{ "id": 1096574, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN DERR, Defendant-Appellant", "name_abbreviation": "People v. Derr", "decision_date": "2000-09-18", "docket_number": "No. 5-99-0223", "first_page": "272", "last_page": "283", "citations": [ { "type": "official", "cite": "316 Ill. App. 3d 272" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "476 N.E.2d 777", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "784" } ], "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 887", "category": "reporters:state", "reporter": "Ill. 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JOHN DERR, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE RARICK\ndelivered the opinion of the court:\nJohn Derr (defendant) was found guilty after a jury trial in the circuit court of Madison County of felony murder (robbery), involuntary manslaughter, and concealment of a homicidal death in connection with the death of Dennis Oberbeck on August 14, 1992. Defendant was sentenced to 25 years\u2019 imprisonment for felony murder (robbery), a concurrent five-year term for involuntary manslaughter, and a consecutive five-year prison term for concealment of a homicidal death. Defendant appeals, contending that the trial court erred: (1) in denying his motions for a judgment of acquittal and a new trial when the State failed to establish the essential elements of felony murder (robbery) as charged, (2) in allowing defendant\u2019s spouse to testify to her observations of defendant, (3) in allowing the prosecutor to make repeated references in closing argument to defendant\u2019s failure to present evidence, thereby denying defendant a fair trial, and (4) in entering a judgment on both the felony murder (robbery) and involuntary manslaughter verdicts, which defendant believes are inconsistent. We reverse defendant\u2019s convictions and remand this cause for a new trial.\nOn the evening of August 13, 1992, the victim, Dennis Oberbeck, was at Geno\u2019s 140 Club in Bethalto, Illinois. The victim worked as a bartender for the club, but on this evening he was drinking and socializing there. The bartender on duty testified that defendant began talking to the victim around 7 p.m. and was trying to get the victim to leave with him around 10 p.m. According to the bartender, eventually defendant, the victim, and two other men left the bar together and stood outside on the west side of the club talking. One of the two men testified that the victim asked him to lend him some money. He did not have the money to lend and left defendant and the victim alone outside the club at approximately 1:30 a.m. The fourth man, according to other witnesses, joined the three while they were already standing outside the club and was asked to leave upon approaching the group. No one testified to seeing defendant or the victim after 1:30 a.m.\nDefendant\u2019s ex-wife, who at the time of the incident was still married to defendant, testified that she was awakened by voices in her living room in the early morning hours of August 14, 1992. She recognized her husband\u2019s voice and fell back to sleep. At approximately 2 a.m., she testified that she was again awakened, this time by a telephone call. Following the phone call, she drove to a house in Granite City that she and defendant owned and met defendant at the side door. Once inside, defendant showed her a ring, similar to a class ring, with a blue stone. He then turned the lights on and off quickly, and she noted a man lying on the floor. She went over to the man and tried without success to locate a pulse. At the trial, she identified a body in a photograph as the body she had seen lying on the floor of the house. She further testified that she had not observed any bruises on the face of the body similar to those depicted in the autopsy photo. Defendant took the body from the house and put it in his van. Defendant then drove across the street onto a levee and stopped. She followed defendant in her truck. They talked for a few minutes, and defendant again showed her the ring and a silver watch, which he then tossed toward the water. They left the levee in their separate vehicles. The wife followed defendant until she had to stop suddenly at a light. When she stopped, a tractor in the back of the truck slid forward and broke the rear window of the truck. At that point, she decided to go back home. Some 30 minutes later, defendant arrived. The body of the victim was subsequently found in the lot of an abandoned house in north St. Louis. The autopsy report indicted that the victim\u2019s blood-alcohol concentration was 0.377. The pathologist who performed the autopsy testified that the victim died as a result of an elevated blood-alcohol level that impaired his brain function and that he subsequently sustained blows to the head, which caused the brain to cease functioning. The injuries to the victim\u2019s head, by themselves, could not have been fatal. The pathologist further testified that the injuries to the head were most likely caused by a fist but possibly could be attributed to a combination of falls. A wallet and a diamond wedding ring were found on the victim. The victim\u2019s wife testified that the victim also wore a bowling ring with a ruby stone and a gold watch, neither of which was ever recovered.\nDefendant raises four arguments on appeal. We address his third contention first, for we find that the prosecutor\u2019s closing argument mandates the reversal of defendant\u2019s convictions and the remandment of this cause. Defendant argues that the prosecutor\u2019s repeated references to his failure to present evidence to prove his innocence and testify at the trial denied him a fair trial. We agree.\nIn general, prosecutors are afforded wide latitude in closing argument, and usually a trial court\u2019s determination as to the propriety of such arguments will not be disturbed on review. See People v. Campbell, 199 Ill. App. 3d 775, 783, 557 N.E.2d 556, 561 (1990); People v. Sheppard, 193 Ill. App. 3d 401, 403, 549 N.E.2d 971, 972 (1990). As defendant points out, however, this wide latitude has limits. It is a basic principle of our criminal justice system that prosecutors owe defendants a duty of fairness. See People v. Yonker, 256 Ill. App. 3d 795, 798, 628 N.E.2d 1124, 1127 (1993); People v. Gutierrez, 239 Ill. App. 3d 536, 543, 605 N.E.2d 1110, 1115 (1992). This duty extends throughout the trial and includes closing statements. Simply put, the prosecutor has an ethical obligation to refrain from presenting improper and prejudicial argument. People v. Hudson, 157 Ill. 2d 401, 441, 626 N.E.2d 161, 178 (1993); Gutierrez, 239 Ill. App. 3d at 543, 605 N.E.2d at 1115. To be sure, a prosecutor is expected to prosecute with earnestness and vigor. See People v. Lyles, 106 Ill. 2d 373, 412, 478 N.E.2d 291, 308 (1985). But as the United States Supreme Court has recognized, \u201c[W]hile [the prosecutor] may strike hard blows, he [or she] is not at liberty to strike foul ones.\u201d Berger v. United States, 295 U.S. 78, 88,. 79 L. Ed. 1314, 1321, 55 S. Ct. 629, 633 (1935). In this instance, prosecutor Weber made six references in closing argument to uncontradicted and/or unrebutted evidence. We acknowledge that it is generally permissible for the.State to point out that evidence is uncontradicted even if the defendant is the only person who could have provided contrary proof. See People v. Keene, 169 Ill. 2d 1, 21, 660 N.E.2d 901, 911-12 (1995); People v. Connolly, 186 Ill. App. 3d 429, 437, 542 N.E.2d 517, 522 (1989). Such comments are not permitted, however, if they are intended or calculated to direct the attention of the jury to the defendant\u2019s failure to testify. See People v. Romero, 189 Ill. App. 3d 749, 757, 546 N.E.2d 7, 12 (1989). Mr. Weber\u2019s comments did just that. His intent and motive were made perfectly clear by his comments outside the presence of the jury in responding to defense counsel\u2019s objections. After the objection to Weber\u2019s first use of the Word \u201cuncontradicted\u201d was overruled, defense counsel commented to Weber, \u201cSo you\u2019re going to go back out and aggravate it?\u201d Weber responded: \u201cThere\u2019s no doubt about that.\u201d After repeating the word five more times, Weber then told the jury: \u201c[Defendant] sure didn\u2019t prove his innocence. He didn\u2019t prove anything.\u201d The trial judge, in responding to defense counsel\u2019s objections, stated that she believed that Weber was \u201cwalking the line.\u201d Weber retorted: \u201cBut I can tell you right now I know where the line is[.] *** I know where the line is.\u201d Our response: Mr. Weber, you do not. In our view, Weber\u2019s comments exceeded the bounds of reasonable and proper comment. They were part of a concerted effort to highlight defendant\u2019s failure to testify and shift the burden of proof. It is reversible error for the prosecution to attempt to shift the burden of proof to the defense, notwithstanding the fact that the jury is properly instructed regarding the burden of proof. See Gutierrez, 239 Ill. App. 3d at 545, 605 N.E.2d at 1116. Given the cumulative effect of the prosecutor\u2019s comments and the nature of the evidence in this case, we believe that defendant was denied a fair trial. See People v. Johnson, 102 Ill. App. 3d 122, 429 N.E.2d 905 (1981); People v. Escobar, 77 Ill. App. 3d 169, 395 N.E.2d 1028 (1979). The evidence of guilt can hardly be characterized as overwhelming; consequently, this is not a matter of harmless error. A reversal and remandment for a new trial is not only justified in this instance, it is required.\nBecause we are remanding this cause for a new trial, we must consider whether the evidence was sufficient to prove defendant\u2019s guilt beyond a reasonable doubt, in order to avoid any double jeopardy problems. See People v. Fornear, 176 Ill. 2d 523, 535, 680 N.E.2d 1383, 1389 (1997). Examining the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt (see, e.g., People v. Patton, 249 Ill. App. 3d 844, 849, 619 N.E.2d 1377, 1381 (1993)), we hold that the evidence, albeit weak and primarily circumstantial, is sufficient. The testimony of several witnesses placed defendant in the victim\u2019s company as late as 1:30 a.m. The testimony of defendant\u2019s ex-wife placed the body of the victim alone with defendant in a house they owned. There was no direct evidence of defendant killing, striking, or in any way harming the victim, but the pathologist who performed the autopsy on the victim testified that in his opinion the victim was struck several times with a fist and that the combination of the blows to the head and the victim\u2019s level of intoxication resulted in his death. A defendant\u2019s acts need not be the sole and immediate cause of death in order for the jury to find him or her guilty of murder. See People v. Lowery, 178 Ill. 2d 462, 471, 687 N.E.2d 973, 978 (1997). The State needs only to prove beyond a reasonable doubt that the defendant\u2019s actions were a contributing cause to the death such that the death did not result from a source unconnected with the defendant\u2019s acts. As often noted, the defendant must take the victim as he finds him. See Patton, 249 Ill. App. 3d at 849-50, 619 N.E.2d at 1381. Moreover, it is not necessary that the trier of fact be satisfied beyond a reasonable doubt as to each link in the chain of circumstances. See People v. McDonald, 168 Ill. 2d 420, 444, 660 N.E.2d 832, 842 (1995). The trier of fact is not required to disregard inferences that flow normally from the evidence before it, nor does it need to search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt. See People v. Campbell, 146 Ill. 2d 363, 380, 586 N.E.2d 1261, 1268 (1992). The evidence presented supports defendant\u2019s conviction for involuntary manslaughter. Defendant argues, however, that the evidence is \u201cvirtually non[ ] existent\u201d to support the conviction for felony murder (robbery). To convict a defendant of felony murder, the State must prove beyond a reasonable doubt that the defendant killed an individual without lawful justification if, in performing the acts that caused the death, he was attempting or committing a forcible felony other than second-degree murder. See 720 ILCS 5/9 \u2014 1(a)(3) (West 1992). Death does not have to be contemporaneous with the commission of the forcible felony. And the fact that the precise manner in which the death occurred may not have been foreseen does not relieve the defendant of responsibility. See People v. Brackett, 117 Ill. 2d 170, 180, 510 N.E.2d 877, 882 (1987); People v. Pugh, 261 Ill. App. 3d 75, 77-78, 634 N.E.2d 34, 36 (1994). A forcible felony includes robbery (see 720 ILCS 5/2 \u2014 8 (West 1992)), and the offense of robbery is committed when a person takes property from the person or presence of another by the use of force or by threatening the imminent use of force (see 720 ILCS 5/18 \u2014 1(a) (West 1992)). See People v. Jones, 149 Ill. 2d 288, 292, 595 N.E.2d 1071, 1073 (1992). The jury could reasonably find the use of force in this instance, given the evidence of blows sustained to the victim\u2019s head prior to his death. The evidence also revealed that a watch and a ring were taken from the victim or at least from his body. The prosecution is not required to prove in any particular order the force and taking elements of a robbery charge. The prosecution needs only to show some concurrence between the force used and the taking of the property. See People v. Williams, 118 Ill. 2d 407, 416, 515 N.E.2d 1230, 1235 (1987). The fact that the victim is reduced to a state of nonresistance before any property is taken does not relieve the crime of the quality constituting robbery. See People v. Lewis, 165 Ill. 2d 305, 339-40, 651 N.E.2d 72, 88 (1995). The prosecution does not even need to show that the force was asserted for the purpose of taking the property. See People v. Aguilar, 286 Ill. App. 3d 493, 498, 676 N.E.2d 324, 327 (1997). We agree that the circumstantial evidence presented here was sufficient to permit the trier of fact to conclude that there was a concurrence between the use of the force that resulted in the victim\u2019s death and the taking of the property from his person. We also have no problem with the sufficiency of the evidence to sustain defendant\u2019s conviction for the concealment of a homicidal death. According to defendant\u2019s former wife, the body of the victim was put in defendant\u2019s van, and defendant drove off, threw some of the victim\u2019s possessions in the river, and later returned home with an empty van. The body of the victim was subsequently found in the backyard of an abandoned building in north St. Louis.\nBecause we are reversing defendant\u2019s convictions and remanding this cause for a new trial, we choose not to address defendant\u2019s contention that his guilty verdicts for involuntary manslaughter and felony murder (robbery) are legally inconsistent. We must address, however, his second contention on appeal \u2014 that the court erred in allowing defendant\u2019s former spouse to testify to her observations of defendant\u2019s actions on August 14, 1992, in violation of the marital privilege, as this issue most assuredly will resurface on a retrial.\nIn Illinois a husband or a wife may testify for or against each other in criminal cases, provided that neither may testify as to any communication or admission made by either of them to the other or as to any conversation between them during the marriage. See People v. Layne, 286 Ill. App. 3d 981, 989, 677 N.E.2d 469, 475 (1997); People v. Muzard, 210 Ill. App. 3d 200, 212, 569 N.E.2d 26, 32 (1991). The admission of evidence in violation of the marital privilege, if it contributes to a guilty verdict, constitutes the denial of a fair trial and requires a reversal. Muzard, 210 Ill. App. 3d at 212, 569 N.E.2d at 32-33.\nImplicit in the term \u201ccommunication\u201d is speech. See People v. Krankel, 105 Ill. App. 3d 988, 991, 434 N.E.2d 1162, 1164 (1982). Certain acts, however, may also constitute communication, such as a nod of the head. See People v. Murphy, 241 Ill. App. 3d 918, 924, 609 N.E.2d 755, 760.(1992); Krankel, 105 Ill. App. 3d at 991, 434 N.E.2d at 1164. In order to fall within the privilege, though, the nonverbal conduct must clearly be a substitute for oral communications. The mere description by one spouse of general, noncommunicative conduct is not protected by the marital privilege. See Krankel, 105 Ill. App. 3d at 991, 434 N.E.2d at 1164; see also People v. Krankel, 131 Ill. App. 3d 887, 894-95, 476 N.E.2d 777, 784 (1985). We agree with the State that the former wife\u2019s testimony in this instance did not constitute \u201ccommunications\u201d within the intendments of any marital privilege, and therefore the trial court did not abuse its discretion in allowing her testimony.\nFor the aforementioned reasons, we reverse defendant\u2019s convictions and remand this cause for a new trial.\nReversed; cause remanded.\nGOLDENHERSH, EJ., concurs.", "type": "majority", "author": "JUSTICE RARICK" }, { "text": "JUSTICE WELCH,\ndissenting:\nIn United States v. Hasting, 461 U.S. 499, 76 L. Ed. 2d 96, 103 S. Ct. 1974 (1983), the United States Supreme Court held that a court may not use the reversal of a criminal conviction as a means to punish or deter perceived prosecutorial misconduct in closing argument where the improper argument amounts to harmless error. In the instant case, the majority has disregarded the Supreme Court\u2019s admonition. The prosecutor\u2019s closing argument in the case at bar, even if improper, amounts to no more than harmless error and does not warrant the reversal of defendant\u2019s conviction. Accordingly, I dissent.\nIn Hasting, the prosecutor argued in closing as follows:\n\u201c \u2018Let\u2019s look at the evidence the defendants] put on here for you so that we can put that in perspective. I\u2019m going to tell you what the defendants] did not do.\u2019 \u201d 461 U.S. at 502, 76 L. Ed. 2d at 101-02, 103 S. Ct. at 1977.\nDefense counsel objected and moved for a mistrial, which was denied. The defendants were convicted on the basis of overwhelming evidence of guilt. The court of appeals reversed the conviction, declining to rely on the harmless-error doctrine, stating that the application of that doctrine would impermissibly compromise the clear violation of a defendant\u2019s constitutional right not to incriminate himself. See Hasting, 461 U.S. at 503, 76 L. Ed. 2d at 102-03, 103 S. Ct. at 1977.\nIn its opinion, the Supreme Court found that, notwithstanding the harmless nature of the error, the court of appeals acted to discipline the prosecutor and warn other prosecutors for what it perceived to be repeated errors in closing argument. See Hasting, 461 U.S. at 504, 76 L. Ed. 2d at 103, 103 S. Ct. at 1978. The Supreme Court held that the court of appeals could not ignore the harmless-error doctrine simply to justify the reversal of a criminal conviction. Hasting, 461 U.S. at 505, 76 L. Ed. 2d at 104, 103 S. Ct. at 1978. The Supreme Court then went on to discuss the harmless-error doctrine, holding that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations. Hasting, 461 U.S. at 509, 76 L. Ed. 2d at 106, 103 S. Ct. at 1980. The Supreme Court held that even absent the prosecutor\u2019s allusion to the failure of the defendants to proffer evidence to rebut the State\u2019s evidence, it was clear beyond a reasonable doubt that the jury would have returned a verdict of guilty. Hasting, 461 U.S. at 510-11, 76 L. Ed. 2d at 107, 103 S. Ct. at 1981. Accordingly, any error in the prosecutor\u2019s closing argument was harmless, and the conviction could not be overturned on that basis.\nIn the case at bar, I fear that the majority is reversing defendant\u2019s conviction in order to punish the prosecutor for what it perceives to be his improper closing argument and not because the majority believes that the prosecutor\u2019s closing argument seriously prejudiced defendant and deprived him of a fair trial. As the Supreme Court held in Hasting, a court of review may not reverse a conviction to punish a prosecutor, but it must engage in a harmless-error analysis to determine whether the defendant was substantially prejudiced by the prosecutor\u2019s improper closing argument.\nIn Illinois, improper closing arguments warrant a reversal only where they result in substantial prejudice to the defendant, considering the content and context of the language, its relationship to the evidence, and its effect on the defendant\u2019s right to a fair and impartial trial. People v. Kliner, 185 Ill. 2d 81, 151-52 (1998). In Kliner, our supreme court held that even error resulting from the prosecutor\u2019s comment in closing argument on the defendant\u2019s failure to testify does not require a reversal where the reviewing court is able to conclude upon an examination of the entire record that the error was harmless beyond a reasonable doubt. 185 Ill. 2d at 157.\nUnlike the majority, then, I would engage in a harmless-error analysis to determine whether defendant was substantially prejudiced by the prosecutor\u2019s closing argument. I begin with the content and context of the language used by the prosecutor. In my opinion, the majority unfairly characterizes the nature of the prosecutor\u2019s comments and the exchanges between the prosecutor, defense counsel, and the trial judge. The majority takes the prosecutor\u2019s comments out of context and attempts to portray them as having been made defiantly. I simply do not read the record that way.\n\u201cClosing arguments must be viewed in their entirety, and remarks must be viewed in context.\u201d People v. Armstrong, 183 Ill. 2d 130, 146 (1998). Reading the record of closing arguments and the discussion at the trial regarding those arguments, I do not believe that the prosecutor intended to direct the attention of the jury to defendant\u2019s failure to testify, nor do I believe that his comments had that effect. Finally, I do not believe that any of the comments were made defiantly. For example, the prosecutor\u2019s first reference to the evidence being unrebutted occurred as follows:\n\u201cWe\u2019ve also showed [sic] you that this clearly without any question at all was a robbery. How did this [defendant] get possession of this 300 bowling ring from Dennis Oberbeck who wanted to leave the ring to his son who would never give it up, he would never pawn it, he would never trade it in[?] The only time he took it off was when he went to bed.\nDid he give it up willingly? The evidence is completely unrebutted that that\u2019s not what happened.\u201d\nUpon defendant\u2019s objection, a discussion was held outside the presence of the jury. The prosecutor insisted that under the law in Illinois he could properly comment on the unrebutted nature of the State\u2019s evidence. Defense counsel insisted that he could not. The trial court did not sustain defendant\u2019s objection. The prosecutor stated that he was going to further comment on the unrebutted nature of the State\u2019s evidence. When defense counsel asked, \u201cSo you\u2019re going to go back out and aggravate it?\u201d the prosecutor responded, \u201cThere\u2019s no doubt about that.\u201d The prosecutor did repeat his argument that the State\u2019s evidence was uncontradicted and unrebutted in various respects.\nThe prosecutor\u2019s comment that defendant had failed to prove his innocence and had not proven anything was made in direct response to defense counsel\u2019s closing argument that defendant did not have to prove his innocence. The prosecutor responded in rebuttal argument:\n\u201c[Defense counsel] has told you that the defendant is not required to prove his innocence and that\u2019s true, and for the defendant that\u2019s probably really good because he sure didn\u2019t prove his innocence. He didn\u2019t prove anything.\u201d\nDefense counsel\u2019s objection was sustained, the comment was stricken, and the jury was immediately instructed to disregard it.\nThe prosecutor\u2019s comments about knowing where the line was occurred in the following exchange:\n\u201cTHE COURT: Well, I just want to make the record clear. I think you were walking the line. You walked the line.\nMR. WEBER: And I know where the line is.\n* ifc *\nMR. MARGUEIS: No, I think it would have been plain error.\nMR. WEBER: It\u2019s not. But I can tell you right now I know what the line is.\u201d\nReading these comments in context, I cannot agree with the majority\u2019s conclusion that they were made defiantly or with the intent and motive to direct the jury\u2019s attention to defendant\u2019s failure to testify.\nLooking at the prosecutor\u2019s comments in relationship to the evidence and their effect on defendant\u2019s right to a fair trial, I do not believe that the comments, made during the course of lengthy closing arguments, were so egregious as to cause substantial prejudice to defendant. The most egregious of the comments, that defendant had failed to prove his innocence, was immediately cured by defendant\u2019s timely objection and the trial court\u2019s striking of the statement and instruction to the jury to disregard it. \u201cA trial judge\u2019s prompt action in sustaining an objection to improper argument is generally sufficient to cure the error.\u201d People v. Arman, 131 Ill. 2d 115, 127 (1989). Furthermore, the jury was properly instructed that the State has the burden of proving the guilt of the defendant beyond a reasonable doubt, that this burden remains on the State throughout the case, and that the defendant is not required to prove his innocence. The jury was also instructed that the fact that the defendant did not testify could not be considered in any way in arriving at a verdict. These instructions go a long way toward ameliorating, if not curing, any error resulting from the prosecutor\u2019s closing argument. See People v. Tate, 45 Ill. 2d 540, 546 (1970). While the evidence of guilt in this case is not overwhelming and is primarily circumstantial, it is not, as the majority characterizes it, weak. In light of all the evidence of guilt, the prosecutor\u2019s comments could not have so prejudiced defendant as to deprive him of a fair trial. Even if the prosecutor\u2019s comments had not been made, it remains clear beyond a reasonable doubt that the jury would have returned a verdict of guilty. See Hasting, 461 U.S. at 510-11, 76 L. Ed. 2d at 107, 103 S. Ct. at 1981.\nI note that our supreme court has repeatedly held comments similar to those made by the prosecutor in the case at bar to be harmless error. In People v. Kliner, 185 Ill. 2d 81, 157 (1998), the prosecutor had commented on the \u201cunrebutted\u201d nature of some of the State\u2019s evidence. The supreme court held that even if the prosecutor\u2019s argument had been improper, it did not deprive the defendant of a fair trial where the defendant\u2019s rights were sufficiently safeguarded when the trial judge, at the close of the evidence, instructed the jurors that the defendant\u2019s decision not to testify should not be considered by them in rendering a verdict. Kliner, 185 Ill. 2d at 159-60.\nIn People v. Arman, 131 Ill. 2d 115, 125 (1989), the prosecutor commented that the jury had heard \u201cno other explanation\u201d for the defendant\u2019s presence at the scene of a crime. The supreme court held on review that this comment constituted an impermissible comment on the defendant\u2019s failure to testify, but the court found it to be harmless error. Arman, 131 Ill. 2d at 126. The court held that, despite the occurrence of constitutional error at the trial, a defendant\u2019s conviction may be affirmed if the reviewing court concludes, upon the entire record, that the error was harmless beyond a reasonable doubt. Arman, 131 Ill. 2d at 127.\nIn People v. Tate, 45 Ill. 2d 540, 544-45 (1970), the prosecutor argued that the State\u2019s evidence was uncontradicted and that the defendant had offered no explanation for his possession of a stolen car. The supreme court held that, when read in the context of the entire trial record, any error occasioned by the prosecutor\u2019s fleeting statement was harmless beyond a reasonable doubt. See Tate, 45 Ill. 2d at 545-46. The jury had been correctly instructed that the State had the burden of proving the defendant guilty beyond a reasonable doubt, that this burden remained on the State throughout the case, and that the defendant was not required to prove his innocence. Tate, 45 Ill. 2d at 546. The supreme court concluded that the prosecutor\u2019s comment could have had no effect on the jury\u2019s verdict. Tate, 45 Ill. 2d at 546. Finally, I note that even the trial court, which presided over the entire trial, did not believe that defendant had been substantially prejudiced and deprived of a fair trial by the prosecutor\u2019s comments in closing argument. The trial court denied defendant\u2019s motion for a mistrial and defendant\u2019s posttrial motion for a judgment of acquittal or a new trial. \u201cThe trial court has discretion to determine the proper character, scope[,] and prejudicial effect of closing arguments.\u201d Kliner, 185 Ill. 2d at 151. Indeed, the trial court is in the best position to determine the prejudicial effect of a remark made during closing argument, and, therefore, absent a clear abuse of discretion, its ruling should be upheld. People v. Maori, 185 Ill. 2d 1, 51 (1998). In the instant case, the trial court determined that defendant was not sufficiently prejudiced by the prosecutor\u2019s improper argument to warrant granting defendant\u2019s motion for a mistrial. While recognizing the prosecutor\u2019s argument as being close to, if not over, the line of propriety, the trial court found that defendant\u2019s objections and the court\u2019s instruction to the jury to disregard the improper argument cured any error and rendered a mistrial unnecessary.\nAccordingly, for the foregoing reasons, I must dissent from the opinion and the decision of the majority.", "type": "dissent", "author": "JUSTICE WELCH," } ], "attorneys": [ "Douglas E Roller, of Husch & Eppenberger, L.L.C., of St. Louis, Missouri, for appellant.", "William Haine, State\u2019s Attorney, of Edwardsville (Norbert J. Goetten, Stephen E. Norris, and Patrick D. Daly, 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. JOHN DERR, Defendant-Appellant.\nFifth District\nNo. 5-99-0223\nOpinion filed September 18, 2000.\nWELCH, J., dissenting.\nDouglas E Roller, of Husch & Eppenberger, L.L.C., of St. Louis, Missouri, for appellant.\nWilliam Haine, State\u2019s Attorney, of Edwardsville (Norbert J. Goetten, Stephen E. Norris, and Patrick D. Daly, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0272-01", "first_page_order": 292, "last_page_order": 303 }