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ROBERTO ABADIA et al., Defendants-Appellants." ], "opinions": [ { "text": "PRESIDING JUSTICE COHEN\ndelivered the opinion of the court:\nOn February 25, 1999, after a jury trial, defendants Roberto Abad\u00eda and Octabio Arias were convicted of first degree murder (720 ILCS 5/9 \u2014 1(a)(1) (West 2000)), attempted first degree murder (720 ILCS 5/8 \u2014 4, 9 \u2014 1 (West 2000)), aggravated battery with a firearm (720 ILCS 5/12 \u2014 4.2(a)(1) (West 2000)) and armed violence (720 ILCS 5/33A \u2014 2, 12 \u2014 4(a) (West 2000)). Defendants were each sentenced to consecutive prison terms of 90 years for first degree murder and 10 years for attempted first degree murder. Defendants\u2019 appeals were consolidated. Arias argues that: (1) there was insufficient evidence to support his convictions; (2) a new trial is required because inadvertently the jury was not sworn until the second day of trial; (3) a new trial is required because of prosecutorial misconduct during rebuttal argument; and (4) the 90-year sentence should be reduced because it is excessive and unconstitutional under Apprendi v. New Jersey, 530 U. S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Abadia was granted leave of court to adopt the four arguments raised by Arias on appeal. In addition, Abad\u00eda argues ineffective assistance of counsel predicated on bis attorney\u2019s failure to present a defense at Abadia\u2019s trial. We hold that the evidence was sufficient to convict the defendants and that the short time the jury was unsworn did not prejudice the defendants. However, we find the prosecutor\u2019s comments in rebuttal were improper and resulted in substantial prejudice to the defendants. As we cannot confidently state that the trial was fundamentally fair, we reverse the defendants\u2019 convictions and remand the case for a new trial. We need not address the remaining issues raised on appeal.\nBACKGROUND\nThe evidence adduced at trial reveals that at 4 a.m. on June 20, 1995, defendants traveled in a white Ford Taurus to an isolated dirt road in an industrial area. The area is adjacent to a freight train railroad crossing at 122nd Street in the City of Chicago. Mr. Robert Terry, a locomotive engineer, was seated in the cab of a train stopped approximately 75 feet north of the 122nd Street crossing. As Terry was preparing to move the train, he saw the white Ford Taurus containing a driver and passengers drive over the tracks twice before turning south onto the dirt road adjacent to the tracks. The locomotive\u2019s lights were set to \u201cdim,\u201d illuminating the area a quarter of a mile ahead of the engine car. Terry lost sight of the Taurus on a dirt road because the road was lower than the tracks and surrounded by six-foot-tall marsh reeds. Within a few minutes, Terry heard both large and small caliber gunshots. The police would later find Luis Arce\u2019s body, surrounded by used bullet shell casings, at the edge of the dirt road near the tall reeds. When his body was discovered, there were two bullet holes in the back of Arce\u2019s head and seven other bullet wounds to his body.\nTerry heard yelling from the same area from which the first sets of gunshots had emanated. He then heard more gunshots which sounded as if the shooter was drawing near. A few seconds later, Terry saw a young Hispanic man sprint diagonally northeast from the access road across the tracks to the eastern side of the train. Terry then saw the defendants running after the young man while firing their handguns. As the defendants crossed 122nd Street and the adjacent set of train tracks, Terry turned all of his locomotive lights to the \u201cbright\u201d setting, illuminating the area up to l3/* miles ahead of the engine car. Startled by the bright lights, the defendants stopped, looked up at the locomotive and then ran back to the white Taurus, which had backed out of the dirt road, and followed the defendants to the paved railroad crossing.\nTerry observed the driver as defendants scurried into the car. Defendants drove toward Torrence Avenue on 122nd Street. Terry called for help on his radio and spoke to railroad police officer Mark Postma. Terry told Officer Postma of the gunshots, described the vehicle, indicated its direction of travel and described the passengers. While Officer Postma was responding to the radio call for help, a young man, who Terry \u201cfigured it [sic] was the guy that had been shot at,\u201d approached Terry\u2019s locomotive from the northwestern side of the train after the Taurus departed. Terry thought the young man would have had to \u201ccrawl under\u201d his train to approach the cab from the northwest because the train extended a mile and a half behind Terry\u2019s engine car. The young man, later identified as Gabrielle Gonzales, told Terry that he was hurt and that he needed an ambulance. Terry told Gonzales to sit down because Gonzales\u2019 intestines were protruding from his body and he was bleeding. Terry observed Gonzales turning white as if \u201che was going into shock.\u201d Both an ambulance and Chicago police officers arrived at the scene within 15 to 20 minutes.\nOfficer Postma drove his unmarked police car to the intersection, of Torrence and 130th Street, where he saw the white Ford Taurus described by Terry. The white Taurus was the only other car on the road at the intersection. Officer Postma observed the three passengers and followed the car onto the Dan Ryan expressway. At the same time, he contacted the Illinois State Police. Detective Neil Maas of the Chicago police also responded to Officer Postma\u2019s radio communication. With the assistance of Officer Postma and Illinois State Trooper Tim Drozd, Detective Mass executed a traffic stop of the car on the expressway near 86th Street. Detective Maas then transported the defendants and the driver of the Taurus to the Area 2 police station. When arrested, the defendants were wearing the same clothing described by Terry at the scene of the crime. Terry identified the defendants later that same day from a lineup.\nThe defendants were convicted of first degree murder (720 ILCS 5/9 \u2014 1(a)(1) (West 2000)), attempted first degree murder (720 ILCS 5/8 \u2014 4, 9 \u2014 1 (West 2000)), aggravated battery with a firearm (720 ILCS 5/12 \u2014 4.2(a)(1) (West 2000)) and armed violence (720 ILCS 5/33A \u2014 2, 12 \u2014 4(a) (West 2000)). Defendants were each sentenced to consecutive prison terms of 90 years for first degree murder and 10 years for attempted first degree murder. This appeal followed.\nANALYSIS\nI. Sufficiency of the Evidence\n\u201c[W]hen reviewing the sufficiency of the evidence in a criminal case, the proper standard of review is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u201d People v. Lamborn, 185 Ill. 2d 585, 590, 708 N.E.2d 350, 353-54 (1999). The function of this court is not to retry the defendant. People v. Digirolamo, 179 Ill. 2d 24, 43, 688 N.E.2d 116, 125 (1997). \u201cCircumstantial evidence is sufficient to sustain a conviction if it satisfies proof beyond a reasonable doubt of the elements of the crime charged.\u201d People v. Campbell, 146 Ill. 2d 363, 379, 586 N.E.2d 1261, 1268 (1992). \u201c \u2018[D]eterminations of the credibility of witnesses, the weight to be given their testimony, and the reasonable inferences to be drawn from the evidence are the responsibility of the trier of fact.\u2019 \u201d People v. Emerson, 189 Ill. 2d 436, 475, 727 N.E.2d 302, 324 (2000), quoting People v. Nitz, 143 Ill. 2d 82, 95, 572 N.E.2d 895, 900-01 (1991). The trier of fact may consider inferences that flow naturally from evidence presented in court; however, the trier of fact is not required to \u201csearch out all possible explanations consistent with innocence and raise them to a level of reasonable doubt.\u201d Campbell, 146 Ill. 2d at 380, 586 N.E.2d at 1268.\nDefendants argue that Terry is unreliable as an eyewitness because he saw individuals matching the defendants\u2019 appearance for only a few seconds from 75 feet away and he testified to events inconsistent with the physical evidence at the crime scene. The defendants argue that the locomotive\u2019s lights were on the \u201cdim\u201d setting and it is improbable under the circumstances for Terry to have observed sufficient details to make a reliable identification of the defendants. However, the record reflects that Terry turned his locomotive\u2019s lights to the \u201cbright\u201d setting after he had observed the defendants run approximately 50 feet from the entrance of the dirt road to the railroad crossing in front of the locomotive. The defendants stopped running and looked up at the cab where Terry was sitting after Terry had already activated the bright lights. The record shows Terry gave an accurate description of the defendants to the police officers shortly after he witnessed the events. Determinations of credibility by the trier of fact are accorded great deference by a reviewing court, and we will not disturb this determination. People v. Wittenmyer, 151 Ill. 2d 175, 191, 601 N.E.2d 735, 743 (1992).\nDefendants attempt to fortify their unreliability argument by stating that Terry\u2019s testimony is inconsistent with the physical evidence. Specifically, defendants argue that Terry testified the defendants were firing their pistols at Gonzales and that Gonzales returned fire with his pistol while he ran away from the defendants. Defendants argue that because the police failed to recover any weapons or shell casings from the area between the entrance to the dirt road and the locomotive and also failed to recover any weapons or casings from the white Taurus, Terry\u2019s testimony is unreliable.\nThe absence of bullet shell casings, except for those surrounding Luis Arce\u2019s body, as well as the absence of any weapons, does not indicate that Terry\u2019s testimony is unreliable. The record contains testimony that Terry observed Abad\u00eda with a \u201cchrome-plated revolver\u201d and Arias with a \u201cbluesteel or black pistol.\u201d Neither weapon was recovered by the police. The record contains no indication whether defendant Arias used a revolver, a semiautomatic or an automatic weapon. Police officer Patrick Moran, who works as an evidence technician with the crime scene processing section of the Chicago police crime lab, testified that shell casings are mechanically ejected from automatic and semiautomatic weapons after each bullet is fired and that shell casings from a revolver must be manually removed. Without evidence as to whether automatic or semiautomatic weapons were used to shoot Gonzales, the defendants have no evidence to support the conclusion that shell casings should be found near the railroad crossing. Similarly, the failure of police to recover any weapons or shell casings from the white Taurus does not vitiate the reliability of Terry\u2019s eyewitness testimony. As the record contains no evidence that the guns were ever fired inside the car, there is nothing to support an inference that shell casings or weapons would be found inside the car.\nAlthough the defense attempted to impeach Terry with a police report stating that Terry saw Gonzales turn toward the defendants with an outreached arm as if he had a weapon, the record reveals that Terry clarified his testimony by stating at trial that he did not see a gun in Gonzales\u2019 hand. While defendants persist in arguing on appeal that Gonzales had a weapon, whether Gonzales possessed a weapon is a credibility determination, which we will not disturb here. Emerson, 189 Ill. 2d at 475, 727 N.E.2d at 324.\nWe find Terry\u2019s testimony at trial was consistent with the facts in the record. Defendants cannot point to any evidence in the record to support their argument that Terry\u2019s testimony is inconsistent with the physical evidence. Defendants fail to show Terry\u2019s testimony is unreliable. Thus, after viewing the evidence in the light most favorable to the State, we are convinced that a rational trier of fact could have found the elements of the crimes beyond a reasonable doubt. Lamborn, 185 Ill. 2d at 590, 708 N.E.2d at 353-54.\nII. Unsworn Jury\nDefendants argue that while the court did timely instruct members of the jury on the trial process and their duties, the court inadvertently allowed the jury to hear a full day of testimony before the court administered the juror\u2019s oath to the jurors. Defendants seek a new trial based on this one-day delay.\nDefendants raise this issue for the first time in this appeal. \u201cIssues not raised at trial and not presented in a written post-trial motion are ordinarily deemed waived on review.\u201d People v. Hicks, 181 Ill. 2d 541, 544, 693 N.E.2d 373, 375 (1998). However, the issue raised by defendants is unusual and \u201cthe goals of obtaining a just result and maintaining a sound body of precedent may sometimes override considerations of waiver.\u201d Hicks, 181 Ill. 2d at 544, 693 N.E.2d at 375. The principle of waiver \u201climits the parties\u2019 ability to raise an argument, not this court\u2019s right to entertain an argument.\u201d People v. Heard, 187 Ill. 2d 36, 60, 718 N.E.2d 58, 72 (1999). We choose to address the merits of the claim as we view this issue as one of first impression in Illinois and find analysis appropriate.\nDefendants argue that the juror\u2019s oath is critical to the administration of justice. One cannot disagree that the juror\u2019s oath is a solemn vow to serve the rule of law which governs the social contract of our society. The juror\u2019s oath is essentially a promise to lay aside one\u2019s \u201cimpression or opinion and render a verdict based on the evidence presented in court.\u201d People v. Williams, 40 Ill. 2d 522, 531-32, 240 N.E.2d 645, 651 (1968). The issue here is whether the failure to administer the juror\u2019s oath until the conclusion of the first day of testimony vitiates the entire proceeding and entitles defendants to a new trial.\nThe record reveals that defense counsel objected neither to the failure of the court to administer the juror\u2019s oath on the first day of trial nor to the belated administration of the oath on the second day of trial. Defendants do little more before us than identify this procedural irregularity and hope for a favorable ruling. They offer no argument and give this court no suggestion as to how they were prejudiced by the delayed swearing of the jury. This court cannot engage in speculation; thus, we turn to the record of proceedings for guidance.\nJurors are generally instructed and sworn to hear all the evidence without forming opinions as to guilt or innocence until the end of the trial. In the present case, the judge instructed the jury prior to hearing evidence:\n\u201cLadies and Gentlemen, I am going to talk with you for five minutes or so, and then we will excuse you for today, and we will pick up again tomorrow.\n***\nThe hardest thing about being a juror is that you can\u2019t discuss the case with anyone, so I am ordering you not to discuss the case. That is in fairness to both sides. What you need to do is wait with an open mind until you hear all the evidence in the case, and then wait until I read to you what the law is and instruct you as to the law you are to apply to the case, and then, when you go back to the jury room, then and only then is it proper to begin to discuss the case, so do not discuss the case among each other, with each other when you are waiting in the morning or lunch, and don\u2019t discuss it at home with anyone else. When you go home, somebody will say, \u2018Were you picked,\u2019 and you will say, \u2018Yeah, I don\u2019t believe it.\u2019 They will say, \u2018What kind of case is it,\u2019 and you will say, T can\u2019t tell you.\u2019 I don\u2019t want you to tell them what kind of case it is, and I don\u2019t want them to say anything about what they have saw [sic] or read. I want you to decide the case based on the evidence you will hear in this courtroom.\nBy the same token, for the same reason, I am ordering you not to watch the TV news tonight or listen to News Radio 78 or news radio programs or watch any TV crime dramas, police dramas, or courtroom dramas. I don\u2019t expect that this case will be discussed, but I don\u2019t want any other external things to enter into your consciousness when you are focusing on this case. Again, I want you to decide the case on the evidence in the case, and that is the reason for the order regarding that.\n* * *\nLadies and Gentlemen, with that, if you would go back to the jury room, she will show you the jury room in the hallway. *** At the close of the case, I will instruct you that those of you who took notes may use your notes during deliberations. Those of you who do not take notes should not give undue weight to the recollection of a juror who did take notes just because they took notes. Your recollection of the evidence, even though you didn\u2019t take notes, may be just as good or reliable as a juror who did take notes.\nSo, with that, Folks, we will see you tomorrow at 10:15 A.M. Thank you.\u201d\nThe extensive nature of the judge\u2019s pretrial instructions to the jury and the fact that the jury in this case was sworn before it began deliberations obviate our concern that the proceeding was tainted. All the concepts required by our system of justice to be communicated to a juror were effectively imparted in these pretrial instructions. In this case, it is clear from the record that the pretrial instructions preserved the integrity of the proceeding until the juror\u2019s oath was administered. While swearing the jury is preferably done prior to opening statements (as all pretrial instructions may not be as thorough as those given in the instant case), the one-day delay in giving the oath did not deprive these defendants of a fair trial. We find no prejudice here and conclude that the delayed swearing of the jury was harmless.\nWe have found multiple cases from other jurisdictions in which courts have reached similar conclusions. In United States v. Hopkins, 458 F.2d 1353, 1354 (5th Cir. 1972), the court held that failing to administer the juror\u2019s oath until after the close of the government\u2019s case but before deliberation was harmless error where no prejudice was shown and no objection was made. In State v. Block, 170 Wis. 2d 676, 681, 489 N.W.2d 715, 717 (1992), the court held that, absent a showing of prejudice, reversal was not warranted because the jury was not sworn until six witnesses had testified for the State. In Hollis v. People, 630 P.2d 68, 70 (Colo. 1981), the court held that, absent an objection or a showing of prejudice from defendant, it was harmless error not to swear the jury until after the first State\u2019s witness had testified. In People v. Morales, 168 A.D.2d 85, 88, 570 N.Y.S.2d 831, 833 (1991), the court held that because the jurors were sworn prior to deliberations and the defendant had failed to show any prejudice, the delay was harmless. In State v. Roberge, 155 Vt. 121, 582 A.2d 142, 143 (1990), the court held that, absent an objection or a showing of prejudice, there is no reversible error where a jury is sworn before deliberations in a criminal case. Further, we believe that it is incumbent upon the defense to raise an objection to an unsworn jury at trial or risk waiving the issue on appeal. See Hicks, 181 Ill. 2d at 544, 693 N.E.2d at 375.\nIII. Prosecutorial Misconduct\nProsecutors are afforded wide latitude in closing argument and may argue reasonable inferences from the facts in evidence. People v. Williams, 192 Ill. 2d 548, 573, 736 N.E.2d 1001, 1015 (2000). This court will not reverse a trial court\u2019s determination concerning the propriety of a prosecutor\u2019s closing remarks absent an abuse of discretion. People v. Hudson, 157 Ill. 2d 401, 441, 626 N.E.2d 161, 178 (1993). Even if found to be improper, such remarks \u201c \u2018generally do not constitute reversible error unless they result in substantial prejudice to the accused.\u2019 \u201d People v. Morgan, 112 Ill. 2d 111, 132, 492 N.E.2d 1303, 1311 (1986), quoting People v. Baptist, 76 Ill. 2d 19, 29 (1979).\nCourts have consistently held that prosecutorial remarks invited by defense counsel will not constitute reversible error absent a showing of substantial prejudice. People v. Mendez, 318 Ill. App. 3d 1145, 1152, 745 N.E.2d 93, 100 (2001). We also note that even prejudicial statements by the prosecutor may be cured by the court\u2019s proper instructions of law. People v. Simms, 192 Ill. 2d 348, 396, 736 N.E.2d 1092, 1124 (2000). \u201c[T]he act of promptly sustaining the objection and instructing the jury to disregard such argument has usually been viewed as sufficient to cure any prejudice.\u201d People v. Gonzalez, 142 Ill. 2d 481, 493, 568 N.E.2d 864, 869 (1991). However, \u201cthe prejudicial effect of an improper argument cannot always be erased from the minds of the jurors by an admonishment from the court.\u201d People v. Baptist, 76 Ill. 2d 19, 30, 389 N.E.2d 1200, 1205-06 (1979).\nWhile a prosecutor may comment on the persuasiveness of the defense theory of the case as well as any supporting evidence and reasonable inferences drawn therefrom, \u201c[i]t is blatantly improper to suggest that the defense is fabricated, as such accusations serve no purpose other than to prejudice the jury.\u201d People v. Aguirre, 291 Ill. App. 3d 1028, 1035, 684 N.E.2d 1372, 1377 (1997). While a prosecutor may comment on defense \u201ccounsel\u2019s failure to produce evidence promised in opening statement so long as the comments do not reflect upon defendant\u2019s failure to testify\u201d (People v. Huddleston, 176 Ill. App. 3d 18, 30, 530 N.E.2d 1015, 1023 (1988)), \u201c[ajccusations of deception and trickery by defense counsel serve no purpose except to prejudice the jury.\u201d People v. Thompson, 313 Ill. App. 3d 510, 514, 730 N.E.2d 118, 122 (2000). \u201cComments disparaging the integrity of defense counsel and implying that the defense presented was fabricated at the direction of counsel have consistently been condemned. [Citations.]\u201d People v. Starks, 116 Ill. App. 3d 384, 394, 451 N.E.2d 1298, 1305 (1983).\nOur supreme court has held that it is improper for a prosecutor to accuse a defendant\u2019s attorney of \u201clying and *** attempting to create a reasonable doubt by \u2018confusion, indecision, and misrepresentation. \u2019 \u201d People v. Weathers, 62 Ill. 2d 114, 120, 338 N.E.2d 880, 883 (1975). More recently, our supreme court stated that \u201c \u2018[ujnless based on some evidence, statements made in closing arguments by the prosecution which suggest that defense counsel fabricated a defense theory, attempted to free his client through trickery or deception, or suborned perjury are improper. [Citations.]\u2019 \u201d (Emphasis in original.) People v. Kirchner, 194 Ill. 2d 502, 549, 743 N.E.2d 94, 119 (2000), quoting People v. Jackson, 182 Ill. 2d 30, 81, 695 N.E.2d 391, 416 (1998). \u201cMoreover, \u2018[w]here a prosecutor\u2019s statements in summation are not relevant to the defendant\u2019s guilt or innocence and can only serve to inflame the jury, the statements constitute error.\u2019 [Citations.]\u201d People v. Kidd, 147 Ill. 2d 510, 542, 591 N.E.2d 431, 446 (1992).\nThe burden of proof in a criminal trial \u201cincludes both the burden of producing evidence and the burden of persuading the trier of fact.\u201d People v. Ziltz, 98 Ill. 2d 38, 43, 455 N.E.2d 70, 72 (1983). As the burden of proving defendants\u2019 guilt beyond a reasonable doubt always rests on the prosecution, defendants are not obliged to offer any proof of innocence. People v. Armstead, 322 Ill. App. 3d 1, 15, 748 N.E.2d 691, 703 (2001), citing People v. Weinstein, 35 Ill. 2d 467, 470, 220 N.E.2d 432, 434 (1966), and People v. Swift, 319 Ill. 359, 365-66, 150 N.E. 236, 266 (1925); People v. Millighan, 265 Ill. App. 3d 967, 971, 638 N.E.2d 1150, 1154 (1994); People v. Berry, 264 Ill. App. 3d 773, 780, 642 N.E.2d 1307, 1314 (1994); see also People v. Coulson, 13 Ill. 2d 290, 296, 149 N.E.2d 96, 99 (1958) (holding that a conviction \u201cmust rest on the strength of the People\u2019s case and not on the weakness of the defendant\u2019s case\u201d). While defendants are not required to present any evidence of innocence, defendants may, however, posit alternative theories to explain the evidence presented by the prosecution.\nIn the instant case, after the prosecution concluded its case in chief, defense counsel opted not to present a defense case. Closing arguments commenced with the prosecution\u2019s customary recitation of the evidence presented at trial and reasonable inferences drawn from the evidence.\nDuring closing arguments, the defense presented two hypotheses intended to engender reasonable doubt in the minds of the jurors. The first hypothesis suggested that the driver of the Taurus saw something on the dirt road and that this prompted him to drive back to the road entrance. Defense counsel stated:\n\u201cNo one can say for sure that there was \u2014 beyond a reasonable doubt, I should say, that there wasn\u2019t another car down there where the body [Luis Acre\u2019s body] was found.\u201d\nThis hypothesis was further developed by counsel stating:\n\u201cWhether they saw a person down there, whether they saw headlights, another car down there, the State hasn\u2019t proven it. Certainly you know and you\u2019ve heard that there\u2019s another way in and out. The road continues on and keeps going through the marsh or whatever is back there.\u201d\nThe other hypothesis posited by defense counsel suggested that because Gabrielle Gonzales was badly wounded and approached Terry from the west side of the train, Gonzalez could not have been the man seen running across the tracks from defendants to the east side of the train. Counsel argued that the man seen sprinting was some other individual who then disappeared into the marsh east of the train.\nIn the State\u2019s rebuttal, the prosecutor, Mr. Fabio Valenti ni, lambasted defense counsel utilizing what the State characterized as continuous examples of defense attorney misconduct. Defendants characterize the prosecutor\u2019s comments in his rebuttal as accusations of \u201cdefense fabrication,\u201d \u201cwitness mistreatment\u201d and \u201cwitness intimidation.\u201d Defendants point out the 30-plus objections the defense was forced to make diming rebuttal alone.\nThe State counters that the prosecutor\u2019s comments were properly based on the evidence, that the trial court did not abuse its discretion when it overruled objections to allegations of witness mistreatment and that the alleged witness intimidation was not reversible error.\nWe first note that the State misstates the law by claiming that Arias waived all questions of prosecutorial misconduct because his counsel failed to object at trial. While this court notes that the waiver argument is a workhorse of the State\u2019s Attorney\u2019s office and often is dispositive, waiver cannot be ubiquitously applied when the record does not support such a finding. In order to preserve an issue for appeal, a defendant must make a contemporaneous objection at trial and raise the issue in a posttrial motion. People v. Nieves, 193 Ill. 2d 513, 524, 739 N.E.2d 1277, 1282 (2000). \u201cHowever, this rule is not absolute. A reviewing court may consider errors which affect substantial rights (73 Ill. 2d R. 615(a)), or which *** are sufficiently prejudicial to deny defendant a fair trial.\u201d People v. Whitlow, 89 Ill. 2d 322, 342, 433 N.E.2d 629, 638 (1982).\nThe record reveals that the only issue to which defendant Arias\u2019 counsel did not object was the alleged witness intimidation; however, Abad\u00eda did preserve the issue on appeal. As we must consider the prejudicial impact of the comment as to Abad\u00eda, we cannot escape the fact that defendants were tried jointly and \u201clegal responsibility\u201d instructions were given to the jury.\nWe consider the present case analogous to Whitlow where \u201c[t]he defendants were tried jointly on both conspiracy and substantive charges, and an \u2018accountability\u2019 instruction was tendered to the jury.\u201d Whitlow, 89 Ill. 2d at 342, 433 N.E.2d at 638. Our supreme court stated that because \u201cthe State\u2019s theory involved the responsibility of each defendant for the acts of his codefendants,\u201d \u201cimproper remarks directed at one defendant were likely to be considered by the jury as evidence against all of them.\u201d Whitlow, 89 Ill. 2d at 342, 433 N.E.2d at 638. Just as the supreme court considered the cumulative impact of all prejudicial comments on all defendants in Whitlow (89 Ill. 2d at 342, 433 N.E.2d at 638), we will consider the witness intimidation comment in weighing the cumulative prejudicial effect of the other rebuttal comments on both Abad\u00eda and Arias.\nHaving disposed of the waiver issue, we turn to the defendants\u2019 contention of prosecutorial misconduct. Defendants claim the prosecutor made accusations of fabricating defenses and witness mistreatment during rebuttal argument.\nThe prosecutor stated:\n\u201cThe problem is it takes four years for a case like this to go to trial. *** During the four years, from June 20, 1995 and apparently this morning, it gets four years for two teams of defense lawyers to come up with and concoct the various theories and ideas of what might have happened and what they wished the evidence would show. *** And the night before closing arguments, apparently they sit around and fantasize and concoct a whole bunch of theories [sic] impossibilities of what could have happened and what may have happened and what probably happened.\n* * *\nYou should ask yourself why lawyers for these defendants would stand here and make up stories.\n* * *\nWhy in three days they would present distractions and continue to present distractions and distort things and misstatements and confuse things and change theory during the course of the trial.\n* * *\nAs I was saying, you have to ask yourself why the defense in this case keeps changing.\n* * *\nRobert Terry is a hard working guy who didn\u2019t deserve the abuse he endured. The abuse he endured on the stand when he was mocked and mistreated and things were misstated to him and things were suggested to him when he had said that he said he didn\u2019t say.\n* * *\nAnd at one point Mr. Meczyk said he questioned him about something he said on direct examination and he said sir, I took notes, I took notes and he was going to cross-examine him and suggest that he was saying something different, but he couldn\u2019t prove it up.\n* * *\nYou know, we happily accepted the burden in this case as we do in every case. But when things are misstated, when things are misstated to you, you should ask yourself why.\n* * *\nWhy are you being told things that are completely not true?\n* * *\nAnd despite what people want to tell you, despite their misstatements, despite all the baloney, you remember Robert Terry\u2019s testimony.\n* * *\nWhat trial are they talking about? Not this one.\n* **\nWhy do they keep changing?\n* * *\nWhy are they misstating the evidence and making things up as they go along?\n* * *\nDon\u2019t let them confuse you.\n* * *\nNot only that, doesn\u2019t that deny common sense? Isn\u2019t that ridiculous? Isn\u2019t that a desperate argument made by desperate defendants who are clearly, clearly in a desperate situation now?\n* * *\n*** [I]t defies common sense and it\u2019s an insult to your intelligence.\n* * *\nThat is a complete misstatement of the evidence.\n* * *\nDon\u2019t let them confuse you by misstating the evidence.\n* * *\n*** [I]t\u2019s another method to try and get you to think about something other than the evidence in this case.\n* * *\nAnd it is about seeing justice done, and justice doesn\u2019t mean you execute someone and scare off all the witnesses and you get away with it.\n* * *\nThey mocked him when they testified about his military experience. They misstated things he said, they misquoted him, they made fun of him.\ns|c tfc *\nBut you can understand why they don\u2019t like Robert Terry.\n* * *\nYou can understand why they want you to believe things he said that he didn\u2019t say. You can understand why they will misquote him and they will mock him.\u201d\nWe must turn to the record to examine the prosecutor\u2019s comments in the context of the entire arguments of both the defense and the prosecution. People v. Morgan, 142 Ill. 2d 410, 453, 568 N.E.2d 755, 770 (1991). As the defense chose not to present a case, the record contains only the prosecution\u2019s case in chief. Consequently, the record does not contain evidence that could support the hypotheses that the defense argued in closing. The record also contains no evidence that would clearly contradict the defense hypotheses. Lacking such evidence in the record, we cannot ascertain the truth or falsity of the defendants\u2019 closing arguments from the record. We are therefore certain that if we cannot detect any evidence of defense fabrication, the prosecution had no evidence that the defense was concocted. Unless predicated on evidence that defense counsel behaved unethically, the accusations that defense counsel attempted to create a reasonable doubt by confusion, misrepresentation, deception, and fabrication were irrelevant to the defendants\u2019 guilt or innocence, improper and highly prejudicial. Weathers, 62 Ill. 2d at 120, 338 N.E.2d at 883; Kidd, 147 Ill. 2d at 542, 591 N.E.2d at 446; People v. Fluker, 318 Ill. App. 3d 193, 202, 742 N.E.2d 799, 806 (2000).\nAfter a careful review of the record, we cannot characterize the prosecutor\u2019s rebuttal argument either as based on the evidence or,as invited comment by the defense. Mendez, 318 Ill. App. 3d at 1152, 745 N.E.2d at 100; Kirchner, 194 Ill. 2d at 549, 743 N.E.2d at 119. Furthermore, we do not believe the court\u2019s instructions of law could cure the substantial prejudice caused by the prosecutor\u2019s comments. Simms, 192 Ill. 2d at 396, 736 N.E.2d at 1124. \u201cWhere there are numerous instances of improper prosecutorial remarks, a reviewing court may consider their cumulative impact, rather than assessing them in isolation.\u201d People v. Brown, 113 Ill. App. 3d 625, 630, 447 N.E.2d 1011, 1015 (1983), citing Whitlow, 89 Ill. 2d at 341, 433 N.E.2d at 638. The prosecution\u2019s rebuttal strayed so often from proper lines of argument that its cumulative effect was to deprive the defendants of a fair trial by drawing the jury\u2019s attention away from the issues in the case. Fluker, 318 Ill. App. 3d at 202, 742 N.E.2d at 806; see People v. Blue, 189 Ill. 2d 99, 140, 724 N.E.2d 920, 941 (2000) (holding that reversal was warranted when \u201cthe trial court allowed the guilty verdict to rest on considerations other than the evidence alone\u201d). The prosecutor\u2019s comments attacking both defense counsel served no purpose but to prejudice the trier of fact against the defense and thus constitute reversible error.\nDefendants also argue that the prosecutor prejudiced the jury against defendants during closing argument by accusing defense counsel of mistreating the State\u2019s star eyewitness. Specifically, the prosecution stated that the train engineer, Robert Terry, was \u201cabused,\u201d \u201cmocked and mistreated\u201d and that \u201cthings were misstated to him and things were suggested to him when he had said that he said he didn\u2019t say.\u201d We acknowledge defense counsel\u2019s intellectual agility in deciphering the prosecution\u2019s complex sentence and making a timely objection. However, we ourselves must once again turn to the record in resolving this issue.\nExamining the record in light of the prosecutor\u2019s comment, we can ascertain only two instances in which the defense could have \u201csuggested\u201d a response to Terry. During cross-examination, defense counsel asked Terry whether he had told two police officers he had seen a car drive south on Yates Avenue 15 minutes before he heard gunshots and saw a man running toward his train, as reflected in a police report. Terry testified that he did not tell the police 15 minutes had lapsed between seeing the car and hearing the gunshots. The police report was not entered into evidence. Questioning Terry on the timeline of events was a legitimate area of inquiry and certainly not \u201cabuse.\u201d The only other such instance was when defense counsel cross-examined Terry about whether he saw Gonzales turn to fire a gun at the defendants while running. Terry stated on both cross-examination and redirect that he told police that he thought the man running away from defendants had fired a gun at defendants. Terry then clarified his testimony by stating that he neither saw a gun in Gonzales\u2019 hands nor saw a muzzle flash.\nGiven the record, we fail to understand how the defense \u201cabused\u201d the witness in asking questions about potential inconsistencies in the witness\u2019 testimony. We conclude that the prosecutor mischaracterized the cross-examination of the State\u2019s eyewitness in his rebuttal. The State\u2019s mischaracterization was not relevant to the guilt or innocence of defendants and could only serve to inflame the jury. People v. Smith, 141 Ill. 2d 40, 60, 565 N.E.2d 900, 908 (1990). As such, the prosecutor\u2019s false allegation of witness \u201cabuse\u201d constitutes further error. Kidd, 147 Ill. 2d at 542, 591 N.E.2d at 446;\nThe final instance of misconduct occurred when the prosecutor stated \u201cjustice doesn\u2019t mean you execute someone and scare off all the witnesses and you get away with it.\u201d Defense counsel\u2019s objection was sustained and the jury was instructed to disregard the remark. \u201c \u2018Prosecutorial comments which suggest that witnesses were afraid to testify because defendant had threatened or intimidated them, when not based upon any evidence in the record *** are highly prejudicial and inflammatory.\u2019 \u201d People v. Mullen, 141 Ill. 2d 394, 405, 566 N.E.2d 222, 228 (1990), quoting People v. Ray, 126 Ill. App. 3d 656, 662 (1984). Searching the record, we have failed to identify any evidence which would support the prosecution\u2019s accusation of witness intimidation and further find the harm to defendants could not be cured by the trial court\u2019s sustainment of the objection and subsequent curative instruction. People v. Brown, 113 Ill. App. 3d 625, 629, 447 N.E.2d 1011, 1014 (1983). This outrageous accusation of witness intimidation yet serves to more throughly convince us that the prosecution\u2019s rebuttal commentary constituted a pattern of conduct designed to inflame and arouse the prejudice of the jury. Brown, 113 Ill. App. 3d at 629, 447 N.E.2d at 1014. Such conduct by the prosecution constitutes reversible error. Mullen, 141 Ill. 2d at 405, 566 N.E.2d at 228; Kidd, 147 Ill. 2d at 542, 591 N.E.2d at 466.\nAs our finding of prosecutorial misconduct requires us to reverse the defendants\u2019 convictions, we need not address the remaining two issues on appeal.\nCONCLUSION\nWe hold that although there was sufficient evidence to convict the defendants and the unsworn jury had no prejudicial effect, the prosecutor\u2019s comments during rebuttal argument caused such substantial prejudice to defendants that our confidence in the verdict has eroded to the point where we cannot confidently state that the trial was fundamentally fair. We therefore reverse defendants convictions and remand the case to the circuit court for a new trial.\nReversed and remanded for new trial.\nTULLY, J., concurs.\nThe record does not contain the oath administered to the members of the jury because the oath was conducted off the record.", "type": "majority", "author": "PRESIDING JUSTICE COHEN" }, { "text": "JUSTICE COUSINS,\nspecially concurring:\nBecause I agree that comments made by the prosecutor during rebuttal argument caused substantial prejudice to the defendants, I concur specially in the decision to reverse and remand for a new trial. However, the opening statement that was made by the defense counsel for Abad\u00eda in this case is a \u201cbombshell.\u201d The defense counsel made the following opening statement:\n\u201cAt the very outset I want to tell you that the charge against Roberto Abad\u00eda is a false charge, it\u2019s an absolutely false charge.\n* * *\nMembers of the jury, it\u2019s true that Roberto Abad\u00eda has those legal advantages, the burden of proof and the presumption of innocence. But in this case Mr. Abad\u00eda doesn\u2019t want it.\nMr. Abad\u00eda is going to prove to you, we will competently prove to you, that he did not commit any murder.\nMembers of the jury, I\u2019m going to bring into this courtroom \u2014 Let me back up. Let me tell you this:\nI\u2019m going to make full disclosure to you about Roberto Abad\u00eda and I\u2019m going to tell you at the very outset, at the veiy beginning of this trial that Mr. Abad\u00eda is not an angel and that he\u2019s not a choir boy. I want to tell you that from the beginning.\nMr. a Babb [sic] I can\u2019t was, in fact, involved with illegal substances, with controlled substances. Yes, he was a drug dealer and yes, members of the jury, I\u2019m going to prove to you that he owed people money and so did the dead person in this case, the decedent, Mr. Arce. And but for the grace of God Roberto Abad\u00eda was almost a victim himself. And there is another eyewitness to this case, members of the jury, besides the engineer of that Norfolk and Western locomotive facing south down those tracks, and there is another eyewitness in this case, and you are going to hear from that eyewitness as to what really happened down that embankment that ran parallel down to those railroad tracks. And you\u2019re going to hear that Mr. Abad\u00eda himself was going to be a victim of an execution. And you\u2019re going to hear what actually occurred that night and what happened to him.\nYou\u2019re going to hear things in this case that the prosecution has in their file and won\u2019t disclose, but we will disclose those to you and we\u2019ll bring the light of day into this courtroom and not hide anything from you.\nYou are going to hear evidence, and when you \u2014 evidence that will exonerate, if you will, that at the end you will come to the conclusion that Roberto Abad\u00eda is not a murderer.\n* H< *\nCounsel mentioned to you the gunshot residue. Yes, and he also mentioned to you blood on Mr. Abad\u00eda. I can tell you that there was indeed blood on Mr. Abad\u00eda. And you\u2019ll find out the reason soon enough why there was blood on Mr. Abad\u00eda.\n* Hi *\nMembers of the jury, when this case is over you will come to the conclusion that Mr. Abad\u00eda is not a murderer and this is a false charge. And our evidence, that is Mr. Abadia\u2019s evidence, will come in.\u201d\nDuring the closing argument, counsel for defendant Abad\u00eda argued:\n\u201cThere is an instruction that the Judge is going to give to you this morning.\n* Ht H<\nI suppose that saves me because two days ago I came to this courtroom and I promised every one of you folks sincerely that I was going to present the case.\nI\u2019m not asking his Honor, Judge Moran to exonerate me or save me or what this instruction the law, the law of the State of Illinois to save me.\nIf you\u2019re mad at me, please don\u2019t take it out on Roberto Abad\u00eda, tell me afterwards, \u2018you lied to me.\u2019 I didn\u2019t lie to you. I sincerely thought I had to present a case.\u201d\nIn my view, this is a case where the arguments by both the State and defense are improper. Unfortunately, when such occurs, justice is thwarted.", "type": "concurrence", "author": "JUSTICE COUSINS," } ], "attorneys": [ "Thomas Peters, of Chicago, for appellants.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, Alan J. Spellberg, and Christine Cook, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERTO ABADIA et al., Defendants-Appellants.\nFirst District (1st Division)\nNos. 1\u201499\u20142023, 1\u201499\u20142685 cons.\nOpinion filed November 13, 2001.\nRehearing denied April 19, 2002.\nCOUSINS, J., specially concurring.\nThomas Peters, of Chicago, for appellants.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, Alan J. Spellberg, and Christine Cook, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0669-01", "first_page_order": 687, "last_page_order": 705 }