1, 1985, she received a telephone call from her friend Cynthia Davis. Daws told defendant that Denise Coleman needed to cash a check for Coleman\u2019s sick grandfather because they did not have a bank account. Defendant had met Coleman, whom she had characterized as an acquaintance, a month earlier. Defendant told her that she did not want to cash the check because she did not think the check was legitimate and suggested that she ask another person. Coleman and Davis called back a few hours later; Coleman explained she needed to pay some bills and that she had identification to prove it was her grandfather\u2019s check. Defendant was told that the grandfather could not cash the check because he was sick.\nDefendant told them she would pick Coleman and Davis up, which she did. At the bank, Coleman gave her the check which was endorsed to Leavy Napoleon. The teller told defendant and Coleman that the check had to be endorsed to defendant by Napoleon Leavy in order for defendant to be able to cash it. Coleman said that she would have her grandfather sign the check to her and she walked out of the bank. Defendant took her \u201cback down by Oseo and I parked and she went in the house \u2014 well, she ran across the street and pulled open a door and, I guess, she went upstairs and when she came out she had the check endorsed in my name.\u201d Defendant did not know which building Coleman went into and did not see whether Coleman used a key. It took seven or eight minutes to return to the bank. They returned to the bank with Davis, defendant\u2019s boyfriend, and defendant\u2019s child. Defendant cashed the check and gave the money to Coleman; Coleman gave her $3 for gas. Defendant did not know that Bo was Napoleon. Defendant denied having the intent to defraud. Defendant also testified that she had pleaded guilty to stealing a carton of cigarettes in July 1985.\nThe State\u2019s closing argument commented on the failure of defendant to call certain witnesses. The assistant State\u2019s Attorney stated that \u201c[t]he defendant\u2019s version of what happened in this case is totally uncorroborated. Denise Coleman, who supposedly told her all of these things about the check, did not testify.\u201d Defendant\u2019s objection to this comment was overruled. In chambers, defendant argued that the State could not comment on the failure of the defense to call a particular witness. The court stated that defendant had introduced the names of Coleman, Davis, and Lydell Hopson into evidence and the State could comment on the fact that the defendant\u2019s story was uncorroborated. The closing argument of the State was resumed with the statement that \u201c[a]s I was saying before the defendant\u2019s story in this case is uncorroborated not by Denise Coleman, by her good friend Cynthia Davis nor by her boyfriend, Lydell.\u201d\nThe jury found defendant guilty. Defendant moved for a new trial, relying in part on the comments on the failure of the three witnesses to testify. The motion was denied, and defendant was sentenced to probation for V-k years and 6 months\u2019 incarceration in the Winnebago County jail.\nDefendant argues on appeal that the prosecutor\u2019s comments raised the inference that defendant had a burden to present witnesses and evidence to support her innocence. Defendant argues that the State referral to Coleman\u2019s failure to testify was improper because she was equally inaccessible to the State and to defendant. Defendant does not argue that the assistant State\u2019s Attorney improperly referred to the failure of witnesses Hopson and Davis to testify.\nIt is improper for the prosecutor to comment on defendant\u2019s failure to call a nonalibi witness. (People v. Adams (1985), 109 Ill. 2d 102, 120, cert. denied (1986), 475 U.S. 1088, 89 L. Ed. 2d 730, 106 S. Ct. 1476.) The jury may consider defendant\u2019s failure to produce witnesses who could testify to material facts if it is manifest that it is within the power of the accused to produce such witnesses and that such witnesses are not accessible to the prosecution. (People v. Munday (1917), 280 Ill. 32, 42.) Comments on the failure of defendant to produce witnesses equally available to the State is improper because they unfairly tend to shift the burden of proof to the accused. (People v. Lee (1984), 128 Ill. App. 3d 774, 782, aff\u2019d (1986), 111 Ill. 2d 454.) Where a witness is equally unavailable to both sides, it is within the court\u2019s discretion to refuse to allow argument on the missing witness. (U.S. v. Keplinger (7th Cir. 1985), 776 F.2d 678, 703, cert. denied (1986), 476 U.S. 1183, 91 L. Ed. 2d 548, 106 S. Ct. 2919.) Under an alibi exception, when defendant asserts an alibi defense and names persons in support of an alibi, the prosecutor may comment upon any failure to call those persons because the witnesses were interjected into the case by defendant and are deemed unavailable to the prosecution. People v. Saunders (1984), 122 Ill. App. 3d 922, 930; People v. Kubat (1983), 94 Ill. 2d 437, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 174, 104 S. Ct. 199.\nThe State argues that although this case does not involve an alibi, the prosecutor may similarly comment on the failure to call non-alibi witnesses. However, the cases relied upon by the State, People v. Depner (1980), 89 Ill. App. 3d 689, People v. Plum (1976), 44 Ill. App. 3d 922, and People v. Pullum (1973), 10 Ill. App. 3d 745, rev \u2019d on other grounds (1974), 57 Ill. 2d 15, are distinguishable. Depner involved an alibi witness. Plum involved a defendant\u2019s right to comment on the absence of State\u2019s witnesses. Pullum stated broadly that where the defendant injects into the case the names of people who presumably would support his theory of the case, the prosecutor may comment on the failure of the defense to produce those people as witnesses. That case did not state which witnesses were referred to in closing argument, but defendant testified that on the day of the armed robbery he was out of State and that someone drove him back to Chicago. The failure to have such a witness testify would fall under the alibi exception not applicable in the instant case.\nThe State further argues that Coleman was more accessible to defendant because she was an acquaintance of defendant\u2019s and their mutual friend was Davis. However, the State does not dispute that the defense counsel stated that he could not find Coleman. Furthermore, the test for permissibility of comment on a defendant\u2019s failure to produce witnesses is not merely whether the witness is more accessible to defendant than he is to the State. It must be clear that the witness was readily accessible to the defense and not equally accessible to the prosecution. People v. Holman (1984), 103 Ill. 2d 133, 151, cert. denied (1985), 471 U.S. 1050, 84 L. Ed. 2d 347, 105 S. Ct. 1204.\nThe State next argues that even were the witnesses equally accessible or equally inaccessible, permissible comment on defendant\u2019s failure to produce witnesses is not limited to situations where the witnesses are unavailable to the State. The State relies upon People v. Wilson (1978), 66 Ill. App. 3d 330, and People v. Williams (1968), 40 Ill. 2d 522, cert. denied (1969), 393 U.S. 1123, 22 L. Ed. 2d 129, 89 S. Ct. 1004, for this proposition. In Williams, the court found that the State\u2019s comment on the failure of defendant to produce physical evidence was proper. Nevertheless, the Williams court made the broad statement, relying upon People v. Lion (1957), 10 Ill. 2d 208, that the State can comment on the defendant\u2019s failure to produce a witness presumably under the control of defendant who could throw light upon a vital matter. Lion, however, dealt with the alibi-witness exception.\nWilson also contained broad language, i.e., \u201c[i]f other evidence tends to prove the defendant\u2019s guilt and he fails to bring in evidence within his own control of an explanation or refutation, this omission is a *** legitimate subject of comment by the State\u2019s Attorney.\u201d (People v. Wilson (1978), 66 Ill. App. 3d 330, 337.) While Wilson did not involve defendant\u2019s failure to call an alibi witness, it relied upon alibi-exception cases for its broad statement. The State specifically refers to the language of Wilson that the permissibility of comment \u201cis not limited to situations where the potential witnesses are unavailable to the prosecution.\u201d (66 Ill. App. 3d 330, 337.) However, the court\u2019s citation of authority for that proposition, People v. Parker (1976), 40 Ill. App. 3d 597, relies upon authority (People v. Poole (1970), 121 Ill. App. 2d 233, 240-41) which in turn relies upon the alibi-exception cases. Also, Parker is distinguishable because the comment on the failure to call a nonalibi witness was permitted on the grounds that the prosecutor\u2019s comment was provoked by the defense\u2019s implication in closing argument that the missing witness\u2019 testimony would corroborate defendant\u2019s version. Finally, we note that the State does not argue why the general rule prohibiting comment on the failure of defendant to produce nonalibi witnesses where it is not in the power of defendant to produce those witnesses should not be followed here as it was not in Wilson.\nThe State finally argues that even if the prosecutor\u2019s comments were in error, such error was harmless. The State argues that the testimony of the bank teller and the owner of the check was sufficient to convict defendant. Improper comments are not reversible error unless they constitute a material factor in conviction or result in substantial prejudice to the accused (People v. Nodal (1980), 89 Ill. App. 3d 538, 541) and are harmless error in the case of overwhelming evidence against defendant. (People v. Franklin (1981), 93 Ill. App. 3d 986, 994.) The State was improperly permitted to twice refer to the failure of Coleman to testify. Defendant\u2019s defense that she did not know that the check was forged was supported by her testimony that Coleman led her to believe that Leavy was Coleman\u2019s grandfather who endorsed the check. Defendant had testified that she was gone a few minutes between visits at the bank, while the bank teller believed defendant was only gone for a short time. Thus the evidence that defendant knew the check was forged was close: should defendant\u2019s estimation of the time be believed, the inference from her testimony that she believed that Coleman had obtained the genuine signature of her \u201cgrandfather\u201d Leavy before returning to the bank a second time would be bolstered. If the bank teller is believed that defendant returned shortly afterwards, defendant\u2019s version that Coleman had her grandfather endorse the check to defendant before they returned to the bank would not be credible. As Coleman\u2019s testimony would have been relevant to the crucial issue of defendant\u2019s knowledge of the forgery, the State\u2019s comments on Coleman\u2019s failure to testify substantially prejudiced defendant.\nThe judgment of the circuit court of Winnebago County is reversed, and the cause is remanded.\nReversed and remanded.\nHOPF and INGLIS, JJ., concur.", "type": "majority", "author": "JUSTICE UNVERZAGT" } ], "attorneys": [ "G. Joseph Weller and Robert C. Cooper, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Daniel D. Doyle, State\u2019s Attorney, of Rockford (Kenneth R. Boyle, William L. Browers, and David A. Bernhard, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAURA WILLS, Defendant-Appellant.\nSecond District\nNo. 2-86-0106\nOpinion filed December 31, 1986.\nRehearing denied February 2, 1987.\nG. Joseph Weller and Robert C. Cooper, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nDaniel D. Doyle, State\u2019s Attorney, of Rockford (Kenneth R. Boyle, William L. Browers, and David A. Bernhard, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0418-01", "first_page_order": 440, "last_page_order": 446 }