{ "id": 2792651, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Russell Oliger, Defendant-Appellant", "name_abbreviation": "People v. Oliger", "decision_date": "1975-10-27", "docket_number": "No. 74-85", "first_page": "889", "last_page": "893", "citations": [ { "type": "official", "cite": "32 Ill. App. 3d 889" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "66 Ill.App.2d 465", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5291300 ], "year": 1966, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/66/0465-01" ] }, { "cite": "90 S.Ct. 927", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1970, "opinion_index": 0 }, { "cite": "25 L.Ed.2d 100", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1970, "opinion_index": 0 }, { "cite": "397 U.S. 919", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12068360, 12068206, 12068435, 12068149, 12068280 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0919-04", "/us/397/0919-02", "/us/397/0919-05", "/us/397/0919-01", "/us/397/0919-03" ] }, { "cite": "114 Ill.App.2d 298", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1588953 ], "year": 1989, "pin_cites": [ { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/114/0298-01" ] }, { "cite": "14 Ill.App.3d 495", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2688531 ], "year": 1973, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0495-01" ] }, { "cite": "46 Ill.2d 554", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2900728 ], "year": 1970, "pin_cites": [ { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0554-01" ] }, { "cite": "13 Ill.App.3d 31", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5345836, 5344006 ], "year": 1973, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0031-02", "/ill-app-3d/13/0031-01" ] }, { "cite": "77 S.Ct. 1062", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1957, "opinion_index": 0 }, { "cite": "1 L.Ed.2d 1138", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1957, "opinion_index": 0 }, { "cite": "353 U.S. 975", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6216098, 6215242, 6216303, 6215764, 6214967, 6214682, 6215518 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/us/353/0975-06", "/us/353/0975-03", "/us/353/0975-07", "/us/353/0975-05", "/us/353/0975-02", "/us/353/0975-01", "/us/353/0975-04" ] }, { "cite": "10 Ill.2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2724498 ], "year": 1957, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/10/0237-01" ] }, { "cite": "10 Ill.2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2724228 ], "weight": 2, "year": 1956, "pin_cites": [ { "page": "83-84" }, { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/10/0074-01" ] }, { "cite": "407 Ill. 337", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2640134 ], "weight": 2, "year": 1950, "pin_cites": [ { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/ill/407/0337-01" ] }, { "cite": "380 U.S. 609", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524757 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0609-01" ] }, { "cite": "56 Ill.2d 461", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405143 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/56/0461-01" ] }, { "cite": "4 Ill.2d 414", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2701566 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/ill-2d/4/0414-01" ] }, { "cite": "20 Ill.App.3d 756", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5347590 ], "year": 1974, "pin_cites": [ { "page": "760" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0756-01" ] }, { "cite": "50 Ill.2d 196", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2912609 ], "year": 1971, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/50/0196-01" ] }, { "cite": "90 S.Ct. 955", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1970, "opinion_index": 0 }, { "cite": "25 L.Ed.2d 122", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1970, "opinion_index": 0 }, { "cite": "397 U.S. 942", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12077440, 12077394, 12077208, 12077274, 12077115, 12077341 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0942-06", "/us/397/0942-05", "/us/397/0942-02", "/us/397/0942-03", "/us/397/0942-01", "/us/397/0942-04" ] }, { "cite": "42 Ill.2d 115", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2847612 ], "year": 1969, "pin_cites": [ { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0115-01" ] }, { "cite": "31 Ill.2d 200", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2832338 ], "year": 1964, "pin_cites": [ { "page": "201-02" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/31/0200-01" ] }, { "cite": "24 Ill.App.3d 429", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5311254 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0429-01" ] } ], "analysis": { "cardinality": 602, "char_count": 9603, "ocr_confidence": 0.705, "pagerank": { "raw": 1.9179798280767778e-07, "percentile": 0.7325670338309299 }, "sha256": "38c03a116ba73a667d27bb991e72071eed7fdc2439f65a45190a5f658326ca15", "simhash": "1:79e2cab93906ed47", "word_count": 1558 }, "last_updated": "2023-07-14T16:14:58.460223+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. Russell Oliger, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE THOMAS J. MORAN\ndelivered the opinion of the court:\nDefendant appeals after a jury found him guilty of rape and robbery. He was sentenced to imprisonment for 4 to 12 years in the rape conviction and 1 to 3 years for robbery, the sentences to run concurrently.\nTwo police officers discovered the defendant having sexual intercourse with the prosecutrix in the outer lobby of a bank in Rockford at about 11:35 p.m. on November 21, 1972. The prosecutrix told the officers she was being raped, and warned them that defendant had said he. had a gun. No weapon was found.\nIn a signed statement, defendant claimed that he had picked the woman up in a bar shortly before, that she had accompanied him to the bank willingly and had- consented to his sexual- advances.\nProsecutrix testified that she had been babysitting for a cousin until 11:15 or 11:30 that evening; that on leaving her cousin\u2019s home, she stopped to purchase' groceries and then went to the bank to make a night deposit; that defendant there approached her, demanded her money and then forced her to have intercourse with him under threat that he would kill her if she did not do as he wanted.\nDefendant did not testify at trial. The prosecutrix\u2019s account of her whereabouts was corroborated by her cousin and by grocery store personnel. A blood-alcohol, test of a sample of her blood, drawn shortly after the incident, was negative. The bartender at tire tavern where defendant assertedly picked up the prosecutrix denied that defendant had been there that evening after 10 p.m., when the bartender came on duty.\nDefendant now argues that the rape statute under which he was convicted (Ill. Rev. Stat. 197-1, ch. 38, \u00a7 11 \u2014 1), is unconstitutional as denying him, on the basis of sex, equal protection under the law. Such ah argument was recently rejected by this court in People v. Medrano, 24 Ill.App.3d 429 (1974). Moreover, this issue was not raised in the trial court. The question of the constitutionality of a statute is properly presented for review only when it has been raised and passed on by the trial court. People v. Hale, 31 Ill.2d 200, 201-02 (1964); People v. Luckey, 42 Ill.2d 115, 117 (1969), cert denied, 397 U.S. 942, 25 L.Ed.2d 122, 90 S.Ct. 955 (1970); People v. Amerman, 50 Ill.2d 196, 197 (1971).\nDefendant next argues that he was denied a fair trial by the introduction of evidence of other offenses. This argument stems from the fact that one of the police officers who investigated the incident testified that, on the night of the incident, he went to the tavern where defendant claimed to have picked up prosecutrix, and the State then elicited testimony that the officer had taken with him \u201csome police indentification photographs of Mr. Oliger,\u201d Defense counsel objected and stated in chambers that such testimony irreparably prejudiced defendants trial because it amounted to a reference to defendant\u2019s past offenses for purposes other than impeachment. The trial court concluded that the evidence presented gave no indication that the photos were not merely snapshots taken on the night of the incident. The court stated that it would consider a motion for a mistrial if further evidence indicated an insufficient time interval between the arrest and the use of the photos for identification purposes. The State offered to stipulate that the photos were taken that night. We have closely examined the record in this case, and we agree with the trial court that the reference to the identification photographs, under the circumstances, did not carry with it an inference of prior offenses.\nDefendant cites cases for the proposition that the introduction of so-called \u201cmug-shots\u201d can be prejudicial in a criminal trial. We, however, find his citations inapplicable to the case at hand where the photographs were not shown to the jury. Mere mention of police photographs, without display of a dated legend which reveals a prior booking record, does not identify the picture with prior offenses. Moreover, such photographs, with the legends' blocked out, have been properly introduced into evidence to show how a defendant could have been identified from photographs. (See People v. Smith, 20 Ill.App.3d 756, 760 (1974).) In the case at hand, the testimony surrounding these photographs was relevant to the impeachment of defendant\u2019s stoiy of having been in a particular tavern on the night in question and there having picked up tire prosecutrix. No error was committed by the mention of the photos.\nDefendant argues that certain remarks about defense counsel which were made by the prosecution in final argument were improper and so prejudicial as to deny defendant a fair trial. The prosecutor referred to defense counsel several times as a \u201cclever lawyer,\u201d one whose every argument \u201chas been designed with this cleverness.\u201d He also referred to defendant\u2019s version of the incident as \u201ca concocted bull story,\u201d and said defense counsel had \u201cin fact called prosecution\u2019s witnesses liars,\u201d when the defense had used no such term.\nDefendant cites several cases to support his contention that the prosecutor\u2019s remarks regarding defense counsel constituted prejudicial error. We find his cases clearly distinguishable from the case at hand. In People v. Freedman, 4 Ill.2d 414 (1954), the court reversed where the prosecutor had made repeated references to the defense counsel as that \u201cclever lawyer,\u201d but, the court pointed out, the case was close and the evidence highly conflicting on the issue of whether the defendant was intoxicated and thereby unable to form the specific intent required. The improper argument in that case suggested that defense counsel had told defendant that he should say he was drunk. The instant case was not close, nor were the improper remarks related to any critical element in the defense.\nIn People v. Stock, 56 Ill.2d 461 (1974), the reviewing court reversed on the basis of many prejudicial errors in the argument of the prosecutor, errors including prosecutors accusation that the defense counsel suborned perjury and referred to defendant\u2019s failure to take the stand. The latter comment itself would have constituted reversible error under Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229 (1965). No such comments occurred here. Neither, in the instant case, does the remark about defendant\u2019s \u201cconcocted bull story\u201d cany any necessary implication that the story was manufactured by defense counsel as was the situation in Stock, and as was the situation in the case of People v. Polenik, 407 Ill. 337 (1950).\nIn Polenik, the prosecutor stated, \u201cDefense lawyers, who practice criminal law day in and day out, they are the ones that concoct these defenses * * (People o. Polenik, 407 Ill. 337, 348 (1950).) In the context of the evidence presented in the instant case, we believe that the reference to a \u201cconcocted bull story\u201d referred to defendant\u2019s statement of what happened rather than to counsel\u2019s theory of the case, and consider the remark within tire bounds of proper argument. (See People v. Halteman, 10 Ill.2d 74, 83-84 (1956).) The Polenik case is further distinguishable from the case at bar because of that prosecutor\u2019s glaringly improper argument to the jurymen that he would \u201ctake responsibility for the death penalty\u201d if they had any feeling that they could not give it; the jury did impose the death penalty. No such glaring error is present here.\nWhile comments about defense counsel are not proper argument and are not to be condoned by the court, the instances complained of by defendant were not reversible error. Reversible error occurs when it appears that the acts complained of influenced the jury to the substantial prejudice of the defendant. (People v. Lopez, 10 Ill.2d 237, 241 (1957), cert. denied, 353 U.S. 975, 1 L.Ed.2d 1138, 77 S.Ct. 1062 (1957).) In considering whether improper argument constitutes prejudicial error, die test is \u201cwhether the verdict of the jury would have been otherwise had tire improper remarks not been made.\u201d (People v. Campbell, 13 Ill.App.3d 31, 33 (1973), citing People v. Davis, 46 Ill.2d 554, 560 (1970).) Where the weight of the evidence against the defendant is overwhelming, as it is in the case at hand, the complained of comments, suggesting tricky or unethical tactics, cannot be considered prejudicial. See People v. Bracy, 14 Ill.App.3d 495, 503 (1973); People v. Bravos, 114 Ill.App.2d 298, 320 (1989), cert. denied, 397 U.S. 919, 25 L.Ed.2d 100, 90 S.Ct. 927 (1970).\nThis court has carefully reviewed the defendant\u2019s other allegations of error regarding the evidence against him and regarding prosecutor\u2019s characterization of defendant. Great latitude is allowed prosecution counsel in closing argument. (People v. Johnson, 66 Ill.App.2d 465, 471 (1966).) Arguments and statements based upon the facts in evidence or upon legitimate inferences drawn therefrom, do not transcend the bounds of legitimate argument. (People v. Halteman, 10 Ill.2d 74, 83 (1956).) Viewed in light of these standards, we find no merit in defendant\u2019s remaining arguments.\nWe therefore affirm the judgment below.\nJudgment affirmed.\nRECHENMACHER, P. J., and DIXON, J., concur.", "type": "majority", "author": "Mr. JUSTICE THOMAS J. MORAN" } ], "attorneys": [ "Ralph Ruebner and Phyllis J. Perko, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Philip G. Reinhard, State\u2019s Attorney, of Rockford (James W. Jerz and Martin Moltz, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Russell Oliger, Defendant-Appellant.\n(No. 74-85;\nSecond District (2nd Division)\n\u2014 October 27, 1975.\nRalph Ruebner and Phyllis J. Perko, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nPhilip G. Reinhard, State\u2019s Attorney, of Rockford (James W. Jerz and Martin Moltz, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0889-01", "first_page_order": 915, "last_page_order": 919 }