{ "id": 8498857, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FLEMON HOWARD, Defendant-Appellant", "name_abbreviation": "People v. Howard", "decision_date": "1992-07-15", "docket_number": "No. 1\u201488\u20142792", "first_page": "386", "last_page": "394", "citations": [ { "type": "official", "cite": "232 Ill. App. 3d 386" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "516 N.E.2d 807", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "812" } ], "opinion_index": 0 }, { "cite": "162 Ill. App. 3d 707", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3508618 ], "pin_cites": [ { "page": "713" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/0707-01" ] }, { "cite": "378 N.E.2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "515" }, { "page": "515" } ], "opinion_index": 0 }, { "cite": "72 Ill. 2d 124", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5444213 ], "weight": 3, "pin_cites": [ { "page": "128" }, { "page": "129-30" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0124-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "404 N.E.2d 233", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069192 ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0564-01" ] }, { "cite": "243 N.E.2d 687", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "103 Ill. App. 2d 377", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599828 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0377-01" ] }, { "cite": "458 N.E.2d 1081", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1089" } ], "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 950", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3594250 ], "pin_cites": [ { "page": "961" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0950-01" ] }, { "cite": "499 N.E.2d 1335", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. 2d 170", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542174 ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0170-01" ] }, { "cite": "400 N.E.2d 931", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "933" } ], "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 1105", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3234926 ], "pin_cites": [ { "page": "1108" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/1105-01" ] }, { "cite": "452 N.E.2d 77", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 216", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3520936 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0216-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "378 N.E.2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "72 Ill. 2d 124", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5444213 ], "opinion_index": 1, "case_paths": [ "/ill-2d/72/0124-01" ] }, { "cite": "404 N.E.2d 233", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "79 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069192 ], "weight": 4, "pin_cites": [ { "page": "583" }, { "page": "584" }, { "page": "585" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/79/0564-01" ] }, { "cite": "243 N.E.2d 687", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "103 Ill. App. 2d 377", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599828 ], "weight": 4, "pin_cites": [ { "page": "379-80" }, { "page": "380" }, { "page": "381" } ], "opinion_index": 1, "case_paths": [ "/ill-app-2d/103/0377-01" ] } ], "analysis": { "cardinality": 894, "char_count": 19261, "ocr_confidence": 0.733, "pagerank": { "raw": 1.379703780656765e-07, "percentile": 0.6402604939515779 }, "sha256": "2bfe4e539a38b5ae5936d6333cba7a35fdc0bca44c887c4b376d596b60879f9b", "simhash": "1:300092e67a0f95d5", "word_count": 3159 }, "last_updated": "2023-07-14T16:53:50.540896+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RIZZI, J., concurs." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FLEMON HOWARD, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE TULLY\ndelivered the opinion of the court:\nDefendant Flem\u00f3n Howard was charged with two counts of murder and one count of armed violence. After a jury trial, Howard was convicted for the murder of Richard Rainey and sentenced to 30 years in prison.\nAt trial, defense counsel indicated that the defendant Howard never intended to kill Rainey and that the stabbing was a reckless act. On appeal, defendant raises three issues: (1) defendant was denied a fair trial due to the prejudicial remarks of the prosecutor made during closing argument; (2) defendant was denied effective assistance of counsel where defense counsel failed to tender a jury instruction defining \u201crecklessness\u201d and defendant\u2019s mental state was a central issue in the case; and (3) the sentence imposed was excessive, in view of mitigating factors and rehabilitative potential.\nDefendant Howard lived across the street from Richard Rainey. At trial, defendant stated that he had been best friends with the victim for approximately 16 years. On the evening of January 17, 1987, Howard, along with another man and five women, went to a restaurant around 4 a.m. They had previously been drinking at a nearby bar from midnight until closing. While at the restaurant, two unidentified males began verbally harassing the women who were with the defendant. Defendant asked them to stop and then became engaged in a fist fight with one of the two men. During the fight, the other man dropped a knife. Defendant retrieved the knife and put it in his pocket.\nAfter the fight, defendant drove home, parking his car on Adams Street, one block west of his house, located at 4337 West Jackson. While walking to his house, defendant noticed that the two men, with whom he had just fought, were following him. Instead of going to his own house, defendant went to a house at 4326 West Jackson, where Rainey lives in the basement. In order to awaken Rainey, defendant knocked on the basement window causing it to break. Rainey asked defendant why he had broken the window and then crossed the street with the defendant. Defendant explained what had happened earlier and pointed to the two men, who were then approaching the defendant and Rainey. Defendant took the knife from his pocket, which he had from the previous fight and Rainey grabbed defendant in a \u201cbear hug\u201d in order to prevent another fight. Defendant was very upset and intoxicated. After defendant broke away from Rainey, the two men fled the scene. Rainey picked up a stick and gestured angrily at the defendant for having broken his basement window. Defendant then hit Rainey with the hand containing the knife. Rainey stumbled backwards gasping and fell to the ground.\nDefendant testified that he became scared and went to the corner of Jackson and Kostner Streets to call the police from a public phone. While standing near the phone, defendant flagged an unmarked squad car and told the officers that he was sick and needed to go to a hospital. During the earlier fight, defendant had injured his right hand, which had been previously broken. Defendant subsequently refused help and walked away from the officers.\nThe only eyewitness to the stabbing was the victim\u2019s niece, Karen Rainey, who lived on the first floor of the victim\u2019s house. Karen Rainey testified at trial that she was awakened by the footsteps of her uncle, Richard Rainey, coming up the basement stairs. She heard him shouting at the defendant about the broken window. She then looked out the front window of the house and saw her uncle walking arm and arm with the defendant, whom she has known since childhood. She could hear the defendant yelling and the two men crossed the street. She could only see the defendant\u2019s back and her uncle, Richard Rainey, was standing on the curb facing her. The defendant was hollering and motioning with both hands. She then saw the defendant take a step towards Richard Rainey, his hand moved and then he walked away. Richard Rainey then fell to the ground. She called the police and then crossed the street, where she found the motionless body of Richard Rainey. She also testified that the defendant and her uncle were friends and they saw each other almost every day.\nThe medical examiner testified that the victim suffered a stab wound to the neck, approximately one-half inch long and two inches deep. The wound perforated the left lung and penetrated the main blood vessel to the heart. Each chest cavity contained approximately one liter of blood.\nAssistant State\u2019s Attorney Lori Levin testified that the defendant rendered two different accounts as to the events. The first account was consistent with the defendant\u2019s trial testimony. Levin then told the defendant that Karen Rainey had witnessed the stabbing and that Karen only saw two people, the defendant and Richard Rainey, in front of the house that evening. Defendant then stated that no one had followed him home. He went to Richard Rainey\u2019s house because he was upset about the restaurant fight. Rainey walked across the street with him to calm him down. He then pointed at Rainey's chest and stabbed him. Rainey staggered a couple of steps and then collapsed. He then flagged down a police car to aid Richard Rainey.\nOn appeal, defendant contends the State\u2019s closing argument was unduly prejudicial, denying him a fair trial. As a threshold matter, defendant failed to specifically list the objectionable statements in a post-trial motion. In order to preserve an issue on appeal, a party must make a contemporaneous objection at trial and raise it in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Defendant\u2019s post-trial motion contained a form objection, generally alleging that the closing-argument statements of the prosecutor were \u201cinflammatory and erroneous *** designed to arouse the prejudices and passions of the jury.\u201d Such a lack of specificity in the post-trial motion fails to preserve the issue for review. (See People v. Thomas (1983), 116 Ill. App. 3d 216, 452 N.E.2d 77.) However, where the evidence is closely balanced and the verdict would not have been the same absent the alleged errors, we may still reverse under the doctrine of plain error. Because we consider this to be a close case, we will review the alleged errors of the prosecutor in closing.\nFirst, the State argued there was no conspiracy among the State, its witnesses and the police. It has been held to be reversible error, where a prosecutor instructs the jury that it must find the State\u2019s witnesses are lying in order to believe the defendant. (People v. Cole (1980), 80 Ill. App. 3d 1105, 1108, 400 N.E.2d 931, 933.) The statements cited by the defendant in his brief refer to a conspiracy but are not as strong as the remarks in Cole. In addition, the State claims its remarks about a conspiracy were an \u201cinvited response\u201d to defense counsel\u2019s comment that the State\u2019s counsel were \u201cwar dogs.\u201d We agree.\nThe comments by defense counsel during closing accused the prosecution of being \u201cwar dogs\u201d and implied that they were only interested in winning the case and not in discovering the truth. The State was entitled to defend itself against the defense\u2019s accusations. In a like case, the defense counsel implied that a State\u2019s witness was engaged in a conspiracy against the defendant. The court held that where defense counsel invites a rebuttal, it is neither improper nor prejudicial. People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1335.\nThe second series of remarks by the prosecutor were unsolicited comments about the defense of manslaughter. Just prior to the retirement of the jury, the prosecutor stated:\n\u201cLadies and gentlemen, involuntary manslaughter does not apply; it is a cop-out and I don\u2019t want to insult anyone but it is a cop-out in this case. The evidence is clear and we ask you to find him guilty of murder. Thank you.\u201d\nIn People v. Wilson (1983), 120 Ill. App. 3d 950, 961, 458 N.E.2d 1081, 1089, the prosecutor repeatedly referred to the insanity defense as a \u201csmoke screen\u201d and implied it was not a proper defense in a rape case. The court held this to be a misstatement of the law and \u201cgrossly improper.\u201d The court also commented on the cumulative effect of the errors, stating that they cast doubt on the defendant\u2019s defense.\nIn the case sub judice, there is not a scintilla of evidence to support the prosecutor\u2019s conclusion that involuntary manslaughter did \u201cnot apply\u201d and was a \u201ccop-out.\u201d The defendant and the victim were best friends for more than a decade. Indeed, it was this friendship which prompted the defendant to visit the home of the victim after a prior altercation with two strange men. When the defendant encountered the victim, he was intoxicated and very upset. He accidentally broke the defendant\u2019s window, while trying to awaken him in the early morning hours. The only witness to the encounter was Karen Rainey, the victim\u2019s niece, who overheard her uncle yelling about the broken window. She then saw the two men cross the street, still arguing, their arms in the air. She could only see the defendant\u2019s back, then his hand moved towards the victim and he fell to the ground. This corroborated the testimony of the defendant, except he claimed that Richard Rainey picked up a stick and began gesturing at him, angry about the broken window. Defendant then swung at the victim with the hand containing the knife. A stick was later found at the scene.\nThe only issue to be decided by the jury was whether or not the defendant\u2019s actions and mental state supported a verdict of murder or involuntary manslaughter. The prosecutor\u2019s suggestions to the jury that involuntary manslaughter was inapplicable and a \u201ccop-out\u201d were highly improper. While the prosecutor\u2019s comments, standing alone, may not have been reversible error, when considered in light of the subsequent failure of the defense counsel to tender a jury instruction on involuntary manslaughter, the cumulative effect of these errors may have influenced the outcome in this case.\nThe second issue raised on appeal is whether the defendant was denied effective assistance of counsel for failure to tender a jury instruction defining \u201crecklessness.\u201d Defense counsel tendered Illinois Pattern Jury Instructions, Criminal, No. 7.07 (2d ed. 1981) (hereinafter IPI Criminal 2d), the definitional instruction on involuntary manslaughter:\n\u201cA person commits the offense of involuntary manslaughter when he unintentionally causes the death of an individual by acts which are performed recklessly and are likely to cause death or great bodily harm to another.\u201d\nThe committee note beneath the instruction states that IPI Criminal 2d No. 5.01, defining \u201crecklessness,\u201d is to be given with IPI Criminal 2d No. 7.07. In asking this court to find reversible error, the defendant relies upon People v. Bolden (1968), 103 Ill. App. 2d 377, 243 N.E.2d 687. In Bolden, the evidence was closely balanced, where the victim was stabbed by the defendant during a game of \u201ctough\u201d (i.e., fencing with knives). The only issue was whether the stabbing was murder or involuntary manslaughter. The definition of involuntary manslaughter read to the jury omitted the phrase \u201cthe act must be performed recklessly.\u201d\nThe court found the failure to mention or define the mental state of recklessness, one of the essential elements of involuntary manslaughter, was prejudicial error and deprived the defendant of a fair trial. In the case at hand, the mental state, recklessness, was mentioned in the definition of manslaughter, but it was never defined for the jury. The defense argues this was prejudicial since many jurors may have thought that recklessness meant ordinary negligence and therefore they chose murder, the only alternative.\nThe State relies on People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233, wherein the supreme court found failure to tender the definition of \u201crecklessly\u201d in conjunction with involuntary manslaughter was not a substantial defect, where there was no substantial prejudice to the defendant. In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish: (1) the defense counsel\u2019s performance deviated from an objective standard of reasonableness; and (2) the defendant was substantially prejudiced by the alleged errors, such that the verdict would have been different. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.\nThe instant case is distinguishable from Carlson in several respects. First, the Carlson court rested its holding on People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513. In Underwood, the defendant stabbed the victim three times and the central issue in the case was whether the defendant justifiably acted in self-defense. A definitional instruction on self-defense was tendered to the jury stating: \u201cA person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself ***.\u201d (Emphasis in original.) (72 Ill. 2d at 128, 378 N.E.2d at 515.) An IPI instruction defining \u201creasonably believes\u201d as \u201cacting as a reasonable man, believes that the described fact exists\u201d was neither tendered nor read to the jury by the court sua sponte. The court noted that, absent a substantial defect in the jury instructions, the court is under no obligation to give an instruction sua sponte which has not been tendered by counsel. A \u201csubstantial defect\u201d exists where the failure to tender the instruction resulted in an unfair trial. 72 Ill. 2d at 129-30, 378 N.E.2d at 515.\nIn Underwood, an additional instruction, defining \u201creasonably believes,\u201d would not have changed the outcome of the case. On two occasions, the jury was instructed as to the law on self-defense. Moreover, the words \u201creasonably believes\u201d are meant to be understood by their common meaning. A term which is employed in a general, nontechnical context need not be defined as long as nothing in the instruction obscures its meaning. This is especially true where the applicable Illinois instruction does not instruct that an additional definition is necessary. (People v. Hicks (1987), 162 Ill. App. 3d 707, 713, 516 N.E.2d 807, 812.) In the present case, the IPI instruction on involuntary manslaughter specifically refers to the definitional instruction of \u201crecklessness,\u201d which should accompany it. Moreover, \u201crecklessness\u201d may be commonly understood by a lay person to mean ordinary negligence. A juror, concluding that the defendant\u2019s acts were more than negligent, may have chosen murder, which was the only alternative presented. In actuality, IPI Criminal 2d No. 5.01 defines recklessness as a state of gross negligence or a \u201cgross deviation from the standard of care which a reasonable person would exercise in such a situation.\u201d\nIn addition, the Carlson case is factually distinguishable. The evidence does not overwhelmingly support a verdict of murder in this case. Here, the evidence is closely balanced, involving only one witness, Karen Rainey, the niece of the victim. Moreover, this involves a single stab wound inflicted during a heated conversation between the defendant and the victim, who was his best friend. Carlson involved a defendant who had just murdered his wife and when approached by police to be arrested, he began shooting, in the presence of many witnesses. In pleading involuntary manslaughter rather than murder, he based his defense on the theory that he pulled out the gun to shoot himself, not the officers.\nBased upon the specific facts in this case, we find that the improper closing remarks of the prosecutor, referring to involuntary manslaughter as a \u201ccop-out,\u201d and the failure of the court to define the mental state of recklessness for the jury constituted reversible error. We cannot conclude that, absent these errors, the verdict in this case would have been the same. We, therefore, reverse and remand for a new trial.\nReversed and remanded.\nRIZZI, J., concurs.", "type": "majority", "author": "JUSTICE TULLY" }, { "text": "JUSTICE CERDA,\ndissenting:\nI dissent because I do not believe defendant was denied effective assistance of counsel for failure to tender a jury instruction defining \u201crecklessness.\u201d I would affirm.\nPeople v. Bolden (1968), 103 Ill. App. 2d 377, 243 N.E.2d 687, is distinguishable from this case because the jury instruction given omitted any criminal intent or mental state, not just the definition of \u201crecklessness.\u201d The involuntary manslaughter instruction which is given in Bolden was as follows:\n\u201cThe Court instructs the jury, in the language of the statute, that a person who kills an individual without lawful justification, commits involuntary manslaughter if his acts, whether lawful or unlawful, which cause the death, are such as are likely to cause death or great bodily harm to some individual.\u201d Bolden, 103 Ill. App. 2d at 379-80.\nThe instruction failed to contain the concluding portion of section 9 \u2014 3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 3(a)), which stated:\n\u201cand he performs them (the criminal acts) recklessly.\u201d Bolden, 103 Ill. App. 2d at 380.\nThere was a complete omission of the word \u201creckless\u201d in the Bolden involuntary manslaughter instruction. Since the issue of defendant\u2019s concurring recklessness or lack of it was never presented to the jury in any of the instructions, the court ruled that the omission of any mental state in the jury instruction prejudiced defendant.(Bolden, 103 Ill. App. 2d at 381.) Bolden is distinguishable from both People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233, and this case.\nIn Carlson, the attorney for defendant did not tender an instruction defining \u201crecklessly.\u201d The court stated it viewed People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513, as controlling on this point. (Carlson, 79 Ill. 2d at 583.) The court further stated: \u201cIn Underwood the failure was not to instruct on an essential element of the case but was only a failure to give a definitional instruction on the meaning of \u2018reasonably believes\u2019 as used in the self-defense instruction which was given in that case. We held that the failure to sua sponte give the definitional instruction was not error. The same reasoning applies here.\u201d (Carlson, 79 Ill. 2d at 584.) The court further stated that counsel\u2019s failure to present the jury instruction defining \u201crecklessly\u201d did not result in substantial prejudice. Carlson, 79 Ill. 2d at 585.\nIn this case the jury was instructed on the essential elements involving involuntary manslaughter including mental state. The definition of \u201crecklessly\u201d has not been held to be an essential element that must be given where there is an issue of involuntary manslaughter. The failure of the attorney for defendant to submit the definitional instruction did not result in an unfair trial.\nI would affirm the conviction.", "type": "dissent", "author": "JUSTICE CERDA," } ], "attorneys": [ "Michael J. Pelletier, Janice Lynn Triptow, and James E. Chadd, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Gregory Vaci, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FLEMON HOWARD, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201488\u20142792\nOpinion filed July 15, 1992.\nMichael J. Pelletier, Janice Lynn Triptow, and James E. Chadd, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Gregory Vaci, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0386-01", "first_page_order": 406, "last_page_order": 414 }