{ "id": 5275390, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALPH HARBOLD, Defendant-Appellant", "name_abbreviation": "People v. Harbold", "decision_date": "1991-09-30", "docket_number": "No. 1\u201489\u20142849", "first_page": "611", "last_page": "619", "citations": [ { "type": "official", "cite": "220 Ill. App. 3d 611" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "558 N.E.2d 705", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "200 Ill. App. 3d 1038", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2461564 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/200/1038-01" ] }, { "cite": "455 N.E.2d 41", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "45" } ], "opinion_index": 0 }, { "cite": "97 Ill. 2d 487", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5516622 ], "pin_cites": [ { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/97/0487-01" ] }, { "cite": "551 N.E.2d 288", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "194 Ill. App. 3d 634", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499110 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/0634-01" ] }, { "cite": "438 N.E.2d 180", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. 2d 346", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092628 ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0346-01" ] }, { "cite": "566 N.E.2d 222", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "141 Ill. 2d 394", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238368 ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0394-01" ] }, { "cite": "146 N.E.2d 14", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "18" } ], "opinion_index": 0 }, { "cite": "12 Ill. 2d 334", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2780613 ], "pin_cites": [ { "page": "342-43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/12/0334-01" ] }, { "cite": "565 N.E.2d 900", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "909" } ], "opinion_index": 0 }, { "cite": "141 Ill. 2d 40", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238211 ], "weight": 4, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0040-01" ] }, { "cite": "464 N.E.2d 734", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "124 Ill. App. 3d 363", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3430447 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0363-01" ] } ], "analysis": { "cardinality": 853, "char_count": 19676, "ocr_confidence": 0.791, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15720781404630155 }, "sha256": "af6e6298f33eb742bc731669801e1a0f1634623c6f76610a4247cd030a5f510b", "simhash": "1:292843b01d7b01db", "word_count": 3308 }, "last_updated": "2023-07-14T21:04:36.621238+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. RALPH HARBOLD, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE LORENZ\ndelivered the opinion of the court:\nAfter his first conviction for murder was reversed on appeal and remanded for new trial (People v. Harbold (1984), 124 Ill. App. 3d 363, 464 N.E.2d 734), a jury again found defendant, Ralph Harbold, guilty of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9\u20141(a)(1)). He was sentenced to an extended term of 70 years\u2019 imprisonment and he now appeals. We consider the following issues: (1) whether the prosecutor made improper comments during closing argument which were not based on the evidence and prejudiced defendant; (2) whether the denial of defendant\u2019s motion in limine to exclude evidence was manifestly erroneous; and (3) whether defendant was denied a fair trial when he was limited to seven peremptory challenges under Supreme Court Rule 434(d) (134 Ill. 2d R. 434(d)). For the following reasons, we reverse and remand for new trial.\nPrior to the second trial, defendant moved in limine to exclude a circular saw and expert testimony relating to blood splatters on the saw, arguing its probative value was outweighed by its prejudicial nature. The motion was denied.\nAlso prior to trial, when considering motions relating to the opinion reversing defendant\u2019s conviction, a judge warned the assistant State\u2019s Attorney regarding the presentation of motive evidence: \u201cIf you go into motive testimony at any time in your case in chief other than what I\u2019ve ruled on, I\u2019m going to hold you in contempt, I\u2019m warning you now so we don\u2019t have any misunderstanding.\u201d\nThe following testimony from trial is relevant to our decision.\nOn March 31, 1981, at approximately 7 p.m., Frank Paul was stabbed several times in his business office. Covered in blood, he staggered to a restaurant across the street and told the owner, \u201cI\u2019ve been attacked.\u201d Paul lost consciousness and died within a short time.\nInvestigating the murder, the police found that the back door to Paul\u2019s office was open. Inside, a trail of blood led to a room where there was evidence of a struggle; however, there was no sign of a forced entry and nothing was missing.\nIn a search of the surrounding area outside Paul\u2019s office, the police found items which appeared to have blood on them. These items included a pair of rubber gloves, a knife, and a camel-colored sport coat with keys to Paul\u2019s office in the pocket. The left-hand rubber glove had a cut in the area between the thumb and forefinger.\nDr. T.L. An, a pathologist, performed an autopsy on Paul. He testified that Paul received seven stab wounds and 10 cutting wounds, several of which indicated that Paul was attempting to defend himself. In An\u2019s opinion, the wounds could have been caused by a knife with a blade at least four inches long.\nMichael Podlecki, a forensic scientist, testified that ABO blood-type analysis showed Paul\u2019s blood was type A and defendant\u2019s blood was type O. All the blood samples found at or near the scene were either type A or type O. Both type A and type 0 were found inside Paul\u2019s office and on the camel-colored sport coat. Type A was found on the knife, and type 0 was found on the rubber gloves. In addition to blood-type analysis, Podlecki testified that the impression in the blood on the knife was consistent with the pattern on the rubber gloves. In his amended report, he indicated that the cut in the web of the left-hand rubber glove was 11 centimeters long. Podlecki also testified that blond hairs found at the scene and on the knife were not consistent with defendant's hair, which was black.\nSusan Perna, Paul\u2019s daughter, testified that defendant and his family were good friends of her family\u2019s.\nNancy Paul Horton, Paul\u2019s wife, who subsequently remarried, testified that she and defendant shared an interest in airplanes and collector\u2019s cars. Horton owned a business that operated two airports in Wisconsin and sold airplanes. Defendant purchased two airplanes from Horton\u2019s business and leased them back to the business. The week before Paul was murdered, she gave defendant a set of keys to start one of her cars in storage and defendant returned the keys within two days. The set included keys to Paul\u2019s office. Horton also testified that the camel-colored sport coat found outside Paul\u2019s office was the same type as a sport coat that defendant often wore.\nOther members of Paul\u2019s family testified that after the murder, between April 1 and April 5, they attempted to contact defendant by telephone but could not reach him. Defendant did not attend Paul\u2019s funeral.\nSeveral police officers also attempted to contact defendant at his home and at his office after the murder but were unsuccessful.\nMarlene Harbold, defendant\u2019s sister, testified that beginning on April 5, she took care of defendant\u2019s children in his house because he was sick. She testified that defendant had a bandage on his left hand. Defendant told her he nicked his thumb with a saw and accidentally cut the web of his hand, between the thumb and forefinger, with a butcher knife.\nAnn Cover, defendant\u2019s employee, testified that defendant did not work from April 1 until April 7 because he had been sick. When he returned, she noticed a cut on his left hand in the web between the thumb and forefinger. Defendant told her he cut his hand while installing panelling.\nOn defendant\u2019s first day back at work, Officer Curtis Frost interviewed him in his office. When Frost first saw defendant, he noticed a cut on his left hand, a couple of inches long, between the thumb and forefinger covered by bandages. Defendant kept his left hand in his pocket for the rest of the interview. Defendant told Frost that he was at home, sick with the flu, for the past few days and did not answer the telephone. Defendant also said that although he had heard of Paul\u2019s death, he did not contact the family.\nA search warrant was issued for defendant\u2019s house which was executed on April 10. Officer Terrence Conley testified that during the search he spoke with Marlene Harbold, who told him she had noticed defendant\u2019s left hand was bandaged. She also told Conley that defendant told her he injured the web between the thumb and forefinger while he was cutting a door with a circular saw. The police recovered the saw and the door, which appeared to have bloodstains on them however, they did not find defendant\u2019s camel-colored sport coat.\nMohammed Tahir, a forensic scientist, examined the bloodstain on the circular saw and found there was no blood in the teeth of the saw. In his opinion, the blood came in contact with the saw when it was not moving and the stain was consistent with touching the saw with a bloody finger or hand. The blood on the saw was type 0, the same as defendant\u2019s blood type.\nDr. Joseph Danna examined defendant on April 10 pursuant to a court order. Defendant had two cuts on his left hand: one was on the web between the thumb and forefinger and the other was on his thumb. The cuts were one to two weeks old and occurred from the same event. The web cut, which showed signs of infection, was two inches long and should have been sutured. In Danna\u2019s opinion, the cuts appeared to have been caused by a knife and could not have been caused by a circular saw.\nTim Klier, a bank employee, testified that he saw defendant in the bank on March 31, the day Paul was murdered, and he did not have cuts on his left hand. Photographs taken by the security camera in the bank supported this testimony.\nThe State rested its case against defendant. Defendant presented the following witnesses.\nRobert Farrell, a retired police officer, assisted in the investigation of Paul\u2019s murder. He interviewed a friend of Paul\u2019s who stated that the police or the Federal Bureau of Investigation spoke with Paul about another man, also with the last name Paul, who was suspected of transporting stolen cars.\nWalter Sherk, a forensic scientist, testified that the lock on Paul\u2019s office had been tampered with at some time but he could not determine if the tampering was successful.\nJanet Cook, a former employee of Paul\u2019s business, testified that at 5 p.m., on the night Paul was murdered, she saw a man with curly blond hair sitting in a parked car behind the office.\nMaria Raspanti, also a former employee, testified that she did not remember ever seeing a man by the name of Martin Paul or describing him to police. She also testified that two months before the murder, police officers came to the office and spoke with Paul but she did not know what the conversation was about. She did not remember receiving a telephone call two days later from Martin Paul for Frank Paul.\nThe parties stipulated that Officer Frost would testify that Raspanti described Martin Paul to the police and told them that the police spoke with Frank Paul two months before his death about transporting stolen cars.\nIn closing argument, defense counsel argued that defendant had a friendly relationship with Paul and there was no evidence of a disagreement between them. Although he stated that motive was not required, he argued there was no evidence introduced to show why defendant would murder Paul.\nIn rebuttal, the assistant State\u2019s Attorney argued:\n\u201cAnd the defense has asked you about motive. Now, I told you right off from the start, we do not have to prove why he did it. Who knows what evil lurks in the hearts of men? I told you right from the start, all we have to do is prove that he did it. And I will show you beyond any reasonable doubt that he did it.\nThe defense counsel has asked [you to] think about why he might have done it. Well, maybe he admired Mrs. Paul from afar.\u201d\nDefendant objected and the objection was sustained, but the assistant State\u2019s Attorney continued:\n\u201cThe evidence shows that while Mr. Paul did not share Mrs. Paul\u2019s interest in aviation, this man did. This man had involvements with Mrs. Paul financially as well as through business: He purchased airplanes from Mrs. Paul, leased them back to Mrs. Paul. They shared the hobby of collecting classic T-bird cars. They both had their cars done by Mr. Wisniewski.\nAfter the trial, go back to your parlors and your dens and you can talk about it at the local tavern and you can satisfy yourself and maybe think about why you think he did it; but the Judge is not going to instruct you that we have to prove one iota of evidence as to why. So let\u2019s keep on the track and not be distracted by the red herring.\u201d\nThe jury found defendant guilty of murder. The trial judge sentenced him to an extended term of 70 years\u2019 imprisonment based on a finding that the crime was exceptionally brutal and heinous. Defendant now appeals.\nOpinion\nDefendant has raised several claims of error. We consider first the issue of prosecutorial misconduct, which requires reversal of defendant\u2019s conviction.\nDefendant argues that his conviction should be reversed because he was prejudiced by the prosecutor\u2019s improper comments in closing argument. Primarily, defendant complains that the State, although prohibited from introducing motive evidence during the trial, speculated on defendant\u2019s motive before the jury. In closing, the prosecutor stated, \u201cmaybe he admired Mrs. Paul [Horton] from afar.\u201d When defendant\u2019s objection was sustained, the prosecutor continued to comment on interests that defendant and Horton shared to the exclusion of Frank Paul. The State contends that the comments were a proper response to defendant\u2019s closing argument that the State did not prove motive. Also, the State contends that any prejudice was cured when the trial judge sustained defendant\u2019s objection to the comments.\nGenerally, the prosecutor has wide latitude in closing argument and may properly comment on the evidence presented at trial and legitimate inferences drawn from the evidence. (People v. Smith (1990), 141 Ill. 2d 40, 565 N.E.2d 900.) However, the prosecutor may not argue assumptions or facts not based on the evidence or present to the jury what amounts to his own testimony. Smith, 141 Ill. 2d 40, 565 N.E.2d 900.\nIn Smith, the supreme court held that it was improper for the prosecutor to argue to the jury that defendant committed murder for gang-related retaliation when there was no evidence to support that argument. The court stated, \u201c[ajbsent evidence tending to tie the State\u2019s \u2018motive evidence\u2019 to defendant, we perceive that the prosecutor\u2019s arguments could serve no purpose other than to \u2018inflame the passion or arouse the prejudice of the jury against the defendant without throwing any light on the question for decision.\u2019 \u201d (Smith, 141 Ill. 2d at 62, 565 N.E.2d at 909, quoting People v. Dukes (1957), 12 Ill. 2d 334, 342-43, 146 N.E.2d 14, 18.) Defendant\u2019s conviction was reversed and remanded for new trial due to the cumulation of several errors including improper comment.\nIn People v. Mullen (1990), 141 Ill. 2d 394, 566 N.E.2d 222, which is analogous to the present case, the prosecutor commented in closing argument on evidence which was specifically excluded from trial. The supreme court found the improper comments were highly prejudicial. Although a prosecutor\u2019s comments on excluded evidence may not alone deny a defendant a fair trial, the court found that because the evidence at trial was closely balanced, the comments probably influenced the jury to return a guilty verdict. As a result, the court reversed and remanded for new trial based on the improper comments.\nTo resolve the issue presented, we must discuss the history of this case. Defendant\u2019s first conviction for Paul\u2019s murder was reversed and remanded for new trial based, in part, on the erroneous admission of motive evidence. (Harbold, 124 Ill. App. 3d 363, 464 N.E.2d 734.) Evidence was presented in the first trial purporting to establish a relationship between defendant and Horton from which the jury could infer defendant\u2019s motive for killing Paul. Without this evidence, the other evidence at trial did not indicate a reason for defendant to kill Paul. This court held that the evidence was inadmissible because it was too remote in time from Paul\u2019s murder and, as a result, defendant was substantially prejudiced, especially because the case was based entirely on circumstantial evidence. When defendant was retried, the State was precluded from presenting motive evidence and the prosecutor was warned not to inject motive evidence in the State\u2019s case in chief.\nThe prosecutor\u2019s comment that \u201cmaybe he admired Mrs. Paul [Horton] from afar\u201d was not based on evidence presented at trial. It was pure speculation, as defendant noted in his objection, and supplied the jury with a motive in an otherwise closely balanced circumstantial case. When defendant\u2019s objection was sustained, the prosecutor continued his argument focusing on the shared interests of defendant and Horton. The implication of the comments was obvious. Without the suggestion, the evidence would not have led the jury to that conclusion. Further, the comments were a back door attempt to present the jury with a motive when evidence of motive was specifically excluded from trial. We can only conclude that the prosecutor deliberately circumvented the court\u2019s ruling excluding motive evidence.\nThe State contends that the comments were made in response to defendant\u2019s comments that the State did not present a motive for defendant to have killed Paul. (See People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180 (defendant could not claim prosecutor\u2019s comments were improper when they were made in response to defendant\u2019s argument).) However, the proper response would have been to reiterate to the jury that the State was not required to prove motive as an element of murder. Instead, the prosecutor went a step further and offered a motive for the jury. The State also contends that any prejudice was cured when the judge sustained defendant\u2019s objection. (See People v. Scott (1990), 194 Ill. App. 3d 634, 551 N.E.2d 288 (sustaining objection and immediately instructing the jury to disregard improper comment cured prejudice).) In this case, the judge sustained the objection but did not immediately instruct the jury to disregard it.\nImproper comment in closing argument will not justify reversal unless it resulted in substantial prejudice to defendant, considering the context of the language used, its relationship to the evidence, and its effect on defendant\u2019s rights to a fair and impartial trial. Smith, 141 Ill. 2d 40, 565 N.E.2d 900.\nIn this case, the improper comment, implying an illicit relationship between defendant and Horton, was not based on the evidence and inflamed the passion and aroused the prejudice of the jury against defendant. \u201c[A]n insinuation which leaves the jury to speculate may be more prejudicial than erroneously admitted specific proof.\u201d (People v. Emerson (1983), 97 Ill. 2d 487, 497, 455 N.E.2d 41, 45.) Also, defendant\u2019s conviction rested solely on circumstantial evidence which was closely balanced and the impact of the comment on the jury was significant. The important task of deciding whether someone is guilty should not be influenced by an invitation to speculate as the prosecutor offered in this case when he used the word \u201cmaybe\u201d and suggested a motive. As a result, defendant was substantially prejudiced and his conviction must be reversed and remanded for new trial.\nAlthough not dispositive of this appeal, we also consider two other arguments defendant raised concerning issues that may affect his retrial.\nDefendant argues that the denial of his motion in limine was manifestly erroneous. He moved to exclude the circular saw found in his house and the corresponding expert testimony that the blood on the saw was placed there when the saw was not moving.\nOn appeal, he contends that the circular saw was not relevant at trial because there was no evidence linking it to the crime. He relies on Marlene Harbold\u2019s testimony that defendant told her he cut his left hand on a saw but she did not testify that it was a circular saw. Defendant ignores Officer Conley\u2019s testimony that Marlene Harbold told him that defendant told her he cut his hand on a circular saw. Based on this, there was sufficient evidence to link the circular saw to defendant\u2019s effort to conceal the crime and the evidence was relevant. The denial of defendant\u2019s motion in limine was not manifestly erroneous.\nDefendant also argues that he was denied a fair trial when he was limited to seven peremptory challenges under Supreme Court Rule 434(d) (134 Ill. 2d R. 434(d)) rather than 10 peremptory challenges under section 115\u20144(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115\u20144(e)). When defendant was first tried, he was allowed 10 peremptory challenges under section 115\u20144(e); however, at the time of his second trial, amendments to Rule 434 were in effect which reduced the number of peremptory challenges to seven.\nBecause section 115\u20144(e) directly conflicts with Rule 434(d) and the issue is a matter of court procedure, Rule 434(d) controls. (People v. Colclasure (1990), 200 Ill. App. 3d 1038, 558 N.E.2d 705.) As a result, defendant was properly granted seven peremptory challenges under the law in effect at the time of his second trial.\nReversed and remanded for new trial.\nMURRAY and GORDON, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE LORENZ" } ], "attorneys": [ "Michael B. Nash, of Chicago, and F. Lee Bailey, Kenneth J. Fishman, and Daniel P. Leonard, all of Bailey, Fishman & Leonard, of Boston, Massachusetts, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Gael M. O\u2019Brien, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALPH HARBOLD, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201489\u20142849\nOpinion filed September 30, 1991.\nMichael B. Nash, of Chicago, and F. Lee Bailey, Kenneth J. Fishman, and Daniel P. Leonard, all of Bailey, Fishman & Leonard, of Boston, Massachusetts, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Gael M. O\u2019Brien, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0611-01", "first_page_order": 633, "last_page_order": 641 }