{ "id": 3833384, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM T. LIBBERTON, Defendant-Appellant", "name_abbreviation": "People v. Libberton", "decision_date": "2003-10-20", "docket_number": "No. 2-02-0075", "first_page": "912", "last_page": "942", "citations": [ { "type": "official", "cite": "346 Ill. App. 3d 912" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "126 Ill. App. 3d 656", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3596556 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "663" }, { "page": "660-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0656-01" ] }, { "cite": "189 Ill. 2d 99", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224818 ], "year": 2000, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0099-01" ] }, { "cite": "323 Ill. App. 3d 723", "category": "reporters:state", "reporter": "Ill. 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App. 3d 723", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171746 ], "year": 2001, "pin_cites": [ { "page": "729" } ], "opinion_index": 4, "case_paths": [ "/ill-app-3d/323/0723-01" ] } ], "analysis": { "cardinality": 2120, "char_count": 78135, "ocr_confidence": 0.755, "pagerank": { "raw": 5.422188994090435e-08, "percentile": 0.3417728215042653 }, "sha256": "2af83c1d857ba7e85ea67dd3fdde8699971b02a56f1bdbf77784dd777e386613", "simhash": "1:b82bd56a170e51cb", "word_count": 12890 }, "last_updated": "2023-07-14T19:44:33.584383+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. WILLIAM T. LIBBERTON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE KAPALA\ndelivered the opinion of the court:\nDefendant, William T. Libberton, appeals from his convictions of driving under the influence of alcohol (DUI) (625 ILCS 5/11\u2014 501(a)(1), (a)(2) (West 2000)) (two counts, one of which was merged into the other) and false report of a vehicle theft (625 ILCS 5/4\u2014 103(a)(6) (West 2000)). We now affirm.\nI. BACKGROUND\nDefendant was charged by indictment with one count of false report of a vehicle theft and two counts of DUI. His case was tried to a jury. The arresting officer, Steven Jahncke of the Warren police, testified that on March 3, 2001, shortly after 2 a.m., he was on routine patrol in his squad car. The night was very cold and the ground was snow-covered. As he was driving, he encountered defendant, who was emerging from a roadside ditch. He stopped his vehicle, approached defendant, and asked him what he was doing. Defendant stated that he was going to a friend\u2019s house. When Jahncke asked him why, he said that he needed to use a phone to call the police because his car had been stolen. Jahncke asked defendant for identification and then used the car radio to report a stolen car to the sheriffs department. Right after Jahncke made the report, but during continued radio communication, defendant told Jahncke that he had found his car and that it was stuck in a snowbank by some grain bins.\nJahncke requested that defendant ride with him to the car. On the way, Jahncke asked defendant if there was anyone with him, and defendant said that he was with his girlfriend, who was in the car sleeping. Jahncke noticed that defendant smelled of alcohol. They arrived at the car, which was well back from the street and behind some buildings. Jahncke asked defendant how he found his vehicle, and defendant said that he was walking to his home in another town when he found it.\nJahncke approached the vehicle and saw a woman in the passenger seat slumped over with her head between her legs. (The woman was later identified as Kimberlee Quire (Quire), who, by the time of trial, had married defendant and changed her name to Kimberlee Libberton.) Jahncke attempted to wake her to have her open the locked door, hut it took her some time to wake up and, when she did wake, she had difficulty opening the door. After Quire answered several questions posed by Jahncke, Jahncke requested that a wrecker be dispatched. Under cross-examination, he explained that, because defendant was claiming that the car had been stolen, the towing company would store the vehicle indoors so that it was protected from tampering and the State Police crime scene investigators would be brought in to process the vehicle. Jahncke identified a number of the photographs of the interior of the car as having been taken by the State Police.\nDeputy Casey Folkes of the Jo Daviess County sheriffs department arrived to assist Jahncke, and both defendant and Quire were questioned further. Defendant told Jahncke that the car had been stolen from the lot at Wally\u2019s, a bar, and that he had found it because, when he walked past the complex with the grain bins, it had occurred to him that it was a good place to hide a stolen car, and so he had gone to look. Jahncke asked him if he had been driving, and defendant initially denied that he had, but later stated that he had tried to move the car in an attempt to get it unstuck. Jahncke then asked defendant to undergo field sobriety tests. Two of the three tests indicated probable intoxication. Jahncke and Folkes then transported defendant and Quire to the Stockton police department, where defendant was subjected to a Breathalyzer test. By the testimony of the Breathalyzer operator, defendant\u2019s breath-alcohol concentration was 0.165. Jahncke also asked Quire to give a statement, which he wrote out and she signed. He admitted that he had done the writing because Quire said that she was too drunk to write.\nThe State introduced a number of photographs of the area in which the car had been left. The officers called by the State used these to indicate that it would have been difficult to see the car from the road.\nQuire, called by the State, testified that she had gone with defendant to at least two bars, and that she and defendant had consumed alcohol at each, but that her memory of that night was poor, and she had no sense of time for that period. She stated that she had no recollection of defendant driving the car from the last bar they had visited, Wally\u2019s, to behind the grain bins, but that she remembered being taken to the police station and answering the questions from which the statement was prepared. She said that the statement could not accurately reflect her words because it included the time she left Wally\u2019s and the name of the business that had the grain bins, both of which were details that she did not know. Her statement was read into the record. It states:\n\u201cBill [defendant] and I were at Wally\u2019s until approximately 12:45-1:00 A.M. Bill and I had both been drinking. Bill and I left Wally\u2019s, got into his car and drove up to Custom Grain [the location of the grain bins]. I had no idea where I was. After he got the car stuck I fell asleep and the next thing I remember was someone knocking on the window asking me for my license.\u201d\nDefendant was the sole defense witness. He testified that he had parked his car near Wally\u2019s, leaving the keys in the ignition, but that when he came out after drinking for a while, the car was not where he had left it. Defendant said that he thought that his friends were playing a joke so he began to search for his car. After searching unsuccessfully, defendant and Quire set out walking toward a friend\u2019s house in another town. Quire was barely able to walk. As defendant passed the grain bins, he noticed his car behind them. He left Quire with the car and, after remembering that he had a friend in the same town, started walking toward that friend\u2019s house. He denied trying to drive the vehicle at any time after leaving Wally\u2019s, but admitted that he had been intoxicated. He stated that he had gone back to the police the Monday after he was arrested to give them a list of items that he thought were missing from the vehicle.\nThe State, in closing argument, asserted that many aspects of defendant\u2019s testimony were illogical and commented that it was terrible that defendant persisted in claiming that his car had been stolen in order to escape responsibility for his drunk driving.\nDefendant\u2019s counsel emphasized defendant\u2019s right to make the State prove its case:\n\u201cIt\u2019s not a crime, Ladies and Gentlemen, to profess your innocence. It\u2019s your constitutional right to have a trial; we all possess that and that\u2019s all my client\u2019s done. He said \u2018I\u2019m not guilty of this\u2019 and his only choice when that decision is made is to come here and have a trial by 12 of his peers.\nNow he does have an option, he could waive jury trial and try for [sic] the Court which is called a bench trial, but that\u2019s his decision alone and he made that decision to have the jury trial; and that\u2019s why we\u2019re here today because he professes his innocence on this.\u201d\nHe then argued that defendant\u2019s version of events should be taken to be the truth because, as a lie to avoid trouble, it was much less sensible than other lies defendant could have told. He argued that Quire\u2019s statement was discredited by her intoxication. He suggested that the State\u2019s photographic exhibits had been deliberately chosen to overstate the difficulty defendant would have had in locating his car from the road. Further, he argued that minor variations in the calibration of the Breathalyzer made the Breathalyzer data unreliable. He stated that there were too many holes in the police evidence for the State to have met its burden of proof.\nThe State\u2019s Attorney, in rebuttal, stated that the case was a very important one to the people of the State of Illinois. He argued that the pictures were accurate and representative, and then asserted that he \u201c[did not] deal in any kinds of attempts to deceive.\u201d He then stated:\n\u201c[Defendant\u2019s counsel] begins his argument by asking you; there\u2019s no other choice for this Defendant, right? No other choice. He\u2019s got to take this case to trial and profess his innocence. Well, not quite. Okay? There is something that about 80 to 90 percent of Defendants do in this country and that is they be [sic] honest, forthright. They go into the courtroom and plead guilty.\nMR. NACK [Defense counsel]: Objection, that\u2019s grounds for mistrial, Judge.\nTHE COURT: Overruled. Go ahead.\nMR. WEBER [State\u2019s Attorney]: It happens every day. You hear about it all the time. Right?\n\u2018You know what? That story I gave was pretty stupid and I think it\u2019s time for me to accept responsibility for my stupidity in driving drunk and filing a false police report and I\u2019ll plead guilty\u2019 \u201d\nHe then argued that it is perfectly natural for someone to get tangled in his own lies, stated that defendant\u2019s intoxication was not even at issue because defendant had admitted it, reemphasized the physical implausibility of defendant\u2019s story, and suggested that Quire\u2019s renunciation of her statement could be the result of her bias in favor of her husband.\nHe suggested that defense counsel was attempting to sow confusion:\n\u201c[T]hat\u2019s the defense; that\u2019s the tactic, right. Well, Officer Craft did this and the machine did that and blah-blah, blah-blah, blah. Folks, that is not even an issue in this case. I asked him flat out, \u2018Were you over the legal limit?\u2019 \u2018Yeah, oh yeah.\u2019 \u2018Beyond .08?\u2019 \u2018Yeah.\u2019 What do we need a machine for? But see, that\u2019s the way. That\u2019s the tactic, of course, you know let\u2019s get back in the jury room and let\u2019s, convince [s\u00bfc] about the machine and let\u2019s convince [sic] about this and dah-dah-dah-dah-dah, and pretty soon there\u2019s 12 of you and there\u2019s reasonable doubt all over the place because you\u2019re thinking about all sorts of things that have nothing to do with the facts and circumstance and hard evidence in this case.\u201d\nIn arguing against defense counsel\u2019s claim that defendant\u2019s story was unlikely to be a lie because it was not in his self-interest, he said:\n\u201cI\u2019ll tell you why he would [persist in his story], okay? I will answer that question for you. Because he wants to escape responsibility for his crime; because he wants to escape because he wants to walk; because he wants to get back out on the street, back out after the verdict and yuck it up with the officers, \u2018Hey-hey, you know, hey look at what I did and got away with it.\u2019 \u201d\nThe jury found defendant guilty on all counts, and defendant moved to arrest judgment, for a new trial, and for a judgment notwithstanding the verdict. Issues raised included claims that the indictment for false report of a vehicle theft was inadequate in that it failed to allege that a third party had been harmed by the report, that such an allegation was a necessary element of the offense, and that the State\u2019s proof was inadequate because it failed to make any showing of this same purported element. Defendant did not raise any issue relating to the State\u2019s closing argument. The motions did allege that the State committed a discovery violation by failing to provide information about certain physical evidence to defendant until just before the trial. During oral argument on the discovery issue, the State\u2019s Attorney indicated that the car had been dusted for fingerprints, although none were found that could be used for identification. Defendant\u2019s motions were denied and defendant was sentenced to 180 days\u2019 periodic imprisonment and 2 years\u2019 probation.\nII. ANALYSIS\nOn appeal defendant contends that (1) his conviction of the false report of a vehicle theft violated his substantive due process rights under the United States and Illinois Constitutions; and (2) the State\u2019s closing arguments were improper and violated his right to a fair trial. We address each contention.\nA. Substantive Due Process\nWe begin by noting that defendant has cited provisions of both the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 2) and the United States Constitution (U.S. Const., amends. V XIV) in support of his first contention; however, his arguments relate only to the Illinois constitutional provision. Consequently, defendant has waived any argument under the federal constitution (188 Ill. 2d R. 341(e)(7)) and our analysis will be so confined. Defendant argues that because he \u201ctold the officer of the theft of his own car in response to questions by the officer, immediately informed the officer that he had located his car, did not accuse another citizen of the purported theft, and did not seek to profit from the conveyance of the false information, the prosecution of [defendant] as a Class-2 felon violated his right to substantive due process.\u201d Defendant contends that his \u201creport\u201d is not the type of report envisioned by the legislature to be within the scope of the offense of falsely reporting a vehicle theft. We disagree.\nDefendant directs us to People v. Morris, 136 Ill. 2d 157 (1990). In Morris, the defendant had altered a temporary vehicle registration permit displayed on a vehicle he owned to show a later expiration date. He was convicted of violating section 4 \u2014 104(a)(3) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95\u00bd, par. 4 \u2014 104(a)(3)), which makes it a Class 2 felony to possess \u201cany *** temporary registration permit *** knowing it to have been stolen, converted, altered, forged or counterfeited.\u201d The issue in Morris, pertinent to this appeal, was whether the penalty for possession of an altered temporary registration permit applied in that case violated the defendant\u2019s right to substantive due process under the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 2). Morris, 136 Ill. 2d at 161-62. The court explained that in order \u201c \u2018[t]o be a valid exercise of police power, the legislation must bear a reasonable relationship to [the interest] which is sought to be protected, and the means adopted must constitute a reasonable method to accomplish such objective.\u2019 \u201d Morris, 136 Ill. 2d at 161, quoting City of Carbondale v. Brewster, 78 Ill. 2d 111, 115 (1979). The court then declared that \u201c[t]he purpose of the anti-theft laws \u2018is to protect automobile owners against theft and to protect the general public against the commission of crimes involving stolen automobiles.\u2019 \u201d Morris, 136 Ill. 2d at 162, quoting People v. One 1979 Pontiac Grand Prix Automobile, 89 Ill. 2d 506, 510 (1982). The court then found that the defendant altered the temporary registration of his own vehicle and that there was no evidence that the alteration contributed in any way to any vehicle-theft-related crime. Morris, 136 Ill. 2d at 162. Our supreme court concluded:\n\u201cA Class 2 penalty for a person who alters a temporary registration permit for a vehicle which he or she owns or to which he or she is legally entitled is not reasonably designed to protect automobile owners against theft, nor is it reasonably designed to protect the general public against the commission of crimes involving stolen motor vehicles. Such a penalty is violative of the due process clause of our constitution, and may not stand.\u201d Morris, 136 Ill. 2d at 162.\nApplying the analysis from Morris to this case, we must determine whether a Class 2 penalty for a person who falsely reports a theft of his own motor vehicle is reasonably designed to protect automobile owners against theft, or reasonably designed to protect the general public against the commission of crimes involving stolen motor vehicles. We conclude that, under the facts of this case, an application of a Class 2 penalty to defendant is reasonably designed to meet those legitimate state interests.\nIn this case, defendant\u2019s actions did have harmful consequences, the prohibition of which protects automobile owners against theft and protects the general public from the commission of crimes involving stolen motor vehicles. Contrary to defendant\u2019s contention, his actions caused a misdirection of police resources. It is important to note that although defendant quickly advised Officer Jahncke that the \u201cstolen\u201d vehicle had been recovered, he never retreated from his claim that a theft had occurred. The arresting officer\u2019s testimony makes it clear that defendant\u2019s car was inventoried and processed as a stolen vehicle. It was held indoors so that it could be protected from tampering, and an Illinois State Police crime scene investigator photographed the vehicle. The prosecutor\u2019s comments to the court related that it was also dusted for fingerprints. Defendant\u2019s actions also kept the Warren police involved in the investigation of the possible theft: according to defendant\u2019s testimony, he came to the police station the Monday following his arrest to provide the police with a list of items he thought were missing from his vehicle. Deterring misdirection of police resources advances anti-theft interests; for example, it improves the protection of automobile owners against vehicle theft by increasing the resources that can be expended on solving or preventing actual automobile thefts. Further, the deterrence of such misdirection makes police resources available to investigate, detect, and prevent all crimes that negatively affect the public in general, including crimes involving stolen motor vehicles. Accordingly, the application to defendant of the Class 2 penalty provided for by section 4 \u2014 103(b) for a violation of section 4 \u2014 103(a)(6) did reasonably relate to legitimate state interests and, therefore, did not violate his due process rights.\nDefendant points to the State\u2019s closing argument in which the prosecutor referred to defendant\u2019s story as \u201claughable\u201d and \u201cridiculous.\u201d Defendant suggests that this characterization is an acknowledgment by the State that defendant\u2019s report was so inane that there was no reason to expend police resources to investigate the theft. We realize that it is possible that a report of a stolen motor vehicle could be so outlandish (e.g., Martians stole my car!) that charging a person with the false report of a stolen vehicle would violate that person\u2019s right to substantive due process guaranteed by the Illinois Constitution. However, this is not such a case. The record indicates that the report was at least plausible and that the police took it seriously enough to impound defendant\u2019s car for investigation and to apply valuable resources to the case, including the time of an Illinois State Police crime scene investigator. Moreover, defendant did nothing after the initial report to dissuade the police from believing the veracity of his claim, even to the point of bringing them a list of items he claimed were stolen from his car. Defendant never did retract the report and stuck to his story at trial.\nDefendant also argues that People v. Fuller, 187 Ill. 2d 1 (1999), holds that the false report provision, read in the light of Morris, requires that the false report have some victim in order for it to be punishable. Defendant contends that his crime was victimless.\nThe defendant in Fuller, after allowing her former husband to borrow her car, called the police and reported it stolen. The former husband was stopped by police, arrested, and ultimately charged with the theft. Fuller, 187 Ill. 2d at 4. After the defendant admitted that she had lied about the theft, she was charged with false report of a vehicle theft. Fuller, 187 Ill. 2d at 5. She moved to dismiss the charge on the grounds that, under the rationale of Morris, application of the false report provision in her case would violate her due process rights. Fuller, 187 Ill. 2d at 5-6. Our supreme court rejected the defendant\u2019s argument that punishing her particular actions did nothing to advance anti-theft interests and that, thus, to apply the false report provision to her actions would violate her due process rights. Fuller, 187 Ill. 2d at 5-6.\nAs to defendant\u2019s contention that Fuller requires that the defendant\u2019s conduct have a victim, we disagree. We believe that our supreme court simply distinguished Morris and People v. Hamm, 149 Ill. 2d 201 (1992), on this basis, but did not require a specific victim in order to conclude that a given penalty is reasonably related to the legislative purpose of the statute in question. See Fuller, 187 Ill. 2d at 16. The court found it sufficient that there was harm to a specific victim, i.e., the defendant\u2019s former husband, in deciding if the Class 2 penalty was reasonably related to the legislative purpose, but nothing the court said indicates that this is necessary.\nEven if Fuller could be read to include a victim factor, in the due process equation, we believe that it was met in this case. In his trial testimony, defendant related that when he emerged from Wally\u2019s bar and discovered his vehicle was missing, he thought that his friends were playing a joke on him, so he began to search for his car. We would certainly expect that Officer Jahncke of the Warren police department, as well as other law enforcement officers working in the vicinity, could easily ascertain who these \u201cfriends\u201d of defendant were and subject them to an investigation regarding this incident. Moreover, defendant potentially exposed persons who had innocently touched his vehicle in the past to a stolen-motor-vehicle investigation. Although no fingerprints suitable for comparison were located on defendant\u2019s vehicle, at the time defendant made the report he did not know that the innocent people who had touched his vehicle in the past would be so fortunate. As the supreme court in Fuller observed, \u201cthe defendant\u2019s actions exposed [innocent people] to the uncertainty and expense that will result from being falsely accused of a crime.\u201d (Emphasis added.) Fuller, 187 Ill. 2d at 19.\nFor the foregoing reasons, we reject defendant\u2019s contention that the Class 2 felony penalty that was applied to him in this case was a violation of his right to substantive due process of law under the Illinois Constitution.\nB. The Prosecutor\u2019s Closing Argument\nDefendant\u2019s second contention on appeal is that the prosecutor\u2019s closing arguments denied him a fair trial. Defendant notes that this claim was not raised in his posttrial motions, but he claims that the improprieties were serious enough to rise to the level of plain error. Because the standard for reversal of a conviction on appeal due to improper closing argument by the State is much the same as the plain-error standard, the failure to raise this issue before the trial court has little effect. \u201cThe standard of review applied to arguments by counsel is similar to the standard used in deciding whether a plain error was made: comments constitute reversible error only when they engender substantial prejudice against a defendant such that it is impossible to say whether or not a verdict of guilt resulted from those comments.\u201d People v. Nieves, 193 Ill. 2d 513, 533 (2000).\nWe agree with defendant that certain parts of the rebuttal argument were improper. However, we do not agree that every portion of the rebuttal singled out by defendant is improper, and, more critically, we do not agree that the improper remarks rise to the level of reversible error.\nDefendant argues that it was improper for the State to suggest that defense counsel was attempting to confuse the jury. These comments by the State were proper in light of defendant\u2019s remarks that attempted to make much of a minor discrepancy in the calibration of the Breathalyzer used to test him. Comments on the defense\u2019s attempt to use minor discrepancies to discredit the State\u2019s evidence are proper rebuttal. People v. Hudson, 102 Ill. App. 3d 346, 349 (1981). We read the State\u2019s comments not as an attempt to accuse defendant\u2019s counsel of dishonesty but, rather, to draw attention to his trial tactic.\nDefendant further argues that it was improper for the State to suggest that defendant and counsel had encouraged his wife to he on his behalf. It is not clear that the State made such a claim, and if it did, it immediately retracted it. The interchange, discussing the use of Quire\u2019s written police statement, was as follows:\n\u201cMR. WEBER [State\u2019s Attorney]: And because Defendants attempt to get around [statements made to police] by later bringing in [the persons who made the statements] and having them say T don\u2019t remember. I don\u2019t remember\u2019, okay, that does not\u2014\nMR. NACK [Defense Counsel]: I\u2019ll object to that. There\u2019s no indication that we had anything to do with that. The implication is we told her to come in here and lie.\nTHE COURT: Overruled. Go ahead.\nMR. WEBER; Well, I certainly don\u2019t want to leave that impression whatsoever if that\u2019s the impression I gave, I would certainly withdraw it and strike it and I don\u2019t think I was saying that but if I did, I apologize. What I mean is, he\u2019s married to her, okay, and now she comes in here and says I don\u2019t remember.\u201d\nGenerally, a trial court can correct any error by sustaining an objection and instructing the jury to disregard the remark. People v. Cisewski, 118 Ill. 2d 163, 178 (1987). Here, although the court overruled the objection, the State itself was at pains to correct the impression. With any implication that defendant or his counsel was suborning perjury definitively retracted, all that remained of the statement was a comment about the likelihood of the witness\u2019s bias, which was proper.\nThe State made comments which suggest, essentially, that a decent person in defendant\u2019s position would have pleaded guilty. Negative comments about a defendant\u2019s exercise of his or her constitutional rights are improper because they penalize the defendant for the exercise of those rights. People v. Mulero, 176 Ill. 2d 444, 462 (1997). This argument by the State is nothing if not an attempt to anger the jury at defendant for his choice to have a trial. The State argues that this line of argument was invited, but this was not the case. In closing, defendant\u2019s counsel argued that, once defendant chose to assert his right to plead his innocence, he had no choice but to go to trial. He further stated that defendant had the choice between a bench trial and a jury trial, and that defendant had chosen to have a jury trial. Nothing in these remarks could be understood to state that defendant was forced to go to trial. If anything, the remarks appear to have been intended to remind the members of the jury that they were assisting in upholding defendant\u2019s right to a trial by jury.\nThe State also commented that defendant\u2019s purpose in lying was to be able to laugh at the police when he was back on the street. It is error for the trial court to permit comments that serve only to arouse the passions of the jury, and particularly comments that attempt to turn the jury\u2019s verdict into a test of its support for law enforcement. People v. Slabaugh, 323 Ill. App. 3d 723, 731 (2001). The State could point out that defendant was motivated to lie, but the comment about him laughing at police went well beyond this. The comment had no basis in the evidence and seems to have been designed to be purely inflammatory.\nGenerally, improper closing arguments by the State will constitute reversible error only if there is doubt as to whether the jury would have rendered a guilty verdict in the absence of the comments. Nieves, 193 Ill. 2d at 533. Nothing in the case suggests that the closing argument had such an effect on the outcome of the trial. With regard to the false-reporting charge, the only dispute was the legal one of whether the provision under which he was charged applied to defendant\u2019s admitted conduct. With regard to the DUI charge, the only real dispute was whether defendant had driven his car after he became intoxicated. On this point, the jury heard testimony of defendant\u2019s own admission that he had driven the car (by trying to get it unstuck) after he left the last bar. This, coupled with the implausibility of defendant\u2019s explanation as to how the car got to the place it was found, made a sufficiently strong case for defendant\u2019s guilt that we can presume that the State\u2019s closing argument did not affect the verdict, and under the general standard there is no reversible error.\nDefendant also argues that under People v. Blue, 189 Ill. 2d 99, 139 (2000), and People v. Ray, 126 Ill. App. 3d 656, 663 (1984), closing argument that exceeds all bounds of propriety can constitute reversible error, even when the evidence against the defendant is overwhelming. Both cases stand for the proposition that the cumulative effect of errors during the course of a trial can so taint the proceedings as to deprive the defendant of a fair and impartial trial and thus require reversal even in the face of evidence that strongly establishes the defendant\u2019s guilt. Ray holds that such taint can be caused by improper closing argument alone. However, the errors in Ray were much more pervasive than those in this case. In Ray, the court noted that it was examining only the most egregious of the prosecutor\u2019s closing comments, and yet it listed 16 instances of claiming that defense counsel was lying, a single instance of suggesting that the defendant no longer enjoyed the presumption of innocence, a single instance of drawing attention to the fact that the defendant had not testified, several instances of suggesting that excluded evidence would have favored the State, several suggestions that the defendant had intimidated witnesses, and several insinuations that the defendant had a long criminal history. Ray, 126 Ill. App. 3d at 660-63.\nWithout diminishing the failings of the State in this matter, we recognize that improper comments in this case were neither as pervasive nor as potentially damaging as those in Ray. The quantity of improper comments in this case does not match the sheer quantity of the inflammatory remarks in Ray. Furthermore, the improper comments in this case lacked the potential of those in Ray to confuse the jury. There, the comments brought to the jury\u2019s attention the existence of excluded evidence and otherwise attempted to mislead the jury as to the evidence that it should have considered, whereas here the improper remarks were simply inappropriate appeals to emotion.\nIII. CONCLUSION\nFor the reasons stated, the judgment of the circuit court of Jo Daviess County is affirmed.\nAffirmed.\nBYRNE, J., concurs.", "type": "majority", "author": "JUSTICE KAPALA" }, { "text": "PRESIDING JUSTICE HUTCHINSON,\ndissenting:\nI respectfully dissent. I believe that State\u2019s Attorney Glen Weber\u2019s rebuttal argument was so fraught with improper comments that it not only rose to the level of reversible error, it shattered the ceiling of courtroom decorum and professional conduct. I recognize the general principle of affording prosecutors wide latitude in closing argument. See People v. Blue, 189 Ill. 2d 99, 127 (2000). However, this wide latitude is not without limits. See People v. Slabaugh, 323 Ill. App. 3d 723, 727-32 (2001). A fundamental tenet of our criminal justice system is that prosecutors owe defendants a duty of fairness. People v. Amaya, 255 Ill. App. 3d 967, 973 (1994). This duty extends throughout the trial and includes closing arguments. Amaya, 255 Ill. App. 3d at 973. What this means is that State\u2019s Attorney Weber has an ethical obligation to refrain from presenting improper and prejudicial argument. See People v. Hudson, 157 Ill. 2d 401, 441 (1993). We expect our state\u2019s prosecutors to prosecute with earnestness and vigor. But as the United States Supreme Court has recognized, \u201c[WJhile [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).\nIn the present case, the first foul blow emanating from State\u2019s Attorney Weber came at the outset of his rebuttal, when he explained to the jury that defendant could have chosen to do what \u201c80 to 90 percent of [d]efendants do in this country\u201d and that is \u201cthey be honest [and] forthright,\u201d and \u201c[t]hey go into the courtroom and they plead guilty.\u201d Upon defense counsel\u2019s objection that the remark just attacked defendant\u2019s constitutional right to a jury trial (see U.S. Const., amend. VI), the trial court actually overruled the objection and allowed Weber to continue. Thereafter, Weber repeatedly accused defendant of lying, accused defense witnesses of lying, explained why defendant and defense witnesses would lie, and why defendant and defense witnesses would continue to maintain their lie. Weber explained to the jury that defendant \u201cwant[ed] to escape responsibility for his crime,\u201d \u201cget back out on the street, back out after the verdict and yuck it up with the officers.\u201d Weber then concluded by asking the jury to \u201csend [defendant] a message\u201d and say \u201cenough of these lies.\u201d In my view, Weber\u2019s rebuttal argument exceeded all bounds of reasonable and proper comment. The argument was especially harmful due to Weber\u2019s strategic decision to wait until rebuttal to present it, so that defendant would have absolutely no method to substantively counteract the venom of Weber\u2019s comments before the jury retired to deliberate. See People v. Sutton, 316 Ill. App. 3d 874, 896 (2000).\nTime and again Glen Weber has crossed the line of permissible conduct. See People v. Slabaugh, 323 Ill. App. 3d 723, 727-32 (2001); People v. Couch, No. 2 \u2014 01\u20140585 (2003) (unpublished order under Supreme Court Rule 23); People v. Doll, No. 2 \u2014 02\u20140564 (2003) (unpublished order under Supreme Court Rule 23). In Slabaugh, Weber repeatedly argued that defense witnesses were \u201c \u2018lying,\u2019 \u2018[sat] down together and [got their] stories straight,\u2019 \u2018concocted\u2019 their defense, and \u2018creat[ed] a defense.\u2019 \u201d Slabaugh, 323 Ill. App. 3d at 729. We noted that, despite a trial court\u2019s sustaining an objection and instructing the jury, when a prosecutor repeatedly attempts to make unfounded arguments, a defendant may still be prejudiced. Slabaugh, 323 Ill. App. 3d at 731-32. In reversing the defendant\u2019s conviction, we held that, in addition to his improper impeachment, Weber\u2019s \u201cnumerous improper arguments\u201d deprived the defendant of a fair trial. Slabaugh, 323 Ill. App. 3d at 732.\nIn Doll, we noted in a special concurrence that Weber\u2019s comment that the defendant was a \u201crat in a maze\u201d \u201cserved no other purpose than to arouse the passions of the jury.\u201d Doll, slip op. at 15 (Gilleran Johnson and McLaren, JJ., specially concurring). In the present case, Weber, while attempting to explain what a \u201cprior inconsistent statement\u201d was, argued: \u201cyou see, because we have [defendants here that are always trying to, you know, they\u2019re like a rat in a maze, you know, okay, let\u2019s see what it looks like in here \u2014 zoom, zoom, and try to get out of it.\u201d (Emphasis added.) Just as in Doll, this type of rhetoric served no purpose other than to arouse the passions of the jury and to denigrate defendant and the defense witnesses and is, therefore, highly improper. See Doll, slip op. at 15 (Gilleran Johnson and McLaren, JJ., specially concurring).\nApparently, our past admonitions to Glen Weber have gone callously and cavalierly disregarded as this case more than amply demonstrates. I am further troubled that the majority\u2019s treatment of this issue does nothing to diminish the likelihood that such conduct will recur. Though I am unable to convince my colleagues, I feel compelled to make a public record of Glen Weber\u2019s lack of professionalism and decorum.\nIn cases such as this, where prosecutorial misconduct has not been deterred through admonition or condemnation, the United States Supreme Court has stated that it \u201cmay well so seriously undermine the integrity of judicial proceedings as to support reversal under the plain-error doctrine.\u201d United States v. Young, 470 U.S. 1, 33 n.16, 84 L. Ed. 2d 1, 24 n.16, 105 S. Ct. 1038,1055 n.16 (1985) (Brennan, J, concurring in part and dissenting in part, joined by Marshall and Blackmun, JJ.). Given the cumulative effect of Weber\u2019s comments and the nature of the evidence in this case, I believe that defendant was denied a fair and impartial trial. See Slabaugh, 323 Ill. App. 3d at 732. The evidence of guilt can hardly be characterized as overwhelming; consequently, this is not a matter of harmless error. A reversal and remand for a new trial free from the taint of Glen Weber is not only justified in this instance, it should be mandated. I urge judges to vigorously guard against such improper argument and unprofessional conduct.\nFor these reasons, I respectfully dissent.", "type": "dissent", "author": "PRESIDING JUSTICE HUTCHINSON," }, { "text": "SUPPLEMENTAL OPINION ON REHEARING\nJUSTICE KAPALA\ndelivered the opinion of the court:\nWe allowed defendant\u2019s petition for rehearing that requested that we reconsider our holding as to defendant\u2019s second contention on appeal in light of our supreme court\u2019s recent decision in People v. Johnson, 208 Ill. 2d 53 (2003). Defendant argues that Johnson mandates reversing his conviction and remanding the cause for a new trial because the acceptance of such \u201cblatant misconduct\u201d as occurred in this case is exactly what the supreme court warned against in Johnson. The State argues that the Johnson decision should not alter our holding that the improper comments by the prosecutor in this case were harmless. After carefully considering the holding in Johnson, as well as the parties\u2019 arguments regarding that decision, our resolution of this case has not changed.\nJohnson involved three consolidated appeals where the State sought review of the appellate court decisions reversing DeAngelo Johnson\u2019s, Clyde Cowley\u2019s, and Jimmie Parker\u2019s convictions and remanding the causes for new trials. Cowley and Parker were codefendants of Murray Blue, the defendant in People v. Blue, 189 Ill. 2d 99 (2000). These three defendants were charged with, among other crimes, the first degree murder of Chicago police officer Daniel Doffyn. Cowley\u2019s trial was severed from Blue\u2019s and these two cases were tried simultaneously, but with separate juries. Johnson, 208 Ill. 2d at 60-61. Parker\u2019s trial took place several months later. Johnson\u2019s trial involved charges resulting from a separate incident. Johnson, 208 Ill. 2d at 61. At the beginning of the Johnson decision, the court wrote:\n\u201cThese consolidated cases come before us in the wake of our decision in People v. Blue, 189 Ill. 2d 99, 138-39 (2000), wherein a unanimous court held that the cumulative effect of prosecutorial misconduct and trial error had deprived the defendant of a fundamentally fair trial and thus warranted reversal notwithstanding overwhelming evidence of defendant\u2019s guilt. In Blue, this court recognized that a pervasive pattern of error, engendered in the main by prosecutorial misconduct, had divested defendant of his right to a fair, orderly, and impartial trial, a substantial right that inures to a criminal defendant \u2018 \u201cwhether guilty or innocent.\u201d \u2019 Blue, 189 Ill. 2d at 138, quoting People v. Bull, 185 Ill. 2d 179, 214 (1998). In Blue, where the trial was permeated by the presentation of emotionally charged evidence, and the prosecutors \u2018encouraged the jury to return a verdict grounded in emotion, and not a rational deliberation of the facts\u2019 (Blue, 189 Ill. 2d at 139), the members of this court, acting \u2018as guardians of constitutional rights and the integrity of the criminal justice system\u2019 (Blue, 189 Ill. 2d at 139), reversed and remanded for a new trial. Disposition of the instant cases requires that we further delineate the dimensions of Blue, applying the principles and standards of review utilized in that case.\u201d Johnson, 208 Ill. 2d at 60.\nBecause the court in Johnson relied on its decision in Blue, a detailed discussion of the holding in Blue is warranted. In Blue our supreme court held that cumulative errors deprived the defendant of his due process right to a fair trial (Blue, 189 Ill. 2d at 104) and reversed his convictions of, among other crimes, the first degree murder of Officer Doffyn. The court identified four errors that occurred during the evidentiary portion of the trial. The first error was the admission of Officer Doffyn\u2019s bloodied and brain-splattered uniform. Blue, 189 Ill. 2d at 126. The court concluded that the potential prejudice of the evidence outweighed its probative value and that its admission was aimed directly at the sympathies, or outrage, of the jury. Blue, 189 Ill. 2d at 126. The second error was the admission of the testimony of Officer Doffyn\u2019s father, which was not probative of the defendant\u2019s guilt or innocence but, rather, highlighted the poignancy of the Doffyn family\u2019s loss and suggested that the family\u2019s pain could be alleviated by a guilty verdict. Blue, 189 Ill. 2d at 131. The third error was the admission of the irrelevant and emotionally charged testimony of Commander Joseph Delopez regarding the \u201cstar ceremony\u201d where Officer Doffyn took his oath of office and the commander\u2019s explanation that Officer Doffyn\u2019s star is now displayed in the \u201chonored star case\u201d at Chicago police department headquarters. Blue, 189 Ill. 2d at 133. The fourth error was the prosecutors\u2019 hostile treatment of a witness, repeatedly interjecting their own testimony \u201cthrough thinly veiled \u2018objections,\u2019 \u201d and their violation of the advocate-witness rule. Blue, 189 Ill. 2d at 135-36.\nThe Blue court also identified as errors two improper themes in the prosecutor\u2019s closing arguments. The first was the argument that the jury\u2019s verdict should be a vehicle to vindicate the Doffyn family. The court said that the argument that Officer Doffyn\u2019s father, mother, and child needed to \u201chear\u201d from the jury was patently immaterial to the defendant\u2019s guilt or innocence and the State\u2019s reference to their loss was an erroneous appeal to the jury\u2019s emotions. Blue, 189 Ill. 2d at 130. The second improper argument identified by the court was the prosecutor\u2019s argument that the jury should send a message in support of the police. Blue, 189 Ill. 2d at 132. The court concluded:\n\u201c[T]he trial court allowed the State to argue two emotion-laden themes to the jury, neither of which was probative of defendant\u2019s guilt for the several crimes charged against him. The nakedly prejudicial nature of the arguments was intensified by parallel evidence which, perhaps by design, reinforced the tragedy of the loss suffered in this case by the police force and by the family of Daniel Doffyn. Consequently, we hold that the trial court abused its discretion by permitting the jury to hear these arguments.\u201d Blue, 189 Ill. 2d at 134.\nNext, the court turned to the State\u2019s argument that, irrespective of any error, the evidence against the defendant was so overwhelming that absent the errors the outcome of the case would not have been different. Blue, 189 Ill. 2d at 137-38. In response to this argument the court explained:\n\u201c[Prejudice to a defendant\u2019s case is not the sole concern that drives our analysis of defendant\u2019s appeal: \u2018A criminal defendant, whether guilty or innocent, is entitled to a fair, orderly, and impartial trial\u2019 conducted according to law. People v. Bull, 185 Ill. 2d 179, 214 (1998). This due process right is guaranteed by the federal and state constitutions. [Citations.]\nAdditionally, when a defendant\u2019s right to a fair trial has been denied, this court must take corrective action so that we may preserve the integrity of the judicial process. [Citation.] To determine whether defendant\u2019s right to a fair trial has been compromised, we employ the same test that this court uses whenever it applies the second prong of the plain error test. 134 Ill. 2d R. 615(a). We ask whether a substantial right has been affected to such a degree that we cannot confidently state that defendant\u2019s trial was fundamentally fair. [Citations.]\n*** [W]hen an error arises at trial that is of such gravity that it threatens the very integrity of the judicial process, the court must act to correct the error, so that the fairness and the reputation of the process may be preserved and protected. Critically, the court will act on plain error regardless of the strength of the evidence of defendant\u2019s guilt.\u201d (Emphasis in original.) Blue, 189 Ill. 2d at 138.\nIn employing this test the court in Blue concluded:\n\u201cIn this appeal, we hold that a new trial is necessary in order to preserve the trustworthiness and reputation of the judicial process. We do not disagree that the evidence proving defendant\u2019s guilt is overwhelming. Nonetheless, regardless of the weight of the evidence, as guardians of constitutional rights and the integrity of the criminal justice system, we must order a new trial when, as here, we conclude that defendant did not receive a fair trial.\nEach of the errors detailed above, in and of itself, casts doubt upon the reliability of the judicial process. Cumulatively, we find that the errors created a pervasive pattern of unfair prejudice to defendant\u2019s case. [Citations.] The argument by State\u2019s counsel concerning the Doffyn family and the police encouraged the jury to return a verdict grounded in emotion, and not a rational deliberation of the facts. Therefore, by allowing the State to suggest improper considerations to the jury, the trial court errantly allowed the jury to consider \u2018evidence\u2019 not relevant to defendant\u2019s alleged crimes.\nCombined with the introduction of the dead officer\u2019s bloodied uniform, moreover, the errors assumed a synergistic effect. In particular, if we view together the manner and duration of the uniform\u2019s display, the appeal to the jurors to demonstrate their gratitude to the police force, the introduction of Doffyn\u2019s oath of office and testimony that his star occupies an honored place at police headquarters, we discern an intent by the State to place the jury\u2019s responsibility as citizens on trial, as much as the State placed defendant on trial. [Citation.]\nThe State\u2019s overbearing conduct in pursuit of defendant\u2019s convictions was further demonstrated by the assistant State\u2019s Attorneys\u2019 behavior at trial. The tendency of the prosecutors to interject editorializing objections unfairly negated evidence that may have been favorable to defendant. The fact the objections were made\u2014 and sometimes sustained \u2014 by government representatives suggested that, because knowledgeable authorities found the testimony in question incredible, then the jury should reach the same conclusion.\nUnder these circumstances, defendant did not receive a fair trial. [Citations.] In sum, the trial court allowed the guilty verdict to rest on considerations other than the evidence alone. Accordingly, we reverse defendant\u2019s convictions and sentence and remand for a new trial.\u201d Blue, 189 Ill. 2d at 139-40.\nReturning to our discussion of Johnson, in reversing Cowley\u2019s and Parker\u2019s convictions, the court identified three instances of trial error that occurred in both trials: (1) the admission and display of Officer Doffyn\u2019s bloodied and brain-splattered uniform, (2) the emotionally charged testimony of Officer Doffyn\u2019s father, and (3) the testimony of Commander Delopez that served only to highlight the ceremonies and oath associated with Officer Doffyn\u2019s service and duties as a police officer. Johnson, 208 Ill. 2d at 72. The court in Johnson noted that Cowley was tried simultaneously with Blue and, consequently, with the exception of the prosecutors\u2019 violation of the advocate-witness rule, the identical evidentiary errors identified in Blue also occurred in Cowley\u2019s trial. Johnson, 208 Ill. 2d at 85.\nAs to Parker\u2019s trial, the court identified five instances of improper argument by the prosecution: (1) remarks aimed at the sympathies of the jury implicitly asking the jury to send a message of support of law enforcement (Johnson, 208 Ill. 2d at 75-76); (2) twice utilizing a metaphor in an argument on accountability likening the defendant to an animal, that is, \u201c \u2018If you run with the pack, you share the kill\u2019 \u201d (Johnson, 208 Ill. 2d at 80); (3) mischaracterizing the evidence and the applicable law, and suggesting that defense counsel was deceptive in his dealings with the jury (Johnson, 208 Ill. 2d at 81); (4) two improper references to a school\u2019s proximity to the location where the defendants parked their car (Johnson, 208 Ill. 2d at 83); and (5) references to Officer Doffyn\u2019s family that could be construed only as \u201cstrained attempts to invoke the jury\u2019s sympathy and thus influence its decision\u201d (Johnson, 208 Ill. 2d at 83). As to Parker\u2019s trial, the Johnson court concluded:\n\u201cAs in Blue, we see in this case cumulative error and a pervasive pattern of unfair prejudice that denied defendant a fair trial and cast doubt upon the reliability of the judicial process. See Blue, 189 Ill. 2d at 139. We note that the prejudice in this case, as in Blue, was engendered in the main by prosecutorial misconduct. As in Blue, the coalescence of improper, emotion-laden evidence, and inflammatory argument obviously designed to exploit that evidence, created a synergism of parallel errors. See Blue, 189 Ill. 2d at 134, 139. As in Blue, a new trial is necessary in this case to preserve and protect the integrity of the judicial process, as \u2018the trial court allowed the guilty verdict to rest on considerations other than the evidence alone.\u2019 See Blue, 189 Ill. 2d at 138-40.\u201d Johnson, 208 Ill. 2d at 84.\nWhen the court turned its attention to Cowley\u2019s trial, it identified the following instances of improper argument during the prosecutor\u2019s closing arguments: (1) unnecessary and irrelevant references to Officer Doffyn\u2019s surviving family members; (2) the same animal metaphor found objectionable in Parker\u2019s trial; (3) the same irrelevant reference to the proximity of a grammar school found objectionable in Parker\u2019s trial; (4) the same improper implied send-a-message-to-the-community theme that was utilized in Parker\u2019s trial; and (5) improperly casting the jury\u2019s decision as one between good and evil. Johnson, 208 Ill. 2d at 86-87. The court affirmed the reversal of Cowley\u2019s convictions for reasons similar to its affirmance of the reversal of Parker\u2019s convictions. Johnson, 208 Ill. 2d at 87.\nIn overturning the appellate court\u2019s reversal of Johnson\u2019s conviction, the court found all of the allegations of trial error (including the admission of gang affiliation evidence; the admission of testimony that allegedly apprised the jury that the defendant had taken and failed a polygraph; and the admission of the defendant\u2019s prior arrests and adjudications of delinquency) to lack merit (Johnson, 208 Ill. 2d at 102-09) before finding that the prosecutor\u2019s comments in closing argument improperly suggested that Johnson was required to present evidence at trial. Johnson, 208 Ill. 2d at 115. The court went on to conclude, however, that the improper comments did not result in substantial prejudice to the defendant in that they were not a material factor in his conviction. Johnson, 208 Ill. 2d at 115, citing People v. Williams, 192 Ill. 2d 548, 573 (2000). The Johnson court held further:\n\u201c[T]he prosecutor\u2019s comments, quite simply, did not result in substantial prejudice to Johnson under these circumstances, and thus, they do not warrant reversal of Johnson\u2019s convictions. As there was neither cumulative error, nor a pervasive pattern of prosecutorial misconduct and related trial error, the appellate court\u2019s reliance upon Blue was misplaced.\u201d Johnson, 208 Ill. 2d at 117.\nWe now turn to an analysis of the impact the decisions in Blue and Johnson have on the matter at bar. Ordinarily a prosecutor\u2019s improper comment will not result in the jury\u2019s verdict being disturbed on appeal unless the remark caused substantial prejudice to the defendant, taking into account the content and context of the comment, its relationship to the evidence, and its effect on the defendant\u2019s right to a fair and impartial trial. Johnson, 208 Ill. 2d at 115, citing Williams, 192 Ill. 2d at 573. Errors in closing argument must result in substantial prejudice such that the result would have been different absent the complained-of remark before reversal is required. Williams, 192 Ill. 2d at 573. In this case, because the evidence of defendant\u2019s guilt was overwhelming, he was not prejudiced in the sense that the outcome of the trial would have been different but for the prosecutor\u2019s two improper remarks during the State\u2019s rebuttal closing argument. However, as our supreme court noted in Blue, there can be a special circumstance where a criminal defendant is deprived of a fair trial even when the evidence of his guilt is overwhelming, i.e., where his substantial constitutional right to a fair, orderly, and impartial trial conducted according to law has been affected to such a degree that his trial was not fundamentally fair. In this special circumstance, the error is of such gravity that it threatens the very integrity of the judicial process and the court must act to correct the error so that the fairness and reputation of the process may be preserved and protected. See Blue, 189 Ill. 2d at 138.\nIn Johnson and Blue the court found that the defendants Blue, Cowley, and Parker were deprived of their right to a fundamentally fair trial due to the cumulative effect of prosecutorial misconduct and trial error, warranting reversal notwithstanding overwhelming evidence of their guilt. Johnson, 208 Ill. 2d at 84-85; Blue, 189 Ill. 2d at 138-39. In reversing Cowley\u2019s and Parker\u2019s murder convictions, the court followed its analysis in Blue where it held that the cumulative effect of prosecutorial misconduct and trial error deprived the defendant of a fair trial. Johnson, 208 Ill. 2d at 60, citing Blue, 189 Ill. 2d at 138. The court found \u201ccumulative error and a pervasive pattern of unfair prejudice that denied defendant a fair trial and cast doubt upon the reliability of the judicial process.\u201d Johnson, 208 Ill. 2d at 84.\nDefendant\u2019s right to a fair trial, however, was not affected to the same extent that Blue\u2019s, Cowley\u2019s, and Parker\u2019s rights were in Blue and Johnson. Defendant\u2019s trial, like Blue\u2019s, Cowley\u2019s, and Parker\u2019s, involved improper argument by the prosecution in a case where the evidence proving defendant\u2019s guilt was overwhelming. However, defendant\u2019s trial was not like Blue\u2019s, Cowley\u2019s, or Parker\u2019s, where there was cumulative error demonstrating a pervasive pattern of unfair prejudice by the prosecution. Blue\u2019s trial involved four trial errors and the prosecution\u2019s argument of two improper, emotion-laden themes. Cowley\u2019s and Parker\u2019s trials contained three instances of trial error and at least five instances of improper argument by the prosecution. In contrast, this defendant\u2019s trial contained only two improper arguments by the prosecutor during the State\u2019s rebuttal closing argument and not a single allegation of trial error.\nThe improper arguments in this case were the negative comment regarding defendant\u2019s choice to exercise his constitutional right to have a jury trial, and the comment that defendant\u2019s purpose in lying was to avoid responsibility for his crime and to laugh at the police after he was back on the street. Unlike Blue\u2019s, Cowley\u2019s, and Parker\u2019s trials, these arguments did not coincide with or parallel any emotion-laden evidence improperly admitted at trial. Consequently, there was no synergistic or cumulative effect to the improper argument depriving defendant of a fair trial. Rather, like Johnson\u2019s trial, defendant\u2019s trial did not involve a pervasive pattern of prosecutorial misconduct and related trial error. Accordingly, we conclude that defendant\u2019s substantial right to a fair, orderly, and impartial trial conducted according to law was not affected to such a degree that we cannot confidently state that defendant\u2019s trial was fundamentally fair. See Blue, 189 Ill. 2d at 138. We do not believe that the errors were so grave as to threaten the integrity of the judicial process such that we must act to correct the error so that the fairness and the reputation of the process may be preserved and protected. See Blue, 189 Ill. 2d at 138.\nJohnson and Blue hold that, even in a case where the evidence of the defendant\u2019s guilt is overwhelming, a defendant is deprived of his right to a fair trial where the prosecution makes improper arguments that are related to improperly admitted, emotion-laden evidence, resulting in a jury verdict grounded in emotion rather than rational deliberation of the facts. Johnson, 208 Ill. 2d at 84-85; Blue, 189 Ill. 2d at 138-39. Defendant would have us reverse his conviction in a case where there was no trial error that related to the prosecution\u2019s improper arguments and where the evidence of his guilt was overwhelming. We decline to so extend the holdings in Blue and Johnson.\nThe cumulative impact of multiple improper remarks by the prosecutor in closing argument may result in prejudice to a criminal defendant. People v. Whitlow, 89 Ill. 2d 322, 341 (1982). Such cases typically involve prejudice to a defendant in the ordinary sense such that absent the improper comments the outcome of the trial would have been different. Defendant directs us only to People v. Ray, 126 Ill. App. 3d 656 (1984), as authority for reversal of a conviction based on cumulative error consisting solely of improper argument by the prosecution in a case where the evidence of the defendant\u2019s guilt was overwhelming. See Ray, 126 Ill. App. 3d at 663. The case at bar, however, is readily distinguished from Ray. As we concluded in our original majority opinion, the errors in Ray were much more pervasive than those in this case. In Ray the improper remarks by the prosecutor included, but were not limited to: (1) an attack on the professional integrity of defense counsel, accusing him 16 times of lying, as well as trying to confuse and intimidate the jury (Ray, 126 Ill. App. 3d at 660); (2) a misstatement of the applicable law on the presumption of innocence (Ray, 126 Ill. App. 3d at 661); (3) an impermissible comment on the defendant\u2019s failure to testify, which violated his rights under the fifth and fourteenth amendments to the Constitution (Ray, 126 Ill. App. 3d at 661); (4) the impermissible intimation that there existed inculpatory evidence that was rendered inadmissible as a result of defense counsel\u2019s objections (Ray, 126 Ill. App. 3d at 661); (5) improper comments suggesting that witnesses were afraid to testify because the defendant had threatened or intimidated them (Ray, 126 Ill. App. 3d at 662); (6) an improper intimation that the defendant had a prior criminal history (Ray, 126 Ill. App. 3d at 662); and (7) numerous improper comments suggesting that the defendant had manipulated his constitutional rights to escape conviction (Ray, 126 Ill. App. 3d at 662-63). Unlike the prosecutor\u2019s closing argument in Ray, the prosecutor\u2019s two improper comments during closing argument in defendant\u2019s trial did not \u201cread like a veritable hornbook of \u2018do nots,\u2019 \u201d nor did they create \u201can atmosphere inimical to the even-handed dispensation of justice and thus result! ] in prejudice to defendant.\u201d Ray, 126 Ill. App. 3d at 663, 659-60.\nAdditionally, defendant argues that Johnson mandates a finding that several comments made by the prosecutor that we deemed proper in our original majority opinion were in fact impermissible. We disagree.\nFirst, defendant points out that Johnson clarified that it is improper for the State to accuse defense counsel of trying to confuse the jury \u201c[ujnless predicated on evidence that defense counsel behaved unethically.\u201d Johnson, 208 Ill. 2d at 82. Defendant maintains that, because there was no indication that defense counsel behaved unethically, the majority erred when it concluded that such argument was proper in light of defense counsel\u2019s attempt to use minor discrepancies to discredit the State\u2019s evidence.\nIn this case defendant was charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11 \u2014 501(a)(1), (a)(2) (West 2000)) and filing a false police report of the theft of a motor vehicle (625 ILCS 5/4 \u2014 103(a)(6) (West 2000)). There was little dispute that the elements of DUI were established after defendant admitted during his trial testimony that his blood-alcohol content was over 0.08 and there was testimony that defendant admitted to driving the car in an attempt to get it out of the snow. As to the charge of filing a false police report of the theft of a vehicle, the State was required to prove that the report was false (see 625 ILCS 5/4 \u2014 103(a)(6) (West 2000)). As the defense took the position that the report to the police was not false because someone really did steal defendant\u2019s car, the prosecution was certainly entitled to argue to the jury that defendant\u2019s trial testimony so indicating is a lie. After so arguing, the prosecutor made the following remarks:\n\u201c[T]he defense wants to say, Well, this is a problem and this is a problem and this is a problem\u2019 because they don\u2019t want you to put all the facts and your common sense together, and amazingly they\u2019ve sat here and argued for a period of time about two issues that I can\u2019t believe they\u2019re even talking about and that is intoxication.\nSee, and that\u2019s, of course, that\u2019s the defense; that\u2019s the tactic, right. Well, Officer Craft did this and the machine did that and blah-blah, blah-blah, blah. Folks, that is not even an issue in this case. I asked him flat out, Were you over the legal limit?\u2019 \u2018Yeah, oh yeah.\u2019 \u2018Beyond .08?\u2019 \u2018Yeah.\u2019 What do we need a machine for? But see, that\u2019s the way. That\u2019s the tactic, of course, you know let\u2019s get back in the jury room and let\u2019s, convince [sic] about the machine and let\u2019s convince [sic] about this and dah-dah dah-dah dah, and pretty soon there\u2019s 12 of you and there\u2019s reasonable doubt all over the place because your [sic] thinking about all sorts of things that have nothing to do with the facts and circumstances and h\u00e1rd evidence in this case.\nFolks, this is not an issue in this case. When the Defendant confesses on the witness stand to being under the influence aiid above .08, that is not an issue. Okay?\u201d\nRather than an accusation that defense counsel was trying to confuse the jury, by these remarks the prosecutor was merely making the point to the jury that portions of defense counsel\u2019s closing argument focused them on an issue that, as a result of defendant\u2019s trial testimony, was not in dispute. The prosecutor was calling the jury\u2019s attention to defense counsel\u2019s tactic of focusing them on the calibration of the Breathalyzer machine when, irrespective of the accuracy of that machine, defendant had admitted that his blood-alcohol content was over the legal limit. This was not improper argument.\nNext, defendant claims for the first time in his petition for rehearing that the prosecutor improperly referred to him as a \u201crat\u201d in his rebuttal closing argument. Parties may not argue new points in a petition for rehearing (177 Ill. 2d R. 341(e)(7); People v. Wright, 194 Ill. 2d 1, 23 (2000)) and, therefore, this claim is waived. Defendant maintains that his opening brief \u201crecognized\u201d this remark as one of the numerous improper comments made by the prosecutor. Although defendant\u2019s opening brief stated that \u201c[a]ccording to Weber, criminal defendants are \u2018like rats in a maze\u2019 because they \u2018try to get out of it,\u2019 \u201d \u201crecognizing\u201d the remark is not the same as arguing a point for purposes of Supreme Court Rule 341(e)(7). 177 Ill. 2d R. 341(e)(7). Defendant did not explain why the remark was improper or cite to any authority indicating that the comment was improper as was required by Rule 341(e)(7). See 177 Ill. 2d R. 341(e)(7). Therefore, defendant is not permitted to raise this contention in his petition for rehearing.\nNext, defendant argues that Johnson mandates reversal based on the prosecutor\u2019s comment that indicated that defendant and defense counsel encouraged defendant\u2019s wife to lie on his behalf by claiming that she did not remember what she told the police about the incident on the night in question. As we noted in our original majority opinion, it is not clear that the prosecutor made such a claim. In fact the statement \u201cbringing in [the persons who made the statements] and having them say T don\u2019t remember\u2019 \u201d was made in a general way in explaining the need for the prior inconsistent statement exception to the hearsay rule. There was no specific reference to defendant or to his counsel.\nDefendant cites a portion of the Johnson decision where the court pointed out an improper remark by the prosecutor suggesting that the jury should be suspicious of defense counsel because he asked more questions of the prospective jurors during voir dire than did the State. The Johnson court concluded that \u201c[although the prosecutor did, immediately thereafter, acknowledge that it was not improper to ask additional questions, the ambiguity of the trial court\u2019s ruling on the objection may well have reinforced the impression of defense deception left by the State\u2019s earlier comment.\u201d Johnson, 208 Ill. 2d at 82-83. Presumably, defendant is arguing that a prosecutor cannot correct an improper comment where the trial court does not sustain the defendant\u2019s objection to that comment. Unlike the prosecutor in Johnson, however, the prosecutor in this case was not trying to correct an obvious impropriety like an insinuation that defense counsel\u2019s deceptiveness was demonstrated by his asking too many questions during voir dire. Rather, the prosecutor in this case was clarifying an ambiguous remark that drew an objection. The complained-of remark could have been heard as a general explanation for the substantive use of a witness\u2019s prior inconsistent statement or, as defendant characterizes the remark, an accusation that defendant and his counsel encouraged defendant\u2019s wife to lie. Under such circumstances, the prosecutor\u2019s comments following the trial court\u2019s overruling of the objection were not a correction of an obvious improper remark but, rather, a clarification of what was meant by the remark, that is, that he did not mean to suggest that defense counsel and defendant put defendant\u2019s wife up to lying.\nWe need to address one other point raised by defendant in his petition for rehearing. Defendant takes the position that because the prosecutor in this case repeated the same type of misconduct during defendant\u2019s trial as this court had previously admonished him to be improper, the improper remarks made during defendant\u2019s trial were intentional and deliberate. We disagree.\nDefendant\u2019s reference to this court\u2019s prior admonitions to this prosecutor can mean only the admonishment in People v. Slabaugh, 323 Ill. App. 3d 723 (2001). The two Supreme Court Rule 23 orders referred to in the dissent to the majority opinion did not contain admonishments and were both handed down after defendant\u2019s trial. Consequently, any lesson taught in those dispositions could not have been ignored by the prosecutor during defendant\u2019s trial.\nThe Johnson court did note that \u201ca pattern of intentional prosecutorial misconduct may so seriously undermine the integrity of judicial proceedings as to support reversal under the plain error doctrine\u201d (Johnson, 208 Ill. 2d at 64) and explained that its decision \u201csignalled] [its] intolerance of pervasive prosecutorial misconduct that deliberately undermines the process by which we determine a defendant\u2019s guilt or innocence\u201d (Johnson, 208 Ill. 2d at 117). However, nowhere in Johnson did the court indicate that prior admonishments to the prosecutor regarding his improper comments in other cases are appropriately considered in deciding if a pattern of intentional misconduct exists in the trial being reviewed. In any event, we do not believe that the admonishment contained in Slabaugh, that \u201c[w]e trust that errors will not be repeated on retrial\u201d (Slabaugh, 323 Ill. App. 3d at 728), establishes that the two improper comments made in this case were intentional or calculated to deliberately undermine defendant\u2019s right to a fair trial. The two improper comments during the State\u2019s rebuttal closing argument hardly constitute a pattern of intentional misconduct like that present in the trials of Cowley, Parker, and Blue, where multiple trial errors during the evidentiary phase of those trials paralleled with multiple improper remarks during the State\u2019s closing arguments deprived those defendants of fair trials.\nAdditionally, we believe that the prosecutor\u2019s remarks concerning defendant\u2019s choice to exercise his constitutional right to a jury trial constituted a miscalculated response to a remark by defense counsel that the prosecutor misunderstood. In response to defense counsel\u2019s statement during closing argument that once defendant chose to assert his right to plead his innocence he had no choice but to go to trial, the prosecutor said:\n\u201cBut Mr. Nack begins his argument by asking you: there\u2019s no other choice, there is no other choice for this Defendant, right? No other choice. He\u2019s got to take this case to trial and profess his innocence. Well, not quite. Okay? There is something that about 80 to 90 percent of Defendants do in this country and that is they be [sic] honest, forthright. They go into the courtroom and they plead guilty.\nMR. NACK: Objection. That\u2019s grounds for a mistrial, Judge.\nTHE COURT: Overruled. Go ahead.\nMR. WEBER: It happens everyday. You hear about it all the time. Right?\nYou know what? That story I gave was pretty stupid and I think it\u2019s time for me to accept responsibility for my stupidity in driving drunk and filing a false police report and I\u2019ll plead guilty.\nMR. NACK: Objection, Judge. That is improper argument. He has the constitutional right to a jury trial. It\u2019s improper argument.\nTHE COURT: It\u2019s argument; it\u2019s overruled. Go ahead.\u201d\nThe prosecutor obviously misunderstood defense counsel\u2019s argument because he clearly contended that defense counsel claimed that defendant\u2019s only option was to go to trial. Defense counsel made no such comment and, absent invitation, a negative comment about a defendant\u2019s exercise of his constitutional rights is improper (People v. Mulero, 176 Ill. 2d 444, 462 (1997)). Consequently, the prosecutor\u2019s comments were improper and the trial court should have sustained defense counsel\u2019s objections to them. However, the fact that the improper remarks were made in response to a point made by defense counsel that was misconstrued by the prosecutor indicates that there was no preconceived plan constituting an intentional pattern of misconduct or any deliberate attempt to deprive defendant of a fair trial as was evident in Johnson and Blue.\nNevertheless, our holding in this case should not be interpreted as approval of the prosecutor\u2019s improper remarks, which our supreme court has aptly observed have become far too common in criminal trials. We simply hold that in this case the two improper comments by the prosecutor did not deprive defendant of a fair trial. We join Justice Hutchinson in urging that trial judges vigorously guard against improper argument and unprofessional conduct.\nAffirmed.", "type": "rehearing", "author": "JUSTICE KAPALA" }, { "text": "JUSTICE BYRNE,\nspecially concurring:\nWhile I agree with the majority\u2019s conclusion that despite the misconduct of the State\u2019s Attorney, defendant in this case was not denied his right to a fair trial, I reject the conclusion that if there is overwhelming evidence of guilt the prosecutor may play fast and loose with a defendant\u2019s rights.\nIf, as in the majority opinion, we accept the fact of prosecutorial misconduct and then look to the underlying evidence of guilt to determine whether such conduct should be sanctioned, we, in fact, put the cart before the horse. The State has a greater burden than merely seeking convictions. If prosecution of felonies and misdemeanors becomes a game of \u201cwhat can I get away with\u201d rather than presenting evidence and making comment within the framework of seeking justice and fairness for all, the justice system has lost sight of its legitimate goals.\nI believe that, while the majority reaches the correct result based on the cases cited, the dissent is correct in arguing that prosecutorial misconduct cannot be allowed in any case and that when we affirm convictions such as the one in the instant case, we send a message that such conduct will be allowed in certain circumstances.\nSo, while I concur with the majority\u2019s result herein, I think that we must continue to examine the issue of when prosecutorial misconduct should be sanctioned and what the threshold for reversal of convictions procured in such an environment should be. To hold that prosecutorial misconduct is permissible when there is overwhelming evidence of guilt is not consistent with the goals and ideals of our justice system.", "type": "concurrence", "author": "JUSTICE BYRNE," }, { "text": "JUSTICE HUTCHINSON,\ndissenting:\nI continue to dissent. As I stated in my previous dissent, I believe that defendant was denied a fair and impartial trial due to the prosecutorial misconduct that occurred during State\u2019s Attorney Glen Weber\u2019s rebuttal closing argument. The Johnson decision does nothing short of further cementing my belief that defendant is entitled to a new trial. In Johnson, our supreme court applied the principles and standards of review utilized in Blue to determine whether the cumulative effect of alleged prosecutorial misconduct and trial error had deprived the defendants of a fundamentally fair trial warranting reversal despite \u201coverwhelming evidence\u201d of their guilt. Johnson, 208 Ill. 2d at 60.\nIn the present case, the trial was all but over. The jury was to hear no more evidence. The jurors had already heard a closing argument from Weber and a responsive closing argument from defense counsel. Their attention turned back to and focused on Weber. Weber approached and began his rebuttal closing argument. The stage belonged to Weber. Free from interruption, free from any surresponse by defense counsel. Whereupon Weber proceeded to attack defendant\u2019s constitutional right to a jury trial (see U.S. Const., amend VI) and arguably his presumption of innocence (see Illinois Pattern Jury Instructions, Criminal, No. 2.03 (4th ed. 2000)) when he told the jury that defendant could have chosen to do what \u201c80 to 90 percent of [defendants do in this county\u201d and that is \u201cthey be honest [and] forthright,\u201d and \u201c[t]hey go into the courtroom and they plead guilty.\u201d Next, Weber attacked the veracity of defendant and defense witnesses (see Slabaugh, 323 Ill. App. 3d at 729). He then used a metaphor to liken defendant to an animal, a \u201crat in a maze.\u201d This was clearly improper. See Johnson, 208 Ill. 2d at 80, citing People v. Johnson, 119 Ill. 2d 119, 139 (1987). Weber concluded by asking the jury to \u201csend [defendant] a message,\u201d yet another exhortation questioned in Johnson. See Johnson, 208 Ill. 2d at 86-87.\nOne cannot unring a bell. See People v. Rivera, 277 Ill. App. 3d 811, 819 (1986); see also People v. Brown, 27 Ill. App. 3d 891, 897-98 (1975), citing Maness v. Meyers, 419 U.S. 449, 460, 42 L. Ed. 2d 574, 584, 95 S. Ct. 584, 592 (1975). In this case, though, the jury was subjected not to a bell but to a constant cacophony of prosecutorial misconduct of constitutional proportions. In my view, Weber\u2019s rebuttal closing argument created a \u201c \u2018negative synergistic effect, rendering the degree of overall unfairness to defendant more than that flowing from the sum of the individual errors.\u2019 \u201d Johnson, 208 Ill. 2d at 65, quoting People v. Hill, 17 Cal. 4th 800, 847, 952 P.2d 673, 699, 72 Cal. Rptr. 2d 656, 682 (1998). Because all of these errors occurred during rebuttal, Weber\u2019s vitriolic words were the last the jury heard from either party before retiring to deliberate. Therein lies the real prejudice. See generally Thirty-Second Annual Review of Criminal Procedure: Prosecutorial Misconduct, 91 Geo. L.J. 556 (May 2003) (providing an overview of improper comments by prosecutors).\nThis case clearly illustrates the problem of \u201cprosecutorial recidivism,\u201d that is, \u201cthe tendency of the same prosecutor or office to engage in misconduct repeatedly, even in the face of admonishments from the court.\u201d P. Speigelman, Prosecutorial Misconduct in Closing Argument: The Role of Intent in Appellate Review, 1 J. App. Prac. & Process 115, 120 (1999). Our past admonitions to Weber and his characterization of another defendant in another case as a \u201crat in a maze\u201d (see People v. Doll, No. 2 \u2014 02\u20140564 slip op. at 15 (2003) (unpublished order under Supreme Court Rule 23) (Gilleran Johnson, J., specially concurring, joined by McLaren, J.)) lead me to conclude that Weber\u2019s conduct in the present case consisted of nothing less than \u201ca calculated course of action to play upon and incite the emotions *** of the jury.\u201d People v. Williams, 161 Ill. 2d 1, 81 (1994).\nRather than discussing the quantum of evidence presented supporting defendant\u2019s guilt and applying waiver principles, I submit that the majority should have invoked the plain-error rule to review all of defendant\u2019s allegations of prosecutorial misconduct that were not properly preserved. See Johnson, 208 Ill. 2d at 64. Waiver is a limitation on the parties, not the court. Blue, 189 Ill. 2d at 127, citing People v. Kliner, 185 Ill. 2d 81, 127 (1998). I believe that defendant\u2019s interest in receiving a fair trial and our overall interest in preserving the integrity of the judicial process warranted excusing the procedural default.\nI further believe that Weber\u2019s misconduct during his rebuttal argument viewed in its entirety was sufficient in and of itself to require reversal. I believe that defendant was deprived of what he was entitled to receive and what the State was constitutionally required to provide: a fair trial. For the reasons set forth in my original dissent and for these reasons now, I continue to respectfully dissent.", "type": "dissent", "author": "JUSTICE HUTCHINSON," } ], "attorneys": [ "G. Joseph Weller and Darren E. Miller, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Glen R. Weber, State\u2019s Attorney, of Galena (Martin E Moltz and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Frosecutor\u2019s Office, of counsel), for the Feople." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM T. LIBBERTON, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 02\u20140075\nOpinion filed October 20, 2003.\nSupplemental opinion filed on rehearing March 29, 2004.\nBYRNE, J., specially concurring in supplemental opinion.\nHUTCHINSON, J., dissenting.\nG. Joseph Weller and Darren E. Miller, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nGlen R. Weber, State\u2019s Attorney, of Galena (Martin E Moltz and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Frosecutor\u2019s Office, of counsel), for the Feople." }, "file_name": "0912-01", "first_page_order": 930, "last_page_order": 960 }