{ "id": 511431, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEOPOLDO Z. BARRAZA, Defendant-Appellant", "name_abbreviation": "People v. Barraza", "decision_date": "1999-03-31", "docket_number": "No. 2\u201497\u20140895", "first_page": "794", "last_page": "799", "citations": [ { "type": "official", "cite": "303 Ill. App. 3d 794" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "76 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2982988 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/76/0289-01" ] }, { "cite": "259 Ill. App. 3d 770", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2870982 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "784" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0770-01" ] }, { "cite": "195 Ill. App. 3d 135", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2492982 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/195/0135-01" ] }, { "cite": "183 Ill. App. 3d 752", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2629531 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "756" }, { "page": "754" }, { "page": "756" }, { "page": "757-58" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/183/0752-01" ] }, { "cite": "164 Ill. 2d 279", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 476988 ], "year": 1995, "pin_cites": [ { "page": "295" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0279-01" ] }, { "cite": "236 Ill. App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5784416 ], "year": 1992, "pin_cites": [ { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/236/0097-01" ] }, { "cite": "157 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 778576 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "441" }, { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/157/0401-01" ] }, { "cite": "147 Ill. 2d 173", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3278448 ], "year": 1991, "pin_cites": [ { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0173-01" ] } ], "analysis": { "cardinality": 634, "char_count": 11308, "ocr_confidence": 0.784, "pagerank": { "raw": 8.769526287977481e-08, "percentile": 0.4954169142679747 }, "sha256": "629519d6f9a8ce9c70a4b05a575b9f7e6797623b418ffdb1e4ff271f4c357d1e", "simhash": "1:b9604459717ceeaa", "word_count": 1893 }, "last_updated": "2023-07-14T16:41:17.679955+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. LEOPOLDO Z. BARRAZA, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE INGLIS\ndelivered the opinion of the court:\nDefendant, Leopoldo Barraza, appeals his conviction of aggravated criminal sexual abuse (720 ILCS 5/12\u201416(c)(1) (West 1996)). Defendant contends that (1) he was denied a fair trial by the prosecutor\u2019s closing argument in which he argued facts outside the record and personally vouched for the credibility of the State\u2019s witnesses, and (2) that his fine must be vacated because the trial court failed to determine that he was able to pay.\nDefendant was indicted on two counts of aggravated criminal sexual abuse for acts he allegedly committed against A.D. and S.D. A.D. testified that in 1994 she lived with her mother, her stepfather, her sister, and her brother in Rockford. Defendant and his \u201cwife,\u201d Andrea, also lived with them. (It appears that defendant was not actually married to Andrea at this time, although they later married.)\nA.D. testified that defendant touched her in bad ways approximately eight times. Once, when she was doing the dishes, defendant came up behind her and started rubbing her shoulders. He then touched her breasts over and under her shirt. She told him to stop and he left the room. Defendant did the same thing another time when A.D. was doing homework. A third time, while she was sitting on the couch, defendant \u201cwent to go between\u201d her legs, but she pushed him away.\nS.D. testified that once while she was watching television defendant reached over and grabbed her between her legs. She then got up and left the room.\nA.D. testified that she did not tell anyone about these incidents until January 1997 because she did not want to ruin her mother\u2019s friendship with Andrea and because she was afraid her father would get custody of her. She eventually confided in some friends and then talked to a school counselor.\nRockford police officer Raymond Gonzales testified that he interviewed defendant in Spanish and defendant gave a statement. Defendant said that once in May or June 1994 he started to massage A.D.\u2019s shoulders while she was doing dishes. She acted like she did not like it, so he left the room. Another time, he walked into the living room while A.D. was watching television. He sat on the armrest and put his arm around her to give her a friendly hug. He accidentally touched her breast but did not intend the contact to be sexual. Another time, A.D. was sitting on the floor watching television and he playfully pushed her left shoulder. As he did so, his hand slipped off her shoulder onto her chest and she fell over onto her side. Defendant denied ever touching A.D. or S.D. in a sexual manner.\nDefendant testified and denied touching A.D. or S.D. for sexual gratification. The jury found defendant guilty of the aggravated criminal sexual abuse of A.D. but not guilty as to S.D. The court sentenced him to four years in prison. After his posttrial motion was denied, defendant filed a timely notice of appeal.\nDefendant first contends that the prosecutor\u2019s rebuttal closing argument denied him a fair trial. In his closing argument, defense counsel suggested that A.D. and S.D. were not credible because they waited more than two years to report the alleged abuse. In rebuttal, the prosecutor recounted at length a conversation he had had with his 10-year-old daughter. The prosecutor stated that although he had repeatedly told his daughter to tell him if she received a \u201cbad touch,\u201d she stated that if she were touched inappropriately she would not tell anyone about it because it would be too uncomfortable to talk about it.\nDefense counsel objected to this argument twice. After the first objection, the trial court told the jury:\n\u201cLadies and gentlemen, I want to explain to you that you are the judges of the facts of this case and Mr. Smith is giving you an example. But the facts of this \u2014 but the facts of this example are not a recitation or a summary of the facts of this case. So I want you to take his comments with the understanding that he\u2019s giving you an example so that you can analyze that example to the issues that you have to determine in this case.\u201d\nFollowing the second objection, the court admonished the jury as follows:\n\u201cLadies and gentlemen, I want to again remind you that the facts of this incident or this chain of events that Mr. Smith is telling you does not have anything to do with the facts of this case other than providing an example of an incident from which Mr. Smith wishes to make certain analogies to this case. But those facts are not connected with this case and you cannot \u2014 should not considered [sic] them as any way related to the factual circumstances involved in the case that\u2019s before you.\u201d\nAfter the jury began deliberating, the trial court stated that it was troubled by the prosecutor\u2019s anecdote. The court called the jury back into the courtroom and stated as follows:\n\u201cLadies and gentlemen, I just want to interrupt your deliberations just for a minute to clarify something for you. During his closing arguments, Mr. Smith advised you of what I called an example regarding a child reporting sexual abuse and I don\u2019t want to mislead you or to leave this ambiguous in your mind and maybe the word \u2018example\u2019 is not strong enough. I would like you to think of it as a hypothetical rather than as an example.\nMr. Smith is arguing from common experiences in life what a child might do in this reporting of sexual abuse context. I don\u2019t want you to conclude or assume in your deliberation that these events actually happened. I want you to think of them as fiction.\nThose events are not evidence in this case and must not be considered or regarded by you as evidence. They\u2019re simply Mr. Smith\u2019s way of making inferences from common experience in life to try to draw you to certain conclusions.\u201d\nDefendant contends that the prosecutor\u2019s \u201canecdote\u201d about a conversation with his daughter injected into the case facts not in evidence, improperly expressed the prosecutor\u2019s personal opinion of the witnesses\u2019 credibility, and appealed to the jury\u2019s sympathy. Defendant claims that the trial court\u2019s remarks only confused the jury about how to consider the prosecutor\u2019s remarks.\nA prosecutor is allowed a great deal of latitude in closing argument. People v. Williams, 147 Ill. 2d 173, 231 (1991). A prosecutor may comment upon the facts in evidence or the reasonable inferences therefrom. People v. Hudson, 157 Ill. 2d 401, 441 (1993); People v. Wicks, 236 Ill. App. 3d 97, 108 (1992). Even if a prosecutor\u2019s remarks are improper, they will not be reversible error unless they result in substantial prejudice such that absent those remarks the verdict would have been different. Hudson, 157 Ill. 2d at 441. The regulation of closing arguments is within the trial court\u2019s discretion, and its determination of the propriety of closing remarks will not be disturbed absent a clear abuse of discretion. People v. Byron, 164 Ill. 2d 279, 295 (1995).\nGenerally, a prosecutor may not vouch for the credibility of a witness or express personal opinions about the case. The prosecutor may comment on a witness\u2019s credibility only if the remarks are fair inferences from the evidence. People v. Hayes, 183 Ill. App. 3d 752, 756 (1989).\nIn Hayes, defendant was convicted of aggravated criminal sexual assault and other offenses arising from his attack on a woman who was walking to a gas station to get cigarettes. Hayes, 183 Ill. App. 3d at 754. In closing argument, the prosecutor told a personal story about being followed by a man as she walked to the store to get cigarettes. The appellate court held that the prosecutor improperly bolstered the victim\u2019s credibility and appealed to the jury\u2019s passions and prejudices. \u201cShe went far beyond any comment on the evidence and improperly placed the integrity of the State\u2019s Attorney\u2019s office behind the credibility of this witness.\u201d Hayes, 183 Ill. App. 3d at 756. Moreover, because the evidence against defendant was not overwhelming and rested largely on the victim\u2019s credibility, the error mandated reversal. Hayes, 183 Ill. App. 3d at 757-58.\nThe remarks in the present case are similar to those in Hayes. The prosecutor attempted to bolster the victims\u2019 credibility and elicit sympathy for them by telling a personal story about a conversation with his daughter. These facts were not in evidence and could only serve to improperly bolster the victims\u2019 credibility by implying that any child might be reluctant to discuss sexual abuse.\nMoreover, as in Hayes, the evidence against defendant was not overwhelming. The State\u2019s case consisted almost entirely of the victims\u2019 testimony. No one corroborated the victims\u2019 testimony that they complained to others. There was no physical evidence. The improper argument is all the more serious because defendant\u2019s conviction rested almost entirely on the jury\u2019s assessment of the victims\u2019 credibility. The jury apparently had some doubts about the victims\u2019 credibility because it found defendant not guilty of the charges involving S.D. Thus, we cannot say that the improper argument was not a material factor in defendant\u2019s conviction.\nWe also agree with defendant that the trial court\u2019s comments may have confused the jury about its ability to consider the prosecutor\u2019s comments. The court first stated that the remarks should be considered an \u201cexample,\u201d then a \u201chypothetical,\u201d and finally \u201cfiction.\u201d The jury may have been unclear as to what to do with this information.\nThe cases on which the State relies are distinguishable. In People v. Siefke, 195 Ill. App. 3d 135 (1990), the trial court sustained defendant\u2019s objection to the improper comments. We held that sustaining the objection cured any prejudice resulting from the prosecutor\u2019s isolated comment. Siefke, 195 Ill. App. 3d at 146. In People v. Morgan, 259 Ill. App. 3d 770 (1994), the comment was also an isolated reference. Defendant failed to preserve the issue for review and the appellate court considered it only to the extent of determining whether counsel was ineffective for failing to object to the comments. Morgan, 259 Ill. App. 3d at 784. Here, the comments were much more extensive, the trial court failed to sustain the objection, and defendant preserved the issue for review.\nBecause defendant was prejudiced by the prosecutor\u2019s improper argument, he is entitled to a new trial. Pursuant to People v. Taylor, 76 Ill. 2d 289 (1979), we have reviewed the evidence and find that it was sufficient to prove defendant\u2019s guilt beyond a reasonable doubt. Therefore, double jeopardy principles do not bar a retrial, although this in no way constitutes a holding that is binding on retrial. Because of our disposition of this issue, we need not reach defendant\u2019s second contention.\nThe judgment of the circuit court of Winnebago County is reversed, and the cause is remanded for a new trial.\nReversed and remanded.\nBOWMAN, EJ, and HUTCHINSON, J., concur.", "type": "majority", "author": "JUSTICE INGLIS" } ], "attorneys": [ "G. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, and Karen L. Daniel, of Oak Park, for appellant.", "Paul A. Logli, State\u2019s Attorney, of Rockford (John X. Breslin and Terry A. Mertel, both 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. LEOPOLDO Z. BARRAZA, Defendant-Appellant.\nSecond District\nNo. 2\u201497\u20140895\nOpinion filed March 31, 1999.\nG. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, and Karen L. Daniel, of Oak Park, for appellant.\nPaul A. Logli, State\u2019s Attorney, of Rockford (John X. Breslin and Terry A. Mertel, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0794-01", "first_page_order": 812, "last_page_order": 817 }