{
  "id": 5305992,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE JOHNSON, Defendant-Appellant",
  "name_abbreviation": "People v. Johnson",
  "decision_date": "1976-01-30",
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    "date_added": "2019-08-29",
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    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE JOHNSON, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE STOUDER\ndelivered the opinion of the court:\nAfter a jury trial, the defendant, George Johnson, was convicted of the crime of burglary. He was sentenced to a term of not less than 6 nor more than 18 years in the Illinois State Penitentiary.\nOn this appeal, defendant contends: (1) the prosecutor misstated the evidence during closing argument as a result of which the jury could infer the requisite intent, thus depriving defendant of a fair trial; and, (2) the prosecutor\u2019s closing argument contained a reference to the defendant\u2019s failure to testify.\nThe indictment charged that defendant burglarized the home of Mrs. Mayme O\u2019Mare. At the trial, the evidence established that Mrs. O\u2019Mare normally spent about 6 months of each year in Florida. Before going, she would leave a key to her home with a neighbor, Edna Stone, who would occasionally check the home to see that things were in order. Another individual, Raymond Boswell, took care of the yard work for Mrs. O\u2019Mare during her vacation. Both Stone and Boswell testified that the O\u2019Mare home was secure on their last visits in early January, 1973, and that they had not given anyone permission to enter the home.\nPhyllis Hall, another neighbor of Mrs. O\u2019Mare, testified that on January 10, 1973, she noticed a car drive slowly up and down the street on which the O\u2019Mare home was situated. The driver parked the car, walked around the O\u2019Mare home, knocked on or peered through the front door and then went to the rear of the home. Phyllis Hall testified that the driver \u201clooked like a man\u201d and wore a coat similar in length to a coat later identified as that of the defendant.\nPhyllis Hall called the police and Officer Blair responded in a few minutes, coming first to see Mrs. Hall, who recounted what she had observed. Blair then proceeded to the O\u2019Mare home.\nBlair checked the home, found no one there but did discover broken glass and a ripped screen on two doors in the rear. Checking inside the house, the officer discovered that several bedroom drawers \u201chad been pulled out,\u201d but later noted that he meant no more than that the drawers \"simply weren\u2019t closed.\u201d Pry marks were found on a wooden cupboard in the basement; but there were no fresh shavings nearby, leading the officer to conclude that the locks could have been broken at sometime in the past. Officer Blair was later joined on the scene by Officer Poynter. Poynter testified that a 1965 blue Buick was found parked in front of the O\u2019Mare home. The police checked to determine who owned the car, and later, upon questioning the defendant at the police station, learned that the Buick was owned by the defendant. During this questioning, the defendant noted that he owned but did not drive the car since he had no driver\u2019s license, and he volunteered that a Miss Daisy Brown kept the car for him.\nDaisy Brown testified that the defendant was her boyfriend and that he did own a 1965 Buick. He did have a drivers license, did drive the car and, in fact, had driven the car on January 10, 1973. At 9 p.m. on that day, the defendant called her and told her to report the car stolen to the police. Miss Brown also told Officer Poynter that the defendant gave her a set of car keys later that evening at the police station.\nGlass samples, found by each door, were taken from inside the house and compared with a piece of glass taken from the heel of one of the defendant\u2019s boots. At the trial a technician from the State Crime Lab testified that the samples \u201ccould have had a common source.\u201d\nThe defendant did not testify in his own behalf.\nDuring closing argument the prosecutor noted on several instances that the home, the bedroom and the bedroom drawers had been \u201cransacked\u201d by an intrader. He also remarked that the glass samples had been compared and \u201cdid, probably, come from the same common source.\u201d Various references were also made to \u201ctrinkets that were taken\u201d from the O\u2019Mare home. Defense counsel in his closing argument questioned whether there was any testimony concerning missing articles. The prosecutor persisted though, contending in rebuttal that articles had been taken.\nIt is well settled that the prosecutor on closing argument may comment and argue upon the facts and circumstances proved in the case and may draw all legitimate inferences from those proven facts. (People v. Burnett, 27 Ill.2d 510, 190 N.E.2d 338.) It is equally clear however that assumptions and statements of fact not based upon evidence in the case may not properly be argued to the jury. People v. Beier, 29 Ill.2d 511, 194 N.E.2d 280; People v. Roberts, 133 Ill.App.2d 234, 272 N.E.2d 768.\nThis argument by the prosecutor was highly improper since it was based on misstatements of evidence. The only evidence to support the \u201cransacking\u201d was a statement by the officer that several bedroom drawers \u201chad been pulled out,\u201d but in fact the officer later explained that the drawers \u201csimply weren\u2019t closed.\u201d As to the references to \u201ctrinkets that were taken,\u201d the record shows that no evidence produced at trial supported this statement. There is a complete absence of any testimony that anything was taken from the O\u2019Mare house. Under these circumstances the defendant did not receive a fair trial free from prejudicial error.\nDuring the rebuttal portion of his closing argument the prosecutor also stated as follows:\n\u201cNow, in this system that we have in this country, as I said earlier, we don\u2019t take people out and shoot them without a trial.\nWe don\u2019t shoot them anyway. The defendant has a right to a fair trial, he\u2019s got a right to a lawyer, if he can\u2019t afford one we give him a lawyer. These are all rights that he has. He has got the right of presumption of innocence by the Jury. You must presume him innocent until he is proven guilty to you. Those are wonderful rights that I whole heartedly agree with. He also has the right to confront witnesses, to have a witness come into this Courtroom, get up on this witness stand and look him right in the eye and look you in the eye and look the Judge in the eye and look everyone in the eye and tell their story and testify against him. He\u2019s got that right to confront that witness. That witness must come into this Courtroom.\u201d\nThe prosecutor continued:\n\u201cBut that\u2019s a two way street, ladies and gentlemen, because he\u2019s supposed to confront you, too.\u201d\nDefense counsel immediately objected and the court sustained the objection. The jury was not instructed to disregard the remark but received a general instruction at the close of the case that they were not to consider the defendant\u2019s failure to testify.\nAfter the court sustained the defendant\u2019s objections, the prosecutor, referring to the fact that defendant was wearing sunglasses, asked the jury, \u201cwhy can\u2019t you look into this man\u2019s eyes?\u201d The prosecutor explained, \u201cbecause he can\u2019t look you in the eyes, he can\u2019t look the witness in the eye and he can\u2019t face you.\u201d\nDefendant contends the prosecutor\u2019s remark that the defendant is \u201csupposed to confront\u201d the jury was improper, since it can only be construed as a direct and unambiguous reference to the defendant\u2019s failure to testify. In support of this contention, the defendant relies primarily on the fifth amendment of the Federal constitution which was held to be violated in Griffin v. California, 380 U.S. 609,14 L.Ed.2d 106, 85 S.Ct. 1229, by direct prosecutorial comment on a defendant\u2019s failure to testify. Defendant also relies on Ill. Rev. Stat. 1973, ch. 38, par. 155 \u2014 1, which provides in pertinent part:\n\u201c[A] defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.\u201d\nThe test in determining whether the prosecutor\u2019s remarks during closing argument violated the defendant\u2019s right to remain silent is \u201cwhether the reference was intended or calculated to direct the attention of the jury to the defendant\u2019s neglect to avail himself of his legal right to testify.\u201d (People v. Milk, 40 Ill.2d 4, 237 N.E.2d 697.) Applying this standard to the instant appeal, we hold that the prosecutor\u2019s argument was improper and constituted an impermissible comment upon the defendant\u2019s right to decline to testify. People v. Hopkins, 124 Ill.App.2d 415, 259 N.E.2d 577.\nOther errors are referred to, but in the view we have taken, we need not discuss them. For the foregoing reasons, the judgment of conviction is reversed and the cause is remanded to the circuit court of Peoria County, with directions that defendant be granted a new trial.\nReversed and remanded with directions.\nSTENGEL and BARRY, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE STOUDER"
      }
    ],
    "attorneys": [
      "James Geis and Verland Meinz, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.",
      "Michael M. Mihm, State\u2019s Attorney, of Peoria (James E. Hinterlong, of Illinois State\u2019s Attorneys Association, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE JOHNSON, Defendant-Appellant.\nThird District\nNo. 74-218\nOpinion filed January 30, 1976.\nJames Geis and Verland Meinz, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nMichael M. Mihm, State\u2019s Attorney, of Peoria (James E. Hinterlong, of Illinois State\u2019s Attorneys Association, of counsel), for the People."
  },
  "file_name": "0666-01",
  "first_page_order": 692,
  "last_page_order": 696
}